THE CROSS-APPEAL
131 The respondents/cross-appellants contended that in construing this legislation, and in particular s 106KA, the Court should have regard to the purpose of the legislation.
132 The legislation was enacted following upon an inquiry into the Professional Services Review Scheme and the report of the Review Committee of the Professional Services Review Scheme which was published in March 1999.
133 That Committee observed:
'The medical profession generally accepts that high volume provision of services by a practitioner prohibits adequate critical input.'
134 The respondents/cross-appellants argued that this Court should follow a decision of Gray J in Tisdall v Kelly [2005] FCA 365 ('Tisdall v Kelly'). In that judgment, his Honour said at [66]:
'… it is plain that the purpose of the legislative scheme is to ensure that a medical practitioner is not so busy as to be unable to give proper care and attention to each patient to whom the medical practitioner renders a service.'
135 I agree that that is the purpose of the legislation. The purpose of the legislation is achieved by a combination of the Act and Regulations.
136 Section 106KA(1) deems conduct which constitutes a prescribed pattern of services in reg 10 of the Regulations inappropriate practice.
137 The regulation maker has determined that 80 or more services that are professional attendances on a day is as many attendances as a general practitioner can deliver on a particular day and still give proper care and attention to each patient to whom the general practitioner has rendered a service. If a medical practitioner exceeds that number on 20 or more days then his conduct in rendering or initiating more than 80 services is deemed to be inappropriate practice.
138 However, the other thing to be kept in mind is that if a Committee reaches a conclusion that a general practitioner has engaged in conduct that constitutes a prescribed pattern of services, it will make a finding that he has engaged in inappropriate practice. Such a finding is a very serious matter for a general practitioner, not only because that finding carries with it a referral to a Determining Authority but because of the odium attached to such a finding.
139 Moreover, if such a finding is made, the Determining Authority can make determinations of the kind referred to in s 106U of the Act. Those determinations include a reprimand, counselling, or that a Medicare benefit ceases to be payable. Moreover, the Determining Authority can disqualify the practitioner in respect of the provision of specified services. The Determining Authority has the power to make determinations which could involve a general practitioner in significant financial hardship.
140 In Tisdall v Kelly, Gray J said that his view was that the combination of the provisions of s 106KA(2) and reg 11(b) is less than clear. That is not a view which I share. In my opinion, for the reasons which follow, the construction of the Act and reg 11 is tolerably clear.
141 On 13 December 2001, as noted, a delegate of the Commission made Investigative Referral No. 298 in respect of services rendered by the appellant. The investigative referral stated that the Commission's records for professional attendances rendered by Dr Oreb show that Dr Oreb rendered 80 or more professional attendances per day on 33 occasions on and from 24 January 2000 to and including 8 August 2000.
142 On 5 March 2002 the Director set up Professional Services Review Committee 298 and made Adjudicative Referral 298 to that Committee to inquire into whether some or all of the specified services during the referral period may have constituted a prescribed pattern of services and whether Dr Oreb had engaged in conduct that constituted inappropriate practice.
143 A hearing was conducted by the Committee on 22 May 2002 and Dr Oreb attended before that Committee.
144 He tendered a written submission in which he set out the matters which, he said, constituted exceptional circumstances. They were:
'41. The following exceptional circumstances applied to Dr Oreb's practice during the period from 1 January to and including 8 August 2000.
(a) The patient profile of Dr Oreb's practice was abnormally skewed towards refugees and patients with a strong connection to the former Yugoslavia.
The exceptional patient profile of Dr Oreb's practice applied throughout the referral period. We submit that Dr Oreb's patient profile is a significant abnormality of the circumstances in which the services referred to the Committee were rendered. We submit that significant abnormality is an exceptional circumstance in the terms of Section 106KA(2) of the Act.
(b) Dr Oreb's patient base has demands for medical care which are above and beyond those of the normal general practitioner's pratients.
(i) Many of Dr Oreb's patients are refugees from the former republics of Yugoslavia and, as a consequence, his patients have a high incidence of PTSC and other conditions referrable to their experiences and the experiences of their families and friends in those republics. Those experiences include war, torture, rape and an absence of appropriate medical care and treatment.
(ii) Refugees and immigrants from the former Yugoslavia experience significantly lower levels of education than the average Australian.
(iii) Refugees and immigrants from the former Yugoslavia experience significantly lower levels of employment than the average Australian.
(c) Dr Oreb is uniquely qualified to provide medical care and treatment to his patient base because of the combination of his ethnicity, language skills and medical qualifications.
(d) Dr Oreb's weekly work pattern is exceptional.
We submit that part of the philosophy behind Section 106KA of the Act is that Doctors who frequently render large numbers of services on a day may be working so hard and/or for such long hours that they may not have the physical and mental endurance to maintain the quality of their clinical input to those services. Whilst that may well be the case for a doctor who works day after day and/or neglects his/her own health, Dr Oreb is exceptional in that he does not render high numbers of services day after day (indeed on many days he renders none at all) and he takes great care to maintain his own health. We note that the reason for the referral of his conduct is not that there is any evidence suggestive of "overservicing" (his per patient statistics are not the subject of any complaint) nor is there any evidence of any inadequacy of his patient management. He merely has an unusual practice and has experienced some difficulties refusing treatment to unusually needy and demanding patients services during the relevant period.
We submit that Dr Oreb's working schedule is an unusual circumstance in which the services referred to the Committee were rendered. We submit that significant abnormality is an exceptional circumstance in the terms of Section 106KA(2) of the Act.
General submission.
42. We submit that the intention of Parliament in introducing Section 106KA of the Act was to dissuade practitioners from frequently rendering high numbers of services on any one day. A "margin" of nineteen days during a twelve month period was allowed to take into account the fact that, even where there are no exceptional circumstances, normal workload variations occur and the eighty services "mark" may inadvertently be reached. However, Parliament recognised by Section 106KA(2) that all practices are not alike and there may be circumstances applying to a particular practitioner's practice or to a particular time period which are beyond the practitioner's control and which excuse the rendering of high numbers of services on particular days. Parliament also recognised that such circumstances were not capable of exhaustive definition and so left the determination of whether a practitioner's particular circumstances are "exceptional" to a committee of the practitioner's peers.
43. The combination of Dr Oreb's unusual patient profile, unusual combination of language skills and ethnicity and the unusual problems experienced by his patients during the referral period are exceptional.
44. We submit that the circumstances described above constitute exceptional circumstances for the purpose of Section 106KA(2) of the Act. We submit that the Committee should not find that Dr Oreb's conduct in connection with rendering the referred services constituted engaging in inappropriate practice.'
145 In his evidence before the Committee, he said that he was born in Dalmatia which, although part of Croatia, was viewed neutrally by the other former states of Yugoslavia. He said that he spoke Croatian and Serbo-Croatian languages and 'a little bit' of the Macedonian language.
146 He said that 20 per cent of his patients were refugees or victims of torture and trauma, and 99 per cent of his patients are Croatian, Serbian or Muslims. He said that there was a lack of other Serbo-Croatian speaking doctors in his area. His patients come from 'Liverpool, from Mona Vale, from all over Sydney'.
147 He consulted only four days a week; not on Wednesdays or weekends. Patients who attempted to see him on Wednesdays would usually be referred to the hospital system.
148 During the hearing, the Chair of the Committee invited Dr Oreb to give evidence of any 'exceptional circumstances' relating to any of the 33 days in issue.
149 Dr Oreb said that, apart from submissions made and the evidence given, he was not able to add any further detail.
150 On 4 July 2002 Dr Oreb provided the Committee with a further submission in which he reiterated his evidence that 20 per cent of his patients are refugees from the former state of Yugoslavia and a further 70-79 per cent are of former Yugoslavian ethnicity.
151 Many of his consultations, he said, are conducted in the Serbo-Croatian language. He said that those patients were not able to communicate to the same extent in English as they could in their native language and that was an exceptional circumstance operating on his practice.
152 He submitted that he was uniquely placed to care for his patients from the former Yugoslavia due to his particular combination of language skills and ethnicity.
153 On 8 November 2002 the Committee made its final report.
154 First, it noted that Dr Oreb did not dispute, and accepted as correct, the Commission's data establishing that he had rendered 80 or more professional attendances on 33 days. A finding was made to that effect.
155 Once that finding was made the Committee was under an obligation to consider the question of exceptional circumstances, which it did.
156 Before it dealt with each of the matters raised by Dr Oreb, it considered the construction of s 106KA(2) and reg 11. It said:
'45. This Committee considers that this confirms that "exceptional circumstances" were seen as most likely to be of an intermittent or episodic nature, rather than a predictable on-going situation. The Committee does not see that some extreme on-going circumstance is totally ruled out (if "particular days" can be "many days") - although the general body of general practitioners would ordinarily expect a practitioner to manage their practice to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients.
46. In summary, it appears to the Committee that ss. 106KA(1) and the Regulations implement a view of the legislature that it is most unlikely that 80 or more professional attendances can be rendered satisfactorily within one day. The "20 or more days" proviso acknowledges that the exigencies of normal practice may occasionally require a doctor to provide more attendances in a day than would otherwise be considered satisfactory. But by ss. 106KA(2), exceptional circumstances will be required to justify 20 or more such days. Thus, the exception may be read as excusing lower standard services on particular days because of exceptional circumstances - and it will be difficult to justify this on an on-going basis.'
157 For reasons which follow, in my opinion, the Committee fell into error in its construction of s 106KA(2) and reg 11 by failing to have regard to the terms of reg 11 itself.
158 The Committee dealt specifically with each of the matters raised by Dr Oreb. First, it dealt with the matter of patient demand. In that respect, it said:
'56. The Committee does not accept that patient demand experienced by Dr Oreb constitutes exceptional circumstances. The Committee considers that the level of patient demand remained relatively static and therefore a foreseeable circumstances. Because the relevant circumstances were foreseeable they could and should have been managed to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients - see paragraph 45. Mr Wade, on behalf of Dr Oreb, submitted at the commencement of the hearing that "… exceptional really just means abnormal …". The Committee considers the patient demand experienced by Dr Oreb during the referral period was normal for his practice. The Committee considers some effort could have been made to limit the number of patients seen by Dr Oreb, eg an appointment system. Dr Oreb advised the Committee that he has recently introduced an appointment system to his practice, confirming the Committee's view that management of patients is possible in Dr Oreb's practice. Dr Oreb did not present any evidence to the Committee that he had attempted to develop or put in place an action plan to control patient demand during the referral period.' (Footnotes omitted.)
159 Next, it dealt with patient profile. It accepted the appellant's claim that the individuals who have been subject to trauma associated with the war in Bosnia had special care needs and that they would need more than average attention.
160 However, it said:
'59. However, the Committee does not accept that Dr Oreb's patient base constitutes exceptional circumstances. The patient base remained relatively static and was a foreseeable circumstance which should have been managed to promptly bring patient attendance rates down to acceptable levels - see paragraph 45.
60. Dr Oreb's oral evidence that he spends only 10-15 minutes with a new patient from this group and 10-15 minutes on subsequent professional attendances indicated to the Committee (albeit without examining any particular services) that it is highly likely that Dr Oreb was not providing an appropriate level of clinical input for adequate care and management of this group of patients.
61. Dr Oreb did not present any evidence to the Committee that he had attempted during the referral period to develop or put in place measures to manage or control what he perceived as a unique patient base. However, Dr Oreb advised the Committee that he has recently introduced an appointment system to his practice, confirming the Committee's view that management of his patient numbers was possible.' (Footnotes omitted.)
161 Next, it addressed the appellant's linguistic ability to deal with a patient profile. Specifically, it dealt with the appellant's claim that 95-99 per cent of his patients were from a non-English speaking background from the former Yugoslavia.
162 It found that the majority of the appellant's patients were from a non-English speaking background but was not prepared to accept the appellant's estimate.
163 It did not accept that the appellant's perception of his unique position to deal with his patient base constituted exceptional circumstances.
164 It said:
'65. The Committee does not accept that Dr Oreb's perception of his unique position to deal with his patient base constitutes exceptional circumstances. The Committee considers that the patient base remained relatively static and therefore was a foreseeable circumstance. Because the relevant circumstances were foreseeable they could and should have been managed to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients - see paragraph 45. Dr Oreb did not present any evidence to the Committee that he had attempted to develop or put in place an action plan to avoid providing a high number of services on a regular basis.'
165 The appellant told the Committee that he was unable to attract or retain sufficient appropriate medical services to his practice. The appellant gave evidence that he had advertised in the 'Herald' and put out 'feelers' within the Church community for another doctor to join his practice but had received no response.
166 The Committee, in dealing with that submission, said:
'67. The Committee does not accept that Dr Oreb's inability to attract and retain appropriate medical services to his practice constitutes exceptional circumstances. The Committee is of the opinion that the patient base and patient demand, and therefore the need for another medical practitioner, remained relatively static and therefore was a foreseeable circumstance. Because the relevant circumstances were foreseeable they could and should have been managed to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients - see paragraph 45. Dr Oreb did not present any evidence to the Committee that he had attempted to develop or put in place a continuing action plan to attract another medical practitioner to his practice or to reduce patient numbers until such time as another practitioner has been retained.'
167 The last matter addressed by the Committee was the appellant's work pattern. The Committee said of that:
'69. It is the Committee's opinion that Dr Oreb has made a work/lifestyle decision to not see patients on Wednesdays, Saturdays or Sundays. If Dr Oreb had provided the same total number of services (as he provided during the referral period) over 5 working days per week, his average services would have been 56.5 services per day. It is the Committee's opinion that Dr Oreb made a "lifestyle choice" to see a high number of patients on each of the 4 days he worked each week to enable him to have each Wednesday free of patients, without compromising his income from Medicare.
70. The Committee does not accept that Dr Oreb's perceived exceptional work pattern constitutes exceptional circumstances. The Committee is of the opinion that the patient base and patient demand remained relatively static and therefore a foreseeable circumstance. Because the relevant circumstances were foreseeable they could and should have been managed to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients - see paragraph 45. The Committee feels some effort could have been made to limit the number of patients seen by Dr Oreb and therefore hours worked, eg an appointment system. Dr Oreb advised the Committee that he has recently introduced an appointment system to his practice, illustrating the Committee's view that management of patients is possible in Dr Oreb's practice. Dr Oreb did not present any evidence to the Committee that he had attempted to develop or put in place an action plan to manage or control what he perceived as his exceptional work pattern during the referral period.' (Footnotes omitted.)
168 For those reasons, the Committee rejected the appellant's claim of exceptional circumstances.
169 I will return to this matter but it is not clear from the Professional Services Review Committee's decision whether it was addressing exceptional circumstances under s 106KA(2) or reg 11, or both. For reasons which I will give, it seems to me that different circumstances will give rise to exceptional circumstances under paragraphs 11(a) and (b) of reg 11, and under s 106KA(2).
170 The cross-appeal is against paragraph 1 of the orders made by the primary judge in which the primary judge set aside the findings of Committee 298, although it was wrongly described in the order as the finding of 'Committee 198'.
171 In reaching his conclusion that the findings of Committee 298 ought to be set aside, the primary judge concluded that the Committee had placed an unwarranted gloss on the meaning of the words 'exceptional circumstances' in s 106KA(2) and reg 11(b). His Honour found at [220]:
'Exceptional circumstances under Reg 11(b) therefore include an absence of other medical services during that period, having regard to the location of the practice and the characteristics of the patients. There is nothing in the language which restricts this to episodic events. Indeed, Reg 11(b) seems to have been deliberately drawn so as to broaden the category of circumstances beyond those contemplated by Reg 11(a).'
172 He further found at [223]:
'The Committee found that the matter put forward by Dr Oreb, which included the location of his practice and the characteristics of his patents, were foreseeable and did not constitute exceptional circumstances. The question of whether there were exceptional circumstances was a question of mixed fact and law, but it seems to me that Committee 298 reached its conclusion on the basis of its incorrect interpretation of the "exceptional circumstances" provision. That is to say it approached its finding on the basis that Dr Oreb had a heavier onus of satisfying the Committee in relation to ongoing circumstances than in a case of an episodic or unusual event.'
173 For the reasons which follow, I agree with the primary judge's reasons in relation to both those matters. I agree that the Committee erred in its construction of the Act and Regulations to require 'episodic events'. I also agree that the Committee was wrong to consider whether the circumstances were foreseeable or not.
174 The issue which is thus raised on the cross-appeal is the construction of s 106KA(2) and reg 11(b). For the purposes of s 106KA(1), inappropriate practice is measured by a consideration of at least 20 particular days over a period not exceeding one year: reg 10. If on 20 or more days 80 or more services that are professional attendances are rendered by, in this case, the general practitioner, then the general practitioner will be deemed to have engaged in inappropriate practice. Thus it is that individual days are considered over the period of one year, not the whole of the period.
175 That it is a consideration of individual days is reinforced by reference to s 106KA(2) which talks of a particular day or particular days. Therefore, for the purpose of s 106KA(2), in considering whether exceptional circumstances exist, the decision-maker must have regard to whether exceptional circumstances exist on any of the days which it has taken into account under s 106KA(1).
176 Thus it is that in considering whether exceptional circumstances exist reference is made to the particular days which have been identified for the purpose of s 106KA(1) and which, by force of that section, has deemed the medical practitioner to have engaged in inappropriate practice.
177 In a sense it is quite irrelevant that the exceptional circumstances might have existed for the whole of the period under consideration, because after the decision-maker has identified the particular days under s 106KA(1), within the period not exceeding one year, the rest of the days when the decision-maker has not rendered 80 or more services are irrelevant.
178 I will come to the Regulations shortly. However, before doing so, I should observe that a general practitioner might seek to establish 'exceptional circumstances' without reference to the Regulations. Section 106KA(5) preserves a general practitioner's right to establish exceptional circumstances without reference to the Regulations. If the general practitioner seeks to invoke the provisions of s 106KA(2) without reference to the Regulations the general practitioner must establish that exceptional circumstances existed. In that case, the general practitioner will need to establish that the circumstances, whatever they were, were exceptional in the sense that they are unusual or out of the ordinary. As I have said, however, it is not appropriate to substitute other words for the words in the statute. The test must remain, were the circumstances exceptional? If the general practitioner establishes that exceptional circumstances existed, he must then establish that those circumstances affected the rendering or initiating of services by that general practitioner on a particular day or particular days. In establishing that the exceptional circumstances affected the rendering or initiating of services, the general practitioner does not need to establish that those circumstances were the only circumstances affecting that matter. Indeed, the general practitioner does not need to establish the circumstances were the dominant circumstances affecting the rendering or initiating of services. The section only requires that the exceptional services affected the services rendered or initiated by the general practitioner. 'Affected' is used in s 106KA(2) in the sense of acted upon or influenced. Thus, there must be a relationship between the exceptional circumstances and the rendering or initiating of services in the sense that the former acted upon or influenced the latter. However, the exceptional circumstances need not be the only matter acting or influencing the rendering or initiating of services. Other matters which might be quite unexceptional might also affect the rendering or initiating of services.
179 Whether there are other matters affecting, in the sense of acting upon or influencing the rendering or initiating of services, is quite irrelevant unless it can be established that they were the only matters affecting the rendering or initiating of services so that it can be said that the exceptional circumstances did not affect the rendering or initiating of services.
180 The general practitioner's management of his practice will, in all cases, affect the way in which he or she renders or initiates services. The hours that general practitioner works will affect the number of patients that general practitioner sees. It may be that by reducing the hours the general practitioner will reduce the number of services rendered. However, that does not mean that a general practitioner cannot establish that exceptional circumstances affected the rendering or initiating of services. The general practitioner's management of the practice becomes irrelevant if the general practitioner has established that exceptional circumstances affected the rendering or initiating of services on the particular day or days.
181 Of course, the general practitioner must establish also that those exceptional circumstances existed and affected the services rendered or initiated on the particular day or days. The particular day or days are any of the days identified by the Committee which form part of the prescribed pattern of services in s 106KA(1).
182 A regulation has been made under s 106KA(5). Regulation 11 has been promulgated to provide circumstances which are, by force of that subsection, exceptional circumstances.
183 Regulation 11 has two separate limbs and in the second limb two criteria.
184 In neither limb does a practitioner have to establish exceptional circumstances according to the general meaning of that term in s 106KA(2) because the two limbs are separately, by force of s 106KA(5) of the Act, exceptional circumstances.
185 Regulation 11(a) will operate in conjunction with s 106KA(2) to extinguish a particular day from the decision-maker's consideration of s 106KA(1) if the general practitioner can establish that an 'unusual occurrence causing an unusual level of need for professional attendances' 'that affected the rendering or initiating of services by the practitioner' occurred on that particular day or those particular days.
186 For that paragraph of the regulation to be enlivened the occurrence must be unusual. That means it must be out of the ordinary or indeed exceptional. An unusual circumstance will also be an exceptional circumstance. An unusual or exceptional circumstance is a circumstance which is out of the ordinary. Whilst an unusual circumstance is something which is out of the ordinary or exceptional, there is no warrant for using those words in lieu of the word unusual in a consideration of this subregulation. The question is always whether the occurrence was unusual.
187 Not only must the occurrence be unusual, that unusual occurrence must also cause an unusual level of need for professional attendances. An unusual level of need must be a level which is out of the ordinary or indeed, again, exceptional. The deemed 'exceptional circumstances' in reg 11(a) are circumstances which would ordinarily be considered to be exceptional circumstances because two unusual circumstances must operate together , the second being consequent upon the first.
188 Therefore, if a particular set of circumstances prevailed over the whole of the period under consideration and operate, for example, on all of the particular days under consideration within that relevant period, it would be hard to say that those circumstances are exceptional, unusual or out of the ordinary. That must be so because there must not only be an unusual occurrence but that must itself cause an unusual level of need for professional services.
189 It is hard to think of a set of circumstances which are unusual which would operate over the relevant period and on 20 or more days during that period, especially where the relevant period might be as long as one year. If the occurrence operated over the whole of the period and on all of the particular days, it might be said that those circumstances are usual. That is not to say that reg 11(a) can never operate if the unusual occurrence operates to cause the unusual level of need during the whole of the period, but it is difficult to think of circumstances in which it would apply.
190 Therefore, for the operation of reg 11(a), ordinarily it will ordinarily be a single event which pertains to a particular day or particular days which operates to allow the decision-maker to conclude that, in respect of that particular day or particular days, there was an unusual occurrence which caused an unusual level of need for professional services.
191 Regulation 11(a) is deemed by s 106KA(5) to be circumstances that amount to exceptional circumstances. As has already been shown, a practitioner may argue that exceptional circumstances exist without relying upon reg 11. That is permissible: s 106KA(5). The practitioner may simply claim that circumstances other than those contained in reg 11 are exceptional circumstances. That being so, the circumstances in reg 11(a) must be something other than the exceptional circumstances predicated in s 106KA(2). If it were otherwise, there would be no need for reg 11(a).
192 Once the general practitioner has established the circumstances in reg 11(a), the next question for the decision-maker, in this case the Committee, is whether the unusual occurrence which has caused an unusual level of need for professional attendances 'affected the rendering or initiating of services by the [general practitioner]': s 106KA(2).
193 It is always a two step inquiry. First, whether reg 11(a) has been made out and, secondly, whether those circumstances affected the rendering or initiating of services by the general practitioner on the particular day or days identified by the Committee which form part of the prescribed pattern of services in s 106KA(1).
194 In conducting the second stage of the inquiry the Committee will consider the affect on the rendering and initiating of services by the practitioner in the same way as previously advised. The reg 11(a) circumstances need not be dominant. Other circumstances which affect those matters will only be relevant if they are to exclude the reg 11(a) circumstances from affecting those matters.
195 Different considerations apply in relation to Regulation 11(b).
196 Regulation 11(b) recognises that a medical practitioner may have to render a greater number of services than usual because of an absence of medical services for that medical practitioner's patients during the relevant period, because of the location of the medical practitioner's practice and the characteristics of the medical practitioner's patients. (Emphasis added.)
197 Regulation 11(a) requires an examination of an unusual occurrence causing an unusual level of need for professional attendances on the particular day or days which are found to be relevant for the purpose of the prescribed pattern of services in s 106KA(1).
198 Section 106KA(2) requires an inquiry into whether, on a particular day or particular days during the relevant period, exceptional circumstances existed. That again is directed to the particular day or days.
199 Regulation 11(b), however, directs the inquiry into the absence of other medical services for the general practitioner's patients 'during the relevant period'.
200 The relevant period is the period referred to in s 106KA(1), which is the whole of the period being the period up to 12 months over which the prescribed pattern of services is said to have occurred. In this case, the relevant period is from 24 January 2000 to and including 8 August 2000.
201 The inquiry in reg 11(b) is in relation to the whole of the period under review, not simply the particular day or days. However, because the purpose of assessing exceptional circumstances is to determine whether any of the days which otherwise perform part of the prescribed number of days under s 106KA(1) should not be reckoned, in the end result, the inquiry under reg 11(b), although over the whole period, must relate to the particular day or days.
202 Thus it is easier to envisage circumstances which would prevail for the whole of the year which would come within reg 11(b).
203 For example, the general practitioner might practise in a remote country area which cannot attract any other general practitioners for the whole period under investigation. If that is so, the general practitioner has, without more, satisfied reg 11(b) to the extent that he or she has established an absence of other medical services for patients of that general practitioner during the relevant period, having regard to the location of that general practitioner's practice. If the general practitioner can also establish that the characteristics of his or her patients has impacted upon the absence of other medical services then the general practitioner will have made out that exceptional circumstances exist. Therefore, it seems to me that it is possible that the circumstances contemplated in reg 11(b) could operate over the whole of the period and still be exceptional circumstances because, as I have said, reg 11(b) deems those circumstances to be exceptional. Whilst those circumstances might exist over the whole period, the question for the decision-maker is still whether they operated on the particular day or days which have been reckoned as determining the pattern of services.
204 Regulation 11(b) will not operate unless both criteria in placita (i) and (ii) are made out. Both placita (i) and (ii) must be satisfied because it is the absence of medical services, having regard to the criteria in the placita, which is relevant. Both must be satisfied because of the use of the word 'and' between the placita. The circumstances in one placitum might be significantly more relevant than the other but, in the end, both must be operating as a cause for the absence of medical services for the general practitioner's patients. Those criteria do not need to be addressed unless the general practitioner, who has the onus of establishing the 'exceptional circumstances', can first satisfy the decision-maker that there is an absence of other medical services, that is apart from his or her own, for his or her patients. It is not an absence of other medical services for any other patients of any other general practitioner, but an absence of medical services for the particular general practitioner's patients.
205 The absence of those medical services must arise as a result of the location of the general practitioner's practice and the characteristics of the medical practitioner's patients.
206 Subject to the qualification already mentioned in relation to the 'relevant period', a consideration of reg 11(b) involves a consideration of its operation in relation to a particular day or particular days. That must be so because the deemed inappropriate practice in s 106KA(1) operates as a result of a consideration of particular days on which 80 or more services were rendered. Thus it is that a medical practitioner must prove the absence of medical services for his or her patients for the reasons mentioned in reg 11(b) on those particular days which have been identified for the purpose of the deeming provision in s 106KA(1).
207 Regulation 11 by force of s 106KA(5) describes two different circumstances which may be described as 'exceptional circumstances'. A medical practitioner therefore does not, in relying upon reg 11(b), have to make out that those circumstances which come within reg 11(b) are themselves exceptional circumstances. They are exceptional circumstances because reg 11(b) says so and, if they are made out, that is enough.
208 If the general practitioner can establish that there was an absence of medical services for the general practitioner's patients for the reasons in reg 11(b) during the relevant period the practitioner must then establish that that absence affected the general practitioner's rendering or initiating of services. The Committee will proceed on that inquiry as it would on the 'exceptional circumstances affect' inquiry or the 'Regulation 11(a) affect inquiry'. The 'affect' again need not be dominant. The general practitioner must merely establish that there was an 'affect'.
209 Other matters affecting the rendering or initiating of services will only be relevant if they constituted the only matters affecting the rendering or initiating of services to the exclusion of the absence of medical services of the general practitioner's patients.
210 The medical practitioner, in relying upon reg 11(b), does not have to establish that the circumstances in reg 11(b) are exceptional. They are exceptional if they are made out because, as I have said, reg 11(b) makes them so.
211 Whether or not, ordinarily, anyone else would think those circumstances are exceptional is not to the point.
212 The primary judge said:
'215 Committee 298 thought that the meaning of "exceptional circumstances" was unclear. It seemed to the Committee that s 106KA(2) limited the type of circumstances which would be exceptional to those which were of an episodic or intermittent nature whereas Reg 11(b) seemed to include events of an ongoing nature. It sought to resolve this apparent ambiguity by reference to extrinsic material. This led it to the view that exceptional circumstances would ordinarily be intermittent and that it would be "difficult to justify" circumstances of an ongoing nature.'
213 Later, he said:
'220 Exceptional circumstances under Reg 11(b) therefore include an absence of other medical services during that period, having regard to the location of the practice and the characteristics of the patients. There is nothing in the language which restricts this to episodic events. Indeed, Reg 11(b) seems to have been deliberately drawn so as to broaden the category of circumstances beyond those contemplated by Reg 11(a).'
214 He also found:
'223 The Committee found that the matters put forward by Dr Oreb, which included the location of his practice and the characteristics of his patients, were foreseeable and did not constitute exceptional circumstances. The question of whether there were exceptional circumstances was a question of mixed fact and law, but it seems to me that Committee 298 reached its conclusion on the basis of its incorrect interpretation of the "exceptional circumstances" provision. That is to say it approached its finding on the basis that Dr Oreb had a heavier onus of satisfying the Committee in relation to ongoing circumstances than in a case of an episodic or unusual event.'
215 In my opinion, the primary judge's decision was correct.
216 A Professional Services Review Committee which is charged with the obligation of considering whether the medical practitioner has engaged in inappropriate practice by conduct constituting a pattern of services under s 106KA(1) should approach the matter by first considering whether or not there was a prescribed pattern of services of the kind prescribed in reg 10.
217 If the Professional Services Review Committee finds that the medical practitioner has during the relevant period rendered or initiated services which constitute a prescribed pattern of services in that, in the case of a general practitioner he or she has rendered services that are professional attendances of more than 80 on 20 or more days, then the Professional Services Review Committee must consider whether any of those days should not be reckoned because exceptional circumstances existed.
218 If the Professional Services Review Committee reaches such a conclusion, and if the medical practitioner asserts that on a particular day or particular days on which 80 or more services were rendered or initiated there were exceptional circumstances in existence, the Professional Services Review Committee must turn to consider that question.
219 If the medical practitioner does not rely upon reg 11 but simply relies upon circumstances which the medical practitioner says are exceptional circumstances, then an inquiry must be made into those circumstances to see whether they are exceptional in the sense as I have described it.
220 If, on the other hand, the general practitioner relies upon either or both of the paragraphs of reg 11 an inquiry must be had to determine whether the circumstances fit the description of the circumstances in either of those paragraphs.
221 That means that the Committee will have to determine whether the circumstances which have been adduced by the medical practitioner constitute an unusual occurrence causing an unusual level of need for professional attendances or, separately, whether the circumstances adduced show an absence of other medical services for the general practitioner's patients during the relevant period having regard to the location of the general practitioner's practice and the characteristics of the general practitioner's patients.
222 As I have already said, it is not necessary, if the general practitioner is relying upon reg 11, for the general practitioner to establish exceptional circumstances. All the general practitioner must do is establish that the circumstances relied upon come within either paragraph (a) or (b).
223 If the general practitioner can make out that exceptional circumstances existed or that an unusual occurrence causing an unusual level of need for professional services existed or that there was an absence of other medical services for the general practitioner's patients during the relevant period because of the location of the general practitioner's practice and the characteristics of the general practitioner's patients, then the Committee must next consider whether, whichever of the three different circumstances has been relied on and established by the general practitioner affected the general practitioner's rendering or initiating of services. In carrying out that aspect of its inquiry the Committee will need only to be satisfied that the rendering or initiating of services was affected.
224 If the Committee is satisfied that one of those three different circumstances did affect the rendering or initiating of services by the general practitioner, then the Committee must next consider whether the circumstances did so on a particular day or days which have been identified by the Committee as being the day or days which constituted the prescribed pattern of services in s 106KA(1).
225 In this case, in my opinion, the primary judge was right to conclude that the Committee did not ask itself the right question. The question that the Committee asked itself was whether or not exceptional circumstances existed.
226 Clearly, the medical practitioner was relying upon paragraph (b) of reg 11. In those circumstances, he did not need to establish that there were exceptional circumstances. He had to establish that there was an absence of other medical services for his patients during the relevant period and that was due to the location of his practice and the characteristics of his patients.
227 In my opinion, the primary judge was right to conclude that the Professional Services Review Committee 298 fell into error.
228 In its findings, the Committee refers from time to time to circumstances which, in the Committee's opinion, were foreseeable. It argues that because circumstances are foreseeable they could not be unusual or exceptional circumstances.
229 In my opinion, that reasoning demonstrates error in two respects. First, whether the circumstances are foreseeable or not is not relevant in a consideration of a case advanced under reg 11(b).
230 If the general practitioner relies upon reg 11(b), what needs to be addressed is whether there is an absence of other medical services for the general practitioner's patients. No other onus apart from proving placita (i) and (ii) of reg 11(b) is cast upon the general practitioner. The general practitioner does not have the obligation of establishing that he has made attempts to find other medical services for his or her patients.
231 The first inquiry is to determine objectively whether there is an absence of other medical services for the general practitioner's patients.
232 If that is determined, the further inquiry must be into the reason or reasons for the absence of other medical services and if the two reasons in reg 11(b) are made out then the burden falling upon the general practitioner is discharged if the matters established and affected the general practitioner's rendering or initiating of services on any particular day or particular days which form part of a pattern of services under s 106KA(1).
233 For those reasons, the Committee was wrong to categorise s 106KA(2) and reg 11 as only applying to episodic events. For the reasons I have given, the exceptional circumstances in s 106KA(2) must be different to the circumstances in reg 11(a) which, in turn, are different from the circumstances in reg 11(b).
234 It is not possible to categorise all three circumstances as 'exceptional circumstances' which require proof of episodic events. In my opinion, 'foreseeable circumstances' has no application to an inquiry under reg 11(b).
235 Secondly, if the general practitioner is relying upon reg 11(a), and even if a circumstance is foreseeable, that does not necessarily mean that the circumstance is not unusual. A circumstance may be unusual in that it is out of the ordinary, even though it is foreseeable. A circumstance may be exceptional even though it is foreseeable. It is exceptional because it is out of the ordinary, not because it is not foreseeable. In my opinion, an inquiry into the foreseeability of the circumstances adduced by the general practitioner is only likely to lead to error as it has in this case.
236 The inquiry should be into whether the particular circumstances relied upon by the general practitioner are exceptional (s 106KA(2)) or, alternatively, unusual (reg 11(a)).
237 That leaves one further matter and that relates to the orders made by the primary judge on 29 April 2005.
238 The respondents/cross-appellants argued that even if the cross-appeal on the substantive matter were dismissed, the orders made by the primary judge on 29 April 2005 should be set aside.
239 It was argued that in lieu thereof, there should be an order remitting the matter to Professional Services Review Committee 298 for further consideration according to law.
240 Dr Oreb argued that this Court should not set aside the order made by the primary judge on 29 April 2005 because it had been entered in circumstances where the respondents/cross-appellants had consented to the order being made.
241 The orders which were made by the primary judge on 29 April 2005 were as a result of the notice of motion brought by the respondents/cross-appellants on 5 April 2005.
242 In that notice of motion the respondents/cross-appellants sought alternative orders.
243 The first order sought is the order which the respondents/cross-appellants say should have been made by the primary judge on 29 April 2005 and which they say ought to be made by this Court on this cross-appeal.
244 In support of their notice of motion, their solicitor's affidavit directed the primary judge's attention to a latent ambiguity in the orders made by the primary judge on 30 November 2004 and the two possible orders that the primary judge may have had in mind. Those two possible orders were the alternative orders sought in the notice of motion.
245 It was as a result of that notice of motion and that affidavit that the primary judge's associate wrote the e-mail in [8] of these reasons.
246 In my opinion, the respondents/cross-appellants could reasonably have thought that when the primary judge made the orders on 30 November 2004 he had in mind an order of the kind mentioned in that e-mail, which was the alternative order raised on the notice of motion. The respondents/cross-appellants could have reasonably thought that the primary judge had applied his mind to the orders and decided to make an order of the kind mentioned in that e-mail. In my opinion, it is clear that the consent given by the respondents/cross-appellants was given in circumstances where they believed that the primary judge was intending to make the orders. They allowed that to occur to facilitate the issue whether the matter should go back to a Committee comprised of the same members or some other members being raised on this appeal.
247 The respondents/cross-appellants never consented to or agreed that the order proposed to be made by the primary judge was appropriate. They simply allowed it to happen when the primary judge indicated that the order would be made.
248 In my opinion, that order should be set aside. There was nothing, in my opinion, before the primary judge, which meant that the Professional Services Review Committee 298 could not reconsider this matter. There was no suggestion of bias or any apprehension of bias. The error that was made by the Professional Services Review Committee 298 was simply in its construction of the Act and the Regulations.
249 That should not disqualify the Committee from considering the matter afresh in accordance with the reasons of this Court.
250 In my opinion, paragraph 2 of the orders made on 30 November 2004 and paragraph 1 of the orders made on 29 April 2005 should be set aside. In lieu thereof, there should be an order:
'The matter be remitted to the first respondent for determination of Adjudicative Referral No. 298 according to law.'
251 Otherwise, both the appeal and the cross-appeal should be dismissed.
252 The parties have not been heard on the question of costs. The appellant has failed on the appeal. The respondent has succeeded on the cross-appeal but only to the extent that the order for remitter is varied. I suggest that the costs of the appeal and the cross-appeal be reserved. If any party seeks an order for the costs of the appeal or cross-appeal then within 21 days an application should be made in writing setting out the terms of the order or orders sought. The application should be accompanied by a written submission in support of the application. If any such application is made any other party to the appeal or cross-appeal should file any submission in opposition to that application within a further 14 days. I propose the following orders:
1. The appeal be dismissed.
2. The cross-appeal be allowed.
3. Paragraph 2 of the orders made by Jacobson J on 30 November 2004 and paragraph 1 of the orders made on 29 April 2005 be set aside.
4. In lieu thereof, there be an order that:
'The matter be remitted to the first respondent to determine Adjudicative Referral No. 298 according to law.'
5. The question of the costs of the appeal and cross-appeal be reserved.
6. Liberty to the parties to apply for an order for the costs of the appeal and cross-appeal in accordance with the directions in Lander J's reasons.