Re Dr Natale Romeo and Dr Luigi Genua v Dr Joan Asher; Dr Godfrey Douglas; Dr John Campbell and Dr Ken Rawle Constituting A Medical Services Committee of Inquiry [1991] FCA 201; 100 ALR 515 29 FCR 343

Re Dr Natale Romeo and Dr Luigi Genua v Dr Joan Asher; Dr Godfrey Douglas; Dr John Campbell and Dr Ken Rawle Constituting A Medical Services Committee of Inquiry [1991] FCA 201; 100 ALR 515 29 FCR 343 - FCA 1991 case summary — Zoe

[60]

7. Where a Committee proposes to hold a hearing on such a basis as this, it is obvious that the particulars which can be provided under s. 95(2) will be limited to details of the services that have given rise to the suspicion. Particulars of that kind were supplied in Freeman, and particulars of the same kind were supplied in the present case. It does not follow that, after the Committee has entered upon the inquiry and obtained details of the clinical picture presented at every attendance into which it is inquiring, the need may not arise to furnish further particulars. In the normal course, the clinical picture might be expected either to confirm or to rebut the statistical inference; although, perhaps, in some cases, the inference may remain available, but without it being possible to say it is either confirmed or rebutted. In most cases, and at least as regards many of the treatments in question, details of the presentation of the patient might be expected to enable conclusions to be drawn, either favourable or unfavourable to the practitioner, which are no longer based on statistical expectation, but on the clinical picture itself. The care of the legislature to provide expressly for the supply of particulars in s. 95(2), the express right conferred by s. 96B to give evidence and to call witnesses (which can only be effective if issues are first identified), and the close assimilation of the conduct of the hearing in a number of respects to formal proceedings of a judicial or quasi-judicial character, all suggest, on the face of the statutory scheme, that further particulars should, in such a case, be provided as the inquiry proceeds. It is not an inquiry at large, but one directed to a series of nominated matters each of which is the subject of a specific suspicion against a particular person. At some stage in its course, suspicion in respect of each of those matters will either be resolved in his favour or will become hardened into a definite potentiality of a finding against him. All this was, I think, treated as a matter of course in Freeman. Smithers J. (with whom Lockhart J. agreed) said:

[72]

"THE CHAIRMAN: I reject any suggestion that this

Committee has an obligation to provide the particulars

sought by yourself as Counsel and we do not provide them.

However the hearing to date has demonstrated that many of

the services rendered have involved courses of therapy given

by injection. The Committee would, will welcome being

addressed on this question and make it clear that this ought

not to preclude address on the totality of the evidence

provided before this Committee. (Emphasis added.)

DR MORRISON: Yes thank you Madam Chairman. Might I

also enquire whether there are any services in respect of

which there is any query about the length of service?

THE CHAIRMAN: We haven't come into (sic) any

determination about that at this stage.

DR MORRISON: Well, what I'm asking is whether, so that

I know whether I'm to address in relation to any services,

if there is such a query.

THE CHAIRMAN: Well, I think that is covered in the

general, at the end and I cannot with any honesty, with

honesty answer that question, because we have not had any

discussion on that matter at all. I have given you the only

area that has arisen in our minds so far, from which your

question of particulars could be in any way answered.

DR MORRISON: You see the practical difficulty I have

and the difficulty which the Committee may be left with in

the end is that as a matter of natural justice, my clients

are entitled to be heard on any issue upon which you make a

determination. If you make that determination without

hearing submissions in relation to it, or at least affording

the opportunity of submissions, then in my respectful

submission, natural justice would not be done. Now,

unless - a mere invitation to address on the many hundreds

of matters doesn't amount to affording that opportunity. So

that what I would be asking is, in relation to any specific

item such as, an example I gave was the length of service.

You've mentioned one matter in respect of which we will

obviously deal. I would ask that no determination be made

unless my attention is drawn on that matter, so that the

opportunity of address arises. Otherwise I'm left to guess

at what the concerns of the Committee are and as to what I

should address and it's going to take me a very long time if

I have to deal with every single reference, but that's the

alternative I'm otherwise faced with.

THE CHAIRMAN: Yes, well I may not be able to accede to

that request, because we may not have an idea in our own

minds. I think I have gone just about as far as I can at

the moment with this request."

[108]

24. The respondents, relying on Thomson (supra), urged the contention that the Committee, as a Committee of medical experts, was entitled to "act on its own views, and can do so without disclosing those views to a person appearing before it". This proposition, for which Fox J. cited authority (at 217), is of course correct. But the question here is not whether the Committee can act on its own views, or whether it must disclose those views to anyone, but whether the appellants are entitled to notice of any adverse findings (whatever their source) which may be made. Thomson was an entirely different case in which, as Beaumont J. said (at 225), "the correspondence cited shows that at an early stage the respondent was fairly warned of the precise allegations to be levelled at him". (I have corrected an obvious printing error.) Where a practitioner is not fairly warned of the precise allegations to be levelled against him, there is a difficulty about the placing of any great reliance on the fact that the Committee is a Committee of medical experts, his peers. For the question whether services are "reasonably necessary" is not to be determined upon an exact criterion, nor is it a purely medical one. What is reasonably necessary, as Pullinger (supra) makes clear, may well involve economic questions. Much may depend upon whether a doctor's concept of what is reasonably necessary is to be determined, as Hippocrates would have had it (see Oxford Companion to Medicine (1986) - Hippocratic Oath), by the exercise of the doctor's ability and judgment solely "for the good of (his) patients", or whether the economics of Medicare must be allowed a significant role. Such a question is peculiarly one upon which, even before a peer group, a practitioner whose charges are under attack should have the fullest opportunity to present his side. And it should be remembered, too, that if a committee of experts has an expert view of a particular point, that might be the very reason a person whose case they are deciding may want notice as to whether the point is to be raised, so that he may call an even more qualified expert to dispute their view. Furthermore, when an aspect of the functioning of a decision making body, the decisions of which may prejudice a person's rights, interests or legitimate expectations, is urged as a reason for restricting the application of the rules of natural justice in relation to that body, the court should bear in mind what the majority said in Annetts (at 179), where they drew attention to the rapid enlargement in recent years of the field within which the principles of natural justice apply. A court today should be slow to exclude any statutory tribunal from a duty to observe natural justice fully, in the absence of plain words in the statute necessarily having that effect. The present statute, on the contrary, clearly indicates that the Committee is to function as a quasi-judicial tribunal conducting a proceeding in which the affected practitioner is entitled to particulars, a tribunal, moreover, which will, if it does not exonerate him, be required (by s. 104) to translate the general criterion stated in the Act into quite precise findings.

At a glance

Court

Decision date

Source

Judgment (109 paragraphs)

Re Dr Natale Romeo and Dr Luigi Genua v Dr Joan Asher; Dr Godfrey Douglas; Dr John Campbell and Dr Ken Rawle Constituting A Medical Services Committee of Inquiry [1991] FCA 201; 100 ALR 515 29 FCR 343 (17 May 1991)

Parties

Legislation Cited (6)

Cases Cited (14)