period and within his consulting rooms (being the defined specified
services) constitute engaging in inappropriate practice ...".
45. It was submitted that the Committee had no lawful authority to travel
beyond the terms of the Adjudicative Referral and the submission
noted Dr Tisdall's uncontested evidence that "... not all of the
professional attendances identified in the attendance schedules
supplied by the HIC as part of this referral were performed at the
location specified in the referral notices ... during the relevant period,
Dr Tisdall had professional attendances at various locations including,
in particular, the nursing home, the hospital and private houses ...".
46. It was then submitted that "Bearing in mind that a significant number
of the sixty six days (of eighty plus attendances) in the specified period
involved less than ninety attendances and with a number days [sic] in
the low eighties, on the evidence before it, the committee cannot be
positively satisfied that Dr Tisdall's professional attendances at the
specified location that are the subject of this referral, i.e. those in his
consulting rooms, exceeded the prescribed limit. ..."
47. It was said that the Adjudicative Referral was therefore based on
figures relating to professional attendances, and the location of where
they occurred, which were simply wrong:
"... it is incumbent on the committee to report back to the director,
before going any further, that it cannot be positively satisfied that
inappropriate practice has occurred within the terms of the referral due
to the distinct possibility that there were significantly less than sixty
six days of eighty plus professional attendances in the specified period
at the specified location."
48. The Investigative Referral indeed related to all services rendered by
Dr Tisdall within a specific location, namely his Consulting Rooms,
Rodney Chambers, 178/D Allan Street, Kyabram, within the period 5
January 2000 to 21 August 2000 (Attachment 1, page 13). On a
literal interpretation, this would be limited to services performed
inside those particular premises.
49. However, the reason for the Investigative Referral (ie the conduct of
concern) related to numbers of professional attendances on certain
days identified in Report 1 and the specific attendances were
particularised in Report 6. The Acting Director clearly relied on
these attendances as his reason for making the Adjudicative Referral
(see paragraph 9 thereof at page 6 of Attachment 1). Dr Tisdall was
clearly on notice that all these attendances would be under
consideration by the Committee, especially given the nature of a
referral under s.106KA.
50. The lists of attendances in Report 6 of the Investigative Referral
include 35 attendances elsewhere other than at Dr Tisdall's consulting
rooms. The Committee considers it consistent with the intent of
s.106KA of the Act to treat such professional attendances as being for
services rendered within Dr Tisdall's consulting rooms. However, the
Committee notes that the exclusion of these 35 professional
attendances would nevertheless still leave a residue of 63 days on
which Dr Tisdall rendered 80 or more professional attendances and
thus constitute a prescribed pattern of services.
51. Dr Tisdall also stated that some attendances for out-patients at the
Kyabram hospital were claimed as services at his rooms. The
Committee acknowledges that this practice is commonplace in rural
areas and is approved by the Department of Health and Ageing. With
regard to Dr Tisdall's conduct in the context of a prescribed pattern
of services, the Committee again considers it consistent with the intent
of s.106KA of the Act to treat such professional attendances as being
for services rendered within his consulting rooms.
52. The Table at Appendix 1 to this report summarises Dr Tisdall's oral
evidence at the hearing as to the number of professional attendances
rendered to out-patients at the hospital. Whilst Dr Tisdall's evidence
was imprecise, it was clear that he would rarely see more than 5
out-patients per day at the Kyabram hospital, and usually many
fewer. Since Dr Tisdall claimed Medicare benefit for these out-patient
attendances as though they were rendered at his rooms, the
Committee observes that the HIC had no way of knowing whether any,
or which, were physically rendered in locations other than his
consulting rooms.
53. If the Committee allows 5 out-patient attendances (a generous
estimate) on each of the 63 days (ie after taking into account the non-
consulting room professional attendances referred to in paragraph 50
above), Dr Tisdall would still have rendered 80 or more professional
attendances per day on 35 days during the referral period. This
figure still significantly exceeds the threshold of 20 such days
contained in regulation 10.
54. Having considered the issue of the volume of professional attendances
rendered by Dr Tisdall during the referral period (whether the
services were rendered at his consulting rooms or elsewhere), the
Committee finds that Dr Tisdall's conduct in rendering 80 or more
professional attendances per day on 20 or more days constituted a
prescribed pattern of services.' [footnotes omitted]
48 Among the documents accompanying the investigative referral, which both PSRC 325 and the applicant had, was a complete schedule of professional attendances rendered by the applicant for each of the days referred. This schedule included the name of each patient, the item number from the medical benefits schedule and the amount of medicare benefit paid. This was a complete list of all of the services rendered by the applicant during the referral period, for which he had recorded his provider number, which was his provider number in respect of his consulting rooms at Kyabram. From this basic data had been extracted various summary lists, described as reports. Report 1 disclosed each day on which the applicant had verified 80 or more professional attendances and the medicare benefits paid for each of the 66 days on which the applicant was alleged to have rendered 80 or more services at the specified location. In other words, this was a list of the 80 or more claims for medicare benefit, in relation to which the applicant had recorded the provider number linked to his consulting rooms on the days in question.
49 The applicant therefore had the means of drawing to PSRC 325's attention the precise patients whom he had seen other than at the specified location on any of these days, if his memory or his records enabled him to do that. He did not choose to attempt that task. He now says that PSRC 325 should have undertaken that task itself, by exercising its powers to compel the production of documents in relation to records of the hospital. The applicant made no request to PSRC 325 for such an exercise of its power. He did not say whether or not, by going through the lists and by reference to his memory, or his records, he could discern which of the patients he had seen outside his consulting rooms.
50 Another report that PSRC 325 and the applicant had, derived from the raw data, was an item description of medicare services rendered by the applicant during the referral period. This gave the total number of patients, and the total number of services with respect to various item numbers. This table discloses a total number of after-hours consultations (items 1 and 2) of 64, rendered with respect to 63 distinct patients. Level A hospital consultations amounted to five, with respect to one patient, compared with ordinary Level A consultations of 1432, with respect to 726 patients. Level B home visits amounted to 25 in respect of 15 patients, Level B hospital consultations to 184 in respect of 25 patients, and Level B nursing home consultations to 16 in respect of six patients, compared with Level B consultations of 13 646 in respect of 3786 patients. Of Level C hospital consultations, there was a mere one, in respect of one patient, compared with Level C surgery consultations of 10 in respect of 10 patients. Interestingly, in respect of item 601 'attendance other than at cons rooms', there were four in respect of four patients. The list continues in relation to a number of more specific items, but these figures give some indication of what PSRC 325 might have drawn by way of conclusion as to the merit of the applicant's vague complaint that services rendered outside his consulting rooms should not be taken into account.
51 As its report shows, PSRC 325 did examine in detail the raw figures (to which it referred as Report 6 in [49] and [50] of its report), for the purpose of testing the applicant's claims about services rendered outside his consulting rooms. It located 35 attendances other than at the consulting rooms. Counsel for the applicant complains about the next sentence, which indicated that PSRC 325 took the view that it could treat those attendances as being for services rendered within the consulting rooms. It is clear that PSRC 325 could not do that, having regard to the strict form of s 87(1) of the Health Insurance Act, and the form of the investigative referral and the adjudicative referral. PSRC 325 did not leave it at that, however. It went on to say that, even the exclusion of those 35 professional attendances would bring the number of days on which the applicant rendered services numbering 80 or more down from 66 to 63.
52 In the following three paragraphs, PSRC 325 dealt with the evidence about attendances for outpatients at the hospital, for which the applicant claimed medicare benefit on the basis that they were services rendered at his consulting rooms. It did not reject the applicant's evidence about those services, but commented that the Commission had no way of knowing whether any, or which, were physically rendered in locations other than the consulting rooms. In [53], PSRC 325 then made an allowance of five per day for outpatient attendances, which it described as a generous estimate, on each of the 63 days. This brought the figure of 80 or more services rendered on a day in the consulting rooms down to 35 days. As PSRC 325 said, this figure still significantly exceeds the 20 days allowed by the 80/20 rule for a 12 month period. In the light of these calculations, PSRC 325 found in [54] that the applicant's conduct constituted a prescribed pattern of services.
53 The task of PSRC 325 was to determine whether the applicant had engaged in inappropriate practice. It was required to determine this by the application of the 80/20 rule. This task PSRC 325 understood perfectly well and performed correctly. It may have made an error in saying that it could take into account services rendered outside the consulting rooms as consistent with the intent of s 106KA, but this error did not lead it into error in respect of the ultimate finding that the applicant engaged in inappropriate practice. Its subsequent reasoning disclosed that, whatever allowance it made for the consultations shown by the records to have occurred outside the consulting rooms, and for the applicant's vague evidence about the possibility of other such consultations, it was still forced to the conclusion that the applicant had engaged in inappropriate practice.
54 There is no substance to the applicant's contentions that PSRC 325 took into account irrelevant considerations and thereby exceeded its jurisdiction. If PSRC 325 did take into account irrelevant considerations, being the consultations that did occur outside the consulting rooms, its error in doing so did not affect the exercise of its power. If the applicant had wished to give more specific evidence about those consultations, it was open to him to do so. What he could not do was to place the onus on PSRC 325 to fill in any gap in his case, by simply raising the issue and not pursuing it. PSRC 325 was not bound to use its coercive powers to procure the production of hospital records, although it would have been open to it to do so had it wished. Compare the approach taken by the Court to the power given to the Refugee Review Tribunal by s 427(1)(d) of the Migration Act 1958 (Cth) to direct an investigation in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (2001) 106 FCR 426 at [86], Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 (2001) 184 ALR 295 at [54] - [55], and the authorities cited by Katz J in the latter.
55 It was open to the applicant, if he wished, to attempt to obtain the relevant hospital records and, if he could not do so, to seek the assistance of PSRC 325 explicitly. In this regard, it is significant that, among the material the applicant placed before PSRC 325, was a witness statement of the Chief Executive Officer of the Kyabram and District Memorial Community Hospital. There was also a statement by the Director of Nursing at the Tongala and District Memorial Aged Care Service facility. Neither referred to numbers of services rendered by the applicant at the hospital or the aged care facility during the referral period. The real complaint of the applicant is that PSRC 325 did not make his case for him. It was not obliged to do so.
56 It must also be remembered that it is the applicant who seeks to establish that the Acting Director and PSRC 325 erred in the manner described in the grounds contained in s 5 of the ADJR Act, in making a finding of engaging in inappropriate practice against him. In this Court, the onus is on the applicant to establish the errors alleged. He cannot do so by simply raising a doubt as to the correctness of findings of fact made by PSRC 325. Error of the kind required will only be found if the evidence in this Court establishes it. The applicant made no attempt to place before this Court any records of the hospital or the aged care facility, for the purpose of demonstrating the falsity of the figures on which PSRC 325 relied. He cannot succeed without doing so. Compare R v Alley; Ex parte New South Wales Plumbers and Gas Fitters Employees' Union (1981) 153 CLR 376.
57 Further, the relief available pursuant to the ADJR Act is discretionary relief. The applicant's point is obviously without merit. The purpose of the legislative scheme under which the professional services review was conducted is to ensure that doctors do not overload themselves, but are able to give to each patient in respect of each service rendered adequate care and attention. In terms of merits, it is no answer to the sort of allegation levelled against the applicant that, in addition to rendering 80 or more services on 35 or more days in a period of less than eight months, he also reduced his capacity to give proper care and attention to his patients by taking extra time in seeing patients at other locations, perhaps on those and other days. If the applicant had made out any ground in s 5 of the ADJR Act in this respect, and this were the only ground upon which the applicant could base his application for relief, in the exercise of my discretion, I should have refused him that relief because of the want of merit in his case.
58 To the extent to which the Determining Authority will have to judge the degree of culpability of the applicant, when it comes to deal with the question of directions pursuant to s 106U of the Health Insurance Act, it will have before it the entire report of PSRC 325. It is obvious that the Determining Authority will have regard to the specific finding of PSRC 325 that the applicant engaged in inappropriate practice on 35 days during the referral period. I
cannot imagine that the Determining Authority would act on the basis that the applicant had engaged in inappropriate practice on 66, or 63, days, in the light of PSRC 325's reasoning.