Tisdall v Webber

[2010] FCA 501

Federal Court of Australia|2010-05-26|Before: Dr J, Ryan J

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Court

Federal Court of Australia

Decision date

2010-05-26

Before

Dr J, Ryan J

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Number of paragraphs: 31

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Original judgment source is linked above.

Catchwords

Number of paragraphs: 31

Judgment (55 paragraphs)

[1]

REASONS FOR JUDGMENT 1 "Inappropriate practice" by a general medical practitioner may be constituted by, amongst other things, the practitioner's provision of 80 or more services on 20 or more days during a 12-month period. This is known as the "80/20 rule", and is the effect of s 106KA of the Health Insurance Act 1973 (Cth) ("the Act"), read with Reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) ("the Regulations"). Dr Peter Tisdall, the applicant now before the Court, was found to have engaged in inappropriate practice of that kind. That finding was made in the final report, dated 9 July 2009, of Professional Services Review Committee Number 325, which found, first, that Dr Tisdall, in relation to his rendering of professional services between 5 January and 21 August 2000, had engaged in inappropriate practice and that, secondly, that there were no exceptional circumstances affecting the rendering of the services on those days. 2 By his amended application filed on 28 August 2009, Dr Tisdall applies under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), so far as is relevant, for declarations that the final report prepared by the second, third and fourth respondents, who constituted Committee 325 ("the Committee"), was affected by legal error, and that it be set aside, and for consequential orders removing the decision of the Committee to this Court, quashing it, and remitting it for determination according to law. 3 Before this Court, Dr Tisdall's primary contention was that the Committee had failed properly to understand and to apply what is meant by "exceptional circumstances" as that phrase appears in s 106KA(2) of the Act. Consequently, he contended, the Committee's decision is affected by legal error so as to entitle him to the relief outlined above. Before moving to analyse whether that is so, it is convenient to set out the somewhat convoluted factual and procedural background to the application.

[2]

Factual and procedural background 4 Section 86 of the Act, as it was in force at the relevant time, conferred on the Health Insurance Commission ("the Commission") a power to make an investigative referral to the Director appointed pursuant to Pt VAA, Div 2 of the Act. The Commission acted under that power by issuing such a referral, dated 13 December 2001. 5 The Director, performing his investigative function under s 89 of the Act, had invited Dr Tisdall to make submissions about what course the Director ought take. By his submissions dated 4 January 2002, Dr Tisdall sought to persuade the Director to dismiss the investigative referral (as the Director is empowered to do by s 91 of the Act). The Director was not persuaded to do so. Acting under s 93(1) of the Act, the Director then made an adjudicative referral, which was dated 14 February 2002, establishing Committee 325 ("the First Committee") and referring to it the investigation of the matters specified in the investigative referral. On 5 June 2002, the First Committee held its hearing. Having provided a draft report to Dr Tisdall for his comment, the First Committee published its final report on 23 January 2003. 6 On 19 February 2003, Dr Tisdall commenced proceedings in the Federal Magistrates Court; those proceedings were then transferred to this Court, and came on for hearing before Gray J on 19 October 2004. Dr Tisdall's case before his Honour was substantially the same as his case before me: namely that the Committee (the First Committee before Gray J, and, as shall appear, the Second Committee before me) had erred in its finding that there were no exceptional circumstances in the period in which he was said to have breached the "80/20 rule" and that had the concept of "exceptional circumstances" been properly applied, the First Committee should have found that circumstances of that type had obtained at the relevant time. Dr Tisdall then, as now, attacked the findings of the First Committee insofar as it had accepted, generally, his submissions as to factual matters pertaining to the general circumstances of his practice, but had declined to accept that those matters amounted to "exceptional circumstances" in the relevant sense. 7 By his decision of 8 April 2005, Tisdall v Kelly (2005) 219 ALR 152, Gray J accepted the First Committee's reasoning as to the lack of exceptional circumstances. His Honour expressed his conclusion on the issue at 172-4 of that report, where the following key passages occur; … I am of the view that PSRC 325 did not fall into error in the present case in adopting the view that it adopted about the meaning of "exceptional circumstances". In my view, PSRC 325 was correct in the conclusions it reached. It then proceeded to apply its view to the circumstances that the applicant had advanced as exceptional. It accepted that there was an on-going shortage of doctors in the Kyabram district and found that this was common in rural and some urban areas and not unique to Kyabram. It referred to the fact that other doctors in town had been able to make practice management decisions that did not involve them seeing the same large number of patients as the applicant. It believed that the applicant was similarly capable of limiting his patient numbers had he wished to do so. It referred to the fact that he had mentioned closing his books, but had not in fact done so. It did not accept that a shortage of doctors was exceptional on the facts of the case, because the applicant could have limited his patient numbers through more effective practice management. In addition, it took the view that the shortage was not an exceptional occurrence on particular days.

[13]

10 Dr Bleechmore of Counsel, who appeared before me for Dr Tisdall, submitted that the Second Committee having made those findings, it should then; … have found that there was an absence of other medical services for the applicant's patients, within the meaning of the Regulations, and gone on then immediately or directly to consider the causal question whether that "absence" affected the rendering of services provided by the applicant. It should not have allowed its consideration of the "absence" issue to be infected by considerations relating to whether the relevant conditions were exceptional, in the ordinary meaning of the term. Similar consideration would apply to excursions into reasonableness and unreasonableness, rarity, comparison with other practices, conventions and the like. 11 Support for that approach was said to flow from Oreb, supra, the Full Court authority to which I have referred. The principle which has been established, relevantly for present purposes, by Oreb is that "exceptional circumstances" may exist in one of three ways. First, they may, for the purposes of s 106KA(5), be unusual or out-of-the ordinary in a general or contextual sense. Secondly, they may be established by pointing to an unusual level of need for medical care, as is contemplated by Reg 11(b). Thirdly, they may be constituted by an "absence" of other medical services available to the patients of the person to whom the investigation relates. Any of those bases may be advanced, the Full Court held, in support of an argument that "exceptional circumstances" existed, but in each case there must be some causal link - in the sense that the "exceptional circumstances" "affected" the person's practice - see s 106KA(1). Justice Lander, with whom Black CJ and Wilcox J agreed (at 239-4) reasoned, at 266-9, on this issue as follows; [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.

[47]

17 It was submitted that, applying Reg 11(b), the Second Committee ought, first, to have found that there was an "absence of other medical services". Paragraph 45 of the Second Committee's report, reproduced at [9] above, was said to support a finding of such an "absence". The Second Committee ought then, it was submitted, to have moved to consider the causal question of whether the "absence" so found "affected the rendering or initiating of services" by Dr Tisdall so as to enliven the exculpatory effect of s 106KA(2) of the Act which provides: If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person is not taken by subsection (1) to have engaged in inappropriate practice on that day or those days. Instead, Counsel for Dr Tisdall submitted, the Second Committee allowed its own notions of "exceptional circumstances" to intrude upon and "infect" its analysis. 18 Those contentions, as Ms Henderson of Counsel, who appeared for the respondents, pointed out, simply ignore paragraphs 46 to 51 of the Second Committee's report, and the considerations referred to in those paragraphs. 19 In my view, the relevant sense of "absence" extends beyond a literal, physical absence of other medical services available to Dr Tisdall's patients. In the context of Reg 11, the term connotes a lack of readily or reasonably available alternative medical services for those patients, bearing in mind, as contemplated by sub-paragraphs (i) and (ii) of Reg 11(b), the location of the practice at issue, and the characteristics of the relevant patients. For there to be an absence in this sense, it is not sufficient that the alternative services be merely limited, as the Second Committee was prepared to find they had been. I do not consider that, read as a whole and with the benevolence enjoined by Wu Shan Liang, the Second Committee's report discloses any error in its application of the concept of "absence" erected by Reg 11(b). 20 The question remains, however, whether the Second Committee's reasoning was "infected" by "considerations relating to whether the relevant conditions were exceptional, in the ordinary meaning of the term". Notwithstanding the Second Committee's remark at par 48 of its report that it was unable to differentiate between Dr Tisdall's patients and those of other doctors in the town, I am unable to discern in that paragraph any misunderstanding or misapplication of the relevant legal test. Ms Henderson pointed, in this connexion, to the fact that the second sentence in par 48 begins by reciting "[t]he Committee notes..." which was said to indicate the making of a mere observation by the Second Committee. That is a reading of the relevant portion of the Second Committee's report which is open. However, I do not regard it as necessary to come to a concluded view on the precise meaning of the words used because, given what was said by the High Court in Wu Shan Liang, it is tolerably clear that the Second Committee considered that the scarcity of psychiatric counselling and radiology services affected everybody attending general practitioners in Kyabram and the surrounding area. In the absence of any evidence that Dr Tisdall's patients had a disproportionate need for medical services in the scarce categories which he supplied, I consider that the Second Committee correctly identified and discharged the task required of it by Reg 11(b), upon which Dr Tisdall elected solely to rely. I have not been persuaded by submissions on his behalf that the Second Committee's reasoning in this respect was "infected" by an extraneous consideration. It therefore follows that no error of law has been demonstrated under this head.

[48]

The Second Committee's employment of an erroneous standard of proof 21 Dr Tisdall's next attack on the Second Committee's report was that it erected an erroneous standard of proof as manifested by par 48 of the final report, where the it recorded that it was "not convinced" of various matters. Section 106KA(2) of the Act, Dr Bleechmore submitted, required only that a committee be "satisfied" by the person under review of the relevant matters. By appearing to require that it be "convinced", it was said, the Second Committee had employed a higher, and erroneous, standard of proof. In support of this contention, I was referred to the New Shorter Oxford English Dictionary, wherein "convinced" is defined, thirdly and relevantly, as "persuade to believe firmly…", a much higher standard, so it was said, than mere satisfaction. 22 In response, Ms Henderson referred me to Wu Shan Liang, and, generally, to the principles reiterated in that case, to which I have already adverted. She then invoked, alternatively, Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170, at 175-6, where Branson J had preferred, over a definition in the Oxford English Dictionary, a definition of "violence" in the Macquarie Dictionary (3rd ed) which, her Honour noted, "importantly is an Australian dictionary". Relevant for present purposes is the Macquarie Dictionary's definition of "convince" as "to persuade by argument or proof; cause to believe in the truth of what is alleged". 23 I have not found it necessary to choose between the competing definitions of "convinced" to which I have been referred. That is because, when the Second Committee's reasons are read as a whole, it is clear that the expression the Committee "is not convinced" where twice appearing in par 48 of those reasons is used interchangeably with "the Committee does not accept" in par 47, "does not consider" in pars 47, 49 and 50 and "The Committee is not satisfied" in par 51. Correspondingly, I interpret the expression "is not convinced" as used by the Second Committee as being the negative equivalent of the expressions "The Committee accepts" in pars 48, 49 and 51, "The Committee considers" in par 48, "The Committee is satisfied" in par 50 and "the Committee finds" in par 51. 24 From the repeated use in such close proximity to each other of the cognate expressions which I have identified, and allowing for the Second Committee's understandable concern to achieve elegant variation, I am confident that, when it expressed itself in the relevant passages as "not convinced", it was imposing no higher onus of proof than is imported by the requirement in s 106KA(2) that the person under review "satisfies the Committee" of the existence of "exceptional circumstances … that affected the rendering or initiating of services provided by the person …" This conclusion, I consider, is supported by the approach endorsed in Wu Shan Liang and precludes the imputation to the Second Committee of the error of law suggested under this head.

[54]

Despite its consideration of each of these matters individually, it is contended on behalf of the applicant that the Second Committee: fell into error in failing to consider the collective cumulative impact of these factors, and failed to make an assessment as to whether, considered cumulatively, they established an absence of other medical services for the applicant's patients during the relevant period. 26 Regulation 11 has been reproduced at [16] of these reasons. It is true that paragraph (b) of Reg 11 erects two criteria to which a Committee is to have regard in determining, whether, during the relevant period, there was an absence of other medical services for patients of the person under review. However, each of those criteria could operate to support a conclusion of a relevant absence. For example, the nearest specialist provider of psychiatric counselling might be located 200 kilometres from the practice of the person under review. However, that factor alone would not be an absence constituting special circumstances as contemplated by Reg 11. It would be necessary, in addition, for a significant proportion of the patients of the person under review to have the characteristic of requiring psychiatric counselling. 27 The mere fact that the two criteria specified in Reg 11(b)(i) and (ii) are capable of operating in conjunction does not entail that a committee is required in each case to evaluate them "cumulatively" as Dr Bleechmore put it. In the present case, the Second Committee correctly identified the location of Dr Tisdall's practice in Kyabram where there was a "relative shortage" of general practitioners. However, as explained at pars 46 and 57 of its reasons set out at [9] above, it did not regard that location with its attendant relative shortage of other general practitioners as constituting exceptional circumstances affecting the rendering by Dr Tisdall of general practitioner services on a particular day. That, presumably, was because the Second Committee was not satisfied that a sufficient number of Dr Tisdall's patients to reduce his provision of services on that day below the permitted maximum of 80 could not have attended other general practitioners in Kyabram. 28 In pars 48 to 51 of its reasons, the Second Committee examined each category of Dr Tisdall's patients who it seems were proposed by him as possessing characteristics which would permit a finding of an absence of other medical services for those patients as contemplated by Reg 11(b)(ii). In pars 48 of its reasons the Second Committee considered, as a single cohort, those of Dr Tisdall's patients who required psychiatric, counselling or radiology services. It did so against the background of its acceptance that sources other than Dr Tisdall for the provision of those specialist services were limited in Kyabram and the surrounding district. In that respect, the Second Committee did evaluate cumulatively the two criteria identified in Reg 11(b)(i) and (ii). However, there was obviously a lack of evidence that on a particular day when Dr Tisdall's services exceeded 80 in the characteristics of the assumed group of patients had "operated" to contribute to the excess as explained by Lander J in Oreb (supra) at 269 [203]. 29 The same reasoning clearly informed pars 49 and 50 of the Second Committee's decision, where the relevant cohort of patients with a characteristic proposed as having contributed to an absence of other medical services were those from "disadvantaged backgrounds" who preferred to attend a practice which offered extensive bulk-billing as Dr Tisdall did. The Second Committee's conclusion rested on its acceptance as a matter of fact that there were other practitioners in the Kyabram region from whom bulk-billing was available on the days in question. 30 The Second Committee took a similar approach in par 51 of its reasons when it examined another cohort of patients claimed to have collectively a particular characteristic, namely, those of Aboriginal, Turkish or Italian ethnicity, towards whom Dr Tisdall showed a special empathy. As appears expressly from par 51 of the Second Committee's reasons, it did consider that postulated cohort of patients cumulatively with the different cohort characterised by its need or preference for bulk-billing. Nevertheless, it remains clear that, however the characteristics of any particular group of patients might have been accumulated, the Second Committee found itself unable to be satisfied that the needs of that group had contributed to an excess above 80 of services rendered by Dr Tisdall on a particular day. It was not incumbent on the Second Committee to exclude as having contributed to each relevant excess every possible combination of the characteristics of his patients which had been propounded by Dr Tisdall. As Ms Henderson submitted; Had the application claimed that his practice consisted entirely of Turkish patients of lower socio-economic status who required psychiatric counselling, it might have been appropriate for the Tribunal to consider all of those matters cumulatively. He did not make such a claim, so it was appropriate for the Committee to consider separately each of the individual factors that the applicant raised in support of his argument that his circumstances fell within reg 11. I indicate parenthetically that it is far from obvious that, had each possible combination of the suggested characteristics been examined, the factual conclusion reached by the Second Committee would have been different. In any case, that was a matter for the Second Committee and not this Court.

Tisdall v Webber

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