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[2002] FCAFC 235
Federal Court of Australia (Full Court)
2002-07-01
Allsop JJ
Original judgment source is linked above.
THE COURT ORDERS THAT: 1. The application by way of an appeal under s 124A of the Health Insurance Act 1973 (Cth) be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
On appeal from the President of the Professional Services Review Tribunal
The Proceedings 1 This is an application by Dr Malcolm Adams Traill (Dr Traill) made under s 124A of the Health Insurance Act 1973 (Cth) (the Act) by way of an 'appeal', on a question of law only, from a decision of the Professional Services Review Tribunal (the Tribunal) established under s 108 of the Act. The Full Court was constituted by direction of the Chief Justice under subs 20(1A) of the Federal Court of Australia Act 1976 (Cth) to hear the application in the exercise of the Court's original jurisdiction. 2 The Tribunal, in its decision dated 28 May 2001, affirmed a final determination made by the respondent, a Determining Officer appointed by the Minister pursuant to s 106Q of the Act,on 12 October 2000. In that determination, the respondent directed as follows:
The Legislative Scheme 6 The Act created a scheme for the payment of medical benefits, known as 'Medicare benefits'. Parts VAA and VA of the Act established a regime under which a practitioner's conduct could be examined to ascertain whether 'inappropriate practice' was involved. The regime provided for action to be taken against a practitioner should such conduct be found and for an administrative structure to undertake the necessary inquiries. 7 An outline of the structure of Parts VAA and VA of the Act is found in Health Insurance Commission v Grey [2002] FCAFC 130, at [6] to [46], in which the Full Court upheld the constitutional validity of the legislation. We gratefully adopt that summary and do not repeat it. It is enough to refer here to some key sections, although it will be necessary to refer to other provisions in the course of the judgment. We refer to the relevant provisions as though they are currently in force. 8 Paragraph 82(1)(a) of the Act provides that a practitioner engages in 'inappropriate practice' if the practitioner's conduct in connection with rendering…services is such that [a Professional Services Review Committee established under s 93] could reasonably conclude that: (a) if the practitioner is a specialist - the conduct would be unacceptable to the general body of the members of the speciality in which the practitioner was practising when he or she rendered…the services; … 9 For the purposes of Part VAA, general medical practice is taken to be a specialty: par 81(2)(a). 10 The Health Insurance Commission (the Commission) is empowered to refer to the Director the conduct of a person relating to 'whether the person has engaged in inappropriate practice in connection with rendering of services': par 86(1)(a). Any such services must have been rendered within the two year period preceding the referral: par 86(2)(a). 11 Except in circumstances which do not apply in the present case, the Director must set up a Professional Services Review Committee (the Committee) to consider whether the person under review has engaged in inappropriate practice: s 93. The Committee must give to the Determining Officer appointed by the Minister a written report setting out its findings on whether the practitioner's conduct in connection with rendering the referred services was, in its opinion, unacceptable to the general body of general practitioners: par 106L(a). 12 If the Committee's report includes a finding that the practitioner has engaged in inappropriate practice in connection with rendering some or all of the referred services, the Determining Officer must make a draft determination and give a copy of the draft to the practitioner, inviting him or her to comment: s 106S. The Determining Officer must then proceed to a formal determination: s 106T. The determination must contain one or more of a number of specified directions, including directions for a reprimand, counselling, repayment of Medicare benefits, disqualification from the provision of specified services or full disqualification: subs 106U(1). 13 A practitioner to whom a determination relates may request the Minister to refer the determination to a Tribunal for review: subs 114(1). The Minister is obliged by subs 115(1) to forward the request to the President of a Tribunal together with (a) a copy of the reference that gave rise to the determination; (b) a transcript of the proceedings at the hearing conducted for the purposes of that reference; (c) the report on that reference and any documents sent to the Minister with that report; and (d) the determination. 14 Section 119 provides as follows: (1) A Tribunal that reviews a determination in accordance with a request: (a) shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister with the request and any addresses made to the Tribunal during the proceedings on the review; and (b) shall, subject to subsection (2): … (ii) if the determination consists of a final determination under section 106T - affirm or set aside the determination, or set aside the determination and make any other determination that the Determining Officer is empowered to make under that section. … (3) If the determination consists of a final determination under section 106T, the decision of a Tribunal on a review is, for all purposes (except for the purposes of this Part), taken to be a determination of the Determining Officer.
The Issues 15 Dr Traill's medical qualifications include those of a specialist pathologist. However, the events with which this application is concerned relate to his undertaking clinical general practice at suburban locations in Melbourne. Before the Committee and before the Tribunal, a point was made by Dr Traill as to the importance of his being a specialist pathologist. No such point was sought to be made before us. Nonetheless, it is important to understand that in explaining his conduct to the Committee on a number of occasions, Dr Traill resorted to the proposition that he was a specialist pathologist, with the qualifications and skills of such a practitioner. 16 Dr Traill argued before this Court that the Tribunal had erred in a number of respects. In particular, he relied on the following contentions:
The Events Leading up to the Referral 18 On 6 September 1994, Dr Traill was interviewed by a medical adviser of the Commission about aspects of his practice. One of the subjects of this interview was the volume of services attributable to him and his practice. 19 The notes of that discussion record an expressed concern of the Commission about the number of patients being seen by Dr Traill. Dr Traill expressed some expectation that these numbers would decrease in the future, with the movement of patients to doctors who had recently left the practice. There was a discussion of the Professional Services Review Scheme and Dr Traill was told that practice statistics would be checked, at least at three monthly intervals, 'to ensure that the Commission's concerns had been addressed'. Dr Traill was told that the present concerns had been clarified and that there would be no referral under the Professional Services Review Scheme 'at this time'. 20 On five subsequent occasions - 17 October 1994, 18 April 1995, 18 October 1995, 18 April 1996 and 18 October 1996 - Dr Traill received practice statistics from the Commission showing his rendered services to be over three times the number of services rendered by the seventy-fifth percentile of Australian general practitioners. These were, presumably, the practice statistics to which reference had been made during the meeting of 6 September 1994. 21 On 17 October 1995, the medical adviser to the Commission who had interviewed Dr Traill in September 1994 attended upon Dr Traill once again, and discussed with him his apparently high volume of services and consultations. The discussion covered such matters as his long hours of work, his lack of holidays, his usual afternoon and nocturnal shifts, his practice profile, and graphs which illustrated his practice and which showed the volume of certain services to be well above the ninety-ninth percentile of practitioners. There was discussion with him about statistics which showed that, excluding pathology services, on many days he provided more than seventy, and on some days more than 140, services to patients. In this discussion, the adviser raised with Dr Traill the criteria developed by the Royal Australian College of General Practitioners (the College) which would have had him working on some days (had he followed their recommended average times for consultations) in excess of twenty hours in a day. Dr Traill was told that the Commission was concerned about the adequacy of the clinical input that he was providing for individual patients on days when he saw more than seventy, and up to 145, patientsin one day. The concerns expressed to Dr Traill were explained by reference to, and supported by, data, described in the referral later sent to him as follows: The concerns were demonstrated with the use of profile data (practice data of Dr Traill held by the Commission), a PIRD (profile of the services provided on a daily basis) and a PSS (overall summary of data held by the Commission relating to Dr Traill). The operation and functions of the Professional Services Review Scheme were explained to Dr Traill. 22 At the 17 October 1995 meeting, Dr Traill was counselled to reduce his total services to below 15,000 per annum (from in the order of 28,000) and to follow the College guidelines for appropriate practice for consultation times. The following was recorded in the notes of the discussion as having been discussed at the meeting: The statistics will be monitored in due course (usually 3 months), and then as required. If Dr Traill does not change his practice as outlined and if the Commission continous [sic] to hold concerns, then the Commission has no option but to refer the practitioner for independent peer group adjudication by the PSRS. Dr Traill said he understood the Commission's concerns. He said he can't take the necessary action because it is beyond his control to do so. [Emphasis added.] 23 Dr Traill was sent a copy of the notes of the discussion of 17 October 1995 and was invited to respond in writing within fourteen days if he wished to do so. He did respond. On 1 November 1995, Dr Traill sent a letter to the medical adviser who had spoken to him, about the meeting that they had had and about a letter from Mr Burdett, an officer of the Commission, dated 26 October 1995. Mr Burdett's letter was not before us. Dr Traill's letter took issue with the approach of the Commission as to length of consultations and laid considerable emphasis on his specialist pathology qualifications. The letter also drew attention to what Dr Traill saw his duties to be in relation to what he described as 'priority medicine'. The letter concluded as follows: 2. The Nature of my Duties My Specialist duties may be considered to embrace priority medicine. Most of my rostered duties are out of normal working hours and a large number of the patients are seeking (what they perceive to be) emergency services. Such services are, I understand, very favourably received by the community. A considerable number of the out-of-hours patients indicate that they usually see their 'proper' or 'normal' doctor for ongoing health matters - a feature confirmed in the low follow-up rate in my figures. I attend to patients as they turn up, with whatever assistance may be provided by management - if they can find assistant doctors. I believe I have a legal obligation and moral duty to attend to all patients who attend the clinic seeking medical attention, and that the clinic must be emptied of patients as soon after closing time as possible - and that is what I do. Accordingly, if the HIC wishes to assess my duties on a Peer Review basis, my criteria should be assess [sic] relevant to Specialist Physicians (Pathology) working out-of-hours priority medical services. I do not believe Specialists should have their duties and responsibilities compromised by the HIC responding to fiats from a General Practice organization. [Emphasis in original.] 24 On 12 September 1996, the Commission wrote to Dr Traill informing him that it had decided to recommend that his conduct be referred to the Director. 25 On 20 September 1996, Dr Traill wrote to Mr Burdett a short letter which reflected some disagreement with the contents of the notes of the discussion dated 17 October 1995. The Referral by the Commission 26 On 20 March 1997, acting under subs 86(1) of the Act, the Commission made a referral to the Director to review the conduct of Dr Traill in relation to whether he had engaged in inappropriate practice, in connection with the rendering of services. 27 Subsection 88(1) of the Act required the Commission to provide Dr Traill with a copy of the referral within forty-eight hours of sending it to the Director. There was no suggestion that this was not done and, accordingly, we would infer that Dr Traill was provided with a copy of the referral in about late March 1997. Subsection 88(2) required that the copy of the referral sent to Dr Traill be accompanied by a notice inviting him to make written submissions to the Director, within fourteen days, as to why the Director should dismiss the referral without setting up a Committee. Again there is no suggestion that this notice was not provided to Dr Traill. Dr Traill does not appear to have taken the opportunity, at this stage, to put any submissions to the Director. 28 The referral was over 400 pages in length. It began in section A by formally stating the referral. 29 The 'referred services' were described in section B of the referral as follows: For the purposes of section 87(1) of the Act, this referral relates to services rendered by Dr Traill from his practice locations in the State of Victoria during the period of 1 July 1995 to 30 June 1996, inclusive. 30 Later in the referral, in section K, under the heading 'Referred Services', the following was stated: All Medicare services rendered by Dr Traill at his practice locations in the State of Victoria during the referral period. 31 The front page of the referral mentioned eight practice locations, including a practice at Kingsbury and a practice at Mill Park in Victoria. In section D (see [33] below) it was said that Dr Traill had advised that his two 'main locations' were Kingsbury and Mill Park. 32 Under the heading 'C. Reasons for the Decision to Refer' the following appeared: The Health Insurance Commission is concerned that Dr Traill may not be able to provide an appropriate level of clinical input when consistently rendering such a high volume of level B consultations (item 23). 1. High Volume of level B consultations (item 23): In the referral period 1 July 1995 to 30 June 1996, Dr Traill provided 20,541 level B consultations (item 23). This places Dr Traill above the 99th percentile for level B consultations (item 23) when compared to all other general practitioners in Australia. The Health Insurance Commission believes that the appropriate level of clinical input may not be able to be maintained at this servicing rate on a regular and continuing basis. For this reason, the Health Insurance Commission has formed the view that Dr Traill's conduct in connection with the rendering of level B consultation items may constitute inappropriate practice. [Emphasis in original.] 33 Section D was entitled 'Background of Dr Traill' and contained, as its title would suggest, material concerning Dr Traill, his qualifications and his practice history. 34 Section E, entitled 'Health Insurance Commission Assessment', identified five criteria against which Dr Traill's practice had been assessed in considering the 'possible inappropriateness of Dr Traill's practice': (a) the servicing patterns of all active vocationally registered general practitioners in Australia; (b) the findings of a survey of general practice in Australia in 1990 to 1991; (c) the findings of a survey of general practitioners conducted by the College in 1995; (d) the entry standards for accreditation for general practice developed and adopted by the College; and (e) published research by eminent practitioners which suggested that consultation time was a reasonable proxy measure for relative work value in Australian general practice. Against those criteria the referral stated the following (using the same lettering): (a) In terms of the consultations rendered annually, Dr Traill provides substantially more level B consultations (item 23) (20,541) than 99% of all active vocationally registered general practitioners in Australia (14,374). (b) In this survey, practitioners categorised as busy full-time averaged 182 consultations per week with 4% of practitioners providing more than 200 consultations per week including home visits. This compares with Dr Traill's average consultations of 396 per week. (c) In this survey the general practitioners (1,078) spent on average 39 hours per week in contact with patients and worked 55 hours per week. The average number of services per year was 6,532 and the length of a consultation was approximately 17 minutes, which is an increase in the RACGP Interpractice Comparison Surveys conducted over the past five years. … (d) (Standard 1.1) All patients are able to obtain timely care and advice appropriate to their needs. It is the view of the Health Insurance Commission that it would be very difficult for Dr Traill to provide care and advice appropriate to patients' needs when they are seen at such a high daily rate. (Criterion 1.2.2) Consultation times are long enough to allow quality care. This means that average times are not less than 10 minutes [except in exceptional circumstances]. Actual times for individual appointments vary according to clinical need. With 196 days on which more than 80 services per day were provided, the Health Insurance Commission is concerned that Dr Traill may not be able to meet this criterion. (e) The high volume of level B consultation items provided by Dr Traill would necessitate shorter consultations, and in the view of such research, clinical input of lower quality. 35 Section E also included the report of interview of 17 October 1995, Dr Traill's response of 1 November 1995, his letter of 20 September 1996, and tables showing the break-up of the composition of Dr Traill's practice. 36 Section F was entitled 'Details of Health Insurance Commission Concern'. This dealt predominantly with the 'high volume of level B consultations (Item 23)'. The section contained a variety of statistics concerning Dr Traill's practice, and in particular concerning Item 23, level B. 37 Section G was entitled 'Other Details of Dr Traill's Practice' and contained information about 'flow-on' costs generated by Dr Traill's practice, and about the percentage of services by bill type. Section H contained a chronology. Section I referred to relevant legislative provisions. Section J had a list of definitions, which included (contrary to Dr Traill's submissions) a definition of 'clinical input' as follows: Clinical Input means an approach to common and serious conditions which is broadly consistent with approaches adopted by the wider profession. 38 Section K contained a summary of the referred material. There were various enclosures to the referral. These included copies of the interview reports; the material referred to, and used in, analysis in the referral; and various statistical reports on his practice. The statistical reports, which were not before us, were listed in the index to the papers as follows: Report 1 - Daily item report - PIRD 05.02.1997 Report 2 - Monthly item report - PIRT 05.02.1997 Report 3 - Top 40 multiple servicing report 05.02.1997 Report 4 - Estimated time report - P/Time 05.02.1997 Report 5 - Pharmaceutical benefits report 29.01.1997 Report 6 - DI, Pathology and Specialist Referral Reports Undated 39 The various reports there identified were not explained, or resorted to, by either party to theproceedings in this Court. 40 It should be noted that Dr Traill did not challenge the validity of the referral. Nonetheless, his counsel submitted that the concern expressed in the referral was one of 'obscure generality'. In the light of events from 1994, and from reading the referral ourselves, we see no obscurity at all in the concerns of the Commission. Whether the concerns were justified was, of course, the subject of the investigation by the Committee. It was also submitted that all Dr Traill knew as to the Commission's concerns was what was in the referral. This was simply not the case, as the chronology from 1994 demonstrates. The Director Sets up the Committee 41 Under s 89 of the Act the Director was obliged within twenty-eight days of receiving the referral either to dismiss the referral (for either of the reasons set out in ss 91 and 92 of the Act, which included (s 91) the lack of sufficient grounds to support the referral) or to set up a Committee to consider the question whether the practitioner had engaged in inappropriate practice. There is no evidence as to when the Director received the referral. But it appears to be undisputed that the Director, in setting up the Committee (under ss 93 and 95 of the Act) on 6 August 1997, did so well outside the twenty-eight day period referred to in s 89. The Committee was constituted by three persons who, in accordance with s 95, were medical practitioners, two of whom were vocationally registered general practitioners (as to which latter phrase, see s 3F of the Act). The delay by the Director in the setting up of the Committee did not affect the validity of the setting up of the Committee: subs 89(2) of the Act. The Committee Gives Notice of a Hearing 42 After considering the referral, it appeared to the Committee that Dr Traill may have engaged in inappropriate practice and so the Committee was obliged to hold a hearing: subs 101(2) of the Act. On 10 September 1997, in compliance with s 102 of the Act, the Committee sent Dr Traill a notice of hearing to be held on 1 October 1997. (In submissions, for reasons that are not clear, counsel for Dr Traill referred to the notice as a 'purported' notice.) Subsection 102(3) of the Act required that that notice give 'particulars of the matter to which the hearing relates'. The notice gave the following particulars: This referral concerns your conduct in relation to whether you have engaged in inappropriate practice as defined by the Health Insurance Act 1973 in connection with the rendering of those services described below. As detailed in the referral, for the purposes of section 87 of the Act, the referral relates to all services rendered by you during the referral period, from your practice locations in the State of Victoria. [Emphasis added.] Thus, the particulars given under subs 102(3) were the matters 'detailed in the referral'. 43 The notice required Dr Traill to appear at the hearing and give evidence to the Committee and to produce documents referred to in a schedule and in the various attachments to the schedule. The Committee was empowered by s 104 of the Act to require Dr Traill to attend a hearing, produce documents and give evidence. 44 The letter of 10 September 1997, enclosing the notice of hearing, invited Dr Traill to provide the Committee with the following information: · your curriculum vitae, including particulars of your experience in the profession; · a brief description of your practice, its clientele and any special professional interests relevant to your practice; and · any additional material you believe may be relevant to the matter now before the Committee. 45 The letter also outlined the procedure to be undertaken at the hearing. The letter indicated that the documents called for in schedule 1 of the notice (referred to in [43] above, and to which reference is made in [47] to [55] below) and the documents summonsed from the two medical centres at which Dr Traill carried on practice (Kingsbury and Mill Park) would be 'tendered into evidence'. Dr Traill was provided with copies of those summonses. The following was also stated in the letter: You will be asked to provide details of your professional training and experience. Among other things, the Committee will be interested in: · your practice arrangements, ie type of practice/patients, staffing, financial & clerical arrangements; · your high volume of rendered services, particularly level B consultations; · absences from the practice, including holidays; and · your understanding of your professional responsibilities under the Medicare programme. [Emphasis added.] The Committee will also seek your views of the referral and the matters the HIC took into consideration in forming its view that your conduct in connection with the rendering of level B consultations may constitute inappropriate practice. [Emphasis in original.] …. Would you please advise me if you are to be accompanied at the hearing and if so, by whom and in what capacity (legal, medical, other adviser or friend). If you intend to have evidence given by witnesses other than yourself, notice of that intention (and the names and nature of the proposed testimony) must be given to me as a matter of urgency and no later than 72 hours prior to the hearing. In closing, I would like to assure you that the Committee will endeavour to conduct this inquiry in a fair manner without undue formality. It is intended that proceedings be more in the form of a professional discussion. 46 Stopping at this point, and before coming to schedule 1 to the notice, there cannot have been the slightest doubt in the mind of Dr Traill (who had been in possession of the referral since March 1997), or any reasonable practitioner in his place, that the primary subject of the Committee's inquiry was its concerns (being the concerns previously expressed to him by the Commission) as to the number of patients Dr Traill was seeing and the number of services he was undertaking, especially Item 23 (level B), and as to whether he could be providing an appropriate level of clinical input (that is, appropriate medical treatment) to his patients, given the number of patients he was seeing. These concerns had been explained to him in 1994 and 1995. In 1994, he had been able to allay the concerns, partly no doubt because of his expressed expectation, at that time, that he would treat fewer patients in the future (see [19] above). In 1995 he had told the Commission that he understood the concerns (see [22] above). The concerns were again made clear in the referral, as was the professional foundation for them. It is wrong to describe, as counsel for Dr Traill did, the concerns in the referral as being of 'obscure generality'. It may be that by investigating the circumstances of particular patients and their treatment from Dr Traill's practice the Committee's concerns would be heightened or reduced, or given more specific exemplification; but the nature of the perceived problem was, and had been for some time, put squarely and clearly to Dr Traill. 47 Schedule 1 of the notice of hearing dated 10 September 1997 made certain calls for documents from Dr Traill. The first call was as follows: All documents relating to the services rendered by Dr Malcolm Adams Traill during the Referral Period to the patients on the attached lists (Attachments A, B and C) 48 Attachment A to schedule 1 had a list of ninety-one patients by full name, address, date of birth, sex, date of service (all being on 6 July 1995) and item (all being Item 23). 49 Attachment B to schedule 1 had a list of eleven patients, similarly identified, concerning Item 23 services apparently rendered on 5 November 1995 at 'Practice Location M'. 50 Attachment C to schedule 1 had a list of 102 patients, similarly identified, concerning Item 23 services apparently also rendered on 5 November 1995 at another practice location. 51 The second call in schedule 1 was as follows: All documents relating to the services rendered by Dr Traill during the Referral Period to the patients numbered 1, 3, 8 and 11 on the attached list (Attachment D)
The First Argument: The Procedural Fairness Complaint
125 Dr Traill's first argument was based on the assertion that the Committee had not afforded him procedural fairness. This complaint is found in grounds 15, 16 and 17 of the notice of appeal which were in the following terms: 15. The applicant was not given a fair opportunity before and in the course of the hearing before the Committee to answer the allegations made against him. 16. The Committee's invitation to the applicant to comment on its report before it was sent to the Determining Officer was inconsistent with the requirements of the Act, and was incapable of rectifying its preceding failure to particularise its concerns. 17. On the material which the Act allowed the Tribunal to receive, it was not open to it to be satisfied that the applicant had been afforded procedural fairness by the Committee. 126 At the hearing before the Tribunal counsel for Dr Traill sought to tender the correspondence referred to in [70] to [72] above. The Tribunal refused to receive the correspondence on the basis that the authorities in this Court were to the effect that the terms of ss 115 and 119 of the Act limited the material (at least by way of evidence) which the Tribunal could consider to that identified in s 115: Minister for Health v Thomson (1985) 8 FCR 213, 218-19, 226-27; McIntosh v Minister for Health (1987) 17 FCR 463, 464, 467-68; Yung v Adams (1997) 80 FCR 453, 478; Determining Officer v Lusink (1998) 79 FCR 433, 437-39. The Tribunal was of the view that it could only have reference to the material listed in subs 115(1), the terms of which have been reproduced above at [13]. During the hearing, we permitted counsel for Dr Traill orally to add a ground to the notice of appeal by way of challenge to the correctness of this decision by the Tribunal not to receive the correspondence. 127 None of the cases referred to in [126] above specifically dealt with the question whether the Tribunal could receive evidence beyond that listed in s 115, not for the purpose of reviewing on the merits the determination of the Determining Officer, and through it, the findings of the Committee, but for the purpose of assessing whether procedural fairness had been accorded to the practitioner by the Committee. The nature of the review under s 119 has been discussed in a number of cases. It is not a process of, or akin to, judicial review; rather it is a review of the determination of the Determining Officer (and so the findings of the Committee) on the merits, though upon a restricted evidential foundation: Tiong v Minister for Community Services and Health (1990) 93 ALR 308, 312, 321-22; McIntosh v Minister for Health, supra at 467-68. 128 It is not self-evident that the limitation on the material available to the Tribunal for the purposes of the merits review was intended to prevent the Tribunal receiving material that might assist it to decide whether procedural fairness had been accorded to the practitioner by the Committee. This is especially so when, as here, the answer to this question may depend upon events that occurred after the closure of the hearing before the Committee. 129 During the hearing, over the objection of counsel for Dr Traill, we admitted into evidence the correspondence in question as potentially relevant to the question of whether the Tribunal had correctly rejected Dr Traill's claim that he had been denied procedural fairness by the Committee. For the reasons expressed later, we do not need to resolve the question as to whether the Tribunal was correct in its rejection of this evidence. 130 It was common ground before us that an assessment by a Tribunal as to whether a Committee did, or did not, accord a practitioner procedural fairness was not a task foreign or antithetical to the process of review by the Tribunal. In its reasons, the Tribunal at [44] expressed its task as including the following duty: … it is incumbent upon the Tribunal to exclude from its consideration any material that was otherwise relevant to an aspect of the investigation that the Committee was empowered to conduct but in relation to which there was a denial by the Committee of procedural fairness to the applicant. 131 The parties before us accepted the above as an accurate statement. We proceed on that basis. 132 A number of complaints were made about the procedure adopted by the Committee and its alleged failure to apprise Dr Traill of what he had to meet. We have touched on some of them in setting out the history of the matter. It should not be forgotten that the error alleged is that of the Tribunal in being satisfied that the Committee had accorded Dr Traill procedural fairness, when as a matter of law, it could not have been so satisfied. 133 The submissions for Dr Traill concerning the alleged lack of procedural fairness were to the effect that there had been a failure on the Committee's part to provide adequate notice of specific instances of alleged failure to provide an appropriate level of clinical input, at a level of specificity that would enable the doctor to 'analyse and explain what occurred and thereby respond to the allegation of inappropriate practice.' Reliance was placed on what Davies J said in Yung v Adams, supra at 455E, 458E, 463G and 469E, and on what Burchett and Hill JJ said on appeal: Adams v Yung (1998) 83 FCR 248, at 297. The passages relied on were to the following effect: (a) the medical practitioner should be given adequate notice of the findings which might be made against him or her and a fair opportunity to respond (80 FCR at 455E); (b) the Committee should at some stage make it clear to the medical practitioner whose affairs are under investigation what are the possible findings which are the subject of the investigation and what are the grounds on which those findings might be made (80 FCR at 458E, emphasis added); (c) in the context of a referral which does not identify the details of inappropriate care in respect of specific patients, examples of cases in respect of which it is alleged that the medical practitioner has failed to provide a sufficient level of clinical input should be given, so that the practitioner can deal with the matter and analyse and explain what occurred and, thereby, respond to the allegation of inappropriate practice (80 FCR at 463G); (d) while touching on matters in questioning at a hearing may alert a practitioner to issues, it was, in proceedings of the type conducted by the Committee, incumbent on the Committee to give the practitioner adequate notice of the allegations so that he or she could consider them and bring forward his or her answers (80 FCR at 469E); (e) the Committee was bound by the rules of procedural fairness to make it known to the practitioner in a clear fashion what were the matters into which it was enquiring (80 FCR at 469F); and (f) Burchett and Hill JJ agreed without reservation that in 'a case such as the present' the Committee was bound to give notice of the findings that might be made against the medical practitioner and an opportunity for him or her to respond (83 FCR at 297). 134 In general, we would not wish to demur from what their Honours said, save to say that in any given case, what is adequate notice of a matter and when it should be provided, so as to enable a practitioner fairly to respond, is to be decided by reference to the circumstances of the case in question: Kioa v West (1985) 159 CLR 550, 584. We do not read the reasons of Davies J or of Burchett and Hill JJ in Adams, supra, as saying anything to the contrary. 135 Here, the Tribunal was of the view that, in the light of the history of the matter, Dr Traill had not been denied procedural fairness. It concluded as follows: 50. The applicant, therefore, knew that the Committee would be examining the information contained in the referral document and he knew which medical records the Committee would be examining. Further, the referral was not the first notification that the applicant had received about the Commission's concern. He had been interviewed by a Health Insurance Commission Medical Adviser on two occasions concerning his practice - 6 September 1994 and 17 October 1995 - the latter date being within the referral period. 51. We are unable to accept the submission by counsel for the applicant that the Committee's proceedings were not procedurally fair. The applicant was, in our opinion, given appropriate notice of the matter to be investigated by the Committee, namely the appropriateness of his clinical input in rendering medical services during the referral period and he had a real opportunity to respond. 136 The respondent submitted that, independently of the provision of the draft report, Dr Traill had been provided with ample detail of the matters into which the Committee inquired. Putting to one side for the moment the question of Dr Traill's use of lithium, we think that this submission is correct. 137 Dr Traill had been made aware on a number of occasions since 1994 that the Commission was concerned about the number of services he performed and, in particular, the adequacy of the clinical input he could provide to patients when seeing so many of them and thereby affording patients necessarily brief consultation times. Dr Traill had indicated that he understood the Commission's concerns, but asserted that he was not bound by 'fiats' issued by an organisation of general practitioners (i.e. the College). The Commission's referral in March 1997 identified and explained its specific concern that Dr Traill could not provide an appropriate level of clinical input when consistently rendering such a high volume of level B consultations. 138 As we have explained, the Committee's letter to Dr Traill of 10 September 1997 reinforced the nature of its concerns that were to be the subject-matter of the inquiry. The schedule to that letter identified a number of patients in respect of whom Dr Traill or the medical centres were to produce documents. He was put on notice that the issue of the adequacy of clinical input into the treatment of patients would be explored by reference to the patients identified in the schedule and the notices to produce or summonses of which he had copies. 139 Counsel for Dr Traill complained that the questioning of Dr Traill by the Committee lacked sufficient 'focus' to bring home to him the issues the Committee considered important in relation to each of the patients ultimately mentioned in the Report. In answer to this complaint, counsel for the respondent prepared and submitted a table which showed that the treatment of each of the patients specifically referred to in the Report had not only been the subject of a notice to produce but had been the subject of questioning by the Committee. It is true that Dr Traill was not provided with written particulars of the Committee's concerns about each of these patients, but it was clear enough what issues troubled the Committee. Moreover, Dr Traill was invited by the Committee to make additional comments to it after the hearing. He availed himself of that opportunity in his letter of 9 October 1997. By that time, the Committee's questioning had alerted him to the identity of the patients with whose treatment the Committee was particularly concerned. Yet his letter did not seek to address the Committee's concerns or to explain further his reasons for treating the patients as he had. Dr Traill did not adduce any evidence in this Court to explain this failure. 140 Dr Traill's submissions appeared to assume that the Committee could not have afforded procedural fairness to him unless it provided to him, in advance of the hearing, particulars of the inadequate clinical input applicable to each patient. In our view, there is nothing in the reasoning of Davies J or Burchett and Hill JJ in Adams, supra, which leads to this conclusion. What the duty to afford procedural fairness requires on each occasion must depend on the facts of the case. In the circumstances of this case, the Committee afforded Dr Traill an adequate opportunity to understand and respond to the complaints against him, including the complaints relating to his treatment of particular patients. The Tribunal was therefore correct to conclude that the Committee had not denied procedural fairness to Dr Traill. 141 Even if, contrary to our view, the Tribunal's reasoning on the procedural fairness issue was incorrect, there is another obstacle confronting Dr Traill's application for relief. The obstacle arises because, as was clear on the material before the Tribunal and on the evidence before us, the Committee gave Dr Traill an opportunity to comment on its draft report. He declined that opportunity. 142 It will be recalled that the Tribunal rejected the tender of the correspondence by which the Committee gave Dr Traill an opportunity to comment on the draft report, on the ground that it was bound to do so by reason of subs 119(1) of the Act. Let it be assumed that the Tribunal correctly construed subs 119(1). Nonetheless, the material before the Tribunal, in particular the Report, clearly established that the Committee:
The Second Argument: The Sampling Complaint 152 The notice of appeal contained three related grounds dealt with in submissions under the rubric of sampling. They were as follows: 18. The Committee was bound to follow the procedure provided in ss 106G to 106K of the Act (prior to their repeal) before basing its findings upon an investigation of only some of the services referred by the Health Insurance Commission, and it made no attempt to do this. 19. Alternatively, if that procedure was not mandatory upon the Committee, its sampling was so inadequate as to render its general findings unsupportable by the Tribunal. 20. It was not open to the Committee nor the Tribunal to uphold the complaint made in the referral from the Health Insurance Commission in the absence of findings which identified which of the referred services, or what proportion or class of them, were rendered without an appropriate level of clinical input. 153 It was common ground that the Committee did not follow the statutory sampling procedure. 154 At the relevant time, the Act included Subdiv C of Div 4 of Part VAA, which was headed 'Findings based on statistical sampling'. Section 106G provided that Subdiv C applied to the Committee if the referral is expressed to relate to services rendered or initiated by the person under review that are one or more of the following: (a) services of a specified class; (b) services provided to a specified class of persons; (c) services provided within a specified location. 155 Section 106H provided as follows: (1) Subject to section 106J, in making findings on the conduct of the person under review in connection with the referred services, the Committee may base its findings wholly or partly on its findings on his or her conduct in connection with a sample of those services. (2) The sample of services: (a) must be produced in accordance with directions issued under section 106K; and (b) in being used to base the Committee's findings with respect to the referred services, must only be used in accordance with those directions. 156 Subsection 106J(1) required the Committee to notify the person under review of any finding it proposed to make with respect to the referred services that was 'based on use of a sample of services under section 106H'. The person under review was entitled to request the Committee to increase the size of the sample of services, whereupon the Committee was obliged to increase the size of the sample and review its proposed findings in accordance with directions issued under s 106K before using the sample of services under s 106H: subs 106J(2). The person under review was also entitled to present his or her case to the Committee addressing all of the referred services: subs 106J(3). Section 106K empowered the Minister to issue directions about the production of samples of services for the purposes of s 106H; increasing the size of samples of services under s 106J; and use of samples of services under s 106H. Any such directions had to be in accordance with advice received from the Australian Bureau of Statistics. 157 The language of s 106G was plainly intended to reflect the terms of par 87(1)(b) of the Act. Subsection 87(1) provided as follows: The referral must specify whether it relates to one or both of the following: (a) specified services; (b) services rendered or initiated by a practitioner that are one or more of the following: (i) services of a specified class; (ii) services provided to a specified class of persons; (iii) services provided with a specified location. 158 Dr Traill submitted that s 106G of the Act applied to the Committee set up to consider whether he had engaged in inappropriate practice because the referral was 'expressed to relate to…services provided within a specified location' and was thus within par 106G(c) of the Act. He further submitted that, although the Committee was not obliged to undertake sampling, if it did so it was obliged to follow the procedures laid down by ss 106H-106J. Those procedures included two safeguards for the practitioner: the sampling had to be conducted in accordance with directions formulated on the advice of the Australian Bureau of Statistics (s 106K) and the practitioner had the right to require the sample to be increased or to require the Committee to address all the referred services (s 106J). In this case, so Dr Traill argued, the Committee had adopted a 'sampling approach', but had failed to afford him the safeguards under the statutory procedure. Furthermore, Dr Traill contended that, even if the Committee had not contravened the statutory requirements, it had made findings about his conduct on a manifestly inadequate basis, thus giving rise to a Wednesbury unreasonableness ground of review. 159 The respondent challenged all steps in the argument. He contended that the referral made on 20 March 1997 had been pursuant to par 87(1)(a) of the Act (relating to 'specified services'), not par 87(1)(b)(iii) ('services provided within a specified location'). On this basis, ss 106H-106J did not apply to the referral in Dr Traill's case. In any event, so the respondent argued, the Committee had not engaged in 'sampling' in a relevant sense. Finally, the respondent contended that there was ample material on which the Tribunal could have based its findings.
the question of construction in relation to sampling 160 The respondent relied on the decision of the Full Court in Tankey v Adams (2000) 104 FCR 152, to support his contention that the referral in the present case was not within par 87(1)(b)(iii) of the Act and thus not within par 106G(c). In that case, the referral to the Director concerned (at 173): …the conduct of Dr James Adrian Tankey in relation to whether he has engaged in inappropriate practice in connection with the rendering and initiation of Medicare services as defined by the Act. The referred services were described as follows: For the purposes of s 87(1) of the Act, this referral relates to all services rendered and initiated by Dr Tankey from all his practice locations and all institutions visited by him. The referral also nominated three practice locations at which Dr Tankey practised. 161 Dr Tankey argued that the referral came within par 87(1)(b)(iii) on the ground that the referral specified locations, namely 'all [Dr Tankey's] practice locations' and 'all institutions visited by him'. The Full Court in Tankey v Adams, supra, pointed out that the authorities on this subject were not easily reconciled. In Artinian v Commonwealth (1996) 43 ALD 235, Hill J had regarded a referral in virtually the same terms as the one involving Dr Traill as having been made pursuant to par 87(1)(a) of the Act. Hill J emphasised that the word 'specify' should be given its ordinary English meaning of 'to mention or name specifically or definitely'. On the other hand, von Doussa J in Retnaraja v Morauta (1999) 93 FCR 397, had reached a different conclusion on almost the same language, although his Honour had not given reasons for characterising the referral this way, presumably because it was not necessary to resolve the question in that case. 162 The Full Court in Tankey v Adams, supra, said that neither of these decisions, nor the decision of Davies J at first instance in Yung v Adams, supra, provided any authoritative statement of principle on the question of construction. Their Honours rejected (at 177-178) Dr Tankey's submission that the referral fell within par 87(1)(b)(iii) of the Act: We do not accept the appellant's submission that the referral concerning Dr Tankey's conduct fell within s 87(1)(b)(iii) of the Act. Such a conclusion would do violence to the language of that paragraph. In our opinion, the referral did not relate to 'services provided within a specified location', but was far more general in scope. We consider that the referral was a referral relating to 'specified services' and was made pursuant to s 87(1)(a). Section 106G did not, therefore, render applicable subdiv C of Div 4 of Pt VAA of the Act. Any failure by the Committee to comply with directions issued by the Minister is, accordingly, of no consequence. 163 The decision in Tankey v Adams, supra, does not control the result in the present case. This is because the Full Court distinguished Retnaraja v Morauta, supra, in the following terms (at 176): It is possible to distinguish the referral concerning Dr Retnaraja from that concerning Dr Tankey. Dr Retnaraja's referral was limited to his practice locations 'in the State of South Australia'. It could be said that this was a 'specified location'. Dr Tankey's referral was not confined to any location whatever. It extended to 'all his practice locations'. Had Dr Tankey engaged in practice at a location other than one of the three specifically nominated in the referral, including a location outside the State in which he principally conducted his practice, the services which he provided at any such location would undoubtedly have fallen within the ambit of the referred services. That would not have been the position in respect of Dr Retnaraja. There is another basis upon which Dr Retnaraja's referral may be distinguished from that concerning Dr Tankey. Dr Tankey's referral included 'all institutions visited by him'. That expression is entirely general in scope. It can hardly be described as being limited to any 'specific location'. 164 It appears from this passage that their Honours recognised that a referral of services rendered by a practitioner from 'his practice locations in [a particular State]' during a nominated period might not be 'services rendered within a specified location'. On the other hand, their Honours did not expressly state that they would have reached the same conclusion as did von Doussa J in Retnaraja v Morauta, supra. 165 The question of construction is not an easy one to resolve. The starting point is that s 106Gonly applies if the referral is expressed (relevantly) to relate to services rendered by the practitioner that are 'services provided within a specified location' (par 106G(c)). The language of par 106G(c) is clearly drawn from par 87(1)(b)(iii) of the Act. Subsection 87(1) requires the referral to 'specify' whether it relates to one or bothof
the statutory sampling procedure in ss 106G-106K 170 Dr Traill did not suggest that, even if s 106G applied ss 106H-106J to the Committee, it was bound by the legislation to follow the statutory procedure. His submission was that if the findings were based on 'a sample' of the services rendered by Dr Traill, they could be sustained only if the sample had been selected and analysed in accordance with the statutory sampling procedures. 171 It is clear that a Committee is not bound to use sampling procedures in making its findings. Section 106H provides that in making findings on the conduct of the person under review in connection with the referred services the Committee maybase its findings wholly or partly on findings on his or her conduct 'in connection with a sample of those services'. Section 106H does not say that any findings must be based on statistical sampling. We are prepared to assume that, as Dr Traill submitted, if a Committee engages in sampling to support its findings, that sampling must conform to the requirements laid down in ss 106H-106K. So much appears to have been assumed if not decided by the Full Court in Tankey v Adams, supra at 174. 172 In our view, the Committee did not reach its findings on the basis of 'sampling'. Sections 106H-106K are plainly concerned with a process of reasoning that reaches findings on the assumption that extrapolations can validly be made from a practitioner's conduct in a limited class of cases to a much wider class of cases. The sections are directed to the subject of the statistical reliability of drawing conclusions from samples. This is shown by the fact that any directions issued pursuant to s 106K must be in accordance with advice received from the Australian Bureau of Statistics. 173 It is true that the Committee chose to examine the records of a limited number of patients seen by Dr Traill on a few days. But that does not mean that the Committee assumed that it could extrapolate from the findings it made about Dr Traill's treatment of those patients to reach conclusions about his conduct generally. The Committee was well aware that it had not engaged in any statistically valid sampling procedure. It identified specific problems through its analysis of specific cases, but reached its general findings on the basis of Dr Traill's own evidence as to how he conducted his practice. Much of that evidence was given in response to the Committee putting its concerns to him. 174 We agree with the Tribunal's analysis of the Committee's reasoning process: 67. The Committee expressly acknowledged in its report that it had not proceeded in accordance with the formal sampling procedures referred to in section 106H of the 1973 Act. It had before it, however, the medical records relating to more than 200 patients, those records relating to the services rendered to the identified patients throughout the referral period. The Committee continued its investigation by discussing with the applicant specific problems that the members of the Committee had identified as the result of examining those records, referring to the particular patients by name. Although only a limited number of patients were discussed with the applicant, those patients had presented with a variety of medical problems. It is reasonable to conclude that the Committee regarded the applicant's general evidence concerning the conduct of his practice as having been confirmed in material respects by the explanations he gave in relation to the specific patients upon whose treatment he had been asked to comment. In these circumstances the Committee no doubt considered it unnecessary to question the applicant about other patients at a further hearing. In this regard it is of some significance that, in the course of responding to questions about specific patients, the applicant repeated some of the general statements which he had previously made as to his mode of practice and which are referred to earlier in these reasons. He added a statement to the effect that he became bored if seeing less than eight patients an hour. 68. We are satisfied that a group of medical practitioners with extensive experience in general practice, such as the members of the Committee, could, from an examination of the material that was before them, draw an overall picture of the applicant's practice during the referral period and discern its essential features. They could also consider how the conduct of the applicant in carrying on his practice in that fashion would be viewed by the general body of practitioners. The material before it was such that the Committee could reasonably conclude that the applicant was not, in every instance, providing a level of clinical input that was adequate for the proper care of his patients and that his conduct in connection with the rendering of some of the services the subject of the referral amounted to inappropriate practice within the meaning of that expression in subsection 82(1) of the 1973 Act. 175 It was not necessary for the Committee or, for that matter, the Tribunal to choose between examining all services rendered by a practitioner over a particular period, on the one hand, and making a statistically sound extrapolation from a limited class of cases.
Wednesbury unreasonableness 176 Dr Traill's submission that there was no rational foundation for the conclusion reached by the Committee (and that the Tribunal should have so found) relied on the observations of Burchett and Hill JJ in Adams v Yung, supra at 299: In a case where the allegation of conduct is failing to give appropriate care to patients, having regard to the number of services the doctor has performed, a committee if it is to consider the totality of the services referred must, on the legislation presently under consideration, of necessity engage in a proper sampling procedure. It is difficult to see how the proceedings could otherwise be conducted. While the sample procedure in s 106H (which has now been repealed by the Health Insurance Amendment Act (No 1) 1997 (Cth)) is not made mandatory by the section that precedent provides a sure guide, and the only sure guide, to the resolution of the problems such as arose in the present case. 177 Those observations were made in the context of particular circumstances of that case. We do not understand their Honours to have intended to say that findings as to whether a practitioner has failed to give appropriate care to patients can be made only by the use of statistically valid sampling techniques. Everything must depend upon the nature of the evidence before the decision-maker. In this case, as we have explained, a great deal turned on Dr Traill's own evidence as to how he conducted his practice during the relevant period, in particular his explanations of the approach he customarily took to patients presenting with symptoms or illnesses of the kind presented by those whose records were before the Committee. The Committee made its findings on the basis of the totality of evidence before it, without impermissibly extrapolating from the specific cases it had examined in detail. There was nothing unreasonable about this process. The Third Argument: The Findings of Misconduct 178 Grounds 21 and 22 of the notice of appeal were in the following terms: 21. The Tribunal failed to consider and to rule upon submissions made to it as to errors vitiating the Committee's findings on each of the twenty patients whose treatments it examined in its report. 22. The Tribunal upheld the determination by taking into account criticisms of the applicant's statements, qualifications and practice which were beyond the subject-matter of the referral from the Health Insurance Commission and were therefore irrelevant. 179 Dr Traill complained in relation to the first of these grounds (ground 21) that the Tribunal failed to address in its reasons the detailed submissions that were put to it upon the particular examples used by the Committee in its report. The essence of the complaint was that it was the duty of the Tribunal to 'work through' these detailed submissions - that is deal with them expressly in its reasons, 'so as to examine the foundations of the Committee's generalised criticisms.' By failing to undertake this exercise the Tribunal, it was said, overlooked or misconceived its real function. 180 We do not agree. The Tribunal said the following at [69] of its reasons: From a careful consideration of the whole of the material that was before the Committee and taking into account the addresses made to the Tribunal, we are in substantial agreement with the criticisms that the Committee made of the manner in which the applicant conducted his practice. … 181 We would not conclude from an absence of reference in its reasons to the detailed submissions of the applicant's counsel that the Tribunal did not, in carrying out its review, give consideration to the material before it and the submissions put to it on behalf of Dr Traill therein. The Tribunal said it gave careful consideration to that material and the addresses made to it. It is not correct to say that the absence of a detailed express 'working through' of counsel's submissions reveals a failure to consider the matters put to it. Nor does it reveal any misunderstanding by the Tribunal of the task before it. In these circumstances, it is unnecessary to explore the relationship between the giving of reasons by the Tribunal, its task of review under the Act and the considerations of the kind referred to by Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323, 352-53, by Jenkinson J (with whom Woodward and Foster JJ agreed) in Dennis Willcox Pty Ltd v Federal Commission of Taxation (1988) 79 ALR 267, 276-77 and by Sundberg J in Repatriation Commission v Smith (1997) 75 FCR 298, 306. We see no error of law of the kind referred to in ground 21 in the way the Tribunal approached the matter and expressed its reasons. 182 The complaint in ground 22 as developed in submissions was directed to the attention which the Tribunal gave to the record-keeping of Dr Traill. The Committee had dealt with this as well. The Committee made the point that the keeping of adequate patient medical records is 'an essential component in providing adequate clinical input'. Though the Tribunal did not express the matter using the same language, it is plain from its reasons that the question of adequate record-keeping was viewed by it as an incident of, and integral to, the assessment of adequate clinical input. 183 The criticism made was that dealing with inadequacies in record-keeping as an incident of assessing clinical input in this way was outside the terms of the referral and that dealing with such matters reflected a misdirection by the Tribunal of the proper task before it. 184 We disagree. The question whether adequate records are kept and if they are not, in what respects there is a deficiency, can be rationally seen as relevant to assessing the adequacy of clinical input in relation to services to patients when it is said that patients may not be being given adequate consultation time, especially in a surgery where patients may see different doctors from visit to visit. Also, underlying the criticism, is the incorrect assumption that the Committee and the Tribunal must somehow stay within the confines of the 'concerns' originally expressed in the referral as the governing limitation of the referral. This is not so: see Grey, supra. We see no error of law of the kind referred to in ground 22 in the way the Tribunal approached the matter. The Fourth Argument: The Question of Dr Traill's Culpability 185 Paragraph 24 of the notice of appeal was in the following terms: The Tribunal failed to consider relevant matters before affirming the severe disqualifications imposed by the Determining Officer, and in particular: (i) The limited extent of the Committee's investigation and findings. (ii) The changes to the applicant's practice in the second half of the referral period and following his interview by a Health Insurance Commission counsellor, and in particular his ceasing to practise at the Mill Park medical centre on Sundays. (iii) The amendments to the Act made in 1999 which inserted s 106KA, and the extrinsic material to that amendment which explained that there had previously been no standard as to a volume of servicing that was generally unacceptable. (iv) The significant departures from the time limits for decision-making provided under the Act, and the consequential inability of the Tribunal and applicant to address the current necessity for or appropriateness of a sanction by way of disqualification. (v) Whether, in view of the Committee's constitution with general practitioners and the fact that the referral was confined to the rendering of general practitioner Medicare items, it was appropriate to disqualify the applicant in relation to his practice as a specialist pathologist. 186 These criticisms were said to be directed to the penultimate paragraph of the Tribunal's reasons, which was as follows: 78. The findings that have been made of inappropriate practice reflect very serious concerns as to the conduct of the applicant in carrying on his practice. Those concerns are not confined to the services rendered to the patients identified in the Committee's report. The applicant has given no indication of his willingness to change his method of practice so as to accord more closely with what would be acceptable to the general body of general practitioners. Nothing that has been put to the Tribunal convinces us that we should vary the directions given by the respondent. 187 However, that paragraph should not be read in isolation. It is the termination of a carefully expressed review of matters which of themselves, and as they were treated, are matters of considerable gravity in the conduct of a medical practice. It was not merely, as counsel suggested, an 'endorsement in one paragraph' of the Determining Officer's views. 188 The specific complaints are that five matters were not taken into account. For there to be an error of law on the part of the Tribunal, not only must it be shown that these matters, individually or collectively, were not taken into account, but also that these were matters which, as a matter of law, were required to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 6 [14]; and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 [131] and [132]. 189 As to the first such matter (ground 24(i)), it was submitted that the limited extent of the Committee's investigation and of its findings 'as to the extent to which the referred services had been affected by the faults found by it [that is the Committee]', did not entitle the Determining Officer, in the absence of valid statistical extrapolation from a sample of the referred services, to make a sweeping judgment as to the 'extent and scale of [Dr Traill's] conduct'. 190 There are a number of answers to this proposition. First, as we have sought to explain earlier, the various conclusions of the Committee were expressed at varying levels of generality and specificity depending on the material founding them, which included Dr Traill's (generalised) evidence, the medical records, exemplification by specific cases and the Committee's expertise. It is wrong to say that the Committee's investigation and findings were limited. Secondly, even if one ascribes some limitation to the investigation and findings it was not such as to lead to the conclusion that the views of the Tribunal referred to in [186] above were irrational. Thirdly, the weight and effect of the Committee's findings were matters to be considered and decided by the Tribunal. We see no failure to consider a matter required by law to be taken into account. 191 As to the second to fifth such matters (grounds 24(ii) to (v)), none of those matters is, by reference to the terms of the Act or any necessary implication from the Act or any principle of common law, legally required to be taken into account. 192 The Tribunal considered the Report and the Final Determination and appears to have formed the view that not only was the matter a serious one, but it found that the applicant had given no indication of any willingness to change his method of practice. These elements were ample foundation, in conjunction with the balance of the reasons of the Tribunal, for its acceptance as appropriate of the measures directed by the Determining Officer. 193 No error of the kind referred to in par 24 of the notice of appeal has been demonstrated.
The Fifth Argument: The Question of Retrospectivity 194 Ground 23 of the notice of appeal was in the following terms: The amendments made to s 106U(3) and (4) by the Health Insurance Amendment Act (No 1) 1997 which increased the maximum periods of disqualification were not applicable in relation to inappropriate conduct which occurred before those amendments. 195 The Determining Officer, in addition to directing that Dr Traill be reprimanded, counselled and required to repay Medicare benefits, directed that: · he be disqualified, pursuant to par 106U(1)(g)(i) of the Act in respect of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table for a period of three years; and · he be fully disqualified, pursuant to par 106U(1)(h) of the Act, for a period of two years. 196 The effect of the disqualification is that Medicare benefits are not payable in respect of services rendered by the appellant (s 19B). 197 Prior to the coming into force of the Health Insurance Amendment Act (No 1) 1997 (Cth) (Amendment Act 1997) on 6 November 1997, subs 106U(3) of the Act provided that a direction within par 106U(1)(g) had to specify a period of disqualification of up to twelve months, to start when the determination took effect. A direction under par 106U(1)(h) had to specify a period of disqualification of up to six months, also to start when the determination took effect. The Amendment Act 1997, schedule 1, items 21 and 22, omitted '12 months' from subs 106U(3) and substituted '3 years' and omitted '6 months' from subs 106U(4) and substituted '3 years'. The effect of the amending legislation, therefore, was to increase the period of disqualification that could be imposed on a practitioner. 198 The applicant submitted in this Court and to the Tribunal that the Determining Officer had no power to direct periods of disqualification greater than twelve months under subs 106U(3) and six months under subs 106U(4), these being the periods prescribed in the legislation as it stood during the referral period. The Tribunal held, however, (at [74] to [77] of its reasons) that Parliament intended that items 21 and 22 should apply to a medical practitioner regardless of the date on which the matter was referred or the period to which the referral related. In reaching this conclusion, the Tribunal relied on s 4 of the Amendment Act 1997, which provided that the amendments made by a number of items of schedule 1 (but not items 21 and 22) did not apply to matters referred under s 86 of the Act before the commencement date (6 November 1997). The Tribunal considered that since items 21 and 22 were excluded from s 4, Parliament must have been intended that the amendments effected by those items would apply to a practitioner regardless of the date of the relevant referral or the period to which the referral related. 199 The applicant submitted that the Tribunal had erred in law in reaching this conclusion. Counsel for Dr Traill pointed out that the Amendment Act 1997 commenced after both the referral to the Director (which occurred on 20 March 1997) and the conduct the subject of the referral (which occurred from 1 July 1995 to 30 June 1996). He contended that the disqualification had 'obvious penal consequences' for the applicant. Accordingly, it was said, the normal presumption against retrospectivity of penal laws applied and, in the absence of clear and unambiguous words, the presumption had not been rebutted. Counsel further submitted that s 4 of the Amendment Act 1997 did not assist the respondent because each of the items referred to in s 4 were concerned with procedural matters and, in the absence of a special transitional provision, would not have attracted the presumption against retrospectivity. Consequently s 4 did not provide a clear and unambiguous statement that the amendments effected by items 21 and 22 were to apply retrospectively so as to increase the penalties to which a medical practitioner would be exposed by reason of 'inappropriate practice'. 200 The respondent submitted that the exclusion of items 21 and 22 from s 4 of the Amendment Act 1997 was quite deliberate. It was true, so the respondent said, that some of the items referred to in s 4 concerned procedural provisions, but not all could be so characterised. For example, item 3 amended the definition of 'inappropriate practice' in subs 82(1), a key provision in Part VAA of the Act. The intent of Parliament was that the amendments effected by items 21 and 22 should apply even to medical practitioners in respect of whom referrals had been made prior to the Amendment Act 1997 coming into force. According to the respondent, it was not correct to characterise this as retrospective legislation. Rather, the amending legislation operated prospectively in respect of the sanctions that could be imposed on practitioners who were found to have engaged in 'inappropriate practice'. This conclusion was supported by the fact that the legislation was not penal in character but protective, in the sense that the object of Part VAA of the Act was and is to protect the Commonwealth and patients against abuse of the Medicare benefits system. 201 It has been pointed out that the term 'retrospective' in relation to legislation can be used in a number of ways and is often employed loosely: A Palmer and C Sampford, 'Retrospective Legislation in Australia: Looking Back at the 1980s' (1994) 22 Fed L Rev 217, at 218. The starting point for present purposes must be the well-known statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267. There his Honour said that the …general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. 202 It will be seen that this passage does not include the word 'retrospective'. Nonetheless, the difficulty presented by this formulation is to determine when legislation confers or imposes or otherwise affects 'rights or liabilities which the law ha[s] defined by reference to past events'. 203 The courts have tended to apply the principle stated by Dixon CJ rigorously where legislation exposes a person to a criminal penalty greater than that for which the law provided at the time the relevant conduct occurred. In Samuels v Songaila (1977) 16 SASR 397, for example, legislation increasing the penalty for a particular traffic offence came into effect on the day the offender pleaded guilty. It was held that the increased penalties applied only to offences committed on or after the date the amending legislation came into effect. See also Bakker v Stewart [1980] VR 17; cf O'Neill v Reid [1959] NZLR 331. In the case of Commonwealth offences, the same result would flow from par 8(d) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), which provides that where an Act repeals the whole or part of a former Act, then unless the contrary intention appears the repeal is not to affect any penalty or punishment incurred in respect of any offence committed against the repealed Act. 204 The amendments to subss 106U(3) and (4) effected by the Amendment Act 1997 do not attract the principles relating to legislation altering penalties for criminal conduct. Paragraph 8(d) of the Interpretation Act does not apply because it is concerned with penalties for 'an offence committed against an Act'. The reasoning in Samuels v Songaila, supra, does not apply because a direction made by a Determining Officer under s 106U, that the person under review be reprimanded, repay benefits or be disqualified, is not imposed as a punishment. Such a direction flows from a finding that the person has engaged in inappropriate practice in connection with rendering or initiating some or all of the referred services and is, as Davies J said in Yung v Adams, supra at 472, 'imposed with a view to protecting patients and the Commonwealth against abuse of the system'. The Full Court which, by majority, allowed an appeal in part did not comment on this passage. Thus, although the person under review can be said to be subjected to something in the nature of disciplinary sanctions, the legislative regime is protective rather than punitive: cf Bar Association (NSW) v Evatt (1968) 117 CLR 177, 183; and Peverill v Backstrom (1994) 54 FCR 410, 429, per curiam. 205 In La Macchia v Minister for Primary Industry (1986) 72 ALR 23, the fact that disciplinary measures were protective of the public rather than punitive was considered to be significant. In that case, 'M' had been convicted in June 1985 of an offence against the Fisheries Act 1952 (Cth), in that he used unlicensed rock lobster pots. In August 1985, after the conviction, the Fisheries Act was amended to empower the Minister to cancel a licence if the 'holder of the licence is convicted of an offence against this Act'. 'M' argued that his licence was not liable to cancellation because the amending legislation conferred a penal power which was sought to be exercised retrospectively. Toohey J (with whom Bowen CJ agreed) said there were two answers to this contention. The first was that (at 26): …the Minister was not exercising a penal power even though cancellation imposed a hardship on the applicants by depriving them for a time of their ability to fish commercially. Cancellation is not part of the penalty a Court of Petty Sessions may impose. It is part of the scheme of the Act which seeks to control commercial fishermen in their fishing activities. Rock lobsters are a valuable common property resource and activities damaging the resource are hard and costly to police. The power of cancellation is an important aspect of the system of control and should be seen in that light. 206 The second reason given by Toohey J for rejecting M's argument in La Macchia v Minister, supra, was this (at 26): while the Minister could not have given a notice prior to the sub-section coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the sub-section came into operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under sub-s (3A). The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed. 207 Toohey J cited the decision of the Queen's Bench Division in Re a Solicitor's Clerk [1957] 1 WLR 1219, in support of this analysis. 208 The third member of the Court in La Macchia v Minister, supra, French J,also took the view (at 33) that: [the] fact that the power to cancel a licence under s 9A(3A) [introduced by the amendment] is conditioned upon a class of past events, does not mean that the inclusion in that class of events which predated the law, renders its operation retrospective. 209 French J conveniently summarised the facts and concise reasoning in Re a Solicitor's Clerk supra, as follows (at 33): In Re a Solicitor's Clerk …the disciplinary committee of the Law Society had made an order under s 16(1) of the Solicitors' Act 1941, as amended by s 11(1) of the Solicitors' (Amendment) Act 1956, directing that no solicitor should thereafter employ the appellant, a solicitor's clerk who had been convicted of larceny in 1953, without the permission of the Law Society. The appellant contended that the committee was giving retrospective effect to the Act of 1956 by applying it to a conviction which took place in 1953. Lord Goddard CJ, with whom Barry and Havers JJ, agreed said (at 1222): '…In my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past': see also Customs and Excise Commissioners v Thorn Electrical Industries Ltd [1975] 1 All ER 439 at 447-8.' 210 A similar approach to that taken in La Macchia v Minister, supra, was adopted in Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. There the Market Court Act 1978 (Vic) empowered the Market Court to make an order prohibiting a trader who had repeatedly engaged in unfair conduct from entering into contracts except on terms specified by the court. Gobbo J held that the unfair conduct of a trader occurring before the commencement of the legislation could be taken into account on an application to make an order operating in the future. His Honour endorsed a comment made by Lush J in Bakker v Stewart, supra at 22, that Re a Solicitor's Clerk, supra, was 'concerned with past history as a condition of present fitness'. Gobbo J added these further comments (at 860): In my view, the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action. In one sense such legislation may appear to attach new consequences to past acts but I am of the opinion that the type of consequence envisaged in the judgment in Maxwell v Murphy was one where, for example, a new disability was created that prevented further enjoyment of an existing or accrued right. In no meaningful sense was the trader here the holder of an accrued right to trade without risk of future restraint based on past conduct. 211 In our opinion, subss 106U(3) and (4) of the Act were concerned with past history as a condition of present fitness. The amendment of those provisions by items 21 and 22 of schedule 1 to the Amendment Act 1997 did not attract the principle stated in Maxwell v Murphy, supra. This can be seen from the structure of the Actitself. The Act required the Director either to dismiss a referral made by the Commission pursuant to subs 86(1) or to set up a Committee to consider whether the practitioner had engaged in 'inappropriate practice' as defined in subs 82(1) (see ss 89 and 93). The Committee was required to give a report to the Determining Officer setting out its findings as to whether the practitioner's conduct in connection with rendering or initiating the referred services was, in the Committee's opinion, 'unacceptable to the general body of the members of the specialty [including general practice] in which the practitioner was practising at the time' (subs 81(2) and s 106L). If the report contained a finding that the practitioner had engaged in 'inappropriate practice in connection with rendering or initiating some or all of the referred services', the Determining Officer had to make a final determination under s 106U (ss 106S and 106T). The determination had to contain one or more of a number of specified directions including directions for a reprimand, counselling, repayment of an amount equivalent to Medicare benefits paid for inappropriate services, disqualification in respect of particular services or full disqualification (s 106U). The final determination took effect twenty-eight days after the person under review received a copy or upon the completion of the appeal process (s 106V). 212 The Determining Officer was therefore required to determine, by reference to conduct in connection with the rendering of the referred services, whether the practitioner should be disqualified and, if so, for what term. In short, any disqualification operated prospectively and was founded on past conduct by the practitioner. The amendment increasing the period of prospective disqualification that could be imposed did not affect the applicant's rights or liabilities in the sense required by Maxwell v Murphy, supra. The amendment operated prospectively, albeit by reference to the practitioner's past conduct. There is therefore no reason not to give effect to the amending legislation in accordance with its terms. 213 It follows that in the absence of legislation providing to the contrary, the amendments to subss 106U(3) and (4), effected by items 21 and 22 in schedule 1 to the Amendment Act 1997, applied to referrals which had not been resolved before the amending legislation commenced. In a case where the Committee had reported under s 106L to the Determining Officer adversely to the practitioner, the referral would not be resolved until a final determination was made by the Determining Officer pursuant to s 106U of the Act. The significance of s 4 of the Amendment Act 1997 is that Parliament did not specifically provide that items 21 and 22 should not apply to matters referred before the Amendment Act 1997 commenced. The absence of any reference to items 21 and 22 in s 4 of the Amendment Act 1997 confirms the intent of Parliament that the longer periods of disqualification should apply to referrals not finally resolved before the Amendment Act 1997 came into force. 214 We should add that the protective rather than the punitive nature of the sanctions specified in subss 106U(3) and (4) is a further reason for concluding that the legislation should be construed as providing for a prospective period of disqualification founded on past conduct. As we have noted, independently of provisions such as par 8(d) of the Interpretation Act, courts are reluctant so to construe legislation which amends criminal penalties. The difference would seem to be this. Criminal penalties are meant, amongst other things, to deter those who would otherwise be tempted to breach the criminal law. It is difficult to see how penalties can deter if they are not in force at the time the relevant conduct takes place. Measures such as disqualification of practitioners who engage in 'inappropriate practice' are designed principally to protect the public, rather than to deter (although it would be unrealistic to deny that the measures have some deterrent effect). Moreover, to the extent that the presumption against the 'retrospective' operation of legislation rests on the injustice of denying the reasonable expectation of citizens who rely on the law at any given time (cf Palmer and Sampford, op cit at 233), it is not reasonable for a practitioner to engage in 'inappropriate practice' in the expectation that the period of disqualification to which he or she might be subject cannot thereafter be changed by Parliament. 215 In our opinion, the Tribunal did not err in concluding that the maximum periods of disqualification that the Determining Officer could impose on the applicant were those provided for in subss 106U(3) and (4) as amended by the Amendment Act 1997. Conclusion 216 For the above reasons in our view the application should be dismissed. We see no reason why the applicant should not pay the costs of the respondent. I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Kenny & Allsop JJ.
Associate: Dated: 16 August 2002 Counsel for the Applicant: M B Smith
Solicitor for the Applicant: Tress Cocks & Maddox
Counsel for the Respondent: A L Cavanough QC R M Henderson
Traill
McRae
(1996) 185 CLR 259
(1985) 8 FCR 213
(1987) 17 FCR 463
(1997) 80 FCR 453
(1998) 79 FCR 433
(1990) 93 ALR 308
(1998) 83 FCR 248
(1985) 159 CLR 550
(1994) 181 CLR 41
(1990) 170 CLR 70
(2000) 75 ALJR 277
(2001) 75 ALJR 679
(2000) 104 FCR 152
(1999) 93 FCR 397
(1978) 20 ALR 323
(1988) 79 ALR 267
(1997) 75 FCR 298
(1986) 162 CLR 24
(2001) 180 ALR 1
(2000) 178 ALR 707
(1957) 96 CLR 261
(1977) 16 SASR 397
(1968) 117 CLR 177
(1994) 54 FCR 410
(1986) 72 ALR 23