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)
- these are patients taken from the Top 40 PIRT Report in the Referral.
52 The four patients there referred to were identified in attachment D by reference to name, address and date of birth. They were taken from the list of the forty most heavily serviced patients in the period.
53 The third call in schedule 1 was as follows:
All documents relating to the services rendered by Dr Traill during the Referral Period to the patients on the attached list (Attachment E)
- these are the patients ranked 1 to 12 (inclusive) in the Multi Servicing Report in the Referral.
54 The patients referred to in this call were identified by name and address.
55 The fourth and fifth calls in schedule 1 were in the following terms:
· All Dr Traill's Royal Australian College of General Practitioners' Quality Assurance and Continuing Medical Education records for the triennium which covers the Referral Period.
· All practice appointment books, day books, diaries and attendance registers for:
The Referral Period: 1 July 1995 - 30 June 1996.
56 Dr Traill was provided with a copy of two summonses to produce documents served on the practice managers of the two locations of the Premier Care Medical Centre at Kingsbury and Mill Park where Dr Traill worked during the referral period. The summons in respect of the Kingsbury location sought the following:
All documents relating to the services rendered during the Referral Period (1 July 1995 - 30 June 1996) to the patients on the attached lists (Attachments A, B, D and E).
57 Attachments A and B there referred to were the same as attachments A and B to the notice of hearing given to Dr Traill ([48] and [49] above). Attachment D was different in form to attachment D to the notice of hearing given to Dr Traill, but was identical in effect, listing the names and addresses of the four patients identified in the latter document ([51] and [52] above). Attachment E was the same as attachment E to the notice of hearing given to Dr Traill ([53] above).
58 The summons in respect of the Mill Park location sought the following:
All documents relating to the services rendered during the Referral Period (1 July 1995 - 30 June 1996) to the patients on the attached lists (Attachments C, D and E).
59 Attachment C was the same as attachment C to the notice of hearing given to Dr Traill ([50] above). Attachments D and E were the same as attachments D and E to the summons to Kingsbury ([57] above).
60 There was no suggestion before us that the requirement that Dr Traill produce these records was oppressive.
61 In the light of the calls for documents, which the correspondence made plain would be placed into evidence, Dr Traill was put on notice that the issue referred to in [46] above would be investigated, with particular reference to the patients identified by the various calls.
The Hearing Before the Committee
62 On 1 October 1997, the Committee conducted a hearing which Dr Traill attended. Dr Traill was entitled to attend the hearing with a lawyer, although the lawyer could not represent him at the hearing: subs 103(1). Dr Traill chose to appear at the hearing unaccompanied by anyone. The hearing commenced at 9.34 am and concluded at 4.08 pm. A transcript was taken, which was before us.
63 At the commencement of the hearing the Chairman said the following to Dr Traill:
This committee will be concerned with whether your conduct in connection with the rendering of services attracting Medicare benefits would have been considered unacceptable by the general body of general medical practitioners in Australia.
…[w]hile we will try to conduct this hearing as informally as possible, the Act makes it a criminal offence for you to knowingly give a false or misleading answer to a question or produce a document containing a false or misleading statement which you do not tell us is false or misleading.
…
The general plan for this hearing is as follows: I will shortly have certain documents before the committee tendered in evidence. Please note that you are welcome to view any of those documents at any time. I will then ask you some questions, and I would like to state at this point that our main concerns are your high volume of rendered services within the referral period. Following this hearing, the committee must report its finding to a determining officer appointed by the Minister. A copy of the report will be given to you by the determining officer.
If the report contains a finding that you have engaged in inappropriate service in connection with the rendering of services, the determining officer is required to make a determination containing directions as set out in section 106U of the Act.
[Emphasis added.]
64 The officer assisting the Committee then placed into evidence, amongst other things, the referral and the clinical records supplied by the two practices in response to the summonses.
65 There was also placed into evidence before the Committee a letter from Dr Traill dated 26 September 1997, sent in response to the invitation contained in the Committee's letter of 10 September 1997 ([44] above). Dr Traill's letter and its annexures comprised over ninety pages and together comprised a detailed submission on the referral. The comments of the Tribunal (two of the three members being medically qualified) upon the letter of 26 September 1997 are worthy of note:
…The applicant's letter and its attachments comprised some 90 pages. Included was a formulation of what the applicant regarded as basic issues and some 190 questions by which he sought to interrogate the Committee. Although many of the questions were argumentative and others irrelevant to any issue that the Committee had to determine, the nature and content of the questions demonstrates that the applicant was familiar with the contents of the referral document and its attachments and was well aware of the subject matter to be investigated at the proposed hearing by the Committee.
[Emphasis added.]
66 It was put to us that Dr Traill was, in effect, led to believe that the hearing was capable of characterisation as an informal professional exchange. Counsel submitted that it was no more than 'a chat around the table between doctors over a year's practice'; that the informality and tone of the hearing was such as to foster the making of 'casual' remarks by Dr Traill which were said to have been ultimately (and implicitly, unfairly) held against him; and that this air of informality contributed to a fatal lack of focus in the way the hearing was conducted. In the light of the history of the matter up to 1 October 1997 and the manner in which the hearing was introduced we do not think that prior toor on that date Dr Traill could have been under any misapprehension about the seriousness of the inquiry or about the central matter the subject of the inquiry to which we have referred. The fact that Dr Traill was under no such misapprehension is reflected in the detailed letter of 26 September 1997 that he produced at the hearing. It should be noted that Dr Traill did not seek, by affidavit or oral evidence before us, to establish that he did not understand the nature of the hearing before the Committee; that he had not understood what the Committee intended to do; or that by the way the hearing was conducted he had been lulled into a belief that what was occurring was somehow neither serious nor an occasion warranting his close attention and considered evidence.
67 During the hearing before the Committee, Dr Traill was questioned about, amongst other things, his hours of practice, the nature and organisation of his practice, his responsibilities under the Medicare system and his understanding of Item 23. He was asked about the average length of a consultation conducted by him. Given the history of the matter, Dr Traill could not have misunderstood the centrality of this inquiry. He said:
… I would say it is overall over a year I would think the average is in the order of about a bit longer than eight minutes.
68 When asked whether the length of consultation would be any different at Mill Park, he said that the length of consultation was generally the same there, though on very busy days consultations fell to six minutes. Dr Traill was also asked and gave evidence about his habits, his practices and his attitudes to treatment. He was also asked about certain specific patients and their treatment.
69 A little over one week after the hearing, Dr Traill sent the Committee a letter (dated 9 October 1997) containing additional comments, as well as questions in respect of which Dr Traill sought answers from the Committee.
A Draft Report of the Committee Is Provided to Dr Traill
70 Under cover of letter dated 28 August 1998, the secretary to the Committee provided Dr Traill with a copy of the report of the Committee. It was not expressed to be a draft, but the letter from the secretary was substantially to that effect, stating as follows:
In order to ensure that you are fully appreciative of the concerns of the Committee and that you are given every opportunity to respond to those concerns, the Committee has asked me to provide you with a copy of this report before it is sent to the Determining Officer.
If you have any comments on the report or any further submissions you would like to make, please forward them to me in writing before 5.00 pm on 22 September 1998. The Committee will then consider these and may modify the report before sending it to the Determining Officer. The Determining Officer will then give you a copy of the Committee's final report as required by section 106R of the Health Insurance Act 1973. [Emphasis in original.]
71 On 18 September 1998, solicitors acting for Dr Traill sent the following letter to the Secretary of the Committee.
We act for Doctor Traill in this matter and have been handed your letter dated 28th August, 1998 and draft report therewith.
We note that the draft report issued some 11 months after the hearing and, having only recently been instructed to act, we simply have insufficient time to consider all the relevant material and respond to you prior to the dead line of 22nd September, 1998. Therefore we ask for this time to be extended for 2 months.
We also request the following:
(a) A full transcript of the hearing.
(b) The proposed attachments to the report.
(c) A reply to our client's letter dated 9th October, 1997.
We thank you in anticipation of your co-operation and await your reply. [Emphasis added.]
72 On 25 September 1998, the Secretary of the Committee responded to this letter on behalf of the Committee. In it, he declined to answer Dr Traill's questions contained in Dr Traill's letter of 9 October 1997, referred Dr Traill's solicitors to the official transcript providers to obtain a transcript and noted that Dr Traill had the proposed annexures to the report. As to the request for two further months for additional submissions, the Committee agreed to one further month.
73 There were no additional submissions provided on behalf of Dr Traill. No further request for any extension of time to provide additional submissions to the Committee was made. No complaint was made by Dr Traill or his solicitors about the genuineness of the offer by the Committee, through the Secretary, contained in the letter of 28 August 1998, to receive and consider further material.
74 By letter dated 27 November 1998 the Secretary to the Committee provided the report of the Committee to the Determining Officer (the Report). The Report was signed on 26 November 1998.
The Contents of the Report
75 The Report was in substance the same as the version sent to Dr Traill for his comments. It also contained the following in connection with the conduct and history of the matter:
At the hearing, Dr Traill was invited to address the Committee at any time and to request an adjournment if one was required at any stage during the hearing.
…
Following the hearing, the Committee provided a draft report to Dr Traill inviting him to make any final submissions on it. Following a request from solicitors representing Dr Traill for an extension of time in which to lodge submissions, the Committee granted a one month extension. However, no submissions were received.
76 The Report commenced by setting out the history of the referral and the procedures adopted. It set out Dr Traill's training and qualifications. It summarised his practice and included the following observations:
Practice Organisation, Facilities and After Hours Services
At the two Premier Care centres, Dr Traill advised that he used primarily one room, did his own dressings, etc., and made little use of the practice nursing staff. During the hearing, he stated that he found the nursing staff to be 'more decorative than [having] any other major function'. During the Referral Period after hours services at the two centres were directed to a locum service.
Types of patients
Dr Traill stated that the patients he saw were 'predominantly below 50 and by and large there are not a huge number of people with chronic illnesses… so the vast majority of patients… come in with a particular problem at the time for a quick fix, if you like, particular[ly] out of hours.' He stated: 'Most of the patients I see are probably out of standard working hours… they're transients. They're patients who come in for something because their normal doctor is closed'.
77 The Report noted Dr Traill's long working hours. It noted the high level of servicing undertaken by Dr Traill by reference to the statistics readily available in the referral. The Report then described the evidence upon which the findings were based:
1. All material contained in the Referral.
2. All oral evidence given at the hearing.
3. All material tendered into evidence at the hearing, including the medical records for patients seen by Dr Traill at the Premier Care Medical Centres at Kingsbury and Mill Park:
· on 6 July 1995 and 5 November 1995;
· the records for three patients who were among Dr Traill's most heavily serviced patients during the Referral Period; and
· the records for the members of the 12 highest most heavily serviced families during the Referral Period.
(NB: The Committee did not proceed in accordance with the formal sampling processes referred to in section 106H of the Act). However, the Committee did not limit its examination to services provided on any particular day, but rather considered Dr Traill's treatment of patients throughout the Referral Period.
4. The 'Entry Standards for General Practitioners of the Royal Australian College of General Practitioners'.
[Emphasis added.]
The emphasised passage above is relevant to the complaint (dealt with later) that the Committee and the Tribunal erred in dealing with the matter other than by using the 'formal sampling process' in Subdivision C of Div 4 of Part VAA of the Act.
78 The Report then turned to a consideration of Dr Traill's conduct. It commenced by referring to the concerns that had been identified in the referral and in the communications with Dr Traill prior to the referral, to the effect 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 (MBS item 23).
79 The substance of the Report dealt with this concern under six headings:
(a) the high volume of servicing;
(b) Dr Traill's assessment of patients as 'transients' and himself as a 'locum tenens';
(c) Dr Traill as a general practitioner and specialist pathologist;
(d) the treatment of patients by unproven methods - the use of lithium;
(e) billing arrangements: Medicare vouchers; and
(f) Dr Traill's submission to the Committee dated 26 September 1997.
80 We deal with these sections in turn.
the high volume of servicing (see [79(a)] above)
81 The first and fundamental conclusion of the Committee was that Dr Traill had not given adequate and appropriate care to his patients, a failure which had been brought about by the habitual shortness of his consultations. This conclusion was drawn in part from the Committee's view of Dr Traill's own evidence and from the medical records examined. The Report stated the following:
When questioned regarding his attitude to providing such a high volume of services he stated that he had found it difficult when he was under pressure at Mill Park on a Sunday and had provided 6 minute consultations. He stated: 'I am not terribly happy when I get faster than eight minutes. But when you are by yourself and a jumbo jet lands in the car park… you cannot turn them away'.
However when queried as to how many patients per hour he would ideally see, he stated: 'I start getting bored if it is less than eight an hour, much less than eight an hour. I would start doing my CME points and reading - that sort of thing'.
The Committee considered that this indicated that Dr Traill considered he could provide appropriate care at this consultation rate. This was despite the counselling from the HIC's Medical Adviser, the high volume of work forced on him and his failure to indicate to the centres' administrators the pressure he was under. Nevertheless, he considered he could provide adequate and appropriate care at this rate of consultations, not only hour after hour, but day after day, week after week.
That adequate and appropriate care was not achieved was in the Committee's opinion demonstrated during discussions with Dr Traill and examination of the medical records.
[Emphasis added.]
82 These conclusions reflected the professional views of the Committee that a practice of consultations lasting from six to eight minutes was inadequate to provide adequate clinical input for his rendered services, particularly level B services. This view, the Committee said, was demonstrated 'during discussions with Dr Traill and from an examination of the medical records.'
83 The Committee then provided '[its] specific concerns and patient examples'. The specific concerns were dealt with under two headings:
(a) 'Inadequate Clinical Input and Management of Patients: General'; and
(b) 'Inadequate Medical Records: General'.
84 As to the first of these matters, the Committee concluded that Dr Traill did not provide adequate clinical input because of his lack of follow-up of patients and that he provided what the Report referred to as:
… symptom oriented medicine in that he initiated treatment for a condition but made no effort to follow it up, monitor progress and, if necessary, adjust medication.
85 The Committee concluded as follows in this respect:
…This lack of adequate clinical management demonstrated flaws in Dr Traill's assessment and management of conditions presented to him and did not demonstrate the standard of care expected of a general practitioner.
The Committee considered that the pressure of large numbers of patients waiting to be seen by him was one factor which may have prevented Dr Traill from providing sufficient depth of clinical input with regard to content, detail and patient management in regard to many of his consultations. For example, Dr Traill informed the Committee that he worked 11 hour shifts on Sundays without a break, seeing between 85 and 90 patients, and with only reception staff to assist him with secretarial duties.
86 These conclusions were based significantly on Dr Traill's own evidence. The Committee said:
During the hearing, Dr Traill stated 'as far as I am concerned I do what is necessary at the time to solve their particular problem of the time. If they want to come back and see me at another time well that is their business'. When asked if, therefore, he did not direct the continuing management of the patient to himself, he answered 'it is not my habit to do so.'
87 As to the second matter, the adequacy of medical records was seen as an essential component of providing adequate clinical input. The Committee identified a number of important defects in Dr Traill's record-keeping.
(a) …Dr Traill did not record details of past history, present and previous medications, allergies and sensitivities, or relevant family history for the majority of patients he consulted for the first time.
(b) …Dr Traill generally did not record details of the presenting problem, for example, the mechanism of a shoulder injury or the circumstances of a facial injury requiring suturing.
(c) Dr Traill ordered pathology tests but normally only signified this on the patient record as 'Path', and he gave no further details as to the nature of, or reasons for, the tests.
(d) Dr Traill used his own personal shorthand and considered his colleagues could, with the assistance of an explanatory 'decoding' sheet he had provided to each of the centres, identify what had occurred.
88 These conclusions were drawn by the Committee from examination of the records produced and answers given by Dr Traill when questioned.
89 The Committee noted particularly the unsatisfactory nature of these aspects of his record-keeping in a practice staffed by a number of doctors.
90 It should be noted that the Committee's concerns as to the state of the records were not communicated to Dr Traill until he was questioned at the hearing. The Committee, of course, had not seen the records until they were produced pursuant to the summonses. Moreover, the Committee's concerns were recorded in the draft report provided to Dr Traill.
91 Eight specific patients were discussed as examples of poor records and inadequate management and follow-up. The Report stated:
The following are specific examples of what the Committee encountered, where lack of adequate medical records had a negative impact on what the Committee views as adequate patient follow-up or where an unsatisfactory level of clinical input and management was apparent. The Committee considers that Dr Traill's conduct in respect of each of these cases would be unacceptable to the general body of medical practitioners in general medical practice.
92 It is unnecessary to discuss these patients in any detail. Suffice it to say that the criticism expressed flowed from the records in evidence and Dr Traill's evidence about these patients. The Committee concluded about these eight patients:
The Committee finds that Dr Traill's conduct in relation to the clinical input into the above services, that is, his management of the above mentioned patients would be unacceptable to the general body of medical practitioners in general medical practice.
Dr Traill's assessment of patients as 'transients' and himself as a 'locum tenens' (see [79(b)] above)
93 The Committee recorded what it described as Dr Traill's concept of general practice:
During the hearing, Dr Traill talked about his concept of general practice. He stated:
'You've got to look at the type of shifts I'm doing. What's normal to you and what's normal to me are probably quite different. Most of the patients I see are probably out of standard working hours… they're transients. They're patients who come in for something because they're [sic] normal doctor is closed and they can't get into [sic] see him or her or they've run out of their Pill so they come in 9 'o'clock at night for a new prescription for the Pill and you start raising things like, 'have you had a Pap Smear or not' they tend to regard you as a dirty old man sometimes.
94 The Committee commented on Dr Traill's concept of general practice:
The above statement encapsulates and exemplifies Dr Traill's general attitude towards his own clinical practice at the Premier Care Centres which the Committee encountered again and again during the hearing. That is, he was a locum tenens only and, therefore, his responsibilities to his patients were different from those of the normal GP.
95 The Committee concluded as follows:
The labelling of patients as transient seemed to the Committee to be a device used by Dr Traill to justify a low level of clinical input, a lack of adequate record keeping, and an unsatisfactory approach to patient management in terms of follow-up of diagnoses and treatment.
96 This conclusion was drawn from questioning Dr Traill during the hearing about the matter of identified concern: how he could provide his patients with adequate medical treatment, that is clinical input, given the number of patients he was seeing. The Committee's conclusion concerning 'transient' patients also provided an important factual underpinning for the view expressed in the Report as to the deficiencies in Dr Traill's approach to the treatment of his patients. As a conclusion, it was based on Dr Traill's own evidence and was exemplified by specific material concerning patients that was before the Committee. It was not a conclusion which involved or necessitated any form of statistical analysis or extrapolation.
Dr Traill as a general practitioner and specialist pathologist (see [79(c)] above)
97 The Committee then dealt with a matter of particular concern to Dr Traill: his position as a specialist pathologist. He claimed that the Committee was not made up of his peers. As we have noted, this contention was not maintained before us. Nonetheless, it is necessary to say something about it, since Dr Traill advanced the argument to the Committee and used it to justify his approach to some clinical issues.
98 The Committee, which was aware of Dr Traill's qualifications and experience, rejected his claim that he had qualifications as a specialist physician. The Committee considered that his conduct in claiming on Medicare for what he said were referred pathology services was a matter of concern, but viewed it as outside the scope of the referral. The Committee, however, noted that claims for any specialist pathology referrals which Dr Traill had made inappropriately would only add to the number of Item 23 consultations.
99 The Committee then turned to the use of Item 23. At this point the Committee returned to the evidence of Dr Traill and his habits as to length of consultations. The Committee made the following important findings:
Dr Traill stated at the hearing that if he saw fewer than 8 patients an hour he tended to become bored. The Committee noted that 8 patients an hour equated to seven and half minutes per consultation. Allowing for the fact that Dr Traill tended to use a single room and moved his own patients in and out of the room, the Committee formed the view that the time Dr Traill actually spent in clinical consultation with a patient would average less than 7 minutes. This would not allow for what normally would occur in that type of consultation (history taking, examination, reaching a diagnosis, forming a management plan, discussion and treatment). Furthermore, on 1659 occasions Dr Traill, in addition to billing an Item 23, billed MBS item 73915 for collection of a specimen for pathology services. The Committee considered that the collection of a pathology specimen would take between 1-2 minutes of the consultation time, and would further compromise his ability to do a proper Item 23 consultation, given the average time frame of 7 minutes for Dr Traill's consultations. It formed the view that on many occasions an Item 3 rather than an Item 23 should have been claimed.
Because of the limited number of records examined by the Committee it has only been able to identify the specific services detailed above and is unable to extrapolate from these to a specific number or proportion of Level B services rendered by Dr Traill during the Referral Period. The Committee considers that Dr Traill's conduct in billing Item 23 where the time actually spent with the patient would not enable the necessary elements of an Item 23 service to be carried out would be unacceptable to the general body of medical practitioners in general medical practice.
100 It is important to appreciate that the material relied on by the Committee in drawing these conclusions included Dr Traill's own evidence as to how long he habitually saw patients. To that evidence the Committee applied its expertise and an examination of such records as it had. The Committee recognised that it could not extrapolate statistically from the limited records available. However, Dr Traill's evidence and other material before the Committee were well sufficient, without the need for any statistical extrapolation, to allow it to make the findings it did.
101 The Committee then proceeded to give three specific examples, said not to be exhaustive, of:
… what the Committee encountered during its examination of the medical records and its discussions with Dr Traill.
102 It is unnecessary to descend to the individual detail of these patients or their treatment, beyond stating the conclusions that were reached by the Committee in respect of each:
(a) As to the first patient:
The Committee formed the view that the content of all of these consultations (except the initial attendance on 14 May 1996) did not demonstrate the necessary elements of a Level B consultation.
The Committee considers that Dr Traill's conduct in billing Item 23 for the consultations on 16 May and 25 May 1996 for which there was no entry on the patients' [sic] medical record, and the consultations on 19, 21, 23 and 28 May 1996, and 2, 6, 11, 16, 20, 23, 27 and 30 June 1996, would be unacceptable to the general body of medical practitioners in general medical practice. An Item 3 should have been billed for these services.
(b) As to the second patient:
The Committee was of the view that the four 'consultations' on 26 May and 2, 16, and 30 June 1996 were unnecessary and did not warrant a Medicare benefit. Dr Traill's conduct in claiming an Item 23 on each of these occasions would be unacceptable to the general body of general practitioners.
(c) As to the third patient, who had pethidine administered to him on a significant number of occasions:
In the Committee's opinion such a service did not warrant the billing of an item 23 consultation and concluded that 84 of these attendances did not warrant an Item 23 (see Attachment 3 for details of the specific services). An Item 3 would have been the appropriate service item.
103 In relation to these three specific patients the Committee further concluded:
The Committee considers that Dr Traill's conduct in billing Item 23 for the specific consultations referred to above where Dr Traill had not provided the level of clinical input would be unacceptable to the general body of general practitioners.
the treatment of patients by unproven methods - the use of lithium (see [79(d)] above)
104 The Report then moved to a subject matter that 'gravely concerned' the Committee: the administration of lithium to patients for hepatitis C, multiple sclerosis and cancer. The Committee stated that this was 'not strictly within the terms of the referral'. In so expressing the matter, the Committee perhaps overstated the problem. The subject matter had certainly not been particularised in the referral as a concern of the Commission. Nor had it been raised as a concern in any correspondence with Dr Traill. This lack of earlier reference is understandable, since Dr Traill's use of lithium only came to light on examination of the records produced, and during the hearing before the Committee. However, the subject matter arose from the 'referred services' and, in these circumstances, we doubt that it is accurate to say that Dr Traill's administration of lithium was entirely beyond the scope of the referral: see generally Grey, supra, in particular [183].
105 Because of the importance placed by counsel for Dr Traill upon this aspect of the Report in support of the want of procedural fairness argument, it is necessary to set out what the Committee said about Dr Traill's administration of lithium. In relation to hepatitis C the Report stated:
Using this drug to treat patients with hepatitis C could at best be regarded as experimental, ie., there is no literature on the use of this drug as a treatment for hepatitis C and additionally lithium is a drug with known toxicity. Nevertheless, Dr Traill stated: 'they [patients] prefer it… especially if it works'.
The Committee formed the opinion that this was experimental treatment and that these patients formed part of a 'clinical trial' by Dr Trail [sic]. Accordingly, it determined that Dr Traill's services (Level B consultations) for all the patients with hepatitis C, and the pathology ordered for these patients while on the treatment with lithium, should not have been billed to Medicare. In answer to the question as to whether he would charge a fee in such an experimental situation, particularly when the trial did not work, Dr Traill stated: 'every patient is an experiment'.
The Committee was extremely concerned at the unethical way in which Dr Traill used lithium for the treatment of hepatitis C. There was no evidence that lithium worked in hepatitis C and he expressed his views that people who used double blind controls were deluded. He stated: 'anybody who believes that they are running a double blind control trial is usually doubly blind also.' He felt that his patients should not be disallowed the possible benefits of this treatment just because it had not been proven.
When the Committee asked Dr Traill whether he thought it was acceptable to offer an unproven treatment, and whether he thought it was ethical, he stated: 'somebody has got to test it' and 'somebody has got to do [it]'.
Dr Traill stated that he had wide experience with lithium and acknowledged that one side effect of lithium was its renal toxicity. He did not explain the side effects of lithium to the patients and therefore did not gain an informed consent. As he was still continuing to treat patients in this way, and the Committee felt there was a serious and imminent threat to the life and health of these patients, this matter was referred to the Medical Practitioners Board of Victoria in accordance with section 106P of the Act.
When asked what he thought about the ethical issues involved in such treatment, he stated 'somebody has got to test it'. Additionally, he stated 'I tell them [the patient] it is purely experimental. If they want to try it they can. If they do not want to try it they need not bother…'. He had told a female patient, who he had referred to a hospital liver department, 'Well, while we are waiting, do you want to try a low dose of Lithium?' And she said, 'Yes', and by the time the appointment was due her ALT had come back to normal. So she could not see any point in going to the hospital.'
The Committee also had concerns with the fact that these patients were brought back monthly and tests were ordered on them which were in the Committee's opinion inappropriate, such as hepatitis C serology monthly, when Dr Traill himself admitted that antibodies did not go away in hepatitis C. His treatment of patients in this manner was in the Committee's opinion unacceptable and potentially placed his patients at risk. These were inappropriate services, both for the patient and the pathology, and as the treatment was inappropriate, were not clinically relevant.
The Committee considered that Dr Traill's conduct in treating patients in this manner (ie his clinical input) would be unacceptable to the general body of medical practitioners in general practice. In particular, Dr Traill's conduct in connection with the Level B consultations billed to Medicare by Dr Traill which were provided to:
(i) Patient S [name supplied in report] on 4/3/96, 28/3/96 and 20/6/96;
(ii) Patient W [name supplied in report] on 18/2/96, 7/3/96 and 13/6/96;
(iii) Patient H [name supplied in report] on 18/12/95, 4/2/96, 10/3/96, 24/3/96 and 30/5/96;
(iv) Patient K [name supplied in report] on 26/10/95, 11/11/95, 2/12/95, 10/2/96, 9/3/96, 25/5/96, and 26/6/96; and
(v) Patient L ** [name supplied in report] on 8/2/96, 24/3/96 and 13/5/96;
was unacceptable as these services did not warrant the payment of Medicare benefits.
** The Committee did not have patient L's [name supplied in report] medical records, but his treatment was discussed at the hearing and the Committee made its judgement on the basis of that discussion and the HIC's report on page 131 of the Referral on the services billed by Dr Traill in respect of this patient.
106 In dealing with Dr Traill's administration of lithium for multiple sclerosis and cancer, the Report stated:
During the hearing, Dr Traill also advised that he had also treated some patients suffering from multiple sclerosis and cancer with lithium. When asked whether there was any literature on the treatment of multiple sclerosis (MS) with lithium, Dr Traill answered: 'No, it so happens, but there is literature in relation to…it, literature on it in terms of experimental allergic encephalitis.' He was then asked whether there was any literature on any trial of lithium extant. He replied: 'Not that I'm aware.'
Dr Traill had treated a male patient (patient B) [named supplied in report] who suffered from MS, with lithium. Dr Traill stated: 'He thought it did him well' and '…the protocol is based on - well my own experience which came out of oncology, but there's a particular reference which was of interest. It's in Immuno Pharmacology of 1991, Inhibition'. However, this document related to experimentation in animals.
Dr Traill also informed the Committee that he had treated an unidentified cancer patient with lithium. He assessed the patient before and after treatment, and he stated: '…they showed significant changes when the Lithium was taken off, which struck me as interesting and the hypothesis was entertained that the crucial time Lithium treatment may be well be [sic] the time immediately after the blood peak blood level [sic] occurs…'.
[emphasis in original]
It became apparent to the Committee that Dr Traill was involved in his own experimentation which was of no value to the actual clinical management of these patients. The side effects of lithium did not seem part of his equation. The Committee was concerned with the ethics of this patient treatment and considers Dr Traill's conduct in treating patients in this matter (ie his clinical input) would be unacceptable to the general body of general practitioners.
billing arrangements: Medicare vouchers (see [79(e)] above)
107 In this part of the Report the Committee addressed two matters. The first was a concern that Dr Traill had claimed for services that he had not provided. However, investigation revealed that clerical and recording errors, not attributable to Dr Traill, were responsible for certain errors. The second matter concerned Dr Traill's admitted practice at two centres (along with other employed doctors, it would seem) of signing blank Medicare claim forms so that such signed forms could be stored in bulk. This was a matter of concern to the Committee, as the relevant form contained a declaration that all information on it was accurate. The Report recorded the following concerning claims on Medicare made in respect of services provided by Dr Traill:
…Dr Traill admitted that such declarations were signed by him in advance.
Therefore, Dr Traill was not aware of what claims had been sent in his name notwithstanding the Health Insurance Act which placed responsibility on the doctor, individually. Dr Traill stated: '…as far as I am concerned there is no evidence, like, if anybody saw those patients on that day.'
When the Committee informed Dr Traill that there were ways of checking whether filled-in vouchers were in fact his, he stated: 'I am not going to sit around and check every voucher…'.
With regard to these patient services, for which claim forms had been lodged with Medicare on his behalf (and benefits paid), Dr Traill had no explanation for why there was no entry on the patient cards. He stated: '… that is how the clinics work, I do not say I like it…' and 'I am a practitioner but as far as medical services are concerned I am an employee…'.
During the hearing and in his submission to the Committee dated 26 September 1997, Dr Traill stated that he is an employee of the centres and as such is not able to decide management issues relating to their operation.
108 The Committee concluded the following about this matter:
Whether or not Dr Traill was an employee or a contractor was irrelevant as far as the Committee is concerned. Its view is that Dr Traill was responsible for ensuring in respect of services he provided which attracted a Medicare rebate that:
· they were provided in accordance with accepted medical standards; and
· they were billed appropriately.
The Committee considered that Dr Traill's conduct in not taking responsibility for the direct bill claims submitted to Medicare on his behalf would be unacceptable to the general body of general practitioners. The Committee does not relate this finding to any of the services it examined within the Referral Period.
Dr Traill's submission to the Committee dated 26 September 1997 (see [79(f)] above)
109 The Committee then dealt with what Dr Traill referred to in his submission dated 26 September 1997 as four 'basic issues' and with further questions put to the Committee by Dr Traill in that submission as follows:
The Committee Not Dr Traill's Peers
Dr Traill asserted to the Committee that he felt that because of the particular conditions under which he worked, the normal concepts and standards of general medical practitioners cannot reasonably apply to his situation or be used as a valid comparison.
He stated during the hearing: 'I don't accept that the committee in fact represents my peers...in a number of respects and in particular about the qualification side of it. As far as I can see the only common factors that you and I have together is that we've all got medical registration and we're all the same gender.'
As Dr Traill practised as a vocationally registered general practitioner, the Committee comprised a Chair who is a medical practitioner (a Consultant Physician) and two vocationally registered general practitioners as required by section 95 of the Act.
Dr Traill's statement above is another example of his inability to separate in his own mind his possession of specialist medical qualifications in pathology and his actual practice as a general practitioner.
Volume of item 23 consultations
Dr Traill submitted that on a pro rata basis, his annual patient numbers for Item 23 were less than the (presumed annual) guidelines provided by the HIC. On this basis, he argued, there was no case to answer.
Any annual 'targets' provided by the HIC to doctors were no more than administrative guidelines and it is the role of this Committee to make a finding as to whether or not Dr Traill's conduct in relation to the referred services would be unacceptable to the general body of medical practitioners in general practice. The Committee's findings and reasons are detailed throughout this report.
Errors in the Referral from the HIC
Dr Traill submitted that the computer printouts in Book 2 of the Referral contain numerous errors and identification omissions and therefore such evidence was inadmissible.
The Committee is aware that some errors could occur, particularly in relation to the scanning of direct billed claims by the HIC (see paragraphs 54-63 in relation to Billing Arrangements: Medicare vouchers). The Committee does not believe that there were any other errors in the Referral significant enough to impact on its findings in relation to the specific services identified above.
Dr Traill is an employee of the centres
Dr Traill submitted: 'Regarding '- conduct in connection with the rendering -'. My conduct is that of an employee in relation to medical services. I do not conduct the business of providing medical services to the public - that is management's &/or the HIC's role.' [Emphasis in original.]
The Committee considers that this is a further illustration of Dr Traill's failing to accept professional responsibility for his conduct in providing medical services which attract a Medicare rebate. This matter is also addressed by the Committee at paragraphs 54-63 in relation to Billing Arrangements: Medicare vouchers).
Other questions raised by Dr Traill in his submission
Dr Traill also submitted 197 separate questions to the Committee. The Committee has separately responded to Dr Traill in relation to these matters and in some cases advised him as to which organisations he should direct those questions. A copy of the Committee's response is attached as Attachment 4.
110 The Committee then drew its final conclusion as follows:
After considering the Referral and all the evidence before it, and after applying its combined body of knowledge, the Committee has concluded that Dr Traill's conduct in relation to those services referred for consideration and specified throughout this report would be unacceptable to the general body of medical practitioners practising in general medical practice in Australia.
111 This last conclusion was not independently reasoned. It was a conclusion to the Report; and we do not take it as other than the summation of the various conclusions reached in the Report and to which reference has been made. In particular, up to this point, the Committee had been careful to base its general conclusions on the oral and documentary evidence before it, without relying on statistical extrapolation. We do not read this conclusion as going any further, or otherwise using some unexplained basis for generalisation or extrapolation.
The Final Determination of the Determining Officer Under s 106T
112 On 10 March 2000 Dr Traill was sent a draft determination of the Determining Officer (the respondent to the application before us) under s 106S. On 24 March 2000 Dr Traill provided a submission to the Determining Officer. On 12 October 2000 the Determining Officer made a final determination relating to Dr Traill under ss 106T and 106U. The final determination was accompanied by a statement of reasons. We refer to both as the Final Determination.
113 The Final Determination was based on the Report, the referral of the Commission and Dr Traill's submission of 24 March 2000.
114 The conclusions of the Committee were used by the Determining Officer to found his opinions and conclusions. As we have already noted, the directions given by the Determining Officer were as follows:
(a) that the Director or his nominee reprimand Dr Traill in relation to:
(i) his conduct in relation to the eight cases referred to in the Report (see [91] and [92] above);
(ii) his conduct in billing Item 23 for the specific consultations referred to in the Report (see [101] to [103] above);
(iii) his conduct in not taking responsibility for direct bill claims as referred to in the Report (see [107] and [108] above);
(b) that the Director, or the Director's nominee, counsel Dr Traill in relation to the matters referred to in (a)(i) to (iii) above;
(c) that Dr Traill repay certain Medicare benefits in sums of $83.40 and $1,019.75, which the Committee found did not warrant payment of a Medicare benefit; and
(d) that Dr Traill be disqualified for periods of two and three years under pars 106U(1)(g) and (h).
115 Part of the reasons of the Determining Officer dealt with a complaint of Dr Traill that he had been denied an opportunity to answer allegations in the Report. The findings contained the following, amongst other things, in respect of this assertion:
…I also note that the Committee provided a draft report to Dr Traill inviting final submissions on it. Despite being granted an extension of time to do so, no further submission was received from Dr Traill. I am satisfied that Dr Traill was accorded procedural fairness in this matter.
116 In section 3.2.1 of his reasons the Determining Officer said that in making his final determination under s 106T:
…I have considered all of the observations and findings made by the Committee in its Report.
117 The Determining Officer expressed the view in his reasons that the seriousness, extent and scale of the conduct identified by the Committee warranted the periods of disqualification. He referred (inclusively) to the following nine aspects of inappropriate practice in connection with the seriousness of the matter:
(a) His high volume of servicing, particularly in providing 28,335 services under Medicare 20,541 having been level B consultations, (Report p 8), which:
· placed Dr Traill above the 99th percentile of all vocationally registered general practitioners in Australia; and
· in the Committee's opinion, formed from discussions with Dr Traill and the Committee's specific concerns and examination of medical records, examples of which are specified in the report (pp 12-16), demonstrated that adequate and appropriate care was not achieved by Dr Traill at the rate of consultations undertaken by him (Report p 10);
(b) His not demonstrating appropriate follow-up of tests nor maintaining an appropriate recall system (Report p 11);
(c) His practicing [sic] symptom orientated medicine whereby he initiated treatment for a condition but made no effort to follow it up, monitor progress and, if necessary, adjust medication (Report p 11);
(d) His not recording details of past history, present and previous medications, allergies and sensitivities, or relevant family history for the majority of patients he consulted for the first time (Report p 11);
(e) His not recording details of the presenting problem (Report p 12);
(f) His ordering of pathology tests but normally only signifying this on the patient record as 'Path' without providing further details as to the nature of, or reasons for, the tests (Report p 12);
(g) His practice of considering requests for follow-up of patients from specialists to whom he had referred a patient to be specialist referrals, and billing Medicare subsequent services provided by him as specialist referred consultations rather than general practitioner consultations (Report p 18);
(h) His billing patients on many occasions for Item 23 consultations where the time actually spent with the patient would not have enabled the necessary elements of such a service to have been carried out (Report p 21); and
(i) His conduct in not taking responsibility for the direct bill claims submitted to Medicare on his behalf (Report p 26).
118 The list did not include any reference to Dr Traill's use of lithium. Whilst it is necessary to consider what the Determining Officer said in section 3.2.1 of his reasons ([116] above) we think the better view, bearing in mind the injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-72, is that the Determining Officer did not take the Committee's findings in relation to lithium into account in making the directions under s 106U of the Act.
Review by the Tribunal
119 On 13 November 2000 a request was made on behalf of Dr Traill to the Minister under s 114(1) of the Act to refer the Final Determination to the Tribunal. The Tribunal was duly convened. The role of the Tribunal was to review the determination of the Determining Officer. The review was a form of merits review, though with limitations which arose from the language of s 119 of the Act. It was the decision of the Tribunal dated 14 May 2001 affirming the determination of the Determining Officer against which the appeal under s 124A was brought.
120 The Tribunal dealt with the nature of the proceedings, the applicant's history, the referral, the hearing before the Committee (including the call for documents), the contents of the Report, the contents of the Final Determination, the relevant legislative provisions and the role of the Tribunal, in terms which were uncontroversial.
121 The Tribunal then dealt with the significant number of attacks on the Final Determination and the Report. Some of those attacks were renewed before us, though transmogrified by the need to identify legal errors in the reasoning and decision of the Tribunal. Before turning to those attacks which formed the basis of the appeal, a number of matters need to be addressed.
122 An important aspect of the decision of the Tribunal was the recognition, in detailed terms, of the material to which the Committee had recourse and the use made by the Committee of that material. For instance, after dealing with aspects of Dr Traill's practice at [54] to [59], the Tribunal referred, at [60] and [61], to some of the illuminating material in Dr Traill's own correspondence and his detailed submission of 26 September 1997. Referring to this material the Tribunal said:
62. It is against a background exemplified by material including that referred to above that the Committee commenced to question the applicant concerning the general profile of his practice at the Premier Care Medical Centres. Although many of the statements the applicant made to the Committee were not responsive to the questions asked of him, what does emerge is an understanding of the applicant's approach to the provision by him of medical services at the centres at Kingsbury and Mill Park. The Committee clearly found many of his statements illuminating and fully supportive of the concern that he did not provide the appropriate level of clinical input in respect of each and every service that he rendered.
123 The Tribunal referred, at [64] to [66], to the Committee's findings about lithium. This discussion concluded with the following statement:
… In any event, there is no support for the assertion that the findings of the Committee in respect of the other matters found adversely to the applicant were tainted by what it said in relation to the applicant's use of lithium.
124 In the light of the terms of the Final Determination, we read this as an implicit recognition by the Tribunal that the Determining Officer did not take the lithium findings into account in making his directions and that the balance of the matters found by the Committee, which were used by the Determining Officer, were not influenced by what was said by the Committee about Dr Traill's use of lithium.