Yung v Adams

(1997) 80 FCR 453

(Judgment by: DAVIES J) Court:
FEDERAL COURT OF AUSTRALIA

Judge:
DAVIES J

Subject References:
ADMINISTRATIVE LAW
Disciplinary proceedings for "inappropriate practice" brought against medical practitioner
appeal from decision of Professional Services Review Tribunal affirming in part a determination made by the respondent, the Determining Officer, following referral by Health Insurance Commission and decision of the Professional Services Review Committee
natural justice
whether failure by Commission to accord procedural fairness
whether failure by Committee to accord procedural fairness
whether failure by Committee to relate findings of "inappropriate practice" to identified services or to a sample of services
whether failure by Committee to clearly identify what were the findings of "inappropriate practice" made
whether failure by Determining Officer to take relevant considerations into account
whether by giving effect to findings of Committee, determination of Determining Officer necessarily incorporated and adopted flaws affecting report of Committee
function of the Tribunal to review the matter for itself and independently arrive at its own conclusions
whether failure by Tribunal to provide adequate reasons
whether findings of the Tribunal failed for lack of procedural fairness
whether failure by Tribunal to relate findings of "inappropriate practice" to identified services or to a sample of services

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 (Cth) - the Act
Federal Court of Australia Act 1976 (Cth) - 22
Health Insurance Act 1973 (Cth) - 80; 82; 86; 87; 89; 101; 102; 103; 106G; 106H; 106J; 106K; 106L; 106M; 106Q; 106S; 106T; 106U; 108; 115; 118; 119; 124A
Health Insurance Amendment Act (No 1) 1997 (Cth) - the Act
Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) - the Act
Judiciary Act 1903 (Cth) s 39B - 39B

Case References:
A.L. Campbell & Co Pty Ltd v Federal Commissioner of Taxation - (1951) 82 CLR 452
Brackenreg v Comcare Australia - (1995) 56 FCR 335
Clyne v New South Wales Bar Association - (1960) 104 CLR 186
Dornan v Riordan - (1990) 24 FCR 564
Edelsten v Health Insurance Commission - (1990) 27 FCR 56
Etherton v Public Service Board - [1983] 3 NSWLR 297
Forbes v New South Wales Trotting Club Limited - (1979) 143 CLR 242
Forest v La Caisse Populaire de Saint-Boniface Credit Union Society Limited - (1962) 37 DLR (2d) 440
Freeman v McCubberyFCA - (unreported, Smithers, Lockhart & Jenkinson JJ, 10 October 1985)
Freeman v McKenzie - (1988) 82 ALR 461
General Medical Council v Spackman - [1943] AC 627
Hughes v Johanson - [1977] Qd R 357
Kioa v West - (1985) 159 CLR 550
Lloyd v Marine Council - (1987) 29 IR 69
McIntosh v Minister for Health - (1987) 17 FCR 463
Minister for Health v Thomson - (1985) 8 FCR 213
Muralidharan v Minister for Immigration & Ethnic Affairs - (1996) 62 FCR 402
New South Wales Bar Association v Evatt - (1968) 117 CLR 177
New Zealand Flax Investments Ltd v Federal Commissioner of Taxation - (1938) 61 CLR 179
Otter Gold Mines Ltd v Australian Securities Commission - (unreported, Beaumont, Sundberg & Merkel JJ, 5 November 1997)
Public Service Board of New South Wales v Osmond - (1986) 159 CLR 656
R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd - (1987) 17 FCR 26
R v Pharmacy Board of Victoria; Ex parte Broberg - [1983] 1 VR 211
Reg v Home Secretary; Ex parte Doody - [1994] 1 AC 531
Repatriation Commission v O'Brien - (1985) 155 CLR 422
Ridge v Baldwin - [1964] AC 40
Romeo v Asher - (1991) 29 FCR 343
Salemi v MacKellar (No 2) - (1977) 137 CLR 396
Taylor v Minister for Health - (1989) 23 FCR 53
Tiong v Minister for Community Services & Health - (1990) 93 ALR 308
Weinberger v Inglis - [1919] AC 606

Hearing date: 23 JULY 1997
Judgment date: 11 DECEMBER 1997

SYDNEY

Judgment by:
DAVIES J

This is an appeal from a decision of the Professional Services Review Tribunal ("the Tribunal") given on 7 August 1996 which, under s 119 of the Health Insurance Act 1973 (Cth) ("the Act") affirmed in part a final determination made by the respondent, the Determining Officer, on 18 October 1995. Having regard to the submissions made, it is necessary, however, to discuss also the referral by the Health Insurance Commission, the decision of the Professional Services Review Committee under s 106L of the Act and the determination of the Determining Officer under s 106T of the Act.

The submissions in the case considered the function of each of the decision-makers, the issues with which each decision-maker should have dealt and with the procedures required to be adopted at each stage of the decision-making. Therefore, these reasons for judgment range widely. However, it should be kept in mind that I regard this proceeding as an appeal under s 124A of the Act. The ultimate question is whether any ground has been established on which the decision of the Tribunal should be set aside. Some of these reasons necessarily express obiter dicta about interesting irrelevancies.

Natural Justice

The appeal is limited by s 124A of the Act to a question of law. One question of law is whether the law required that procedural fairness be provided to the applicant, Dr Steven Yung, throughout the processes which led to the decision of the Tribunal, that is to say whether the principles of natural justice applied. Another such question is whether the procedures actually adopted satisfied the law's requirements of procedural fairness insofar as the findings of the Tribunal are concerned.

In Kioa v West (1985) 159 CLR 550 at 584, in a passage which had the support of the other members of the court, Mason J said:

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

In Kioa, Brennan J discussed the content of the rules of procedural fairness. At 612, his Honour said:

"The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power."

At 615, his Honour observed that:

"... in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred."

In the present case, where the proceedings were in effect disciplinary proceedings brought against a medical practitioner, I think that the law required substantial procedural fairness, that is to say, that the medical practitioner should be given adequate notice of the findings which might be made against him and a fair opportunity to respond.

In General Medical Council v Spackman [1943] AC 627, where the General Medical Council had to decide whether a medical practitioner, who had been found by the Divorce Court to have committed adultery with a woman to whom he stood in a professional relationship, should be removed from the medical register for infamous conduct, the House of Lords held that the Council had erred in declining to hear evidence from the medical practitioner on the issue of adultery and that its decision was void. At 637 Lord Atkin said:

"Now, it is plain that the statute throws on the council and on the council alone the duty of holding due inquiry and of judging guilt. They cannot, therefore, rely on inquiry by another tribunal or a judgment of guilt by another tribunal. The practitioner charged is entitled to a judgment the result of the considered deliberation of his fellow practitioners. They must, therefore, hear him and all relevant witnesses and other evidence that he may wish to adduce before them."

And at 638:

"I entertain no doubt that the council are bound, if requested, to hear all the evidence that the practitioner charged brings before them to refute the prima facie case made from the previous trial."

Another aspect of the rule of natural justice is that the person against whom the allegations are brought should be given notice of what is alleged. Thus, in Weinberger v Inglis [1919] AC 606 Lord Atkinson said at 631-632:

"If any charge be made against a man on the ground that he did some act or filled some character, then before he can be found guilty of that act, or be found to have filled that character, he must, according to natural justice, get notice of the charge, and be offered an opportunity of defending himself ..."

To the same effect were the remarks of Andrews J in Hughes v Johanson [1977] Qd R 357, where his Honour said at 364:

"Particularly where a decision may be taken against him which may affect his property or his livelihood, a man should know in what way it is alleged that facts constitute conduct by him upon which such a decision may be based and which of such facts are to be relied upon."

See also Etherton v Public Service Board [1983] 3 NSWLR 297; R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211; Lloyd v Marine Council (1987) 29 IR 69. In Etherton at 304 Hunt J cited the words of Freedman JA in Forest v La Caisse Populaire de Saint-Boniface Credit Union Society Limited (1962) 37 DLR (2d) 440 where the learned Judge said at 445:

" ... Those words (`but only after a hearing') bring into play the rules and requirements of natural justice, compliance with which by domestic tribunals the Courts are always vigilant to enforce. One such requirement - rooted in the great maxim of the common law, audi alteram partem - is that the person whose rights may be adversely affected by a contemplated procedure should be given prior notice thereof. Notice here means adequate notice. It should be clear and definite, so that its recipient will know precisely what he has to meet. Certainly where expulsion is contemplated the notice should so state, and leave nothing to guesswork."

Hunt J went on to say:

"These statements apply with added force to proceedings before an administrative tribunal hearing a disciplinary charge where the person facing the charge may be dismissed if he is found guilty of that charge."

These principles apply under the Act, notwithstanding that the process is essentially investigative in nature rather than the hearing of a disciplinary charge. As Burchett J said in Romeo v Asher (1991) 29 FCR 343 at 362:-

"A court today should be slow to exclude any statutory tribunal from a duty to observe natural justice fully, in the absence of plain words in the statute necessarily having that effect. The present statute, on the contrary, clearly indicates that the Committee is to function as a quasi-judicial tribunal conducting a proceeding in which the affected practitioner is entitled to particulars, a tribunal, moreover, which will, if it does not exonerate him, be required (by s 104) to translate the general criterion stated in the Act into quite precise findings."

Although the legislation has changed, the principle adumbrated by his Honour is applicable. The reference to particulars now appears in s 102.

In Freeman v McCubbery (unreported, Smithers, Lockhart & Jenkinson JJ, 10 October 1985), which dealt with proceedings under the Act in an earlier form, Smithers J, with whom Lockhart J agreed, said:-

"Of course all particulars as are reasonably necessary to enable the appellant to conduct his case, and of which the Committee has knowledge, in relation to the issues which arise at the hearings must be given."

In Freeman v McKenzie (1988) 82 ALR 461 at 471-2, Woodward J indicated means by which a committee could provide procedural fairness to a medical practitioner where the investigation concerned 6000 services to more than 1600 patients over a period of two and one half years. His Honour referred, inter alia, to the selection of manageable topics for inquiry, to the giving of particulars and to the selection of particular consultations for detailed inquiry. Later, in Romeo v Asher , Morling & Neaves JJ, Burchett J dissenting, held that it was not necessary in the circumstances of the case that particulars be provided and that the investigative inquiry which had been undertaken had provided procedural fairness. However, in that case only 20 patients had been referred to in the reference, the services were clearly identified and the patients were well known to the medical practitioners. Their Honours accepted the general principles of procedural fairness I have set out. Their Honours said at 349:

"The requirements of procedural fairness will, however, often extend beyond the specific requirements of the statute. What is necessary for a Committee to do in order to satisfy those requirements in any individual case will, of course, depend upon the particular circumstances of that case. It may generally be accepted, however, that a Committee will fail to satisfy those requirements if, having regard to the manner in which the hearing is conducted, a court is satisfied, upon a perusal of the Committee's report, that it has made findings adverse to a practitioner on factual matters of which it can be said, upon a fair examination of what has occurred, that the practitioner has had no real notice, that his attention was not specifically directed to those matters at the hearing and that he has, in consequence, had no real opportunity to comment.
It would follow that if, in the course of its deliberation after the apparent conclusion of a hearing undertaken in accordance with s 94 of the Act, a Committee proposes to make findings adverse to a practitioner on a factual matter of the kind to which we have referred, the Committee would be bound, before making such a finding, to reopen the hearing so that the practitioner might have an opportunity to deal with that matter. In this regard, see generally Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494."

Burchett J dissented on the facts of the case. His Honour said at 357:

"In the absence of some identification of the Committee's concerns (which may conveniently be called particulars, provided it is understood that they would not be particulars of a charge but of a finding the Committee considers may be open on the material before it), the appellants must be groping in the dark in any attempt they make to provide an answer. Except in a sense so broad as to be meaningless, they do not know the question."

The relevant provisions of the Act were recast by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) which, inter alia, substituted a new Part VAA. The new provisions omitted, inter alia, the provisions which had appeared in the earlier s 96B which gave to a medical practitioner whose affairs were under investigation the right to give evidence, to call witnesses, to examine other witnesses appearing at the hearing, to address the Committee and to be represented throughout the hearing. The repeal of the earlier s 96B did not, however, constitute the expression of a statutory intention contrary to the implication of the principles of procedural fairness. I have already cited the observations of Burchett J in Romeo v Asher on this point. In Salemi v MacKellar (No 2) (1977) 137 CLR 396, Jacobs J said at 451:-

"What the courts do in the absence of express legislative intention is to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole."

In Kioa v West, Mason J said at 585:

"In this respect the expression `procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2] (1977) 137 C.L.R., at p.451, per Jacobs J.
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent."

As can be seen therefore, although the process undertaken by a Professional Services Review Committee is essentially investigative and the Committee does not in itself make an order of a disciplinary nature, the principles of natural justice apply so that, except in a simple case where the ambit of the investigation and the subject matter of possible findings are defined by the reference which has initiated the inquiry, 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. The medical practitioner should be given a fair opportunity to explain why those findings should not be made.

In a complex case such as the present, where 17,331 services were the subject of the referral, it would be very desirable that, at some stage, the issues and the grounds being investigated should be formulated in writing so that there be no misunderstanding about them. The formulation of such matters in writing would also be useful to give a structure to the investigation and so avoid problems such as those which arose in Freeman's case.

Section 102 of the Act provides that the notice of hearing "must give particulars of the matter to which the hearing relates." However, compliance with that requirement does not end the responsibility of the Committee to provide information in the nature of particulars. At the beginning of the inquiry, the Committee may well not have formulated likely or possible findings or the grounds upon which they might be made. As the inquiry proceeds, the Committee should give such further particulars or information of a like nature as is necessary to make it clear to the medical practitioner what are the matters to which he or she should respond.

Inappropriate Practice

The proceedings brought against Dr Yung were in effect disciplinary proceedings for "inappropriate practice", brought under Part VAA and Part VA of the Act. The Act provides inter alia:

"80.(1)
This Part [Part VAA] creates a scheme under which a person's conduct can be examined to ascertain whether inappropriate practice (see section 82) is involved. It also provides for action that can be taken in response to inappropriate practice.
...
82.(1)
A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:

...
(b)
if the practitioner is not a specialist - the conduct would be unacceptable to the general body of the members of the profession in which the practitioner was practising when he or she rendered or initiated the services."

Notwithstanding the width of that definition, it should be read subject to the legislative power under which the Act was passed. The Commonwealth Parliament is empowered by s 51(xxiiiA) of the Constitution to enact laws with respect to:

"The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances".

The Federal Parliament has no general power to regulate the activities of medical practitioners. Therefore, under Part VAA, the power to discipline in relation to "inappropriate practice" must be understood as a power to discipline in relation to conduct which is related to the payments which are made by the Commonwealth under the Act by way of medical benefits and the like. Accordingly, the reference to "inappropriate practice" in s 82 refers to conduct in relation to which Commonwealth benefits were paid or payable and in respect of which the medical practitioner failed in some way to meet the standards of the general body of the members of the profession in which the services were rendered. The Commonwealth's interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that overservicing does not occur. I do not say that the Commonwealth would not have legislative power effectively to limit the number of patients which a medical practitioner may see in the course of a day. I assume that the Commonwealth could limit access to the Medicare scheme to medical practitioners who complied with rules which the Commonwealth laid down. However, the Act has not proceeded in that way. Apart from Part VAA and Part VA, a medical practitioner may be excluded from participation in the Medicare scheme only under Part VB of the Act and only after the medical practitioner has been convicted of an offence.

Because the proceedings are of a disciplinary nature, it clearly would not be appropriate for a decision maker merely to conclude that the medical practitioner engaged in inappropriate practice some time during the period which is specified in relation to some of the referred services. The services in respect of which the finding of inappropriate practice is made must be identified. I do not suggest that, where 17,331 services were the subject of the reference, it was necessary for the decision-makers to examine each and every service and to make a finding of "inappropriate practice" about each. When dealing with issues of excessive servicing, the Court has rejected that approach and has taken the view that if, for example, 3 attendances would have been sufficient during a period to deal with a particular complaint, whereas the medical practitioner attended the patient 6 times, then a finding of excessive servicing could be made without identifying which of the 6 attendances were excessive. See eg. Taylor v Minister for Health (1989) 23 FCR 53 at 58-9. But what must be done is to examine at least an appropriate sample of services in detail, to identify the elements of "inappropriate practice" arising from the services in that sample and to apply the findings statistically to the whole of the referred services, provided of course, that it be statistically valid to do so.

I have said that the proceedings are disciplinary in nature. Section 106U prescribes directions in the nature of reprimand, counselling, repayment to the Commonwealth of Medicare benefits paid for inappropriate services and partial or total disqualification. These are all directions of a disciplinary nature. The nature of the disqualification referred to is dealt with in s 19B of the Act which provides, in effect, that Medicare benefits are not payable in respect of professional services if the practitioner is disqualified.

The Referral

Section 86(1) of the Act provides:

"The Commission may, in writing, refer to the Director the conduct of a person relating to one or both of the following:

(a)
whether the person has engaged in inappropriate practice in connection with rendering of services;
(b)
whether the person has engaged in inappropriate practice in connection with initiation of services."

Section 87(1) provides:

"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 within a specified location."

On 8 May 1995, there was such a referral by the Health Insurance Commission ("the Commission") to the Director of the Professional Services Review in relation to Dr Yung. The matter had come to the attention of the Commission because of the large number of services under Medicare provided by Dr Yung.

The referral was expressed as follows:

"On behalf of the Health Insurance Commission and pursuant to Section 86 of the Health Insurance Act 1973 ("the Act") I, Ronald Philip Tomlins, Medical Director, hereby refer to the Director of Professional Services Review, the conduct of Dr Steven YUNG in relation to whether he has engaged in inappropriate practice in connection with the rendering of Medicare services as defined by the Act.
...
For the purposes of section 87(1) of the Act, this referral relates to all services rendered by Dr Yung within the premises at the corner of Hotham Road and Princes Highway, Kirrawee in the State of New South Wales."

In its referral, the Commission said, inter alia:

"In the referral period, 1 January 1994 to 31 December 1994, Dr Yung provided 19,622 services under Medicare of which 17,331 (88.3%) were provided at his Kirrawee practice mostly on Mondays, Tuesdays and Thursdays (see Attachment 1, Referral pages 16-31).
...
Using this guideline [average times are not less than 10 minutes], to provide 100 services on a day, Dr Yung should have worked continuously for at least 16.7 hours.
...
Given these reasons the Health Insurance Commission is concerned that the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis and believes that this conduct is unacceptable to the general body of General Practitioners." (emphasis added)

It will be seen that the referral turned its attention to a relevant matter, namely, whether Dr Yung had given the appropriate level of clinical input in the services which he had rendered. However, the referral contained an inherent defect. The concern of the Commission that the appropriate level of clinical input could not be maintained on a regular and continuing basis for the long hours worked by Dr Yung could not readily be translated into an allegation of "inappropriate practice " in relation to specified services. The fact that Dr Yung saw what was considered to be an excessive number of patients a day was not a basis for concluding that Dr Yung gave inadequate care and attention to all his patients, to any particular proportion of patients or to any particular patient. Where, as in the present case, a referral relates to all the services rendered by the medical practitioner within defined premises, it may be difficult to investigate the matter referred unless the content of the reasons for referral shows that the cause of the concern is a matter relating to all patients, such as inadequate or dirty premises or records which were wholly inadequate or some like matter. That was not the present case.

I need not consider whether the referral was a "decision" for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a matter considered in Edelsten v Health Insurance Commission (1990) 27 FCR 56. Even if it were, the Health Insurance Commission was not obliged to provide Dr Yung with procedural fairness at that stage. What was done was simply to refer an issue to the Director for consideration.

It was not said by the Commission that there was any rule of practice that a medical practitioner should not see more than a stipulated number of patients a day or that the medical practitioner must spend at least a stipulated number of minutes with each patient. However, in its reasons for referral, the Commission cited a draft standard developed by the Royal Australian College of General Practitioners in December 1993, which read inter alia:

" The Consultation and Communication
The Consultation is the focus of the delivery of general practice care. Patient satisfaction with the consultation is a significant contributor to quality care. A key determinant of patient satisfaction is the quality of communication occurring during the consultation and the amount of information provided to patients.
STANDARD 1.2
The practice provides the opportunity for patients to communicate their health problems and concerns and receive an appropriate response.
CRITERIA 1.2.2
Consultation times are long enough to allow quality care. This means that average times are not less than 10 minutes. Actual times for individual appointments will vary according to clinical need.
INDICATORS
The average number of patients seen by each doctor in a four hour session does not exceed 24 (appointments schedule).
After each consultation the doctor routinely checks that the patient believes that their needs have been met and that the patient has understood the doctor's advice (doctor interview, patient survey).
Patient feel that they have not been rushed when having a consultation (patient survey).
Patients report that their condition is discussed enough with them and that words and explanations used by the doctor are easy to understand (patient survey)."

At the time of the alleged inappropriate practice, that standard was a draft. It had not been adopted as a formal standard. Yet, even had the standard been adopted and had Dr Yung been aware of it, which was not the case, the Commission suggested no means by which reference to the standard could show that Dr Yung had failed in his professional duties in the treatment of any particular patient or patients.

The Commission's referral was accompanied by a considerable amount of statistical material relating to Dr Yung's practice during the referral period, 1 January 1994 to 31 December 1994. One of the tables showed that, during the period, there were 15,388 Level B consultations under Item 23. The General Medical Services Table defined Item 23 as follows:

"Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, or a professional attendance of less than 20 minute duration involving components of a service to which item 36 or 44 applies - each attendance - $24.30"

The number of these consultations formed by far the major part of the 17,331 services provided by Dr Yung. However, the Commission did not purport to identify any particular service in respect of which the item may have been inappropriate and it did not in its referral suggest that there had been overservicing.

Although the Commission attached statistical material to its referral, the Commission did not engage in or recommend a process of sampling. The Act at the time provided stringent safeguards with respect to the use of a sampling technique. The following provisions inter alia were relevant:

"106H.

(1)
Subject to section 106J, in making findings on the conduct of the person under review in connection with the referred services, the Commission 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.

106J.

(1)
The Committee must notify the person under review, orally or in writing, of any finding it proposes to make, with respect to the referred services, that is based on use of a sample of services under section 106H.
(2)
If, on being so notified, the person under review requests the Committee to increase the size of the sample of services, the Committee must, subject to subsection (4), increase the size of the sample of services, and review its proposed findings, in accordance with directions issued under section 106K before using the sample of services under section 106H with respect to the referred services.
...

106K.

(1)
The Minister may issue directions about:

(a)
the production of samples of services for the purposes of section 106H; and
(b)
increasing the size of samples of services under section 106J; and
(c)
use of samples of services under section 106H (including the use under that section of samples increased in size under section 106J).

(2)
Directions must be in accordance with advice received from the Australian Bureau of Statistics.
(3)
Directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 ."

The Health Insurance Amendment Act (No 1) 1997 (Cth) has since repealed those provisions, but they applied at the relevant period.

Because the Commission's concern was that an appropriate level of clinical input could not have been maintained by Dr Yung during the long hours in which he attended patients, the Commission's referral did no more than point to a fact which suggested that inappropriate practice in the nature of insufficient clinical care in relation to at least some of the services would have occurred. The Commission's referral suggested, in effect, that Dr Yung was a "suspicious person".

Dr Yung would have been unable to glean from the referral what were the details of inappropriate care which he ought to answer. It is common for a referral by the Commission to set out what are, in effect, the allegations in respect of which the disciplinary proceedings are brought. That did not occur in this case. Unless examples of cases in respect of which it is alleged that the medical practitioner has failed to provide a sufficient level of clinical input are pointed to, so that the medical practitioner can analyse and explain what occurred and thereby respond to the allegation of inappropriate practice, it is almost impossible for a medical practitioner to deal with the matter.

The Professional Services Review Committee

Section 89(1) of the Act provides:

"Within 28 days after receiving the referral, the Director must:

(a)
dismiss the referral; or
(b)
set up a Committee to consider whether the practitioner has engaged in inappropriate practice."

The Director acted under s 89(1)(b) and established a Professional Services Review Committee to consider whether Dr Yung had engaged in inappropriate practice.

Section 101 provided:

"(1)
The Committee may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced, to the Committee.
(2)
The Committee must hold a hearing if, after considering the matters that are the subject of the referral, it appears to the Committee that the person under review may have engaged in inappropriate practice in connection with rendering or initiating the referred services."

Under s 101(2), the function of the Committee is to consider whether inappropriate practice occurred in connection with the referred services. In fact, the Committee did not restrict itself to the referred services, for the matters which it raised against Dr Yung included his lack of home visits and his lack of an after hours service, both of which were matters not within the prescribed services which had been referred.

Section 103 of the Act provides, inter alia:

"(1)
The person under review is entitled to attend the hearing and to be accompanied by a lawyer or another adviser. However, the person under review is not entitled to be represented at the hearing by a lawyer or another adviser.
(2)
The person under review is entitled:

(a)
to question a person giving evidence at the hearing; and
(b)
to address the Committee."

The Act does not expressly empower the medical practitioner to give evidence on his or her own behalf or to call witnesses before the Committee. However, the Act requires that a hearing be held. As I have already mentioned, it is implicit in this that the hearing should be just and that the rules of natural justice should apply.

The Committee did not formulate charges or allegations for Dr Yung to answer but simply called a hearing and, at the hearing, called Dr Yung and Dr Gooley, the senior partner in the practice in Kirrawee, which Dr Yung had by then left, to give evidence. The hearing took place on 14 July 1995, although there was also a short hearing on 27 July 1995 when some documents were taken into evidence.

The notice calling the hearing is not in the court book. Presumably it referred to the reference from the Commission and thereby incorporated it. I have already mentioned that that reference did not make it clear to Dr Yung what were the matters to which he should turn his attention. Nor did a letter from the Secretary of the Committee which read, inter alia:

"After formal introductions, Dr Kelly will deliver an opening statement, explaining the hearing process in relation to the referral from the Health Insurance Commission (HIC). Documents before the committee will be tendered into evidence after which the Chairperson will ask you to provide details of your professional training and experience etc.
You are invited to address the committee regarding the referral - indeed, throughout proceedings, please feel free to address the committee on any matter which you consider relevant.
As a guide, the committee will be interested in:
your practice arrangements, ie type of practice, staffing, financial & clerical arrangements, patient profiles etc.
pathology and radiology referrals;
ancillary services and arrangements;
referrals to consultants;
absences from the practice, ie holidays; and
your understanding of your responsibilities under the Vocational Registration programme.
The committee will also seek your consideration of:
the referral;
the opinion expressed in the referral by the HIC's consultant, Dr J Gordon; and the visits and reports from HIC Medical Advisers.
The committee would wish to examine the practice records, in particular, those referred to in Schedule 1 of the Notice of Hearing."

This information simply indicated what the Committee proposed to do. It did not direct the attention of Dr Yung to any specific issue or issues and it would not have assisted him to understand the matters to which he should respond.

The Committee examined Dr Yung and Dr Gooley and some records of Dr Yung's practice. However, the Committee did not at any time formulate in writing issues or charges to which Dr Yung should respond. Nor did the Committee engage in statistical sampling in accordance with the provisions set out in ss 106G to 106K of the Act. The members of the Committee asked questions of Dr Yung on a range of topics. The Chairman identified particular records to which attention should be given including the records of 29 November 1994, which the Committee had earlier selected after discussions with Dr Yung and which were produced by Dr Gooley. On the last day of the hearing, Ms Selvidge who was assisting the Committee, said:

"For the purpose of the record I will reiterate the receipt of the additional clinical records for services provided by Dr Yung on 29 November 1994, as provided by Dr Gooley. In advance of the hearing, from the records provided at the previous hearing on 4 July, we had eight of those records and we retained those and they were of Rachel Buckley, Michael Burzese, Charles Carpenter, Andrew Faul, Oi-Wa Ngou, Charles Perryman, Peter Retallack and Lynette Sheldon. The remainder were tendered this morning at the hearing while Dr Yung was present and they have been added into exhibit 6. For the record we will call it exhibit 6A. That identifies them."

At the conclusion of the hearing shortly thereafter, the Chairman of the Committee informed Dr Yung that, if he wished to put in a report from an expert dealing with the records he could do so within 14 days, but that it was unlikely that the Committee would meet again with Dr Yung. The matters to which the expert was to direct his or her attention were not formulated by the Committee.

The essence of Dr Yung's evidence was that he was quite satisfied with the quality of care he had provided and that:

"I believe myself [to have] provided an appropriate level of clinical input and my standard of care has been consistent and has been appropriate and the outcome of my patients has been up to standard."

Dr Gooley gave this evidence:

"When Dr Yung was visited by a Health Insurance medical practitioner, he was told that his pattern of practice was, as far as I can see from this graph, on the 99.94 percentile, allowing still that he works only three days a week and that is compared with doctors who see fewer patients but work five or six days a week. As the director of the company would that not cause you some concern?--- The first time that the person came to see Dr Yung I was not aware of it until the second time he came and that was the first time I was made aware of it. In reference to Dr Yung, there would be other medical practitioners at that practice who would see almost as many patients as Dr Yung. Dr Yung is an exceptionally competent caring medical practitioner whose patients would come and insist on seeing him and no-one else .
There are two other practitioners who are not identified, of course, who are, as far as I can see, around the 99th percentile, 98, 99th percentile as well Does that say something about the quality of care which is given in the practice?--- You keep equating quality with numbers. Is it not possible for a doctor to see a large number of patients and deliver a quality of care?" (emphasis added)

The report when it issued on 30 August 1995 was critical of Dr Yung's practice. The report said inter alia;

"Dr Yung entered private medical practice at Kirrawee in 1984 following 2 years hospital experience after graduation from the University of Sydney in 1982. In the Committee's view, the practice environment at Kirrawee was one of poor quality, the emphasis in the practice being one where financial motivation took a higher profile than the concept of professionalism. The Committee found little evidence of in-house quality assurance. He practised episodic rather than continuing care. He has little demonstrated evidence of preventive care. His medical records are of very poor quality. He had only 93 level A consultations despite an extraordinarily high total of 15502 consultations at Kirrawee during the referral period. His level of competence is questioned. He provides a minuscule level of home visiting compared with his peers and therefore does not show a commitment to the immobile. Other concerns have been expressed in the accompanying documentation.
Dr Yung entered this practice without previous general practice experience. He readily accepted the Kirrawee practice arrangements and was content to continue in a less than adequate practice for more than 10 years. His servicing rate is beyond the 99th percentile of practitioner services in the Australian environment. He was counselled by a Medical Adviser from the Health Insurance Commission and made no effort to change his patient numbers per day. His lack of response to counselling, knowing what the consequences of such lack of response might be, demonstrates either arrogance or stupidity and is incomprehensible to the Committee.
The view of the Committee is that Dr Yung is grossly at variance with both adjacent area practitioners (as shown by the HIC statistics), the general body of practitioners, with world opinion, with what the Committee itself considers to be reasonable and what it believes to be the opinion of Dr Yung's peers in good standing.
The Committee was asked to consider whether or not Dr Yung has practised inappropriately. The Committee finds that Dr Yung has practised inappropriately in that his professional conduct as presented in the referral and as elicited during the course of the hearing is such that it would not be acceptable to the general body of vocationally registered general practitioners."

It will be noted that the Committee did not relate these comments to specific services but rather to the nature of Dr Yung's practice as a whole. As I have said, a Committee established under the Act is not concerned to discipline medical practitioners with respect to the general nature of their practice. The Act is concerned with medical benefits. The Act provides for disciplinary action and for proceedings to be taken in relation to services in respect of which medical benefits were paid or payable. Having regard to the provisions of the Act as they read at the time, I would have expected in the present case that any finding of inappropriate practice in the nature of insufficient care and attention would be related to identified services, save where it was appropriate to adopt a proportion, as where a sampling process was undertaken in accordance with s 106G to s 106K of the Act, in which case the sampling procedure adopted would identify the class or proportion of cases to which the findings drawn from an examination of a sample could be applied.

The Committee made a number of specific findings to which I should refer:

"The Committee found itself unable to accept that a practitioner is able to give proper professional attention to patients when rendering such a high number of services and when regularly working such excessively long hours.
...
On consideration of Dr Yung's answers to specific questions the Committee considered that he was providing episodic rather than continuing care and that he was practising a different style of practice from the vast majority of Vocationally Registered practitioners.
...
Dr Yung repeatedly asserted that he visited patients when requested. At the Kirrawee practice during the review period he billed 15,502 consultations and 8 home visits for which Medicare benefits were paid, giving a ratio of one home visit per 1,938 consultations.
The Committee had access to the consultation/home visit ratio for the postcodes adjacent to the Kirrawee practice, the ratio being one home visit for 24 consultations.
...
Dr Yung would have needed 41.6 hours in a two day period based on a 10 minute consultation duration to have provided the services which he had billed to Medicare. This time frame excluded the time required for the additional 33 procedures performed on these two days, travel time to and from the surgery (20 minutes each way), meal breaks, sleeping time, etc.
...
The Medicare statistics showed that Dr Yung claimed additional consultations at home on a regular basis on the days that he attended Kirrawee. Allowing for the fact that he left home at 6.30 am and never returned before 11.30 pm, this seems to be an extraordinary claim for him to make.
...
Dr Yung acknowledged that the majority of patients at the Kirrawee practice had no after hours service between 11pm and 7am.
...
The Committee examined 111 records of the patients who attended Dr Yung on that day [29 November 1994] for the presence or absence of a patient summary and found 92 did not have an adequate summary.
...
The Committee was concerned that the overall standard of the clinical records examined was inadequate.
...
Of the sample of 91 records from 29 November 1994 that were examined to determine the appropriate level of billing, the Committee, on the available documentation, considered that 75 consultations warranted being billed as Level B consultations (MBS item 23). However, it appeared to the Committee that the remaining 16 consultations should have been billed as Level A consultations (MBS item 3).
...
Of those patients who received antibiotics on this date the documentation supported the prescribing of antibiotics in 7 cases. Of the additional 10 patients who received antibiotics, the Committee could not, on the documentation, find that they were indicated.
...
It may be that there is a place in the system for practitioners who wish to practise as does Dr Yung. The question is whether or not such practitioners can be considered as Vocationally Registered General Practitioners. The Committee believes that they should not be so classified."

It is plain from the above that the Committee's attention was directed to issues many of which were distinctly different from the Commission's concern whether, in the services performed, Dr Yung provided "an appropriate level of clinical input". The discussion of the lack of home visits and the discussion of the lack of an after hours service between 11pm and 7am are clear examples of the point. It was, in my opinion, a wholly or largely irrelevant consideration that Dr Yung did not provide such services. If Dr Yung's practice in connection with the rendering of services in respect of which benefits were paid was appropriate, it mattered not that other medical practitioners would, in the course of their practices, have attended many more home visits and would have provided an after hours service between 11pm and 7am. These matters were not within the ambit of the reference. Of course, the Committee may have taken these matters merely as indicating Dr Yung's lack of interest in and care of his patients. However, the Committee's report suggests that these matters were regarded as aspects of "inappropriate practice".

The following findings against Dr Yung can be extracted from the Committee's report:

*
that he practised episodic rather than continuing care
*
that he failed to provide preventive care
*
that his medical records were of poor quality
*
that he overclaimed Level B consultations
*
that he was incompetent
*
that he provided only a minuscule level of home visiting
*
that he failed to give proper professional attention to patients
*
that he failed to provide an after hours service between 11pm and 7am
*
that he overprescribed antibiotics
*
that he did not practice as a vocationally registered general practitioner should do and that he should not be so classified
*
that his conduct would not be acceptable to the general body of vocationally registered general practitioners.

The approach taken by the Committee may have been more acceptable had Dr Yung been facing an inquiry before an appropriate medical authority as to whether or not he should be struck off the register of vocationally registered general practitioners. If that had been the case, at least the central thrust of the proceedings would have been clear. That would have given a structure to the proceedings and it would, presumably, have been sufficient then if particular instances of his alleged defaults had been specified and he was given an opportunity to deal with them. However, that was not the crux of the proceeding before the Committee. Dr Yung was a vocationally registered general practitioner and he was entitled to claim Commonwealth benefits on that basis.

The following specific allegations in particular were not mentioned in the Commission's referral and were not formulated in writing by the Committee for Dr Yung to answer:

*
that he was incompetent
*
that he failed to provide preventive care
*
that his medical records were of poor quality
*
that he overclaimed Level B consultations
*
that he provided only a minuscule level of home visiting
*
that he did not provide an after hours service
*
that he overprescribed antibiotics
*
that he should not be classified as a vocationally registered general practitioner.

Of course, some of these matters were mentioned to Dr Yung in the course of his questioning. But in proceedings of this type, it was incumbent upon the Committee to give Dr Yung adequate notice of the allegations so that he could consider them and bring forward his answers, particularly as the Committee's considerations went beyond the matters set out in the Commission's referral. The Committee was bound by the rules of procedural fairness to make it known to Dr Yung in a clear fashion what were the matters into which it was inquiring.

Had the Committee turned its attention to formulating allegations with respect to these matters, the Committee may well have come to realise that it would be difficult to relate the findings to referred services unless the Committee undertook a sampling exercise in accordance with the Act.

It is no wonder that Dr Yung had difficulty in dealing with the inquiry. As Dr Yung said to the Committee:

"It is a very stressful experience, which I've never come across."

In the course of the evidence of Dr Yung, questions were asked about a number of patients who had been treated in May and June. However, these patients ultimately did not feature in the Committee's report, presumably because the Committee chose a date, 29 November 1994, to look at and did not examine those records in detail until after the hearing had concluded. Dr Yung did not have an opportunity to deal with any queries which the Committee had arising from those records. A feature of the Committee's report is that there was no finding made of inappropriate practice in relation to any identified patient and there was no suggestion that any patient had ever complained of Dr Yung's treatment. Nor for that matter was it explained why Dr Yung was such a popular doctor.

In the result, I am satisfied that Dr Yung did not in general receive procedural fairness at that stage. There may be some small individual findings of the Committee which could be supported because they were raised orally with Dr Yung and he had an opportunity to answer them. However, I have not considered the whole of the proceedings in sufficient detail to determine whether that is so.

There were three major flaws in the Committee's proceedings and report. The first was that procedural fairness was not accorded to Dr Yung. The second was that the Committee made global findings either of or relevant to "inappropriate practice" without relating those findings in any meaningful way to the referred services. On this point, I should note, for example, that the Committee did not examine each and every service in a sample, even the services of 29 November 1994, to form a view that, in a stated proportion of them, Dr Yung failed to exercise due care and skill. Nor did the Committee find that Dr Yung overprescribed in a stated proportion of cases. Nor did it find that all or a stated proportion of the medical records were unsatisfactory.

Thirdly, the Committee did not state clearly what were the findings of "inappropriate practice" which it made. With respect to some of the Committee's findings, such as the findings as to the home visits and after hours services, it is difficult to know whether they were made as findings of "inappropriate practice" or whether they were illustrations of Dr Yung's failure to give due care to the patients he saw. Other references, such as that to "episodic rather than continuing care" and that to "competence" were too general to be findings of "inappropriate practice".

I should add that it was necessary for the Committee to adopt as an "inappropriate practice" something that was recognised by the members of the profession as inappropriate. The Committee did not have authority to enunciate an inappropriate practice of its own. In the absence of a standard practice either as to the number of patients per day or as to the time spent with each patient, the Committee was bound to adopt a recognised "inappropriate practice", such as that mentioned by the Commission in its reference, namely, the lack of an appropriate level of clinical input. In a finding of "inappropriate practice" , the number of patients seen by Dr Yung per day would only be a relevant factor, an indication that such a practice may have occurred. Other factors would be whether patients were satisfied or dissatisfied with their treatment, whether Dr Yung's treatment had been shown to be faulty and so on. The Committee did not approach the matter in this way.

Determining Officer

After a report of a Committee has issued, it must be given to the Determining Officer appointed under s 106Q of the Act. The Determining Officer gives a copy of the report to the person under review.

Once the Committee has reported a finding of inappropriate practice, s 106S provides that:

"(1)
If the report contains a finding that the person under review has engaged in inappropriate practice in connection with rendering or initiating some or all of the referred services , the Determining Officer must:

(a)
make a draft determination in accordance with section 106U relating to the person under review; and
(b)
within 14 days after receiving the report, give copies of the draft determination to the person under review and to the Director.

(2)
The draft determination must be accompanied by a statement inviting the person under review to make written submissions, within 14 days, suggesting changes to the draft determination.
(3)
Within the 14 day period starting on the day on which the person under review receives a copy of the draft determination, he or she may make such ... written submission to the Determining Officer.
..." (emphasis added)

Section 106T requires that "the Determining Officer must make a final determination" and s 106U provides that "A determination must contain one or more of the following directions", the directions being then specified. Accordingly once the Committee had reported a finding of inappropriate practice, the Determining Officer was obliged to make a determination which would include directions of a disciplinary nature.

On 22 September 1995, the Determining Officer, Mr Anthony Adams, issued a draft determination. Dr Yung responded to that by letter of 4 October 1995. The final determination issued on 18 October 1995.

The Determining Officer appears to have misapprehended his powers. The determination said inter alia:

"2.
I noted that Dr Yung had been counselled regarding his rendering of services by the Health Insurance Commission prior to the referral of his conduct and that his "lack of response to counselling, knowing what the consequences of such lack of response might be" [ie. the referral of his conduct] was incomprehensible to the Committee. I also noted that Dr Yung disputes this and states that he has reduced his working hours "by 50% since March 1995" and that he "quit the Kirrawee practice altogether in May 1995. I am now continuing as a GP working 5 1/2 days a week (office hours) and intend to practice according to the RACGP". In addition, I noted that Dr Yung's conduct was referred by the Health Insurance Commission to the Director of Professional Services of Review on 8 May 1995 and that the referral covered services he rendered from 1 January 1994 to 31 December 1994. I formed the opinion that I could not take into account any change in conduct outside the period covered by the referral as that period was not relevant to the Committee's consideration of Dr Yung's conduct". (emphasis added )

In my opinion, the Determining Officer was not limited to events which had occurred during the referral period. The function of the Determining Officer was to make a determination and to impose the disciplinary direction or directions. In determining which direction was appropriate, the Determining Officer was entitled to take into account whatever the medical practitioner had to say on the point. I presume that the Determining Officer would not receive further evidence as such. But the Determining Officer is entitled to take relevant information into account. In fact, the Determining Officer did receive such information. The Determining Officer took into account a letter from the Health Insurance Commission dated 7 September 1995, which provided data on Medicare benefits relevant to the services rendered by Dr Yung from 1 January 1994 to 31 December 1994. In my opinion, the Determining Officer was entitled to take into account matters such as whether Dr Yung had changed his ways and reformed the nature of his practice.

In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 the High Court pointed out at 201-202 that, although disbarment is sometimes referred to as "the penalty of disbarment", it was in no sense punitive in character. At 202, in the course of their reasons, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ referred to the fact that, in one of the proceedings brought in the Supreme Court of New South Wales against Mr Clyne on a charge of unprofessional conduct, the charges had been withdrawn on his giving an undertaking "to abide by the recognised standards which should govern the conduct of members of the profession". Similarly, in The New South Bar Association v Evatt (1968) 117 CLR 177 Barwick CJ, Kitto, Taylor, Menzies and Owen JJ said at 183-184 that:

"The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved."

Their Honours went on to say at 184:

"The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser."

As those cases show, directions under s 106U with respect to a reprimand, counselling, the repayment of benefits and disqualification are not imposed as a punishment. They are imposed with a view to protecting patients and the Commonwealth against abuse of the system. Any reformation which the medical practitioner has made in the nature of his practice therefore is a highly relevant factor to which regard should be had in exercising the discretion which s 106U confers.

The Determining Officer also said:-

"8.
In making my draft determination I was required to base my findings as to Dr Yung's conduct on the report of the Professional Services Review Committee as no provision is made in the Act for me to be provided with any other material considered by the Committee. This has been confirmed in legal advice given to the Director of Professional Services Review by the Commonwealth Attorney-General's Department. Further, there is no discretion open to me to depart from the Committee's findings.
9.
In his letter dated 4 October 1995, which responded to my draft determination dated 22 September 1995, Dr Yung challenged a number of the findings and comments contained in the Committee's report. For the reasons mentioned in Item 8 above, I have taken into account solely the findings of the Committee. In making my final determination, I have addressed only those matters raised by Dr Yung which go beyond his arguments about the validity of the Committee's conclusions and findings.
..."

I presently doubt that the Determining Officer was not entitled to have regard to all the material considered by the Committee. Section 106L provides that the Committee shall give its report to the Determining Officer. In earlier years, s 104 had provided for the report to go to the Minister. Now, the Committee reports to the Determining Officer. It would not be inappropriate for the report to be accompanied by the transcript of the proceedings and the documents received in evidence, nor for the Determining Officer to have regard to that material.

The function of the Determining Officer is to make a determination under s 106U setting out, inter alia, one or more of the specified disciplinary directions. If the Disciplinary Officer can be assisted in that task, I do not see why he should not refer to all the relevant material. Section 115(1) provides that a Professional Services Review Tribunal shall have regard to, inter alia, a transcript of the proceedings before the Committee, the report and "any documents sent to the Minister with that report." Under s 106L, the report is now sent to the Determining Officer. I assume that s 115(1) should be read accordingly and that the Act contemplates that the report will be forwarded with accompanying documents.

It is to be noted, moreover, that s 106L provides that, if the Committee members are not unanimous, an additional report setting out the findings of the minority may be prepared and, if so, it must be given to the Determining Officer: see s 106M. So, the Determining Officer is not limited in his consideration solely to the findings expressed in the report of the Committee.

However, I do not accept the submission put by Mr Matthew Smith, counsel for Dr Yung, that the Determining Officer was entitled to consider further evidence to be adduced by Dr Yung going to the merits of the matter. It is clear from Div 5 of Part VAA that the function of the Determining Officer is to make a determination under s 106U, a section which deals only with the directions to be given. The Determining Officer is placed under time constraints which would not permit reconsideration of the substance of the Committee's report. Section 106S (2) & (3) specifically limit medical practitioners to putting forward submissions as to changes to the draft determination.

The reasons for determination expressed the following findings against Dr Yung:

"1.
I noted that Dr Yung has been found to have failed in rendering of his services to meet the standards expected from a general medical practitioner and a vocationally registered practitioner.
...
3.
I noted the Committee's view that Dr Yung has practised for some ten years in an environment where financial considerations have taken precedence over quality patient care. The high number of patients seen by Dr Yung in a day and the level of consultations claimed in respect of those patients led the Committee to express misgivings about the accuracy of his service billing.
4.
I noted that the Committee had cause to question Dr Yung's truthfulness during its hearings into his conduct and that it had concerns about the standard of Dr Yung's clinical records and his prescribing habits.
5.
I noted that the Committee suggested that Dr Yung would benefit from being an early entrant in a program recently designed by the Royal Australian College of General Practitioners to rehabilitate "the incompetent practitioner."
6.
In the context of its comments on Dr Yung's competence, I noted the Committee's remark that "the Committee would recommend that any counselling embrace this issue. This presupposes that Dr Yung is able and intends to continue in general practice."
...
8.
I noted that the Committee had concerns about Dr Yung's understanding and use of the Medicare Benefits Schedule for billing purposes and that it had concluded that it was "clearly not possible" for Dr Yung to be acting as a vocationally registered general practitioner.
9.
I noted that, by finding that Dr Yung had engaged in inappropriate practice in the rendering of his consultation services as a vocationally registered general practitioner, those services were inappropriate services within the meaning of subsection 106U(5) of the Act."

The determination directed that Dr Yung be counselled, that Dr Yung pay to the Commonwealth the amount of $42,130.60, an amount calculated with respect to the Medicare benefits paid for all the referred services, that Dr Yung be disqualified in respect of all services to which an item related in Group A1 of Part 2 of the General Medical Services Table for a period of 9 months and that Dr Yung be fully disqualified for a period of 6 months.

The sum of $42,130.60 was the difference between the benefits that were payable for consultation services by a vocationally registered general practitioner and the sum that would have been payable for equivalent consultations rendered by a non-vocationally registered general practitioner. The Committee had expressed the view that it believed that it was clearly not possible for a medical practitioner who practised as did Dr Yung to be considered as acting as a vocationally registered general practitioner as understood by the profession. The precise significance of the difference between a vocationally registered general practitioner and one who is not so registered was not elucidated in the hearing in this Court. Item 23 refers to "a general practitioner". That term is defined in Rule 1 of the General Medical Services Table as, inter alia:

"a practitioner who is vocationally registered under s 3F of the Act."

Dr Yung was so registered.

For present purposes, it should be noted that, as the Determining Officer gave effect to the findings of the Committee, the determination necessarily incorporated and adopted the flaws including the procedural flaws which had affected the Committee's report.

The direction for repayment which was imposed was calculated on the footing that there had been inappropriate practice in relation to all the consultation services in respect of which medical benefits had been claimed. The Determining Officer also mentioned inaccuracy in service billing, concerns about the standard of the clinical records and concerns about Dr Yung's prescribing habits, but he did so without relating these matters to any particular services.

The Professional Services Review Tribunal

Professional Services Review Tribunals are established under s 108 of the Act. Dr Yung requested the Minister to refer the determination of the Determining Officer to such a tribunal for review. Relevant provisions with respect to that review are:

"115.

(1)
Upon receipt by the Minister of a request under section 114 for the review of a determination, the Minister shall 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.

...
118.

(1)
Proceedings before a Tribunal must be conducted with as little formality and technicality as a proper consideration of the matter before the Tribunal permits.
...
(3)
The parties to the proceedings are the person who requested the review and:

(a)
if the determination consists of a refusal by the Minister, under paragraph 23B(1)(b), to accept an undertaking - the Minister; or
(b)
if the determination consists of a final determination under section 106T - the Determining Officer.

119.

(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):

(i)
if the determination consists of a refusal by the Minister, under paragraph 23B(1)(b), to accept an undertaking - affirm or set aside the determination; or
(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.

(2)
If the determination consists of a refusal by the Minister under paragraph 23B(1)(b), to accept an undertaking, 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 Minister.
(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."

As s 119 shows, the Tribunal has the function of reviewing the matter on its merits but must do so having regard to the grounds set out in the request and on the papers, that is to say upon the documents forwarded to the Tribunal under s 115(1) of the Act. Insofar as the Tribunal makes adverse findings against the medical practitioner, the Tribunal should be satisfied that the findings are relevant for the purposes of the Act, that the findings are within the ambit of the reference by the Health Insurance Commission which initiated the process, that the medical practitioner has had a fair opportunity to answer the allegations made against him or her and that the findings which the Tribunal makes are fairly based on the material before it.

If the Tribunal is satisfied that the findings stated in the determination should not be made on the material before the Tribunal or if the Tribunal is satisfied, after perusing the transcript of the proceedings before the Tribunal, that the medical practitioner was not given a fair opportunity to answer the allegations which were made against him or her, then the Tribunal is entitled to set aside the determination. The Act does not require the Tribunal to make another determination. It may affirm the determination, set it aside or set it aside and make another determination.

Mr Alan Robertson SC, with whom Mr Stephen Gageler appeared for the respondent, submitted that a Professional Services Review Tribunal had no power to reconsider the findings of the Committee with respect to inappropriate conduct, and that its only power was to review the determination of the Determining Officer. In my opinion, that submission should not be accepted. Certainly, the order of a Professional Services Review Tribunal must be directed to affirming or setting aside and substituting other directions for those set out in the determination. However, in performing that function, the whole matter is open to the Tribunal, although it must come to its decision on the papers before it. This was explained in Minister for Health v Thomson (1985) 8 FCR 213 ; McIntosh v Minister for Health (1987) 17 FCR 463 and Tiong v Minister for Community Services & Health (1990) 93 ALR 308. Such changes as have occurred in the legislation have not changed the role of the final Review Tribunal. It is because of the importance of the function which a Professional Services Review Tribunal performs, that it is required to have as its President a person who is a judge or who has held judicial office.

It is not inconsistent with this approach that s 119(3) provides that the decision of a Professional Services Review Tribunal shall be taken to be a determination of the Determining Officer. Although the Act does not, in express terms, require a Determining Officer to set out in his or her determination the findings of inappropriate practice in respect of which the disciplinary directions under s 106U are given, one would expect that that would be done. It was done in the present case. Therefore, it is not inconsistent that a Professional Services Review Tribunal should make findings of inappropriate practice before going on to consider what direction or directions should be given under s 106U.

Dr Yung's request that the matter be referred to a Professional Services Review Tribunal set out a number of grounds including the ground that "breaches of the rules of natural justice occurred in connection with the making of the Final Determination". This ground was not well expressed, in part because aspects of procedural fairness arose rather more from the manner in which the proceedings before the Committee had been conducted than from the proceedings before the Determining Officer and in part because the function of a Professional Services Review Tribunal is not that of applying principles of judicial review to findings earlier made but that of considering the whole matter on its merits, having regard to the material which is before it and in the light of all relevant matters including the extent to which procedural fairness has been accorded to the medical practitioner.

This point was enunciated in Tiong v Minister for Community Services & Health . In my reasons in that case at 312, I said:

"The trial judge correctly expressed the function of the Review Tribunal as follows (at 732-3):
`The central task of the tribunal, as I read the Act, is to determine whether, on the evidence before the committee, its conclusions are factually correct. But in performing that task, it may take into account the opportunity or lack of opportunity for explanation of his or her actions accorded to the doctor concerned. If the tribunal was satisfied, as to a particular service, that the doctor whose conduct was in question had had no reasonable opportunity to explain his or her case, then in my opinion it would have power to vary the Minister's determination accordingly.'"

In Tiong , I was of the view that, having regard to the course of the hearing before the Review Tribunal, the findings of the Review Tribunal were not flawed for any lack of procedural fairness in the whole process. I expressed the view that it mattered not that the findings of the Committee might have been flawed for lack of procedural fairness at that stage as the decision of the Committee was not under challenge and as any breach of natural justice at the stage of the Committee's hearings did not necessarily invalidate the ultimate decision of the Tribunal. Spender J agreed with my analysis of the function of the Review Tribunal. Burchett J disagreed on the facts but his Honour adopted the same approach. At 322, his Honour said:

"The issue was whether, upon that material which was before the Review Tribunal, it could lawfully be found that the doctor had rendered such unnecessary services. There was not then any question of denial of natural justice by the committee, but of the evidence upon which the tribunal was entitled to act. The tribunal had to observe the requirement that Dr T S Tiong "must be afforded an adequate opportunity of being heard": Commissioner of Police v Tanos (1958) 98 CLR 383 at 395. I agree, as has been repeatedly held, that the adequacy of an opportunity to be heard will vary from case to case, and the principle is really the opposite of the specification of some inflexible procedure: see Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 83 ALR 67 at 72. But where, on the face of it, a tribunal has made a determination against a person in respect of particular matters he was expressly told would not be raised against him, the decision can only be justified by a finding that, on the facts, an adequate opportunity to be heard was nevertheless somehow provided. The difficulty in the present case is that the tribunal did not examine this question, let alone make any such finding."

Section 114 imposes a 28 day time limit for the statement of the grounds on which review is sought and amendment of the grounds is not permissible thereafter. However, in this case, as in the case of taxation objections lodged before the taxation legislation permitted amendment thereof, the grounds should be read beneficially. In A.L. Campbell & Co Pty Ltd v Federal Commissioner of Taxation (1951) 82 CLR 452, Dixon J said at 461 that:

"... courts should not interpret grounds of objection technically, narrowly or with rigidity ..."

In New Zealand Flax Investments Ltd v Federal Commissioner of Taxation (1938) 61 CLR 179, his Honour said at 204:

"The ground is certainly obscurely and illogically worded, but its ambiguities should, I think, be resolved in favour of the taxpayer."

Thus, the words of the ground "in connection with the making of the final determination" can and should be read as encompassing the allegation that Dr Yung did not receive procedural fairness in the proceedings leading up to the making of the final determination.

However, it was not the function of the Tribunal to consider one matter which counsel for Dr Yung wished to put to it and that is that the proceedings of the Committee were void because of an appearance of bias on the part of its Chairman, to whom objection had been taken. The Tribunal did not have the function of judicial review. If counsel had sought to challenge the report of the Committee on the ground of bias, the forum for the challenge was this Court.

Mr Smith sought to reagitate the view enunciated in Minister for Health v Thomson that a Medical Services Review Tribunal, now Professional Services Review Tribunal, does not have power to admit new evidence. However, that decision was correct and it binds me, notwithstanding the changes in the legislation which have occurred. It has been followed on many occasions. Sections 115(1) and 119(1) are quite explicit and preclude the Tribunal from having regard to material other than that specified in the sections.

The Tribunal approached its task applying dicta of my own in McIntosh v Minister for Health . It was requested to hear further evidence and correctly held that it had no power to do so. It was put to the Tribunal that it was bound by the findings of the Committee that Dr Yung had practised inappropriately within the meaning of the legislation. The Tribunal did not decide this submission having independently concluded that the decision of the Committee was correct. I should make it clear that, in my opinion, it was the function of the Tribunal to consider the whole matter for itself and to do so on the papers. Its duty was to review the matter for itself and independently to arrive at its own conclusions. See McIntosh at 467-8.

The principal reasons for decision of the Tribunal were given by the Honourable Mrs Margaret Lusink, President. The President considered that neither counselling nor a reprimand was required. She noted that, in view of the fact that Dr Yung had acted under an arrangement with two companies at Kirrawee, it might be that s 106U(2) did not authorise the giving of a direction to reprimand or counsel Dr Yung. The President considered that, having regard to the delay which had occurred, to the legal expenses incurred and to the personal consequences to Dr Yung of the determination, it was inappropriate to impose a monetary penalty. The President did not find it necessary to consider a submission that had been put that the figure of $42,130.60 had been incorrect and that the proper figure to be repaid was $127,327.85. The President considered that paragraph (4) of the determination made on 18 October 1995, that is the imposition of a disqualification from practice for a period of 6 months, should be affirmed but that otherwise the determination should be set aside.

It is clear from the reasons of the President that she concluded that the decision of the Committee that Dr Yung had practised inappropriately within the meaning of the legislation was correct but that she did not agree with all aspects of the Committee's proceedings or its report and findings. The President, however, gave no reasons for that conclusion.

Professor Priscilla Kincaid-Smith gave reasons in support of the same view. She said, inter alia:

"I believe there is sufficient evidence in the material provided for me to agree with the Committee's finding that `Dr Steven Yung engaged in inappropriate practice unacceptable to the general body of general practitioners.' I base this largely on the fact that during the period under review the number of patients seen by Dr Yung was above the 99 percentile of that recorded for other general practitioners over that period. This means that for all the services provided his overall time spent with a patient was less than 10 minutes. While it is quite acceptable to see some patients for less than 10 minutes, this average cannot be maintained in my view without it amounting to inappropriate practice. Further evidence of inappropriate practice is seen in the large numbers of radiographs which he carried out and the small number of positive x-rays which this yielded. This means that he was doing too many x-rays either because of the profit incentive, as these are highly rewarded, or because the time he took to see patients was too short to enable him to determine who did or did not need an x-ray."

Professor Kincaid-Smith very properly criticised the Committee's report saying that the focus should have been on the inappropriateness of the services provided by Dr Yung whereas the report encompassed a large number of issues which were irrelevant to this key matter. Professor Kincaid-Smith pointed out that the Committee had made no statement about the number of services in respect of which there had been inappropriate practice save to say that all services were concluded to be the subject of inappropriate practice. Professor Kincaid-Smith pointed out the illogicality of a finding that all the services provided by Dr Yung had involved inappropriate practice.

Professor Kincaid-Smith said that she considered that there was little in the issue of continuity of care and that most practitioners in extended hour or 24 hour clinics would see individual patients no more than twice a year. She thought that the matter of home visits was a matter really for Dr Gooley, the "father figure" of the Kirrawee clinic, rather than for Dr Yung. Professor Kincaid-Smith said that while she believed that Dr Yung's consultation times were on average too short, it was proper to take account of what was normal in extended hour clinics, which is for the consultation times to be very short and for the type of patients seen in these clinics to need only a short consultation time. Professor Kincaid-Smith considered that the question of after hours care in the Kirrawee practice was not a matter which was in Dr Yung's hands. She thought that the sample of records which the Committee chose to use was in no way a random sample nor was the sample taken in accordance with the requirements of the Act. Professor Kincaid-Smith thought that the Draft Standards For General Practice Accreditation on which the Commission and the Committee relied had no status at the time in question and that Dr Yung could not have been expected to know about them. Professor Kincaid-Smith thought that the example which the Committee gave of prescribing an antibiotic for a sore throat was a very questionable one and that authorities disagreed over how many patients should receive an antibiotic for this complaint. Professor Kincaid-Smith said that the professional issues raised by the Committee had little or no relevance. She thought that the evidence suggested that Dr Yung had come through the RACGP accreditation process with flying colours. She said she could not agree with the Committee's implication that 16 hours of work a day for a man of Dr Yung's age was "inappropriate practice".

It is unfortunate that Professor Kincaid-Smith, who focussed her attention on essential issues, went on to come to certain adverse conclusions about radiology. Once again, the principles of natural justice were not complied with. No allegation had been formulated against Dr Yung with respect to radiology. He did not have an opportunity to answer this challenge, for the allegation had not previously been made. Perhaps many of the patients had been referred to Dr Yung by other practitioners for the taking of x-rays as Dr Yung had the equipment and the qualification. We do not know. One can see that the failure of the Commission and of the Committee to formulate allegations and to give Dr Yung an opportunity to put an answering case bedevilled this matter throughout the course of the decision making.

Dr Peter Joseph dealt with the matter in this way:

"Medically safe and medico-legally safe medicine requires the allocation of sufficient time for patients to provide a relevant history, to be examined, for a diagnosis to be established if possible, investigations to be ordered or performed if required, and a management plan to be established and administered with the patient's informed consent. This is a professional constant which does not depend on location or style of practice.
The profession has co-operated with the Health Insurance Commission and with Government to establish the Professional Services Review Scheme with a view to identifying "inappropriate practice". The identification of what is appropriate is made by practitioners in the same discipline. It is against this background that the Professional Services Committee of Inquiry held its investigation and delivered its report. While its methods have been subject to critical comment, its finding that Dr Yung had provided inappropriate services is supported by this Tribunal."

However, Dr Joseph did not relate his finding that insufficient time had been allocated to any particular service or any class of service or any proportion of service. Although the word "some" is expressed in s 106S, if a finding of inappropriate practice refers to only some of the referred services, it must identify the relevant services either by naming them or identifying them in some relevant way, as by the statement of a particular proportion.

As I have already said, when disciplinary proceedings are brought against a practitioner under the Act, the disciplinary proceedings should be directed to the service or services in respect of which the Commonwealth has a legitimate complaint. The Commonwealth does not have a legitimate complaint if a medical practitioner chooses to work harder than most other practitioners whilst giving due care, skill and attention to his or her patients. It would not have been open to the Tribunal to hold that Dr Yung engaged in inappropriate practice, in the sense of failing to exercise due care, skill and attention, in respect of every one of the 17,331 services which Dr Yung provided at the Kirrawee practice during 1994, or even every one of the 15,388 Level B consultations. Particularly is this so when there was no evidence that any patient had ever complained of the service which Dr Yung provided.

The President gave no details of the services in respect of which she considered there had been inappropriate practice, or indeed what aspect of Dr Yung's conduct she considered to be inappropriate practice. Professor Kincaid-Smith specifically rejected the view that all the services provided by Dr Yung involved inappropriate practice. However she did not go on to identify any particular services or a class of service as having involved inappropriate practice and did not say what had been the inappropriate practice other than to say that an average of 10 minutes per patient could not be maintained and to refer to some of the radiographers. Dr Joseph agreed with the finding of the Committee "that Dr Yung had provided inappropriate services" but again he did not say whether that occurred in relation to all or some only and which of the referred services. In the result, the findings of the Tribunal come down to no more than a finding that Dr Yung was a suspicious person, in that it was probable that, during 1994, some of the services which he provided involved inappropriate practice. The findings of the Tribunal did not relate findings of specified inappropriate practice to any particular services or to any proportion of the referred services.

Nor did the members explain what was the basis on which the disqualification for 6 months was imposed on Dr Yung.

This Court has adopted the view that administrative decisions may be struck down for lack of reasons: see Dornan v Riordan (1990) 24 FCR 564; Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402. Mr Robertson submitted on behalf of the respondent that the failure to give reasons did not invalidate the decision of the Tribunal. He referred to Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, where it was held that there was no general rule under common law or principle of natural justice which required reasons to be given for administrative decisions, whether or not made in the exercise of a statutory discretion and liable adversely to affect the interests, or affect the legitimate expectations of others. Mr Robertson submitted that the Act imposed no specific statutory duty on the Tribunal to provide a written decision, setting out its findings of fact and referring to the material relied upon.

However, it can be clearly inferred from the Act that the Tribunal must give a written decision setting out its findings with reasons. A recent case in which an obligation to give reasons was implied is Reg v Home Secretary: Ex parte Doody [1994] 1 AC 531. At 564, Lord Mustill said:

"I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analyses by the Court of Appeal in Reg. v. Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All E.R. 310 of the factors which will often be material to such an implication."

The Commission's reference, the Commitee's report and the determination of the Determining Officer are all written documents and should be supported by reasons. In this context, it would be unacceptable for the Tribunal not to give a reasoned decision. Two further factors support the implication. One is that s 108(3) of the Act provides that the President of the Tribunal must be a person who holds or has held a judicial office. This suggests that the Tribunal, like a court, should give reasons for its decisions: see Brackenreg v Comcare Australia (1995) 56 FCR 335 at 344-8. The other is that, under s 124A of the Act, an appeal lies to this Court on a question of law from any decision of a Professional Services Review Tribunal. Where such an appeal lies, it is incumbent on the Tribunal to give sufficient reasons to enable an aggrieved party to determine whether or not to appeal to the Court and to enable the Court to decide whether or not the decision was made in accordance with the law. Accordingly, I am satisfied that the Act implied a duty on the Tribunal when giving its decision to state its findings, to explain the reasons for its findings and for its decision and to refer to the material on which the findings were based.

Mr Robertson further submitted that the failure to give reasons does not amount to an error of law such as is contemplated by s 124A of the Act. He referred to the dissenting judgment of Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422 where Brennan J said at 445-6 that a failure by a tribunal adequately to fulfil its statutory obligation to state reasons for making an administrative decision did not, without more, invalidate the decision or warrant its being set aside. His Honour went on to say that the appropriate remedy may be a mandatory order to the Tribunal to state its reasons.

I accept the view which his Honour expressed. But where there is a failure to state sufficient reasons, it can often be inferred from that failure that the tribunal wrongly approached the issues before it and accordingly that the decision should be set aside and the matter remitted to a tribunal differently constituted. In O'Brien , Brennan J said at 446:

"If a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal has failed in some respect to exercise its powers according to law ... the court may act upon the inference and set the decision aside."

In an application of this principle, it is useful to refer to the guidance given in Foulkes' Administrative Law , 8th Ed. at 334-5 where the learned author states:

"(ii)
A decision may be struck down in the following cases: if reasons are `improper' (eg show that improper matters were taken into account and thus disclose an error of law); if reasons are `inadequate' (ie do not deal adequately with the principal issues, though it is possible that though inadequate, no disadvantage is shown, perhaps because it is obvious to the complainant what the reasons were); if reasons are unintelligible or obscure as where they are contradictory or leave substantial doubt as to what matters were taken into account."

In the present case, the Tribunal has given written reasons but those reasons are quite inadequate. An inference can be drawn that the Tribunal made an error of law as to the issues which it had to decide. Otherwise, its decision would have dealt fairly and properly with the issues before it. In these circumstances, the decision must be set aside.

The decision of the Tribunal also fails in that there is not a clear identification of an inappropriate practice or practices, nor is any finding of inappropriate practice related to an identified service or services.

Finally, the decision is flawed because it does not appear that the findings of the Tribunal were on matters in respect of which Dr Yung had received procedural fairness, that is to say, in respect of which he was afforded adequate notice and a fair opportunity to answer the allegations on which the findings were based. The breaches of procedural fairness occurred of course principally during the earlier stages of the process. Nevertheless, the conclusions of the Tribunal were flawed by what had occurred, for the adverse findings of the Tribunal such as they were were not as to matters to which Dr Yung had had a fair opportunity to respond.

In McIntosh at 465-468, I discussed the approach which a body such as the Professional Services Review Tribunal should take with respect to an allegation of a lack of procedural fairness in the proceedings below. I indicated that it was not appropriate for the Tribunal to approach the matter as if it were undertaking judicial review of the earlier decisions. That is not its function. However, I also indicated that, if it appears that, in the proceedings below, the medical practitioner did not receive procedural fairness, then the Tribunal would be entitled to treat the findings below with caution or reserve by reason of that matter or even to reject the findings on that ground. The function of a Professional Services Review Tribunal is to decide the matter for itself although on the papers and after hearing addresses. It ought not make a finding against a medical practitioner unless it is satisfied that the medical practitioner has had adequate notice of the relevant allegations and an adequate opportunity to meet them. It is fundamental to the validity of the decision of a Professional Services Review Tribunal, which has the power and function to review the matter for itself, that its decision is based on findings in respect of which the principles of natural justice have been satisfied. The law as enunciated in Kioa v West applies equally to a decision made by a Professional Services Review Tribunal as to a decision by any other administrative body.

Orders

Mr Smith rejected a suggestion from the Bench that he should consider amending the proceedings so as to challenge the decision of the Committee and the determination of the Determining Officer. He rejected that approach submitting that, in an appeal under s 124A of the Act, the Court has power to declare the decisions of the Committee and of the Determining Officer void and of no effect. Mr Smith referred to s 22 of the Federal Court of Australia Act 1976 (Cth). He was also relying, I think, upon Ridge v Baldwin [1964] AC 40 in which it was held that a decision of a watch committee, which had not provided procedural fairness, was void because a decision given without regard to the principles of natural justice was void and that the fact that the matter had been further considered by the Secretary of State who affirmed the decision of the watch committee did not affect the invalidity. At 81 Lord Reid said:

"I need not consider what the result would have been if the Secretary of State had heard the case for the appellant and then given his own independent decision that the appellant should be dismissed. But the Secretary of State did not do that. He merely decided `that there was sufficient material on which the watch committee could properly exercise their power of dismissal under section 191(4).' So the only operative decision is that of the watch committee, and, if it was a nullity, I do not see how this statement by the Secretary of State can make it valid."

The present is a different case for the decisions of the Committee and of the Determining Officer are not challenged in this proceeding. The fact that, if they had been challenged they may well have been declared void, does not render the decision of the Tribunal a nullity. In McIntosh at 466 I rejected a similar argument and held, after referring to Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242, R v Balfour; Ex parte Parkes Rural Distributions Pty Limited (1987) 17 FCR 26 and Wade's Administrative Law 5th Edition at p314, that an administrative decision remains valid and operative until it is declared invalid by a court of competent jurisdiction. I need not repeat my observations in McIntosh . See also Otter Gold Mines Ltd v Australian Securities Commission (unreported, Beaumont, Sundberg & Merkel JJ, 5 November 1997).

The proceedings are in form an appeal from a decision of the Tribunal. Although the orders sought include a declaration that the report of the Professional Services Review Committee is void and a declaration that the determination of the Determining Officer is void, those decisions should, in my opinion, if directly challenged, have been challenged by proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under s 39B of the Judiciary Act 1903 (Cth). Such declarations are inappropriate in proceedings brought under s 124A of the Act. It is not that the Court lacks power to deal with the matter but rather that, if those decisions are to be challenged, the challenge should be brought in due form and, presumably, in due time. Mr Smith rejected the suggestion that the proceedings should be amended to challenge the decisions of the Committee and of the Determining Officer. That being so, I shall deal with the proceedings on the footing on which it was brought, namely as an appeal under s 124A of the Act against the decision of the Tribunal.

I propose to remit the matter to the Professional Services Review Tribunal differently constituted to be heard and decided again. The Professional Services Review Tribunal can then consider all the material before it. If there is a proper basis on which to make a finding in respect of inappropriate practice in relation to one or more of the relevant services, that finding can be made. If there is not a proper basis on which to make a finding of inappropriate service in relation to specified services, then the Tribunal should set aside the determination of the Determining Officer. I have not looked at the material with sufficient care or in sufficient detail to form a view that on no basis could a finding of inappropriate practice be made against Dr Yung.

The respondent should pay the costs of the proceedings.

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