Case: Cohn v Hatcher [2005] FCAFC 199 ; (2005) 146 FCR 275
Outcome: applied
And, in a decision handed down on the same day, Cohn v Hatcher [2005] FCAFC 199 ; (2005) 146 FCR 275 the same Full Court looked again at the operation of 'exceptional circumstances' within s 106KA and reg 11. Lander J said that reg 11(a) provided for certain circumstances which are like, but not the same as, circumstances which might be 'exceptional circumstances' in s 106KA(2) ( Cohn 146 FCR at 288 [67]). He held that, first, the medical practitioner had to establish that an unusual occurrence had occurred which caused an unusual level of need for professional attendances. Next, the practitioner must establish that that occurrence affected the rendering or initiating of services by him or her ( Cohn 146 FCR at 288 [70]). In this way each of reg 11(a) and s 106KA(2) were held to interact. And, once the medical practitioner establishes both that exceptional circumstances existed and they affected the rendering or initiating of services by him or her, the day or days on which that is established are not taken by s 106KA(1) to have constituted engaging in inappropriate practice. The Full Court did not deal with the operation of s 106KA(2A). 16 At the outset it is important to understand how s 106KA operates. First, s 106KA(1) is expressly made subject to subsections (2) and (2A). Each of the latter subsections identifies an exception to s 106KA(1) although the exceptions work in different ways. How they work bears on what s 106KA(1) itself does in deeming a certain state of affairs to amount to a practitioner engaging in inappropriate practice. 17 Because s 106KA(1) creates a statutory fiction, by the deeming it prescribes, ss 106KA(2) and (2A) recognise that the person under review is entitled, to a point, to negate that fiction. Critically, s 106KA(1) refers to '... the circumstances in which some or all of the referred services were rendered ... constituted a prescribed pattern of services'. Thus while not all of the referred services may remain a part of a pattern after the committee examines them, it is essential that what remains is a pattern. A pattern, by regulation 10 , must have the characteristic that 80 or more professional attendances within the meaning of reg 7 ' ... are rendered on each of 20 or more days in a 12 month period'. Thus, conduct cannot satisfy reg 10 so as to constitute a prescribed pattern of services unless it occurs 'on each of 20 or more days'. 78 It is common ground that there was no express consideration of reg 11(a) by either committee. At the forefront of the doctors' argument was the fact that the committees failed to conduct any analysis in the terms of, or having regard expressly to, reg 11(a). In Lee v Kelly [2005] FCAFC 197 , another decision of Black CJ, Wilcox and Lander JJ decided at the same time as Oreb [2005] FCAFC 196 ; 146 FCR 237 and Hatcher [2005] FCAFC 199 ; 146 FCR 275, Lander J, with whom the Chief Justice and Wilcox J agreed, said at [2005] FCAFC 197 [24] that if a medical practitioner relied on the provisions of s 106KA(2), the committee must satisfy themselves as to whether in doing so the medical practitioner was relying upon 'exceptional circumstances' in its ordinary English meaning or upon either of the sub-paragraphs in reg 11. He pointed out that a medical practitioner could rely on all three, but that would be unlikely. Lander J observed that it was more likely that the practitioner would rely on only one of the three matters to discharge the onus in s 106KA(2) and continued: 'If, however, the medical practitioner is not able to articulate which of the three separate legislative provisions are relied upon, then the committee must inquire as to whether the factual circumstances advanced by the medical practitioner come within any of the exceptional circumstances in s 106KA(2), or the circumstances in reg 11(a) or reg 11(b).'