Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SBAN [2002] FCAFC 431
Outcome: applied
The Committee was required to prepare a Draft Report setting out its preliminary findings subs 106KD(1) of the Act. It was submitted that the fact that those views were unfavourable to Dr Mathews is not, of itself, evidence of bias or pre-judgment: see Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SBAN [2002] FCAFC 431 at [11] . That is undoubtedly correct. 32 The Committee discussed Dr Mathews' submissions on the Draft Report in the Final Report at [95] [100]. It declared at [96] that after careful consideration of the submissions, it was not persuaded to change its finding that Dr Mathews engaged in inappropriate practice in relation to the referred services. Dr Mathews characterises his submissions as 'careful, detailed and reasoned' and the amendments which the Committee made in its Final Report as 'grudging and minor', but it was submitted that the use of emphatic language, without more, is unhelpful. It was further submitted that, in essence, Dr Mathews' contention is that a finding of apprehended bias should be made merely because the Committee did not accept the changes to the Draft Report which he proposed. In my view, there is substance in that submission. 33 Dr Mathews selected four examples to demonstrate the alleged pre-judgment. These were summarised in the respondents' written outline of submissions as follows: ' (a) Appendix 1, service no. 4 At the Committee hearing on 30 October 2003 the applicant told the Committee that he referred the patient to an allergy specialist, ordered an IGE test, thinks he performed a spirometry test and that "the management plan for her was Ventolin." In the Draft Report the Committee said inter alia that there was insufficient evidence of the development or implementation of an adequate management plan for the patient's presenting problem. The applicant said in his submission on the Draft Report: "I do not accept this reason. I referred the patient to an allergy specialist; ordered an IGE pathology test and performed a spirometry test. I had also been prescribing her Ventolin. In my submission that must fall within the range of what is an acceptable management plan. In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (b) Appendix 2, service no. 1 At the Committee hearing on 31 October 2003, the applicant told the Committee that he did not remember the consultation. At the Committee's request, he read out his clinical note: "Vomiting, Promethazine, 4 u.e., urea, electrolytes and creatinine which is in those days I think they were bundled in together with a liver function test in those days I think." In its Draft Report, the Committee said inter alia that "At this home visit there was no selective history or ongoing management plan recorded in response to this 40 year old patient presenting with a migraine headache." The applicant said in his submission on the Draft Report: "I did record a selective history of "vomiting". I knew from the visit the previous day that the patient was suffering from migraine. There was a management plan recorded which was to give the patient an injection of Promethazine and I advised her to undergo further tests to check her liver function, kidney function and the state of her hydration." In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (c) Appendix 2, service 3 At the Committee hearing on 31 October 2003, the applicant told the Committee that he did not remember the consultation. He read out his clinical note: "FOC, Ceclor CD, Ventolin and Becloforte. In answer to a question about whether he performed a peak-flow reading, he said: "I did not perform a peak flow reading, it is not written down. I do not know whether I did. Sometimes yes I did but it is not written down there so I do not recall. In its Draft Report, the Committee said inter alia that "At this home visit there was no selective history or ongoing management plan recorded in response to this 15 year old patient who had a flare up in his chest. No peak flow reading was performed on this young patient who had a history of asthma." The applicant said in his submission on the Draft Report: "I did record a selective history with my shorthand notation 'FOC'. The patient's history of asthma and smoking was known to me. I did record my management plan which was to prescribe Ceclor for his chest infection; Ventolin and Becloforte for the patient's asthma. The evidence does not indicate that a peak flow reading was not performed and in my submission the Committee cannot make such a finding (see T p 26 line 31 ff)." In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (d) Appendix 3, service 15 At the Committee hearing on 31 October 2003, the applicant told the Committee that: "I gave him the Ducene in an attempt to reduce his alcohol consumption and because of the anxiety associated with living with his partner, Christine, who was an invalid. So in a fashion he was a carer, and as I said, his legs he had been my patient for probably 15 years." The applicant also told the Committee that: "The presenting complaint with Ron was that he was had massive anxiety because he was worried about Christine and his knees there is a note before approximately 6 or 8 weeks before, that his knees and his lumbar sacral spine, because when Christine fell over he would have to pick her up, and as I said he has I have asked him to have his knees x-rayed many, many times. He has never had it x-rayed. He is non-compliant. In its Draft Report, the Committee said inter alia: "No evidence that this service was other than a simple problem requiring minimal input, limited examination and management. In Dr Mathew's oral evidence he stated that he wrote a prescription for Ducene for the pain to damaged knees." The applicant said in his submission on the Draft Report that: "I do not agree with this view of the consultation. At T p 49 line 32, I said that I gave Ducene in an attempt to reduce the patient's alcohol consumption, not for pain. My oral evidence indicates that this was not a straightforward consultation having regard to the underlying social problems within the patient's household. The patient's knees have been a matter of ongoing concern for some time." In its Final Report, the Committee repeated the finding that it had made in its Draft Report.' (Footnotes omitted) 38 Pursuant to subs 106K(3), the Minister made Health Insurance (Professional Services Review Sampling Methodology) Determination 2000 (No. 1) ('the Sampling Determination'), which provides, inter alia : ' Part 1 Preliminary 1 ... 2 ... 3 Purpose This Determination specifies the content and form of a sampling methodology that may be used by a Committee in making findings for an adjudicative referral. 4 Application (1) This Determination applies if the Committee decides, in respect of conduct in connection with rendering or initiating the services included in a particular class of the referred services, to have regard only to a sample of the services included in the class. (2) The sampling methodology in Part 2 applies to: (a) individual items and multiple item episodes in classes of services; and (b) individual items and multiple item episodes in classes of patients. 5 Definitions In this Determination: Act means the Health Insurance Act 1973 . class size , in relation to a sample, means the number of services rendered or initiated in the particular class of referred services from which a sample is chosen. exploratory sample has the meaning given in section 8. final random sample has the meaning given in section 10. preliminary random sample has the meaning given in section 6. Note 1 The following terms that are used in this Determination are defined in subsection 3 (1) of the Act: &#8226; Initiate &#8226; Patient. ... Part 2 Sampling methodology 6 Preliminary random sample In having regard, under subsection 106K (1) of the Act, only to a sample of the services included in a particular class of referred services, a Committee must ensure that the sample (the preliminary random sample ) is a random sample. 7 Appropriate sample size (1) The preliminary random sample must be of an appropriate sample size to enable prediction with 95% confidence that the percentage of services constituting inappropriate practice worked out from the sample is within +/- 10% of the actual percentage of inappropriate services rendered or initiated in the class of referred services sampled, at a hypothesised incidence of inappropriate practice of 50% of services rendered or initiated (the incidence requiring the largest sample). (2) For a class of services specified in a referral, the appropriate sample size of the preliminary random sample is at least: N __________ 1+0.01(N-1) where: N = class size. (3) If the appropriate sample size worked out is not a whole number, it must be rounded up to the next whole number. 8 Exploratory sample In making a finding based on statistical sampling, the Committee must: (a) examine a sample, preferably of 30 or more services (but not less than 25 services) (the exploratory sample ) , randomly drawn from the preliminary random sample; and (b) determine whether or not each of those services constitutes inappropriate practice. 9 Percentage of inappropriate practice in exploratory sample (1) After the Committee has determined which of the services in an exploratory sample constitute inappropriate practice, it must work out the percentage of services in the sample that constitutes inappropriate practice. (2) The percentage must be expressed as a whole number (being, if necessary, rounded down to the nearest whole number). 10 ...' 39 Paragraphs (a), (b) and (c) of ground 8 as pleaded are not in issue. Paragraph (d) contains the first allegation of error. Dr Mathews contends that the terms of s 6 of the Sampling Determination, in particular the words 'must ensure', when used in relation to the words 'that the sample (the preliminary random sample) is a random sample', effectively requires the Committee to undertake the sampling itself. Alternatively, it is said that if s 6 does not require the Committee to do the sampling itself, it requires the Committee to ensure for itself that a sample of the services, included in a particular class of selected services, is a random sample and that this cannot be satisfied where the Committee merely relies on a list of services of a particular class, derived from a larger list of services of that particular class, 'fed' to them by the Director, even if the Committee has no reason to think that the larger list of services of that particular class is not a random sample. 40 The primary submission can be rejected out of hand. On no construction of s 6 of the Sampling Determination can it be said that it requires the sampling to be carried out by the Committee itself.