Case: Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237
Outcome: applied
In Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237 the Full Court held that there were two ways of establishing exceptional circumstances for the purposes of s 106KA(2). First, the doctor concerned could show that on the particular day or days during the relevant period 'exceptional circumstances', within the ordinary English meaning of the words, existed which affected the rendering or initiating of services by the doctor so as to take him or her outside the deeming pursuant to s 106KA(1) of engagement in inappropriate practice. Secondly, the doctor could rely upon 'exceptional circumstances' as prescribed in regulations made pursuant to s 106KA(5), being those set out in reg 11 ( Oreb 146 FCR at 240 [6] per Black CJ and Wilcox J; see also per Lander J at 265 [169], 268 [191]). 14 Although Oreb [2005] FCAFC 196 ; 146 FCR 237 concerned the construction of s 106KA and reg 11(b) the Court also made observations as to how reg 11(a) might be engaged. The Court held that once the practitioner had established that exceptional circumstances existed in either sense the practitioner had also to show a causal connection between those established circumstances and the provision of the relevant services if he or she were to get the benefit of s 106KA(2) ( Oreb 146 FCR at 240-241 [7]-[10], 266 [178]-[181]). 31 These two paragraphs appear to be part of a standard form explanation used by other committees. The same words appear in Dr Oreb's committee's report: see: Oreb 146 FCR at 262 [156]. Immediately after quoting these words, Lander J said that the committee there fell into error in its construction of s 106KA(2) and reg 11, by failing to have regard to the terms of reg 11 itself. Likewise, I am of opinion that the committees here fell into error, by putting a gloss on the meaning of s 106KA(2). They asserted that the expression 'exceptional circumstances' was to be seen 'as most likely to be of an intermittent or episodic nature, rather than a predictable on-going situation'. 77 As Lander J pointed out in Oreb (146 FCR at 268 [193]) there is always a two step inquiry as to whether exceptional circumstances are made out in accordance with s 106KA(2). The first step is to inquire whether the circumstances relied upon, whether under the ordinary English meaning or one or more of the meanings declared in reg 11, amounted to 'exceptional circumstances'. If so, the second step is to consider the effect of the circumstances so found on the rendering and initiating of services by the practitioner on the day or days in question. 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).' 79 Lander J held that the general practitioner does not need to establish that the circumstances were the dominant circumstances affecting the rendering or initiating of the services, only that the 'exceptional circumstances' acted upon or influenced the initiation or rendering of the services (see Oreb 146 FCR at 266 [178]). That was the relevant degree of relationship between the exceptional circumstances and the rendering or initiating of the services which the committees here had to consider. Each committee relied on standard paragraphs which explained its view of 'exceptional circumstances'. But in each of the present cases the committees did not apply that test, because they recited the same paragraphs used by the committee in Oreb [2005] FCAFC 196 ; 146 FCR 237 as the appropriate legal standard by which to assess the conduct of each of Drs Ho and Do. 80 The doctors submit that each of the factors on which they relied before the committees should have been considered individually by them as an occurrence on which reg 11(a) operated. Thus, for example, the doctors say that their inability to find a suitable replacement doctor was capable of being seen as an unusual occurrence. The nature of their practice was, in effect, one in which the remaining two doctors were treating a population of patients which belonged to a practice of three doctors. That created, so they said, an unusual level of need for professional attendances, in that practice of two. 81 The committees reasoned that the unusual level of need could have been met by referring the patients elsewhere or somehow through practice management. That is true, but the argument does not address the terms of reg 11(a) which refer to the cause of an unusual level of need, not to how the unusual level of need can or should be addressed once it exists. 85 The committees argued that they were not required to consider reg 11(a) unless a doctor raised matters that might arguably support the inference. But I am of opinion that the doctors did raise circumstances which were capable of being considered as falling within reg 11(a) and the committees failed to undertake their statutory function by not considering them: Lee [2005] FCAFC 197 [24]. The doctors raised matters which might arguably have supported the possible application of reg 11(a). The committees needed to address the applicability of reg 11(a) in terms if they were to discharge their functions according to law ( Oreb 146 FCR at 242 [15]). Neither committee did so. 86 To take again the simple example of when Dr Do went home sick on two occasions, leaving Dr Ho as the only doctor at the surgery, it was an unusual occurrence. That was capable of being viewed as an unusual occurrence, because it was quite out of the ordinary in the practice, even though from time to time, one of the doctors would be expected to fall sick. That does not mean that the occurrence is usual. It is in the ordinary experience of life unusual for people to fall sick and be required to go home from work. Of course it happens, but, when it does, it is a disruption to the routine not only of the person concerned but of those with whom the person works. And, when a shortage of personnel occurs in the work place through such an occurrence, the fact of the person going home sick increases the burden on that person's colleagues in the work place. The fact that practice management or other methods may have been used to address it does not rob the occurrence of its characteristic of being out of the ordinary. On those days patients presented for medical attention and only one doctor, not two, was available. 87 In the case of a medical practice, the increase in the burden is reflected in the remaining practitioner or practitioners being the only persons available to offer medical services to patients who are presenting on that day. Therefore, by going home sick, Dr Do could have created an unusual level of need for professional attendances from Dr Ho as the remaining medical practitioner in the practice available to see the practice's patients. 90 The doctors argued that the committees, in effect, posited that practice management was a panacea to each suggestion of exceptional circumstances which the doctors put forward. In Oreb 146 FCR at 240 [6] Black CJ and Wilcox J said that it was for a committee to determine whether the relevant circumstances were truly exceptional, having regard to the usual operation of a practice of a kind conducted by the person under review. They said that in the case of a general medical practitioner the touchstone would be the circumstances ordinarily faced by general practitioners. They later explained that the committee in that case had expressed a qualified view that 'exceptional circumstances' were seen as most likely to be of an intermittent or episodic nature and did accept 'some extreme on-going circumstance' may be an exceptional circumstance. Their Honours said that it was for a committee to determine the facts of the case, including whether circumstances advanced by the doctor should be regarded as exceptional, having regard to the usual operation of a general practitioner's practice. In making that determination, they said, a committee might be required to consider whether particular circumstances were foreseeable or avoidable and in relation to that type of situation, there was room for consideration of the way in which a particular practice was managed (146 FCR at 241-242 [13]). 91 Dr Do's case illustrates that considerations of practice management were relevant considerations for assessing the question under s 106KA(2) as to whether exceptional circumstances existed. In the period of nearly six months, almost one-third of the period (56 days) involved Dr Do providing more than 80 services per day. That was capable of giving rise to an inference that he found himself in a 'usual', rather than 'exceptional', situation (leaving aside the circumstances of the 5 particular days he raised separately). His answer was, however, that the combination of circumstances which were protracted, but essentially temporary, amounted to 'exceptional circumstances'. 92 I am of opinion that each committee did not look at the combination of factors having regard to the statutory test in s 106KA(2) and that they committed an error of law in failing to do so. If a three person practice is, for a temporary period, reduced to a lesser number of practitioners, that in itself is capable of being an exceptional circumstance. It is not the point to say that practice management could change the situation, except if a third doctor were able to be introduced. That was the very difficulty facing Drs Ho and Do in their practices. They claimed that no third doctor was available for the referral periods, although their case was that they were seeking to recruit one. So while each committee was entitled to consider how the situation could be managed, it was with respect to the actual practice of the doctors that they needed to address themselves. 93 The question of whether or not the committees correctly concluded that the doctors had not satisfied them that exceptional circumstances existed that affected the rendering or initiating of services by the doctors on any one or more of the 24 or 56 days involved a question of mixed fact and law. Provided that the committee applied the appropriate legal test, ordinarily they would be free to determine the facts for themselves (cp: Oreb 146 FCR at 265 [171]-[173]). 94 The doctors argued that each committee incorrectly applied the test of 'exceptional circumstances' in s 106KA(5) by which I understand them to mean that subs (5) extends the ordinary English meaning of the expression 'exceptional circumstances' to include those declared in reg 11. 95 The doctors said that the committees could not take into account questions of practice management in considering reg 11(a). They rely on remarks made by Black CJ and Wilcox J in Oreb 146 FCR at 242 [15] when they said: 'That being so, the possible application of reg 11(b) needed to have been addressed by the committee in terms, and in reasoning that was free of consideration (irrelevant in the context of reg 11) of patient management measures that might have been available and desirable.' 96 Their Honours continued that other matters including patient demand, special needs of the patients of the practice, inability of the practice to obtain or retain additional resources and the individual practitioner's work pattern were relevant to reg 11. They said whether or not the practitioner '... could have better organised his practice was irrelevant. The focus of reg 11 is the need of the patients, not the management skills of practitioners' ( Oreb 146 FCR at 242 [16]). 98 The level of need to which reg 11(a) refers cannot be connected to the way in which the individual practitioner manages his or her practice. The need is that of the patient or patients caused by the unusual occurrence. The need in reg 11(a) is 'for professional attendances', that is for services provided by a doctor to more than one patient (see reg 7 which defines 'professional attendance' as meaning a particular service). Patients need services or professional attendances. Unless patients present for or request the doctor to see them, no need for professional services could arise. If, as appears to be accepted in the construction placed on s 106KA(2) by the Full Court in Oreb 146 FCR at 241-242 [13], questions of practice management are relevant, there is a reasonable basis for construing reg 11(a) as not taking such considerations into account, in the same way as the Full Courts approached this matter in relation to reg 11(b). 99 I am of opinion that it is not appropriate to put a gloss on the words of reg 11(a) so as to confine the expression 'an unusual occurrence' to the example used by Kiefel J. Rather, the words are of general application and must be considered for the purpose of reg 11(a) in respect of each situation which a practitioner asserts is an exceptional circumstance. And just as the ordinary English meaning of the words 'exceptional circumstances' can apply to a combination of circumstances, I am of opinion that the expression 'an unusual occurrence' in reg 11(a) is not to be confined to a singular event, such as an epidemic or an accident. In legislation, the singular includes the plural in the absence of a contrary intention (see s 23(b) of the Acts Interpretation Act 1901 (Cth)). As in many areas of ordinary experience, an occurrence can be the product of a combination of causes and forces. 100 The doctors argued before the committee that on Mondays in winter a large number of patients presented for services. One might infer that they were suffering from normal winter maladies. But there is a question of judgment involved as to whether such an occurrence is 'unusual'. By itself it may not be and a properly managed practice may be able to cope with such a demand. But a practice that is one doctor short in its desired or 'ordinary' manning levels may, again, be faced with 'an unusual occurrence' formed from a combination of 'usual' and predictable circumstances. It is predictable that if a practice is short one practitioner, it may not be able to comply with the 80/20 rule if a larger number of patients present on particular days (whereas if the extra doctor were present, the practice would comply). The situation in which the practitioners would then find themselves would be unusual (because of the absence of one doctor) and temporary. And that is so even though the situation drags on because one of its characteristics is the difficulty in locating a suitable recruit to the practice. It is not usual for a three practitioner practice to have to service its patients with two practitioners.