Case: Yung v Adams (1997) 80 FCR 453
Outcome: referred to
This point was made in Yung v Adams (1997) 80 FCR 453 at 459 where Davies J observed that, notwithstanding the width of the definition of 'inappropriate conduct', it should be read subject to the legislative power under which the Act was passed: 'The Federal Parliament has no general power to regulate the activities of medical practitioners. Therefore, under Pt 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.' 57 The applicant contends that the comments of Gibbs J quoted at [37] above are not to be taken as stating a 'blanket proposition' that any regulation of the manner in which practice is conducted is within power. This is clearly correct. However, his Honour's statement that: 'If the incident of practice which is regulated is not medical or dental, but financial or administrative, it is clearly outside the prohibition', cannot be used, as the applicant attempts to do, as authority for the proposition that any attempt to regulate an incident of practice which is medical or dental will fall within the prohibition. 58 The applicant puts forward the General Practitioners case as authority for the blanket proposition that it is constitutionally impermissible to regulate any performance by medical practitioner of his medical duties and functions; that such regulation was equated with compulsion and therefore with conscription. This however is not what is held in the General Practitioners case. What was crucial for Gibbs J in the General Practitioners case was that no medical service was compelled. This is quite clear from his Honour's comments at 559-60: 'The provisions in question in these proceedings do compel medical practitioners to perform certain duties in the course of carrying out their medical practices, but they do not go beyond regulating the manner in which some of the incidents of those practices are carried out, and they do not compel any medical practitioner to perform any medical services. Most of the duties imposed relate only to things done incidentally in the course of practice, rather than to a medical service itself. The only possible exception is s 16A (1), which requires that a request by a medical practitioner to an approved pathology practitioner to render a pathology service shall be made or confirmed in writing as prescribed. A request of that kind may be regarded as a medical service. However, s 16A(1) does not compel any medical practitioner to make such a request. What it requires is that the request, if made, be made or confirmed by written instrument which satisfies reg. 5. There is nothing in that regulation which affects in the slightest the performance by a medical practitioner of his medical duties and functions. The statutory requirements may impose on him more administrative work. In particular he is required to specify, in his own handwriting, the services to which the instrument relates, and cannot simply mark a form on which is printed a list of possible services. The reason why a condition of this kind is attached to the entitlement to medical benefits is no doubt that the use of the printed form might reasonably be regarded as likely to contribute to laxity and to facilitate fraud. However that may be, to require a practitioner to write out particulars of the service which he has decided to request another practitioner to perform is not to compel the practitioner making the request to perform a medical service. Even more clearly, the requirements of s 16A(2) with regard to accounts and receipts, and those of s 16A(3) with regard to the retention and production of any written request or confirmation, do not compel any medical practitioner to perform any medical service. ... For these reasons none of the provisions in question imposes any form of civil conscription contrary to s 51(xxiiiA) of the Constitution . 59 I have quoted his Honour's comments at length to make quite clear his Honour's position. His Honour found that the provisions in question did not breach the constitutional prohibition because, put simply, that which was compelled was not a medical service in itself; although it may have been incidental to a medical service; and where a medical service was regulated, as by requiring a request to be made in writing, the medical service itself was not compelled. These comments do not support the proposition that any regulation of the way in which a medical service is provided is unconstitutional. 60 In my view the General Practitioners case is directly applicable to the present situation. For the reasons I have given I do not find that the Medicare Scheme or the PSR Scheme impose any compulsion to provide medical services. The decision to provide medical services is a voluntary decision. The regulation of the manner in which such services are provided is properly incidental to the Commonwealth's power under s 51(xxiiiA) to provide medical services and does not offend the constitutional prohibition against civil conscription. In my view a proper application of the term 'inappropriate practice' would sufficiently confine the concept to matters which are within the incidental power of the Commonwealth. 61 For the above reasons the applicant's challenge to the constitutional validity of PSR Scheme must fail. The appeal must be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 February 2006 Counsel for the Applicant: Mr M A Robinson with Mr C Jackson Solicitor for the Applicant: Tress Cox Counsel for the Respondents: Mr A Robertson SC with Ms R Henderson Solicitor for the Respondents: Minter Ellison Date of Hearing: 14 June 2005 Date of Judgment: 23 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/126.html