Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
The Amended Application seeks review of the decision of the Authority of 5 April 2007 to make 'directions' as a decision of an administrative character made under an enactment for the purposes of the ADJR Act. The Amended Application is in these terms: The applicant is aggrieved by the decision because 1. That the Applicant was denied natural justice. 2. The Professional Services Review Committee did not properly apply the principles identified in Briginshaw v- Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 in reaching its findings. The grounds of the application are 1. The Applicant was denied natural justice in that the determining authority acted upon the draft report of a Professional Services Review Committee which was comprised of metropolitan practitioners. 2. The Professional Services Review Committee should have had a regional practitioner experienced in the issues which face regional practitioners, particularly catering for a high number of patients from a lower socio economic group. 3. The Professional Services Review Committee relied upon a sample of 30 cases out of a total of 7,499 cases. This figure represents 0.4% of the class size, the Professional Services Review Committee has not applied the Briginshaw principle correctly in that a larger sample should have been assessed. 4. The Professional Services Review Committee acted upon inexact proof. 5. The gravity of the consequences which flowed from the Professional Services Review Committee's findings were such that a higher level of proof was required. 6. The Professional Services Review Committee did not consult with any of the patients the subject of the 30 cases to ascertain whether they were satisfied with their treatment or whether they disputed the duration of time the applicant claimed to spend with each. 7. That in applying the Briginshaw principles the Professional Services Review Committee should have considered the nature of the client base the applicant was working with and the limited number of Bulk billing practices in regional centres. 6 The background to the decision of the Authority is this. 7 On 6 December 2004 a request was made under the Act by the Health Insurance Commission ('the Commission') of the Director of Professional Services Review to review the provision of services by Dr Mitchelson during the period specified in the request (ss 83 and 86 of the Act) and to consider whether Dr Mitchelson's conduct amounted to 'inappropriate practice' for the purposes of the Act. On 22 July 2006, the Director, under Division 3A of Part VAA of the Act (s 93) elected to establish a PSR Committee and make a referral to that committee to investigate whether Dr Mitchelson had engaged in inappropriate practice in providing services described as Item 23 and Item 36 services. PSR Committee 445 was established under s 95 of the Act. Section 95 sets out the requirements to be satisfied by the Director in exercising the power conferred by s 93 and provides: 95 Constitution of Committees (1) A Committee set up under section 93 in connection with a referral consists of the following members appointed by the Director: (a) a Chairperson who is a Deputy Director; and (b) 2 other Panel member; and (c) if subsection (6) applies not more than 2 additional Panel members. (1A) ... (2) If the person under review is the practitioner who rendered or initiated all of the referred services the Chairperson, and the other Panel members referred to in paragraph (1)(b), must be practitioners who belong to the profession in which the practitioner was practising when the services were rendered or initiated. (3) If the practitioner was at that time a consultant physician in relation to a particular specialty, the Panel members referred to in paragraph (1)(b) must also be consulting physicians in relation to that specialty. (4) If the practitioner was at that time a specialist in relation to a particular specialty, the other Panel members referred to in paragraph (1)(b) must also be specialists in relation to that specialty. (5) If the practitioner was at that time a general practitioner, the other Panel members referred to in paragraph (1)(b) must also be general practitioners. (6) The Director may appoint an additional Panel member or additional Panel members referred to in paragraph (1)(c) if the Director thinks it is desirable to do so in order to give the Committee a wider range of clinical expertise, having regard to the services specified in the referral. (7) An additional Panel member must be a member of a profession or a specialty relevant to a field of practice of the practitioner, or any of the practitioners, who rendered or initiated the referred services. (8) Any Panel member whom the Director consulted under section 90 in relation to the referral must not be appointed as a member of the Committee. 27 Dr Mitchelson is said to be aggrieved by the Authority's decision first because he was 'denied natural justice' and secondly, the PSR Committee did not apply the principles of Briginshaw v Briginshaw in reaching its findings. Dr Mitchelson is an 'aggrieved person' because of the effect upon him of the decision. The above two contentions are a statement of the grounds on which an order of review of the decision is sought. Section 5(1)(a) of the ADJR Act provides as a ground of challenge that 'a breach of the rules of natural justice occurred in connection with the making of the decision' and s 5(1)(f) provides a further ground that 'the decision involved an error of law, whether or not the error appears on the record of the decision'. Mr Royds says the Briginshaw point is reliant upon the s 5(1)(f) ground. 28 As to natural justice ground, paragraphs 1, 2 and 3 of the 'grounds of the application' make two points. First, the Authority relied upon a report of the PSR Committee. That committee was constituted by three doctors who each practice in a metropolitan area The PSR Committee should, it is said, have consisted of a committee one of whom at least was a regional practitioner familiar with the provision of services to patients of a 'lower socio-economic group'. Because it did not, Dr Mitchelson was denied natural justice. Dr Mitchelson does not identify the precise content of the natural justice rule said to be breached. When put to Mr Royds that Dr Mitchelson seems to be relying on the fair hearing rule, Mr Royds agreed. 29 Although it is not put this way, the contention seems to be that Dr Mitchelson was denied 'fairness' in a proper assessment of the facts; and the formulation of a fair draft and final report of the Committee was rendered illusory due to the composition of the Committee, which, in turn, poisoned the decision of the Authority. 35 Grounds 3, 4, 5, 6 and 7 of the proposed amended application all, in one way or another, rely upon the application of the principle derived from Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 36 The content of the Briginshaw point at paragraphs 4, 5, 6 and 7 of the amended document is this. The PSR Committee acted on inexact proof; the gravity of the consequences flowing from the PSR Committee's findings required a higher level of proof; the PSR Committee did not consult with any of the patients within the sample group; and the PSR Committee ought to have considered the nature of the client base of Dr Mitchelson and the limited number of bulk billing practices in regional centres. 37 The PSR Committee was established to 'investigate whether Dr Mitchelson engaged in appropriate practice in providing the 'Referred Services'' and whether Dr Mitchelson may have: &#8226; 'failed to provide appropriate professional services to his patients; &#8226; failed to satisfy the requirements of the relevant items in the MBS; &#8226; failed to provide adequate clinical input into the services; &#8226; provided services that were not necessary and/or not clinically relevant; &#8226; kept records that were deficient in the essential clinical information' (Final report PSR Committee no.445) 38 Subdivision B of Part VAA of the Act provides for 'Proceedings of Committees'. The chairperson is to convene meetings of the committee (s 97). The committee may regulate the proceedings of its meetings as it thinks fit (s 98(1)). For the purposes of its enquiry, the committee may inform itself in any manner it thinks fit (s 98(3)). A question arising at a meeting is decided by a majority of votes of members present and voting (s 99(4)). The committee must hold a hearing if it appears to the committee that the person under review may have engaged in inappropriate practice in providing the referred services (s 101(2)). The person under review is entitled, subject to any reasonable limitations or restrictions the committee may impose, to attend the hearing; be accompanied by a lawyer or other advisor; call witnesses to give evidence; produce written statements going to character; question persons giving evidence at the hearing; address the committee on questions of law during the hearing; and after the conclusion of the taking of evidence, make a final address to the committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates (s 103). The committee has power to require the production of relevant documents (s 105A). 45 The statutory role of the committee is investigative. It makes findings to be relied upon by the Authority in making draft and final determinations containing one or more of the directions contemplated by s 106U which include repayment to the Commonwealth of the whole or part of a medical benefit paid for a service or class of services where inappropriate practice has been found and suspension for a period and/or disqualification for a period from the provision of services to which medical benefits relate. The Briginshaw point seems to be that in relying on the composition and size of the sample selected and in failing to consult with patients, the proof of matters going to 'inappropriate practice' was inexact and failed to attain the standard of proof a committee acting reasonably in the conduct of its proceedings ought to adopt having regard to the gravity of the possible s 106U directions. 46 The statute expressly provides that the committee in discharging its investigative function may 'have regard only to a sample of the services' in a class of services where reliance on a sample is for the very purpose of testing 'inappropriate practice' leading to findings likely to lead to one or more of the serious s 106U directions by the Authority. 47 The sampling methodology adopted by the committee might be that contained in a ministerial determination specifying the content and form of sampling methodologies that may be used (s 106K(3)); or a nonspecified methodology 'if but only if' shown on advice to the committee to be statistically valid, by an accredited statistician. 48 Since the Committee has acted in conformity with the Act by having regard only to a sample within the statutory constraints upon the methodology to be used (and no contention to the contrary is made) the question is whether any Briginshaw principle is engaged. Should the Committee have selected a method of fact finding other than by sampling the services? 49 The committee must act reasonably . In order to be satisfied that Dr Mitchelson engaged in 'inappropriate practice' the committee needs to reach a state of affirmative satisfaction of the foundation factual matters giving rise to that conclusion to a standard of 'reasonable satisfaction'. A member, acting reasonably, will not be so satisfied 'independently of the nature and consequence of the fact or facts to be proved' ( Briginshaw , per Dixon J at 362). The seriousness of the allegation or the gravity of the consequences flowing from a particular finding must necessarily affect the judgment made by each committee member as to whether the particular issue has been established to that member's reasonable satisfaction. As Sir Owen Dixon observed, reasonable satisfaction should not be reached by 'inexact proofs, indefinite testimony or indirect inferences' (p, 362). Plainly enough, the nature of the issue before the tribunal 'necessarily affects the process by which reasonable satisfaction is attained' (Dixon J per 363). 50 The proposed amended application simply asserts a conclusion of reliance upon inexact proof and thus, inferentially, a failure on the part of committee members to be reasonably satisfied of the relevant matters. The difficulty with that bald conclusionary assertion is that the Committee acted in conformity with the Act in circumstances where the sampling methodology was the subject of advice from an expert, Professor Nicholls, of statistical validity. Prima facie the Committee acted reasonably in conducting its investigation. No attempt has been made by Dr Mitchelson to isolate the process of reasoning in respect of any of the various sample services and demonstrate any failure on the part of the Committee. There is no reference to factual material from which 'inferences' were drawn incorrectly nor reference to 'indefinite testimony' or 'inexactness' in any of the analyses of the sample services. 51 As a result, the proposed amended application fails to identify a ground of challenge supported by material facts going to a ground of challenge.