eeAZ a teeta ane Mitte aT it, ay. asian aoe ts I arate Rote Deakin EE tari ek a _ ent so ee aloe SAN Poni, tanta Tae ema fewer! Tias aa tan ecatrfi Lisl alae 2 me met ee tbo Na ray Sew CATCEWORDS National Health het - Isolated petients' travel and accomnodat:on assistance scheme - respondent resident on Ring lstand - respondent referred to orthorpacdic specialist in Fobart - need for assistance - sister available to pravide trensrort 3nd accommodation - whether specialist Was the nearest enuitanie specialist with respect to the patient - svitaubly castifes> specialist ian Launceston or Melbourne. Nalioral Mealth Act 1953, s.13(3)(b) Bowden and the Director General of Health (unreporied T82/2) ee Collins v. Minister for Immigration, (1981) 36 ALR 5°8. The Director General of Heatth v. John R. Robinson No. TG2 of 1983 Jenkinson J. Melbourne 3 Pebruary, 1984 at Salata sain IN fHE FEDERAL COURT OF AUSTRALIA ) TAS JAVTAN plISTRICT RAGISTRY ) No. [G2 of 1983 GENLRAL DLIVISLOU ) On appeal frou the General Administrative Division of the Adninistrative Appeals Tribunal constituted by lir. J. O. Ballexrd : (Senior Member). BETWEFN: TIE DIRECTOR-GENEPAL OF HEALTA ~ . Applicant AND: JOHN k. ROBINSON Respondent ORDER Judge Makino Order: Jenkiuson J. : Where Made: Melbourne Daie of Order: 3 February, 1984 pobre rhe RT thee oT bist nee es aan Late ER ' THE COURT ORDERS THAT: x l. The appeal be dismissecd. std tha teh el ce Ma alan nied rnicahs aa at 4 ' L on ELMS AT tse: Ser t Lo Breas t ' , fe iy IN THE FEDERAL COURT OF AUSTRALIA) TASHARIAW PISPRICT PROUSERY ) No. TG2 of 1983 GENEPAL DIVISTON ) On appeel from the General Administrative Division of the Administrative Appeals Tribunal] constituted by Mr. J. O. Rallara (Senior tiember). BETWEEN: TIE DIRECTOR-GUNDRAL OF HEALTiI — ry Applicant AND: JOJIN R. ROBINSON Respondent CORAM: denkinson Jd, PLACE: Melbourne DATE: 3 February, 1984 REASONS FOR JUDGHLNT JENKINSON J. Appeal from a decision of the Administrative Appeals Tribunal. The respondent fractured his ankle while he was living on King Island. Teeatment by an-orthopacdic surgeon was required. He was referred to one who carried on practice in Fobart. Part III of the National Health Act 1953 makes provision for certain monetary allowances in subvention of the cost of travel ard accommodation necessary to enable a patient who lives in an isGiated area Of Anstralia to obtein certain snecialist medias) Peal te Ss tear sawn abide nn YL se RB co etary ates bate Cacti ine set? paar Sere Netanya dat he nt alten ose SEs SR LA Se OEE AE OT RS STREET SA Rnd PRON EES SOTTO Oe ree SAS Me WORT Ea Oe ee EP 2. treatment. The Administrative Appeals Tribunal set aside a decision by a delegate of the applicant which precluded payment of any allowance under Part III in respect of _ the respondenLl's treatment in Hobart by the orthopacdic surgeon. The aground of the delegate's decision was that a condition of entitlement to such an allowance, imposed by s.13(3)(b) of the National Health Act, had not been fulfilled. The condition is that the delegate be "satisfied that .-... the specialist .... is .... the nearest suitable speclaJist .... with respect to the patient". There were orthopaedic surgeons qualified and equipped to treat the respondent in Launceston and in Melbouurne, which are nearer to King lsland than Hobart is. Therefore, the delegate concluded, the sLatutory requirement was not satisfied. But the Tribunal concluded that surgeons practising in Launceston and Melbourne were not ""suitable", within the meaning of that word in s.13(3)(b). Their skills vere appropriate, they had the equipment required for treatment of the respondent's ankle, and there was no reason to think that the respondent would hesitate to accept any of them as his doctor. But in or near Launceston or Melbourne the respondent could not, whereas near Hobart he could, be accommodated, during the period wien he vas to be treated, in the home of a relative. It was by reference to that circumstance, and to considerations depending thereon, that the Tribunal reached its conclusion. A letter dated 17 November, 1981, from the respondent to a senior officer of the applicant's Departmenl, formed part of E Pp Fy the material which the Administrative Appeals Tribunal had before 212 for the purpose of reviewing the dcleyvate's decision. That Cn aa aee Sete tn cae hastet ak 3. letter was in the following terms: "With reference to rejection of my claim for I.P.T.&A. The reason I was sent to NMobart by Dr. Frank Neumann was that it was realized that I would need to stay jn Hobart for an extended period with the injury I had sustained. As the only place where I have private accommodation is at Nubeena and a persen vith a car to take me back and forth to the Doctor. Had [f went to Melhourne or Launceston I would not been able to cope staying in a hotel]. If my appeal is rejected could you please return iny air tacket, taxi receipts and accommodation receipt." The respondent, a single man aged 44, travelled from King Island to Hobart by aeroplane on 17 September 1°61. On that day he was admitted to hospital, where he remained under treatmenc by the orthopaedic surgeon until 21] September 1981. Upon aischarce from hospital he resided with his sister at Nubeena, which is about' 100 kilometres south of Hobart, until 2 November 1961, when he returned to King Island. On 24 September and on 15 and 30 October 1981 he was treated by the orthopecdic surgeon in Honart. The submissions on the hearing of this appeal by lir. Underwood of counsel for the applicant may be summarised thus: 1. A circumstance unrelated to the health of the patient cannct afford a ground upon whach to conclude that a specelist is not "surtable", within the meaning of that word in s.13(3)(hb). eld ale URRY -OTEAE oe ail enell and SORA ceed ag el unig a ag Bae hl as ee ON cli ieee @ ddgeRemes 8 eel diate cle Sa LD hile OVER be oF WERAie Weer wet = onl 2. Vhe reasons wa writing given, pursuant to s.43(2) of che Administrative Appeals Tribunal Act 1975, by the Tribunal for ite decision demonstrated that the Tribunal ecither had found as a fact that there were circumstances related to the health of the respondent which grounded its decision when there was no waterial before the Yribunal on which such a finding could properly he based, or had groundead jts decision that no specialist in a Melbourne or Launceslon was "suitable" on circumstances unrelated to the health of the patient. Of the circumstances to which the Tribunal appears to have accorded significance in ceaching 1ts decision, T consider first what appears in paragrapn 7 of the fPrilunal's reasons for its decision: "On the recommendution of the specialist, the applicant did not reivrn to King Island betwoen appoizntrents because- it wovld have been unsuitable for him to return to Jive in single men's quarters." The material on which that finding was based was a statement made by a Mr. Gough, who spoke to Mr. Ballard, the senior member who constituted the Tribunal, by telephone from Kang Tsland during the hearing. The respondent was with Mr. Gough, by whom questions were repeated to the respondent and the x. respondent's answers were repeated to Mr. Rallard. Mr. Gough had said: 5. "I have, 1n fact, here in front of me receipts from the specialist for the dates of 24/9, 15/10 and 30/10, and during that time he was accommodated at Nubeena and was transported from Nubeena." - Mr. Ballard responded: "Yes, but why did he not go home between these consultations is the question Mr. Bowen is as*'ang you?" (Mr. Bowen was representing the applicant at the hearing. ) Mr. Gough replied: "Tf an fact he flew back, and was in a medicelly ' fit position to fly back, I would not know. I ywill ' Just check. On recomrentetion From the specialist apparently that after his first appointment he stay in the erea because 1t would be unsuitable to retutn to single men's cuarters living and also to have to do the flight again. And an appointment ' was made immediately to return on 15/10 and if anything happened on 15/]0, a further appointment was made on the 30th, again with the recommendation ' of staying in the area." It may be thought that those statements are consistont with an answer written by the octhopaedic surgeon on a form of certificate signed by him on 30 October 1961 which the applicant required to be furnished in support of applications under Part TIT! of the National Health Act. Paragraph 2 of the printed form reads thus: "Patient stay for treatment. If it is necessary for the patient to stay for a peried in connectioi. with the present wedical treatwent bow wany oxtia nights ore required? ---0 +r (nigivs) (LE WORDS ) " "Ae. a ee oe - eos -- e = pea hea Lah ea a tl on bse ~ Swe A ee we Pe aS a a wile. Bea Nap ae Oo Sere SO Rod ep ash ses ee otey Biaweae G. In the space provided the orthopaedic surgeon wrote : "Forty Three". To the question by Mr. Ballard as to why the respondent coutd not have lived in a hotel jin Launceston or Melbourne, Mr. Gough replied, in the respondent's presence : "It was an aukle aunjury, sir. Tt was a multiple fracture of the ankle and that 1s why the replacement doctor referred him to a particular specialist. at Hobart. It also fitted in with the corvenience of beirg able to get transport from his accomaodation to the specialist". The referenco to the "replacewent doctor' is to the doctor who referred the respondent to the orthopacdic specialist and who vas at that time locum tenens of the medical practitironer on King Island. In iy opinion this material justified the Zanding stated in paragraph 7 of the Tribunal's reasons for decision. But it 15 to be observed that neither that paragraph nor the material I have quoted makes it quite clear whether the surgeon's recommendation proceeded from, on the one hand, a judgment corcerning the likely, or the possibje, harm to the respondent's health of journeys back and forth and of accommodation in single men's guarters or fro., on the other hand, a judgment ,hased on other consideraiicors - as, for example, a comparison of costs, or a regard to the respondent's comfort or conventeuece, bat without reference to bis health. a BS A Ef 2, wea ye Seale ARNE RE AL ie i gee a Ni Lede, "nt Another observalion to be made about the Finding slaicd in paragraph 7 of the Tribunal's reasons is that it does not, in itself, suggest that a specialist practising in Hobart rather than in any other Australian city would be "suitable" : it suggests uo more than that only those specialists who practised in places where accommodation was available to a single man under treatmenc for a fractured ankle would be "suitable". The next circumstance to which the Tribunal a Se) eo) oO Se K Ua) ¥ " have accorded significance in reaching its decision is s Os a" cr ra) cf paragraph 10 of its reasons, which reads: "On these facts the nearest specralist was at Melbourne. But there were wedical and personal reasons for the chorce of Nobart which vere apsenc in Bowden's Case. The applicant needed personal assistance whicn he obtutned from his sister in Vasman1ra which would not have been available in Melbourne (or Launceston); this extended to his being teken to Hobart and back as required for his medical treatment. The specialist did not allow the applicant to return to the single men's quarters between consultatsons and he was in fact away from King lsland for 43 days." a Bowden's case was a decision by Mr. Ballard that a gynaecologist practising 1n Hobart vas not "the nearest suitable specialist .... with respect to" a patzent who laved on King island. The patient had chosen to consult the gynaecologist in Bobart rather than one in Burnie, which is nearer than Hobart. to King lsland. Ner submistion was chat the gynaecologist ino Purrie was not "suitable" because in that pJace she vould have ineurred see ven e oe se = - . Sia ND AE AT aC dea Sos a Recetas et Bon reed bancidese came ere) net ee Daze Bs ek 8. the cost of her accommodation there, whereas in [lobart she wes accommodated by relatives without cost. She had no other rcacon to prefer the Hobart gynaccologist. She sought further support for her submission in the circuystance that, because one of the allowances payable under Part L£1I of the National Health Act 16 in respect of the cost of the patient's accommodation during the period away from home, treatment in Hobact rather than tn Burnic reduced 'the amount payable in respect of that treatment under Part III. That latter circumstance, Mr. Ballard decided, in my opinson correctly, was irrelevant to a consideration of the queslion Whether a specialist was "suiteble". To regard the circumstance that the patient would gain entitlement to the accommodarion allovance provided by Part III if treated by a specialist in ono place, but would not gain that entitlement if treated by another specialist un another place, as tending against a conclvsion ihat the former specialist was "suitable", within s.13(3)(b), would he to evaluate suitability not with respect to the patient, but «ith respect to the conservation of public funds. The reference to Bowden's case serves to draw a contrast between circurstances affecting the patient's health or personal comfort and circumstances affecting other interests, or the wishes, of the patient. No more of the material before the Tribuna] than wher I have set out herein was relevant to the findings stated ain paragraph 10 of the Tribunal's reasons. Acrin 1t may be obrer.'. is a a nN en a ee oo ni ee te eld Ciel vt ast atl eee Tee ede te ee ee eb tet ot eas - 9. that neither the finding that the respondent "needed personal assistance which he obtained from his sister in Tasmania \.hich would not have been available in Melbourne (or Launceston)" nor the material on which the finding was based makes it quite cloar what the "personal assistance" was, of which the respondent stcod in need. It is therefore difficult to determine, upon the evidentiary material alone, what the consequences would have eon * if that need had not been satisfied. But s.33(1) of the Administrative Appeals Tribunal Act 1975 freed the Tribunal of the rules of evidence and authorised the Tribunal to inform 1iself on any matter in such manner as it thought appropriate. It may he that the Tribunal was wel] aware, by reason of Mr. Ballard's own experience, of the offects, upon a man's physical capacity to live and move about without assistance, of an ankle fracture and of whatever splinting might be applicd in treatment of the fracture. From his own experience, whether gained from his work as a senior member of the Tribunal or otherwise, Mr. Ballard may have known to what extent, and un what respects, the claim by the respondent in his letter that he would not have been "able to cope staying in a hotel" was correct. If the Tribunal] di@ utilise such knowledge in making its decision, 1t was not in error in doing so, in my opinion. But the reasons for decision do not disclose that the Tribunal did utalise knowledge not derived from the material before it, nor whether, if 1t did, it considered that lack of the "personal assistance" of which it declared the respondent Lo have been in nee& would have been harmful to the respondent's hezllh or would merely have rendercd him uncomfortable and miserable. Sn ra a a a - acct sere 0 Be we ad be tne re = ret A RR met me hel wee ee ee es 10. There is one statement of fact in paragraph 10 of thre Trabunal's reasons which cannot, I should think, be literally correct : that the personal assistance which the respondent needed "would not have been available a Melbourne". In a metropolitan centre such as Melbourne there are very few personal physical needs which cannot be satisfied for a price. I think that the ' Trabunal may have thought that the "personal assistance" which the respondent neecded would have been available in Melbourne only et a price which the respondent could not have afforded, and that for that reason the assistance would not have been ""availeble" to the respondent. Ordinary usage of the word "suitable" suggests that in s-13(3)(b) the requirenent of appropriateness of "the .... specialist .... with respect to the patient", which the word expresses, invites a consideration of a wide range of elrcumstances and a balancing of circumstances for and again-t a conclusion thet the requirement has been satisfied. Because the requirement is imposed in respect of the relationship of doctor and patient 1t as natural to think of the requirement as direened to the health of the patient, the promotion or restoration of which is the object the relationship ius undertaken to achieve. But in ordinary usage a doctor could not in my opinion be said to be suitable with respect to a patient for whom attendance on that doctor would be ruinously expensive, or contrary to relig?ous belicf, or unacceptuble becav.e of ai previous unsaiisfactory — Ll. professional relationship between the doctor and the patient or a relative or friend of the patient. Other examples may he conceived of circumstances, unrelated to the patient's health, which would preclude one from describing, in ordinary specch, a @octor as suitable. I have heen unable to find in the provisions of Part TILT of the National Health Act any reason to confine, by construction, the meaning of the word "suitable" in s.13(3)(b) within narrrower bounds than ordinary usage would alloy 1t in the context in which it is found. The restriction which the context may be thought at first to suggest can he seen 'to be untenable, because of the absurdity which would result. A. provision which requires the identification of the nearest suitable specialist with respect to the patient might be thought to be concerned merely with the professional skill appropriate to the treatment of that patient's ailment. But it would be absurd to admit the conclusion that even the most skilful of gynaecologists or neurosurgeons was "suitable oeee with respect to the patient" for whose proper treatment by that specialist equipment was required which was not available in the place where he practised, or whom that specialist for some personal reason refused to treat. I hope I am not insensitive to the administrative difficulties which consideration, and sometires a balancing, of diverse circumstances concerning suitability will entail. Yhe fewer and sampler the criceric by reference to which a I ne ee sete ee - - - eee hh 12. administrative decision is to be taken, the Jess expensive and troublesome the process of decision making. Tho difficulttes aro compounded by the circumstance that 2t is ordinarily a doctor practising in an isolated area who selects, for the purpose of referring his patient to a specialist, the person who the applicant, or his delegate, or the Administrative Appeals Tribunal, must be satisfied was "the nearest suitable specialist". . if such a doctor could be provided with a few clear rules by which to identify the specialist who would answer that statutory deseription, the administration of Part III of the National Yealth Act would be greatly facilitated. But in my opinion the suitability of a spectalist with respect to a patient can be ascertatned only upon a consideration of each circumstance attending treatment by that speciclist which may seriously affect an interest of the patient. No doubt the patient's health is the most obvious interest to consider. But I do not think that it is the only interest of which s.13(3)(b) requires concideration. Not every interest of the patient need be considered in determining the suitability of a specialist, but only an interest which in the judgment of the applicant, or of the Tr2zbunal on appeal, will be seriously affectcd by reason of a circumstance attending treatment by that specialist. The word suiteble" carries, in s-13(3)(b), no connotation of a comparison between one specialist and another in order to determine which specialist will better suit the patient's needs or wishes or convenience. Nor 1s 1t the patrent's concepcion of bis or her interests, or the ev nnd tate te wer de Stile Reeneeet ate cee feed ane ee ae Fra rene Oy we te ee eo ee Tn 13. patient's attitude to some circumstance attending, or likely to atiend, treatment by the specialist which is determinative of suitability. It is the applicant. or his delegate, and the Tribunal on appeal, to whom ¢.13(3)(b) commits the determination of suitability, subject only to the supervisory jurisdiction of this court to correct error of law. I do not perceive any error of law infecting the decision of the Tribunal. If the Tribunal found that the respondent woulda suffer harm to his health by living for 43 days without "personal assistance", that was a finding which the material before the Tribunal, interpreted in the light of knowledge the Trabunal may have had, could justify. In Collins v. Manister for Jmnicration (1981) 36 A.L.R. 598 at 601 the Full Court of this court (Fox, Deane and Morling JJ.) observed: "A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factua) basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of Jaw and have particular applacation to jury verdicts. Iven an that context, they do not involve questions of law. Yhey certainly have no place when the appeal, or review, is of proceedings of an adninistravtive tribunal which is not bound by the rules of ovidence and which, subject to the obligation to observe the requirements of natural Justice, can inform tutself as it chooses : see 6.33(i)(c) of the Administrative Appeals Tribunal Act 1975. An appellant who atvacss ¢ conclusion of the Trjbunal because of deficiency of proof sald to 14. eB eal is case amount to error of law must show, if he is to succeed, thal there was no material before the Tribunal upon which the conclustron could properly be based." to EB taal o. os If the Tribunal found that it was not harm to the J respondent's health, but serious discomfort and loneliness which f would have been caused by deprivation of that personal assistance, xl the finding was justified by the material, and it was in my ' C4 opinion a finding as to a circumstance relevant to a determination Aes Yhethor an orlhopaedic surgeon practising in Melbourne or in =o Launceston was "suitable". If the Yrihunal found that personal set eoesne'hs assistance of the kind reguired wis not available in Melbourne and "et if that was a finding whach could not be sustained (as I do rot think it could), yet a finding would have been yustified that such wom ye, 1 assistance would have heen available, whether in Melbourne or ' Launceston, only at a cost beyond what the respondent, whose occupation was that of a driver, could reasonably have bcen expected to pay: and sucha finding would have been, in my fin ALTON aretha BOE aa ash, opinion, as to a circumstance relevant to a determination whether sry an orthopaedic surgeon practising in Melbourne or Launceston was Sl ft Az "suitable". And if upon a consideration of all the circumstances "A ; relevant to a judgment of the respondent's interests the Tribunal concluded - as I think 1t may safely be taken to have concluded in substance ~ that it was not reasonable to require the respondent ' to accept as his specialist an orthoraedic surgeon practising in Melbourne or Launceston, then that conclusion, which in my opinion would justify lhe deetsion, could not be characterised as ore to which the Tribunal ecovld not reasonably have come, ard therefore alain Eee wel *e Sat ata seen ype % he hee eee wee are we ee 15. could not be characterised as one marred by error of law. It is not for this court to substitute any finding which it righl have made, or any conclusion it might have reached on the question whether jit was satisfied that the orthopacdic surgeon who treated the respondent was the nearest suitable specialist. It 1s the satisfaction of the applicant or his deiegate, and upon review the satis£action of the Tribunal, which s.13(3)(b) requires. * The appeal is dismissed. reeset ied , necro 7d cf ~ fe moa, . uew Loon (+) t " | yom ( ,