CATCHWORDS Administrative Law - appeal from Medical Services Review Tribunal - matter referred to Medical Services Committee of Inquiry by the Minister - matter referred was whether medical services were reasonably necessary for the adequate medical care of the patients concerned - whether matter referred was relevant to the operation or administration of the health insurance Act 1973. j Health Insurance Act 1973 ss. 79(1B); 82; 94; 104; 105; 106 The Minister for Health v Ronald Leslie Thomson G84 of 1984 Sweeney, J. 17 September, 1984 Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) NEW_ SOUTH S DISTR ISTRY GENERAL DIVISION On appeal from the Medical Services BETWEEN: THE MINISTER FOR HEALTH AND RONALD LESLIE THOMSON Judge Making Order: Sweeney, J. Date: 17 September, 1984 Where Made: Sydney ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. No. G84 of 1984 Review Tribunal. Applicant Respondent IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G84 of 1984 ) ) GENERAL DIVISION On appeal from the Medical Services Review Tribunal. BETWEEN: THE MINISTER FOR HEALTH Applicant AND RONALD LESLIE THOMSON Respondent Reasons for Judqment Sweeney, J. Sydney, 17 September, 1984 On 25 August 1982 the then Minister of State for Health, in accordance with the recommendations of the Medical Services Committee of Inquiry for the State of New © th Wales (the Committee), determined under the Health Insurance Act 1973 (the Act), $.105(2)(c), that Dr Ronald Leslie Thomson (the respondent ) be reprimanded and under s.105(2)(ca) of the Act that he be counselled and under sub-sec (2)(f) that the amount of $6,630.56 paid to him by the Commonwealth of Australia (the Commonwealth) in the form of medical benefits in respect of medical services rendered by him which, in the opinion of the Committee, were excessive services within the meaning of s.79(1B)(a) of the Act, or paid or payable by the Commonwealth, in that form to another person or persons in respect of those medical services, was payable by the respondent to the Commonwealth. On 26 January 1984 the Medical Services Review Tribunal (the Tribunal) decided to set aside the determination of 25 August 1982. The Minister for Health (the applicant) has appealed to this court against that decision. The question of law raised by the appeal was stated in the Notice of Appeal dated 7 March 1984 to be whether the Tribunal erred in holding that the reference given on 1 December 1981 to the Committee (the reference) did not comply with the provisions of paragraph 82(b) of the Act. The ground of appeal relied upon was that the Tribunal erred in so holding. Orders were sought that the appeal be allowed with costs and the matter be returned to the Tribunal for further consideration. The reference was "for inquiry into, and submission of a report and recommendations to the Minister of State for Health on, matters relevant to the operation or administration of the Act and of the National Health Act 1953 (other than Part VII of that Act) which arise out of the rendering of professional services in the State of New South Wales after 15 April 1977, namely, whether such professional services rendered to a patient by {the respondent), particulars of which are set out in Annexures marked 'Al' to 'A30', being a service for which a medical benefit was Claimed, was (sic) reasonably necessary for the adequate medical care of the patient concerned." Section 82 of the Act provides that a Committee shall inquire into, and submit to the Minister its report and recommendations on - (b) any other matter referred to the Committee by the Minister, being a matter that 1s relevant to the operation or administration of this Act or the National Health Act 1953 (other than Part VII of that Act) and arises out of or relates to - (11) the rendering of a professional service on or after 15 April 1977 .. .. . inthe State for which the Committee 1s established. Section 94 of the Act, so far as 1s relevant, provides: "Where, after consideration of a matter referred to a Committee by the Minister and of any documents that accompany the reference supplied by the Minister, 1t appears to the Committee that - (c) a practitioner may have rendered excessive services," the Committee shall conduct a_ single hearing, or if it 1s satisfied that it 1s appropriate to do so, two or more hearings into the matter. Section 79(1B) of the Act provides, amongst other things, that in Division 3, in which ss.82 and 94 are found, "(a) a reference to excessive services is a reference to professional services, being services in respect of which medical benefit has become or may become payable, that are not reasonably necessary for the adequate medical care of the patient concerned." Section 104 of the Act requires the Committee, after completing its hearing, to report to the Minister its opinion on the matter and ina case where the Committee, in the report, expresses the opinion that a practitioner specified in the report has rendered excessive services, the report shall identify them. Consistently with the terms of s.82 of the Act it was open to the Minister to refer to a Committee any matter as defined therein which arises out of or relates to the rendering of a professional service on or after 15 Aprii 1977. As the Trabunal pointed out, the Minister chose to refer to the Committee the specific question whether a professional service rendered by the respondent was reasonably necessary for the adequate medical care of the patient concerned. The question so submitted to the Committee was different from the question referred to in s.94, that a practitioner may have rendered excessive services, that 18, services which are not reasonably necessary for the adequate medical care of the patient concerned. The Tribunal took the view that: ot "where the evidence before a Committee relating to the adequate medical care is uncertain, as may well occur, so as to raise a doubt, the issue would be required to be concluded against the practitioner if the question was stated in the form as appears in the reference, namely, was the service in question reasonably necessary for the adequate medical care of the patient; but in favour of the practitioner, if the question was stated in terms complying with the statutory definition of excessive services, was the service not reasonably necessary. Because of the difference in this respect, the matter referred to the Committee was not relevant within the meaning of section 82 of the Act, with the consequence that the Committee was not authorised to give the matter consideration or conduct a hearing under section 94 of the Act or to report to the Minister under section 104, and the Committee had no authority to deal with any other matter. There were thus no valid recommendations under section 106(1) of the Act to support the Minister's determination, which was therefore of no legal effect." The difference between a reference stated in affirmative terms and one stated in negative terms inno mere quibble. The Legislature has treated the question whether a medical service was not reasonably necessary for the adequate medical care of tr; patient concerned as a matter relevant to the operation or administration of the Act. A medical service which was reasonably necessary in this sense is not relevant. Moreover, a negative answer to the qu stion, was a service reasonably necessary, 18 not equivalent to an affirmative answer to the question, was a service not reasonably necessary. So to hold would be to assume that all professional services examined would necessarily, and without doubt, fall into one category or the other, and to agnore considerations of the burden of proof. The reference to a Committee in the form given in the present case was, in my opinion, one which justified the Tribunal's findings and the course it took. It is unnecessary to deal with the respondent's notice of contentions. The order of the court 1s that the appeal be dismissed, with costs. I certify that this and the preceding five (5) pages area true copy of the Reasons for Judgment herein of The Honourable Mr. Justice Sweeney. Dated: ]7 September, 198 ' (Associate)