EDELSTEN v RICHMOND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HOPE and SAMUELS JJA 26,27 and 28 September 1988, 11 November 1988 [1988] NSWCA 43 MEDICAL PRACTITIONERS ACT 1938-1987 - INDUCEMENT — ATTEMPT — HEALTH INSURANCE (VARIATION OF FEES IN MEDICAL SERVICES) REGULATIONS — RENDERING OF MEDICAL SERVICES — PERSONAL SUPERVISION — ASSISTANCE The Medical Tribunal constituted under the Medical Practitioners Act 1938 found that seven complaints which had been made against the appellant had been made out. The first complaint which was established was that the appellant was not of good character. In this respect it was alleged that the appellant had a conversation with a person whom he knew to be a criminal and a murderer with a view to obtaining his assistance to intimidate a former patient. The other complaints, which asserted that the appellant had been guilty of conduct in a professional respect, were conveniently grouped into three categories. The first category, constituted by complaints (2) and (3), broadly alleged that he induced, or attempted to induce medical practitioners who worked for him, or for companies associated with him, to overservice their patients. The second (complaint 4) that he joined in an improper fee sharing arrangement with other medical practitioners. The third category (complaints 5, 6 and 7) related to the delegation by him to a registered nurse of the responsibility for carrying out tattoo removal by laser surgery. The appellant contended that all the findings against him were vitiated by the application of an improper standard of proof and in addition he asserted specific errors in respect of the individual findings. The respondent argued that all, or at least most, of the submissions involved suggested errors of fact which were not appellable under the Medical Practitioners Act. HELD: (1) The Tribunal applied the correct onus of proof in accordance with Briginshaw v Briginshaw, 60 CLR 336. (2) That many of the submissions sought to be raised by the appellant were not open as they concerned only suggested errors of fact - Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139, at 156, applied. (3) That the complaint that the appellant was not of good character was not limited to his conduct in the carrying on of his profession. (4) That no error of law was involved in the decision of the Tribunal to admit evidence concerning an intercepted telephone conversation. (5) That there was evidence to support the affirmative finding on the first complaint. (6) The Tribunal did not err in law in concluding that the relevant Health Insurance Commission regulations required that a medical practitioner who claimed benefits in respect of Item 8454 should have personally carried out the laser operation himself. (7) No error in law was involved in the Tribunal's consideration of the evidence upon the second and third categories of complaints of professional misconduct. ORDERS The appeal is dismissed with costs. The proceedings should be remitted to the Tribunal which is yet to perform its function under s32R of the Act. Clarke JA This is an appeal from a decision of the Medical Tribunal constituted pursuant to Division 3 of Pt3A of the Medical Practitioners Act 1938-1987 ("the Act") in which it found seven complaints which had been made against the appellant had been established. 2 UNREPORTED JUDGMENTS The appeal is brought pursuant to s32U(1)(a) of the Act and, the Tribunal not having exercised its powers under s32R of the Act, is limited to points of law. Prior to the commencement of the hearing of the appeal the respondent filed a notice of motion seeking orders that the notice of appeal be struck out upon the basis that it did not raise any errors of law. Upon its return the motion was stood over for hearing concurrently with the appeal. In the event it became unnecessary to deal with the questions raised by the motion separately and it is appropriate merely to order that the notice of motion be dismissed. In the appeal the findings in respect of each of the complaints were challenged and it will be necessary to consider them separately. However, before dealing with the separate complaints it is convenient to consider the appellant's submission that each of the findings was vitiated by the application of the wrong standard of proof. It was submitted that, although it was necessary only for the respondent to establish its complaints on the balance of probabilities, it was incumbent upon the Tribunal to have regard to the gravity of the matters charged in considering whether the complainant had made good its claims according to the probabilities and this the tribunal had failed to do. Senior counsel for the appellant sought to support the submission by reference to the well known judgment of Dixon J (as he then was) in Briginshaw v Briginshaw, 60 CLR 336 in the course of which his Honour said, after pointing out that in civil cases proof was required only on the balance of probability, that the seriousness of an allegation is to be borne in mind when determining whether a matter has been proved according to the probabilities. The particular passage to which attention was directed reads: "In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect references." (p 362) A more recent exposition of the relevant principle is to be found in the judgment of the High Court in Rejfek v McElroy 112 CLR 517, at 521: "The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved." The difficulty with the submission is that the Tribunal, in its reasons for decision expressly laid that it had particular regard to the comments of Dixon J in Briginshaw and added that as deceit and moral turpitude were "variously involved in some of the complaints and any allegation involving either of these complaints naturally also requires a high standard of proof to reach a reasonable satisfaction". These statements presented a formidable hurdle to the argument which the appellant's counsel sought to surmount by arguing that while the Tribunal made those statements it did not apply them. The basis upon which it was said that the Tribunal had done no more than pay 'lip service' to the relevant principles was that an examination of the evidence called before the Tribunal demonstrated that it could not reasonably have been satisfied to the required degree of persuasion. In other words it was said that each decision finding the complaint proved was, bearing in mind the special standard required, so clearly erroneous that the tribunal must necessarily have failed to apply that standard. This is no more than saying that the decisions are perverse. That is, that they are contrary to the overwhelming weight of the evidence or such that no reasonable person could have made them. That is, that the decisions are wrong in fact. Accordingly, the submission fails to raise any error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 156; Mahoney v Industrial Registrar of NSW, URJ EDELSTEN v RICHMOND (Clarke JA) 3 (1986) 8 NSWLR 1, at 2 and 5). For this reason the submission should be rejected. I should add the observation that I have not found upon my examination of the evidence or the tribunal's reasons any support for the proposition that it only paid lip service to the rule. I turn now to the individual complaints. 1. That Geoffrey Walter Edelsten being a person registered under the Act is not of good character. Particulars of the complaint are as follows: That between approximately 10 January 1984 and 15 April 1984 the said Geoffrey Walter Edelsten had a conversation with a criminal, whom he believed to be a professional standover man and murderer, with a view to obtaining his assistance to intimidate by threats or violence a former patient whom Geoffrey Walter Edelsten alleged was harassing him. This complaint was made before the 1987 amendment to the Act and was in the form provided by s27(1)(d) of the then current provisions which, relevantly, read: 27(1) Where a complaint that a person, as a registered medical practitioner; (d) is not of good character, is made to the investigating committee in accordance with subs (1A) by any person, the investigating committee shall, subject to subs(IC), investigate the complaint. It is agreed by all parties that the charges were properly made under the provisions of the Act prior to the 1987 amendments and there is therefore no occasion to trace the transitional provisions. The appellant raised two challenges to the Tribunal's conclusion that the complaint had been established. In the first place it was said that an adverse finding could only have been made if the complainant had established that the conduct which was impugned, and which was said to demonstrate the lack of good character, related to the carrying out by the appellant of his profession. According to this argument s27(1)(d) was not concerned with the appellant's lack of good character unless it was shown to have arisen from his actions in the conduct of his profession as a medical practitioner. The sole basis upon which this somewhat startling submission was made was the presence in the introductory part of s27(1) of the Act of the phrase "as a registered medical practitioner". This meant, according to the submission, that the area of conduct which fell to be investigated in determining whether or not the appellant was a good character was limited to his conduct as a registered medical practitioner. Prior to 1972 s27(1) contained only three sub-paragraphs. During that period sub-paragraph (c) read: (c) Has been guilty of infamous conduct in any professional respect. In 1972, however, that subsection was replaced and a new subs (d) was added. The two new subsections read: (c) Has been guilty of misconduct in a professional respect; or (d) Is not of good character. The two original subs(a) and subs(b), which read: "(a) has been convicted in New South Wales of an offence or has been convicted elsewhere than in New South Wales by a court for or in respect of an act or omission that would, had the act or omission taken place in New South Wales, have constituted an offence; (b) has been guilty of habitual drunkenness or of addiction to any deleterious drug;" remained. It will be seen therefore that sub-paragraph (c) alone referred to 4 UNREPORTED JUDGMENTS misconduct which was necessarily associated with the professional activities of a medical practitioner. In my view it is clear that sub-paragraph (d) is concerned with conduct of a medical practitioner, which may or may not be related to the practise of his profession, which goes to show that he is not of good character. I say this for two reasons. In the first place neither sub-paragraphs (a) or (b) is concerned with conduct necessarily associated with the practice by the medical practitioner of his profession and no reason appears why (d) should be limited in a way in which these two subsections, which are also governed by the prefatory words in the section, are not. And secondly, the amendment in 1972 introduced into the Act two subsections one of which only was expressed to be concerned with the professional conduct of the practitioner. If the legislature had intended to limit (d) in the same manner as it had qualified (c) then no good reason appears why it did not expressly do so. In my opinion the purpose of the prefatory words of s27 (as a registered medical practitioner) is to impose a requirement that it be shown that the conduct in question occurred whilst the person against whom the complaint had been made was a registered medical practitioner. Thus, for instance, it is only if the conviction occurred at a time when the person against whom the complaint was made was a registered medical practitioner that the occasion would arise for an investigation under the section. Likewise an enquiry under s27(1)(d) would be concerned with whether the person against whom the complaint was made was, as a registered medical practitioner, not of good character. I would, accordingly, reject the submission that it is necessary to show that the conduct relied upon must necessarily have been related to the appellant's practise of his profession. It was then said that it was not open to the Tribunal, as a matter of law, to conclude that the appellant acted with a view to obtaining the assistance of the professional standover man. According to the submission the evidence was equivocal and there was no rational basis on which to draw a conclusion adverse to the appellant. I have some difficulty in discerning the question of law which is raised by this submission but as I have come to a firm conclusion that it is not soundly based I will assume that a relevant question is raised. The evidence which was accepted by the Tribunal and was not challenged established the following. On 26 January 1984 Mr Christopher Dale Flannery attended the appellant's surgery concerning the removal of tattoos. He again attended the appellant's surgery on 28 January and was on this occasion admitted to Bigge Street Private Hospital when the actual removal took place. He remained in hospital until 2 February. During his time there he informed the appellant that he was due to stand trial on | February on a charge of murder and he wished to have the hearing of the charge adjourned. He sought from the appellant a medical certificate which would support his application for an adjournment and was successful in obtaining one. When his trial was called on for hearing on 1 February he did not appear in court and his legal representative applied for an adjournment. A police officer, Sgt Duff, informed the court that Flannery was in hospital and the appellant's medical certificate was tendered. An adjournment was granted. Notwithstanding that the appellant had said in the medical certificate, which was dated 31 January, that Flannery would not be discharged from hospital for one or two weeks he was in fact discharged on 2 February. On 1 March someone started harassing the appellant. At about this time he received a bullet with his name engraved on it and a death threat. The appellant believed that a Mr Evans, a former patient of his, was responsible for the URJ EDELSTEN v RICHMOND (Clarke JA) 5 harassment. On 3 March he spoke with Ms Bissaker, his secretary, on the telephone. The conversation was illegally intercepted and taped. In the course of the conversation with Ms Bissaker, which was available to the Tribunal on the tender of the tape, the appellant said: "I rang a guy who I helped out recently, who's a hit man and I said 'I want this guy found and got off my back and also he said, 'ah if he could find him he would, but he said, ah, I'll get in touch with those two detectives who are friends, ah in the homicide squad and they both happen to be patients of mine at Georges Hall and I do their pilot's medicals and ah they both came over to see and reassure me that, ah, they'll get the guy before he does anything." This statement was made after the appellant had been discussing the harassment with his secretary in a context in which it was open to the tribunal to infer that he was discussing what had occurred during the preceding few days. During March and April the harassment continued and the appellant was in fairly regular contact with police officers. Evans himself was arrested on more than one occasion and managed to escape although sometime in April he was re-arrested. Then in mid April Sgt Millington suggested to him that he get rid of Evans. (I should emphasise that it was the appellant who said this and no adverse inference should be drawn against Sgt Millington because of this statement of the appellant.) On 15 April the appellant had another telephone conversation which was intercepted and taped. On this occasion he was speaking to his fiance Miss Leanne Nesbitt. During this conversation the two participants discussed the occasion on which the appellant assisted Flannery by giving him a medical certificate in terms which indicated that the appellant believed that Flannery was a professional killer. It is helpful however to set out that portion of the conversation upon which it was well open to the Tribunal to infer that the appellant had approached Flannery in the hope of obtaining his assistance. The conversation proceeded: Nesbitt: Will he (it was accepted that this meant Flannery) do it? Appellant: Pardon? Nesbitt: This bloke. Appellant: Oh this bloke will do it for ten grand. (In the context of what had passed before it was open to infer that 'it' meant 'bash him up'.) Nesbitt: Maybe he's charging you ten grand. Appellant: Pardon. Nesbitt: Maybe he's charging you ten grand. Appellant: I don't know. Nesbitt: Maybe if I asked he he wouldn't charge you ten grand. Appellant: Oh I think he would. Nesbitt: You think? Appellant: Yeh I helped him and um he just said he doesn't drop his price for anybody and that's it. He said 'I'm a professional - it's my livelihood'. While one possible inference is that the appellant had discussed Flannery's prices during a passing conversation in January the content of these discussions and their timing with respect to the continuing harassment raised a far more compelling inference that the appellant had spoken to Flannery in the hope of enlisting his aid. This was not the whole of the evidence because the appellant was interviewed by Mr Christopher Masters, a journalist with the Australian Broadcasting Commission, in May and July of that year during which he spoke again of his discussions with Flannery. On the first occasion, after referring to the fact that he 6 UNREPORTED JUDGMENTS was being harassed by someone whom he described as 'a maniac' and speaking of a well known businessman who dealt with similar problems by having people killed, he said: "I looked into this once because I have a patient who is a painter and docker (Flannery was, to his knowledge, a painter and docker). I raised it with him and he said it would cost $50,000 to kill someone and bashing cost $15,000. I told him that seemed a bit much for a bashing and the painter and docker said 'Do you realise how much baseball bats cost these days?'" It will be recalled that earlier he had said to Miss Nesbitt that the hitman doesn't drop his price for anybody. A statement to that effect is likely to have been made in response to a comment about the high price that Flannery charged for his services. If the two conversations are considered together, as is proper in the circumstances, it was clearly open to the Tribunal to conclude, in my opinion, that the appellant did not simply have a passing conversation of a gossipy nature with Flannery but discussed with some seriousness the prospect of securing his assistance. Senior counsel for the appellant submitted that the evidence went no further than justifying the inference that the appellant requested Flannery to assist him to discover Evans whereabouts and while this request in the context of the harassment, which was of such a nature as to create anger and anxiety in the appellant, might be thought to have been unwise it could not justify a finding that the appellant was not of good character. No doubt the Tribunal could have drawn this inference, unlikely as it might seem, but the Tribunal in fact found that the complaint had been made out. This conclusion involved a finding that the appellant had approached Flannery with the intention of seeking his assistance in ridding himself of the harassment. I have already indicated that on the evidentiary material before the Tribunal such a finding was clearly open. Indeed in my opinion once the Tribunal rejected the appellant's evidence that inference and the consequential finding of absence of good character was almost irresistible. The appellant also challenged the decision of the Tribunal to admit in evidence the tapes of the illegally intercepted conversations. His counsel accepted that the decision to admit the tapes involved the exercise by the Tribunal of its discretionary powers but contended that it had approached that exercise on an erroneous legal basis. In considering whether to admit the evidence the Tribunal first noted that the evidence was illegally obtained (Telecommunications (Interception) Act 1979, s7). In its judgment it then stated that the decision whether or not to admit the tapes had to be determined in accordance with the principles expressed in Bunning v Cross 141 CLR 54 and Queen v Ireland, 126 CLR 321. Those principles, as the Tribunal observed, invested it with a discretion to reject the evidence if it was unlawfully or unfairly obtained, and necessitated a balancing of two public needs. On the one hand the public need to bring to conviction those who commit criminal offences and on the other hand the interest in the protection of the individual from unlawful treatment. It concluded, correctly in my view, that those principles applied equally in the case of disciplinary proceedings of the nature under consideration. It then set out a number of considerations which it deemed to be of primary importance. No complaint has been made, or could justifiably have been made, in respect of the Tribunal's general consideration of the features of the case which needed to be considered in carrying out the balancing exercise required. It was said however that the Tribunal fell into legal error in declining to accept a submission that URJ EDELSTEN v RICHMOND (Clarke JA) 7 amendments to the Telecommunications (Interception) Act effected by the Telecommunications (Interception) Amendment Act 1987 (s77) which had been passed by the Parliament but not brought into law, and which rendered evidence of the type in question inadmissible, compelled the rejection of the evidence. It is true that amendments, which if operative would have rendered the tapes inadmissible, had been passed by the Parliament but had not been proclaimed at the date of the hearing. But that is not the whole of the picture. At the time of the hearing the Crimes Legislation Amendment Act 1987 had passed the Senate and was awaiting consideration by the House of Representatives. This legislation was, in a sense, cognate with the amendments to the Telecommunications (interception) Amendment Act 1987 in that it excluded pending proceedings from the operation of the amendments effected by that Act. That is, it excluded pending proceedings from the operation of those provisions of the Telecommunication (Interception) Amendment Act 1987 which rendered tapes of illegally intercepted telephone conversations inadmissible. Accordingly the Tribunal was faced with a situation where there was no operative law rendering the taped conversations inadmissible. There was an act of Parliament which, when the relevant provisions were proclaimed, would have that effect but at the same time there was other legislation before Parliament which raised the possibility that those provisions would have no operation in respect of the proceedings which were under consideration by the Tribunal. In the light of the uncertain position which prevailed at the time when the determination was made it seems to me that it cannot be said that the Tribunal erred in disregarding the existence of the Act which had been passed but whose relevant provisions had not been proclaimed. In my opinion the approach adopted by the Tribunal in disregarding these provisions was entirely appropriate. In any event no authority was cited in support of the proposition that the failure to take account of this material constituted an error of law and I am unable to accept that it was such an error. In this respect it should not be overlooked that this Court is restricted to a consideration of errors of law and is not reviewing the exercise of discretion by the Tribunal in the manner that such a review is carried out by an appeal court on a re-hearing (eg Norbus v Norbus, 161 CLR 513). Accordingly I am of opinion that all the challenges to the finding on the first complaint should be rejected. 2. That Geoffrey Walter Edelsten being a person registered under the said Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows: That between 1978 and 1984, the said Geoffrey Walter Edelsten attempted to induce medical practitioners to whom he offered work as consultants or employees to over service their patients by offering to enter into agreements with the said medical practitioner whereby they would be paid commissions for referring patients to specialist medical practitioners and/or companies associated with the said Geoffrey Walter Edelsten. 3. That Geoffrey Walter Edelsten being a person registered under the said Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows: That between 1978 and 1984, the said Geoffrey Walter Edelsten did in fact offer inducements to medical practitioners who worked as consultants or employees for him and/or companies associated with him, to over service their patients by paying the said medical practitioners commissions for referring patients to specialist medical practitioners and/or companies associated with the said Geoffrey Walter Edelsten. 8 UNREPORTED JUDGMENTS It is convenient to deal with these two complaints together because the only distinction is that in the first it is said that the appellant attempted to induce medical practitioners, to whom he offered work, to conduct themselves in the manner charged and in the second it is said that he did in fact offer inducements to medical practitioners who actually worked for him to conduct themselves in that manner. While there is a distinction between the attempt to induce and the offering of inducements it is convenient to put that to one side until I have outlined the competing contentions and the findings. The complainant charged that the appellant offered to the doctors who had not entered his employment, and paid to those doctors who worked for him, commissions in respect of referrals to particular specialist medical practitioners and/or companies in which the appellant had an interest. He contended that these commissions were offered with the intention of inducing the relevant doctors to overservice patients ny referring them to the nominated specialists when there was no need to do so in the knowledge that the referral would increase the earnings of the doctor in question. The nominated specialists included some within the employ of the appellant and others who had organisations in which he was either interested or had an arrangement with. The specialties covered a wide field but it is helpful to take as an example pathology in order to understand the thrust of the complainant's case. The doctors, who were either employed by or were consultants to the appellant's practice, were paid by a company named Mediservices Pty Ltd which was a company controlled by the appellant. He himself was one of two shareholders in a company named Omniman Pty Ltd ("Omniman'") The other shareholder was Trutza Investments Pty Ltd in which he and Monthaven Pty Ltd held the shares. Medical practitioners working at the appellant's surgeries were furnished with pathology referral forms at varying times in the name of Omnimed, Omniman, Alpha Pathology or Macquarie Pathology. These medical practitioners referred pathology tests to Omniman which in turn, depending on the particular time, would send the pathology specimens to Macquarie Professional Services Pty Ltd ("MPS"), or another specified pathology practice, for the carrying out of the relevant tests. MPS was a company in which the appellant had no interest but there was an agreement between it and Omniman which provided for fee splitting. Once MPS had performed its services it sent accounts to the Federal Department of Health and, less regularly, private patients and received payment in due course. Moneys that it received were paid into a bank account which had been opened in the name of "Omniman Trust Account". Pursuant to the agreement which operated between them Omniman received 67 per cent of the value of the tests less $10 per patient and MPS received the $10 and the remaining 33 per cent. It was contended by the complainant that doctors who had referred pathology tests to Omniman received commissions on a regular basis based on a percentage of the fee received by Omniman for the carrying out of the pathology tests. It was then said that these fees or commissions were paid as inducements to the medical practitioners to overservice patients. In the case of those practitioners who did not enter his employ it was contended that commissions were offered to induce them to take up employment and then overservice patients. The appellant conceded that a percentage or commission was paid to medical practitioners for referrals to specialists but said that that was an equitable way of sharing fees within a group and the system was introduced to encourage the URJ EDELSTEN v RICHMOND (Clarke JA) 9 general practitioner members of the group to choose the doctor best able to treat the patient. He denied that there was any intention or desire that the general practitioners overservice any patients. The fundamental issue was whether the appellant sought to induce overservicing, that is the ordering of medical services on the basis of personal financial gain rather than clinical utility. The appellant argued that there was no evidence that he had sought to induce medical practitioners to overservice and pointed out that, in any event, the conduct proven against him could only lead to overservicing if the employed practitioners misconducted themselves. His counsel submitted that upon the assumption, which he was entitled to make, that medical practitioners behave properly there was no basis upon which it could be said that he was endeavouring to induce them to overservice patients. In the context of that background I turn to consider ground 2. The Tribunal found that in 1984 the appellant had offered work to Drs McMahon and Lopaciniski. In the case of the former he had told her that she would make her money by receiving commissions on everything referred within the building, which it was accepted meant to any specialist service relevantly associated with the appellant, including all specialist and other services or tests including pathology and x-ray. In the case of Dr Lopaciniski he offered remuneration based on an annual salary plus "10 per cent of gross fees on work performed by you or investigations ordered by you or 35 per cent of gross fees on work performed by you". He told her that if she referred patients to in-house specialists she would earn 10 per cent of the fees generated by those referrals. Upon this evidence the Tribunal concluded that it was impossible to avoid the inference that the motive of the appellant was to encourage overservicing by those medical practitioners who entered his employment. Motive was perhaps used in the sense of purpose but the question which faced the Tribunal seems to me to have been whether the appellant's conduct was carried out with the intention of, and had the tendency to, cause medical practitioners employed by him to overservice patients. This view is consistent with the opinion of the Court in R v Murphy, (1985) 4 NSWLR 42, at 49. The court quoted with evident approval a statement which appeared in R v Machin, (1980) 1 WLR 763, at 767: "The word (attempt) is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice. To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency." Accordingly, the Tribunal was required to focus on the appellant's intention and the tendency of the proven conduct to bring about overservicing. I would agree that the submissions of the appellant may have force if the second complaint was to be regarded in isolation. But it was inextricably bound up with the third complaint in which it was said that the inducements had actually been offered and in order to determine whether the evidence provided proof of the tendency and necessary intent it is important to have regard to the total picture. In this way it is possible to determine whether it was open to the Tribunal to conclude that the tendency and necessary intention had been proven in relation to his negotiations with the two doctors. A number of medical practitioners gave evidence on behalf of the complainant in relation to the third complaint. The evidence of each one of these witnesses was accepted by the Tribunal. Let me deal with them separately. Dr Wilcox said 10 UNREPORTED JUDGMENTS that he received, in addition to his fortnightly salary, commissions ranging between 10 and 25 per cent of fees received in respect of referrals to specialists and 10 per cent of an item called "special travelling". This phrase was accepted by the Tribunal to be a method of describing not fares but pathology services. He also said that he had some conversations with the appellant during which the latter suggested that he should be working at a higher rate. Dr Crickitt said that in March 1981 he observed that the request pads at the appellant's Hammondville surgery pathology service bore the name "Omnimed" and were similar to the Macquarie Pathology Services pads. In response to an enquiry of the appellant he was told that the practice used Omnimed although the actual testing was done by Macquarie and later the appellant said to him "If I give the outside pathology company enough work they can give me a reduced rate, whether we use Macquarie or Alpha everything must go through Omnimed. There is no percentage paid for pathology that does not go through Omnimed." It goes without saying that there was no advantage in having the pathology services transmitted through Omnimed other than the financial advantage to the appellant and the referring practitioner. Dr Crickitt said that on three occasions the appellant had telephoned him saying that he was not ordering as much pathology as he (the appellant) wished and referred to the fact that he had been looking at the figures for all the doctors. Dr Crickitt was also told by the appellant that "there are a lot of tests we can do and you really should be making full use of them" and that certain tests could be ordered routinely on pregnant women. Dr Crickitt protested that not all the tests were justified, a comment which drew the response that the appellant wanted them done on everyone. Dr Lau said that he ordered all his pathology on the request forms of Omniman Pathology as no other forms were available and he was paid at one stage a fee of $3.50 for each patient for whom he ordered pathology services. According to this witness the appellant had pressurised him and told him from time to time that his pathology orders had dropped in number. Perhaps the most damning evidence was given by Dr Monica Green whose evidence was also accepted by the Tribunal. She said that she was employed at the Baulkham Hills Medical Centre operated by the appellant on | July 1984 on the basis of remuneration at the rate of 35 per cent of gross fees written by her. She attested that on one occasion the appellant said to her "Monica, I make very little money out of this practice. When I make money it's out of pathology. I want you to order as much as you can." On another occasion the respondent told her she was ordering less pathology. In the latter part of 1984 Dr Green, who had seen a copy of a medical benefits schedule, said to the appellant "I am not happy about being paid for doing pathology because I have found that it is illegal." According to her he replied "You are a fool, nobody will ever find out. The computers get confused when they are overloaded when your volume is high and there is a large amount of money involved for you. Also I pay you out of different companies so that nobody will ever know what is going on or where the cheques come from." This evidence and other evidence of a similar nature which was relied upon by the Tribunal provided a sound basis for the conclusion that in offering, or paying, commissions to medical practitioners working in the various practices operated by the appellant in respect of referrals to particular specialists the appellant did so with the intention of inducing the practitioners concerned to make referrals whether or not they were justified on clinical grounds. The statements made to Dr Green and Dr Crickitt are eloquent of that intention. The question whether the URJ EDELSTEN v RICHMOND (Clarke JA) 11 offer of, or payment of, the commissions had the requisite tendency is clearly a question of fact provided there was some evidence on which such a finding could be made. In this case the evidence, in my opinion, was more than adequate support for a conclusion adverse to the appellant. It is not to the point to say, as the appellant's counsel submitted, that the payment of the commissions was equally consistent with a genuine scheme of profit sharing. No doubt the Tribunal could, if it had accepted the appellant's evidence, have come to a conclusion adverse to the complainant but the proven context of the payment of the commissions to, at least, some of the medical practitioners who testified provided ample evidence of the improper purpose which the appellant was seeking to achieve. Once there was evidence which enabled the Tribunal to reach a conclusion adverse to the appellant then there is no ground for saying that it erred in law in so doing. Furthermore, in the light of the evidence given in support of the third complaint it was open to the Tribunal to conclude adversely to the appellant on the second complaint. That is because the evidence relating to the latter complaint justified a finding that his offers to Drs McMahon and Lopaciniski was carried out with the intention of achieving overservicing. Accordingly, the question, which is simply whether there was evidence available to the Tribunal to make adverse determinations on both these complaints, should be answered in the affirmative. No error of law has been shown. "4. That Geoffrey Walter Edelsten being a person registered under the said Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows: That between January 1985 and January 1986 the said Geoffrey Walter Edelsten and companies of which he was a Director participated in a fee sharing arrangement with other medical practitioners whereby the said Geoffrey Walter Edelsten and the said companies improperly received a share of fees which were paid to the said other medical practitioners for their performing ultrasound tests at the premises of the said Geoffrey Walter Edelsten." Prior to 1983 the fees payable under the Commonwealth Health Insurance Act 1973 in respect of ultrasonic cross-sectional ecography were the same whether the service was effected by a general practitioner or a specialist to whom the patient had been referred. On | January 1983 the Health Insurance (Variations of Fees in Medical Services) (No 271) Regulations, made under the Health Insurance Act, came into operation. The effect of these regulations was to alter the previous system by providing for the payment of a much larger fee where the service was rendered by a practitioner to whom the patient had been referred by another practitioner and "where the referring medical practitioner is not a member of a group of practitioners of which the first mentioned practitioner is a member". The fee in the case of an ultrasonic examination carried out by a medical practitioner to whom the patient had not been referred by another practitioner was $20.50. If the service was performed by a practitioner to whom the patient had been referred by another practitioner who, putting it broadly, was not of the same group then the fee payable was $78.00. In addition the regulations provided that the phrase "group of practitioners" where used in the regulations has the same meaning as set out in s16A of the Health Insurance Act. That section (s16A(5)(e)) provided: Where two or more practitioners; (1) provide professional services as partners, or 12 UNREPORTED JUDGMENTS (2) share amongst them all, or a substantial part of, the income from providing professional services, those practitioners shall be deemed to constitute a group of practitioners. It was the complainant's case that the appellant had entered into a fee sharing arrangement with a Dr Hatfield, a radiologist, pursuant to which patients were referred for ultrasonic cross section ecography to Dr Hatfield who charged the larger fee despite the fact that he shared the income received in respect of those services with the appellant and his partners. It was said that an elaborate arrangement was devised in order to present the appearance that Dr Hatfield was an independent medical practitioner whereas the fact was that he shared the receipts of the ultrasonic services with the appellant and his partners. The essence of the complaint was that the appellant had received, by means of a fraudulent device, portion of the proceeds of ultrasonic treatment given by Dr Hatfield which was charged at the higher rate. The appellant denied any element of fraud and submitted that the arrangement with Dr Hatfield was a perfectly proper one under which the latter charged proper fees and paid the appellant's practice only for facilities and services provided by the appellant's practice There was, he contended, no element of fee sharing. Accordingly, the question which confronted the Tribunal was whether the substance of the arrangement between the appellant and Dr Hatfield amounted to an improper fee sharing. In outline the facts were as follows. In 1982 the appellant carried on a practice in Liverpool in partnership. During the earlier part of the year his partners were Dr Bright and Dr Daries, and during the latter part his sole partner was Dr Bright There was a general surgery at 343 Hume Highway and an x-ray department at 337 Hume Highway which serviced the adjoining surgery and other medical practices under the control of the appellant. On 27 January 1982 CXAU Pty Ltd was incorporated and the partners were appointed directors. On 2 April 1982 CXAU Pty Ltd entered into a written agreement with Dr Hatfield under which it was agreed that the newly incorporated company would provide Dr Hatfield with the x-ray facilities and services, including radiographic services, at 337 Hume Highway and in return Dr Hatfield would pay the company fees calculated in accordance with clause 2 of the agreement The agreement was an elaborate one in which the parties went to some trouble to make it clear that Dr Hatfield was rendering radiology services on his own behalf and was solely entitled to the fees payable in respect of such services. Notwithstanding the detailed nature of the provisions in the agreement the evidence made it plain that the parties did not abide by its terms and that Dr Hatfield did not pay the fees for which it called. The alteration to the health benefit regulations in 1983, to which reference has been made, meant that if the appellant or his partners or employees continued to provide ultrasonic treatment then the fee payable to them would be the lesser one, that is, $20.50. This apparently created a problem for the appellant because he had spent a great deal of money on the acquisition of ultrasound equipment. He gave evidence that in approximately January 1983 Ms Ann Cannings, the manageress of the Partnership practice and CXAU Pty Ltd, made an arrangement with Dr Hatfield that he would carry out ultrasound work for the practice on the same basis as he provided x-ray services, namely that he would do the reporting on ultrasound tests and would pay the same percentage for use of facilities and services provided for him. The reference to the same percentage occurred URJ EDELSTEN v RICHMOND (Clarke JA) 13 because while Dr Hatfield did not pay for services in accordance with the agreement he paid a percentage of the fees he received to the appellant's interests. According to the appellant thereafter sonogrammes were produced by himself and other doctors or ultrasonographers performing the examination, writing the data on a pre-printed form, attaching photographs and sending the forms to Dr Hatfield for report. The ultrasound equipment was either owned or leased by the appellant, CXAU Pty Ltd, or companies associated with the appellant. The tests themselves were carried out at various surgeries under the appellant's control or at 337 Hume Highway until the latter part of 1985 when the facilities which were there provided were transferred to a separate part of 343 Hume Highway. Dr Hatfield continued to render bills for his services and to pay to the appellant or his interests a percentage of his fees in the same manner as he had before 1983. Evidence upon which the Tribunal relied was given by an ultrasonographer of the manner in which the system operated in 1984-85. During that period she visited the many practices, which were said to be practices of Dr Hatfield, each day carrying in her car a portable ultrasound machine and camera. When the appellant's x-ray department was transferred to 343 Hume Highway her machine was retained at those premises and she acquired another one for her continuing work. In each instance she performed the ultrasound examination and dictated standard matters, with particular reference to abnormalities, relating to the patient's tests onto an audio tape. She would then leave the tape with the film at the Hume Highway premises. A typist would then prepare the reports for Dr Hatfield who would attend at the practice later in the afternoon and sign the reports. The ultrasonographer was paid by CXAU Pty Ltd on an hourly basis. The reports and films were despatched from the practice at 343 Hume Highway to doctors at the various surgeries under the control of the appellant at such places as Elizabeth Drive, Liverpool, Miller, Hammondville, Georges Hall, Merrylands and Burwood. Important evidence was given by an accountant, Mr French, who examined the cashbook and banking records of CXAU Pty Ltd and an account styled S B Hatfield in respect of the period | January 1985 to 31 January 1986 (which was the period covered by the charge) and he prepared a report which was tendered in evidence before the Tribunal. This evidence disclosed that a total of $578,746.15 was paid into Dr Hatfield's account during that period of which all but about $20,000 represented receipts of money from the Health Insurance Commission. Dr Hatfield himself retained only $76,341.24 and the rest was disbursed to various other accounts. The major recipients were CXAU Pty Ltd which received $377,640.00, CXAU Liverpool A/C $28,200.00, Drs Edelsten, Bright and Daries, $8,812.00 and an account described as 'Ultrasound Split Hurstville' (it was agreed that this should read Hammondville) $78,750.71. A closer examination of the payments to Ultrasound Split revealed that it was made up of cheques drawn consecutively in favour of Dr Hatfield and the appellant in the ratio of 13.75 per cent and 86.25 per cent respectively. Of course both Dr Hatfield and the appellant received other moneys. For instance, the total sum of $76,341.24 received by Dr Hatfield was made up in part of his share of the Ultrasound Split and in part of payments from his account. The appellant himself received $66,025 as his share of the moneys paid to CXAU Pty Ltd with Dr Daries receiving $39,945 and Dr Bright $69,020.00. In all the four doctors received $338,893 which represented 58 per cent of the total fees received by the Hatfield radiology practice. 14 UNREPORTED JUDGMENTS This evidentiary material when coupled with the evidence that the terms of the written agreement, which was executed before Dr Hatfield started performing the ultrasound services at the appellant's premises at Liverpool, were not applied, the timing of the ultrasound arrangement and the evidence showing that Dr Hatfield called into the surgery each afternoon to sign the reports tended strongly to suggest that improper fee sharing was taking place. The appellant sought to answer the inferences which could possibly be drawn from the financial material by saying that the cheques received by him were paid to the various companies which provided services. However, as the Tribunal pointed out, no attempt was ever made by the appellant to relate the ownership of equipment or the provision of services to any particular company or to show that each company received its due return for the provision of equipment or services. Furthermore the appellant conceded that some of the moneys received in his own name were paid into his own bank account. The appellant also sought to rebut the charge of an improper fee sharing scheme by contending that it had not been shown that he knew that the higher fees were not properly payable to Dr Hatfield under the Health Insurance Act. The evidence which, if accepted, demonstrated that he had the requisite knowledge provided some insight into his method of operation. ADr Nelson, who was employed by the appellant during the latter part of 1982 and early 1983, said in evidence that the appellant had put a proposition to her in January 1983 which he explained as follows: The Commonwealth Government has changed its policy on paying for ultrasounds. They previously paid about $80 to anyone who did an ultrasound whether or not it was ordered by that person or a partner or employee in his practice. From (a date in January which I cannot now recall) they will only pay a (lesser figure which I cannot now recall). If you were no longer employed by me, you could rent the rooms in Liverpool with the ultra sound equipment and ultrasounds would be referred to you from the whole of the practice. You would claim on your own behalf and be paid at the higher figure. Dr Nelson said that the appellant also said that he would give her 50 per cent of what was paid by the Commonwealth and he agreed that she should collect the money and pay him a rental and give him half the money. On the day following the offer she declined to be involved saying, amongst other things, that she did not know anything about ultrasound. This statement by her was met with the response from the appellant that he would "show her how to do a couple and watch her do a couple and everything will be fine". There was also the evidence of Dr Katz, to whom earlier reference has been made, who said that at the end of 1982 or the beginning of 1983 the appellant raised a business proposition with him concerning ultrasound. Dr Katz said, "He explained to me that the schedule fee for ultrasound testing was higher if referred to a specialist or consultant ultra-sonographer than if performed by the patient's general practitioner. During the course of our conversation I said words to the effect: 'I have no experience in writing ultrasound reports'. Later in the conversation he said words to the effect: "I would like to start operating under this system. I will do the ultrasound and you will sign the reports and the header forms.' He told me I would be working through a service company similar to Omniman, and said words to the effect: 'This is the same way Omniman has been run.' I have never had any expertise in performing or reporting on ultrasound tests." URJ EDELSTEN v RICHMOND (Clarke JA) 15 He also said that the appellant explained to him that all administration arrangements would be made by him or his staff. Dr Katz agreed to the proposal. The way the system worked was then described by Dr Katz in these terms: The headers and assignment forms were sent to me at my home by courier from Dr Edelsten's practice. I checked that the number of assignment forms tallied with the number shown on the headers, then I signed the headers and placed them in the electricity box in my carport where a courier picked them up. I had previously discussed with Dr Edelsten this arrangement and asked him to have the courier pick up the signed forms in an envelope in the electricity box. He asked me to come to his surgery to sign ultrasound reports. I went there and for about half an hour the respondent sorted out ultrasound reports which he gave me to sign. At that meeting I simply signed the reports which made up the vast majority of the (approximately) 60 reports which I signed in the period of the arrangement with Dr Edelsten. The reports were hand written and related to ultrasound tests with respect to patients I had never seen and whose ultrasound film and reports I have never examined. I signed a few other similar reports on earlier occasions. These reports were delivered by courier from Dr Edelsten's practice and after I signed them, they were also left in the electricity box in the garage for collection by the courier. This evidence, which was introduced in order to meet the appellant's claim that he did not know of the changes to the regulations in 1983 was quite inconsistent with a genuine arrangement pursuant to which a specialist paid to another practice simply fees in respect of the provision of facilities and services. It also supported the Tribunal's finding that the appellant in 1983 set about creating a sham arrangement in order to ensure a greater return to himself from ultrasound tests carried out on behalf of his practice. What the evidence which was accepted then demonstrated was that the appellant knew of the relevant changes to the law in 1983 and took steps to set up a scheme whereby he would continue to enjoy the benefits of payments at the higher rate for ultrasound services carried out on behalf of his practices. When the evidence from Mr France concerning the financial arrangements between Dr Hatfield and the appellant is regarded in that light and consideration is paid to the evidence of the ultrasonographer as to the work actually performed by Dr Hatfield it seems to me that the inference was clearly open that the arrangement between the two doctors was simply a scheme in which they improperly shared the fees from ultrasound treatment. The manner of division of the funds and the work actually carried out by Dr Hatfield do not seem to support the competing inference that he was merely paying for services and facilities provided. In endeavouring to rebut the inference the appellant relied on evidence as to the usual percentage of gross receipts of a radiologist which represented overhead expenses. But, in my opinion, this stand took him very little distance. He made no attempt to show that the terms of the April 1982 agreement had been adhered to and that payments had been made in accordance with its terms. Nor did he make any attempt to show for what services or facilities the payments were made by Dr Hatfield. He simply said that as Dr Hatfield's overheads should have been about 75 per cent of his receipts the payments to CXAU Pty Ltd and the other recipients could properly be considered to be those overheads. When it was pointed out that insofar as the ultrasound split was concerned the percentage of moneys paid out by Dr Hatfield reached as high as 86.25 he sought to suggest that the additional sums represented a premium or commission to which Omniman was entitled. No doubt it was proper to put forward this explanation but it hardly 16 UNREPORTED JUDGMENTS provides a compelling base upon which to decline to draw the inference which the complainant said flowed from the evidence of the payments. Perhaps the strongest evidence which was advanced in support of the complaint was the receipt by the four doctors of 58 per cent of the total moneys received by Dr Hatfield. This is quite inconsistent with the notion that Dr Hatfield's overheads were 75 per cent of his gross receipts, and in the absence of evidence that moneys had been reimbursed by the doctors, in whole or in part to the owners of the equipment or the providers of the services, assisted to raise a compelling case of the improper division of the proceeds of the ultrasound treatments. In my opinion there is simply no substance in the suggestion that upon the evidence accepted by the Tribunal it was not open to infer that the appellant was engaged in an improper fee sharing arrangement. All the indicia point in that direction and the rejection of his explanations, vague and general as they were, left it well open to the Tribunal to draw a conclusion adverse to the appellant notwithstanding the seriousness of the offence charged. I should add that although Dr Hatfield did not give evidence the circumstances under which that occurred explained his non appearance and required the Tribunal to evaluate the complaint without regard to the fact that he had not given evidence. It would appear that the Tribunal adopted this approach. 5. That Geoffrey Walter Edelsten being a person registered under the Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows. That between approximately October 1983 and August 1984 the said Geoffrey Walter Edelsten made claims for and received monies from the Health Insurance Commission in respect to laser-beam treatment predominantly provided to patients by a non-medically qualified person employed by or under the control of the said Geoffrey Walter Edelsten when it appeared on the claims that the said services were rendered by the said Geoffrey Walter Edelsten. 6. That Geoffrey Walter Edelsten being a person registered under the said Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows: That between approximately October 1983 and August 1984 the said Geoffrey Walter Edelsten, being a registered medical practitioner, employed in connection with his professional practice conducted at Georges Hall in the State of New South Wales an assistant, namely Barbara Lorna El-Gamal, who was not a registered medical practitioner, and permitted the said person to perform operations known as laser surgery upon his patients which operations required professional discretion or skill. 7. That Geoffrey Walter Edelsten being a person registered under the said Act has been guilty of misconduct in a professional respect. Particulars of the said complaint are as follows. That between approximately October 1983 and August 1984 the said Geoffrey Walter Edelsten, being a registered medical practitioner, by his advice, assistance and cooperation, knowingly enabled a person, namely Barbara Lorna El-Gamal, who was not a registered practitioner, to perform an act of operative as distinct from manipulative surgery, namely laser surgery, upon his patients which operations required professional discretion or skill. These complaints are obviously interrelated and it is convenient to deal with them together. The complaints all concerned the part played by a nursing sister, Ms El-Gamal, in the appellant's practice. She was employed as the theatre sister in the appellant's surgery in Eldridge Road, Bankstown, during 1980 and 1981. During this time a Dr Smales carried out tattoo removals by a laser. Ms El-Gamal URJ EDELSTEN v RICHMOND (Clarke JA) 17 was given training by Dr Smales in the removal of tattoos and during her training she used the laser under Dr Smales close supervision. In 1983 she commenced working at the appellant's Georges Hall surgery. The main thrust of her evidence which was accepted by the Tribunal in its entirety, appeared in the following passage which was quoted in the reasons of the tribunal; Since receiving the 20 minutes instructions from Dr Edelsten in using the laser for removing tattoos I have, myself, assisted in several hundred removals. On each occasion either Dr Edelsten or one of the other doctors injected the local anaesthetic and made the decision about what area was to be treated. Usually, the doctor concerned would begin the laser treatment and then I would continue. Usually I would perform about three quarters of the treatment. Usually, the doctor came back into the theatre after a time and if I had not finished the treatment the doctor would do some more. There were a couple of occasions when I did all the laser treatment from beginning to end without the doctor doing any. For approximately a week in mid 1984, Dr Edelsten was in hospital. During that period I performed the entire treatment for a small number of patients in the presence of Dr Reid. I recall that the name of one of those patients was Mr L C. On the occasions when I performed the entire laser treatment a doctor gave the local anaesthetic. In the case of Dr Reid, Dr Reid was always in the operating room with me while I was using the laser. However, in the case of other doctors, on occasions while I was using the laser in the operating theatre the doctor was elsewhere in the surgery, which had two consulting rooms and a waiting room as well as the room where the laser was. On the occasions when I performed the whole treatment, no doctor intervened at all in the course of the laser treatment after giving the local anaesthetic. I never used the laser at a time when there was not a medical practitioner somewhere in the surgery building. Ms El-Gamal's evidence was corroborated by the evidence of a number of patients who gave estimates of the proportion of lasering work performed by Ms El-Gamal ranging from fifty to ninety per cent. Evidence was also given by Dr Carter who said that in the case of patients seen by the appellant in his presence the majority of the lasering work was performed by Ms El-Gamal. The Tribunal found that the dressing of the wounds caused by the laser treatment was an important part of the process assisting in the ultimate removal of the tattoo dyes and was carried out as a general rule by Ms El-Gamal. It also found that while she was performing laser treatment or wound dressing the respondent was occupied doing other work in other parts of the surgery. In the ultimate the Tribunal concluded that the majority of the actual laser treatment and wound dressing was performed by Ms El-Gamal. The appellant contended that two errors of law flawed the finding by the Tribunal that the fifth complaint had been made out. The first was to the effect that the finding was based on an erroneous construction of the relevant regulations. The Health Insurance Act 1973 provided for the payment of a benefit to an eligible person when medical expenses were incurred in respect of a professional service. A "professional service" is defined as (inter alia) ""a medical service to which an item relates, being a service that is rendered by or on behalf of a medical practitioner". An item is a reference to a medical service set forth in schedule I of the Act. Item No 8454 in Pt10 of the Schedule under the heading of "Operations Division 13 Plastic" sets forth a fee for "abrasive therapy, extensive area" together with a cross reference to another item for the anaesthetic for that operation. 18 UNREPORTED JUDGMENTS The Health Insurance Commission (Variation of Fees in Medical Services) (No 26) Regulations, Statutory Rules1982, No 286 sets out the table of medical services and, as well, rules of interpretation for the table. The Health Insurance (Variation of Fees in Medical Services) (No 30) Regulations, Statutory Rules1983, No 285 which came into operation on 1 December 1983 amended those regulations. One manner in which they did this was by inserting r5SB and r5C. RS5B provided (insofar as is relevant): A medical service specified in; (1)(a) an item in Part.....10; .. Shall be taken to be a medical service if, and only if, the medical service is performed physically by a medical practitioner on not more than one patient on the one occasion. RSC provided; (1) Medical services specified in - (a) an item in part.... 10; shall be taken to be a medical service for the purposes of the Act if, and only if, the medical service is rendered by a medical practitioner being; (e) a medical practitioner other than a medical practitioner employed by the proprietor of a hospital; or (f) a medical practitioner who is employed by the proprietor of a hospital and renders that medical service other than in the course of his employment by that proprietor, whether or not essential assistance is provided in accordance with accepted professional practice, to the medical practitioner rendering that medical service. The Tribunal concluded that upon their proper construction these rules meant that the medical practitioner claiming benefits in respect of Item 8454 should have personally carried out the laser operation himself and that assistance, provided it met the two conditions stated in r5C, did not deny the right of the practitioner to make the claim. In interpreting the two conditions - that the assistance must be essential and be provided in accordance with accepted professional practice - the Tribunal stated that assistance could qualify as essential assistance notwithstanding that the medical practitioner could have done it himself. As I read the reasons the Tribunal concluded that as long as the assistance was of a type rendered in accordance with accepted professional practice, such as dressing a wound, and was a service essential to be carried out in the treatment of a patient, then it satisfied the two conditions. Senior counsel for the appellant submitted that it was wrong to construe SC to mean that the medical service need be physically performed by a medical practitioner. It was sufficient if the service was rendered by the practitioner in the sense of being provided by him either personally or by an assistant. It was not to the point, according to this argument, that under r5B the medical service was required to be performed physically by a medical practitioner for the effect of r5C was to cut down the operation of the earlier rule. The contrary argument was that the two rules had to be read together. Accordingly the word "rendered" in r5C should be understood as meaning "physically performed". In my opinion the complainant's submission is correct. In the earlier of the two rules there is what might be described as a comprehensive definition of a medical service. That is, one performed physically by a medical practitioner on not more than one patient on the one occasion. r5C appears to perform two separate functions. Firstly, to define the persons by whom the service is rendered before the relevant item is claimable and secondly to specify the assistance which may be availed of by the practitioner without detracting from his right to claim benefit for an item. In this context it seems to me that the earlier definition is picked up URJ EDELSTEN v RICHMOND (Clarke JA) 19 and applied to the phrase "medical service" appearing in the body of 5C. Upon this view the relevant part of that rule should read "only if, the medical service (that is, a medical service performed physically by a medical practitioner on not more than one patient on the one occasion) is rendered by a medical practitioner being etc". On this approach to the construction of the two rules each performs a useful function. The alternative construction would effectively deny r5SB of any utility in most, if not all, instances. It is perhaps convenient to illustrate the difference by reference to the item which I mentioned earlier, ie item 8454. That item read "abrasive therapy extensive area". By virtue of the application of the definition in the Health Insurance Act 1973 that would qualify as a medical service so long as it was rendered by or on behalf of a medical practitioner. But as a consequence of r5B before a claim can be made for item 8454 the service must be performed physically by the medical practitioner. rSC is then concerned to define the practitioners who are entitled to claim for that service and the extent of permissible assistance. Further support for my preferred construction is to be found in the latter part of r5C dealing with essential assistance. In that part of the rule the phrase "the medical practitioner rendering" could only be a reference to the personal rendering of the service by the medical practitioner. This must follow for the rule proceeds upon the basis that the medical service is rendered by a medical practitioner whether or not he receives essential assistance: If he doesn't receive assistance he is able to claim for an item under ptl0; if he does he may claim only if the assistance satisfies the conditions. In these circumstances the phrase 'practitioner rendering' could hardly be understood to mean 'the practitioner or his assistant rendering'. Tf that is correct then it seems to me to follow that the service referred to at the start of the rule must also be rendered by the practitioner personally. I say this because the words 'the medical practitioner rendering' clearly refer back to the earlier 'service is rendered by a medical practitioner'. In both instances the expression medical practitioner is referring to the same person. The second basis upon which the appellant attacked the Tribunal's decision on this complaint was that in concluding that there was no accepted professional practice that the assistance of a person who is not a qualified medical practitioner may be given in the actual use of the laser upon the patient's skin the Tribunal had ignored and disregarded portion of the evidence of Dr Carter upon which it necessarily relied. It was also contended that references in the Reasons of the Tribunal to the opinion of overseas medical practitioners demonstrated that the Tribunal did not confine its consideration to Australian standards but had regard to the standards of other countries. These submissions, in my opinion, raise factual questions although an endeavour has been made to dress them up as arguments on a question of law. What counsel actually submitted was that the Tribunal had failed to consider a relevant consideration. Such a failure may constitute an error of law but in the present context I fail to see how it could be said that the Tribunal erred in law by placing particular reliance on portion of Dr Carter's evidence while disregarding another part. If there was an error it was one of fact. But in fairness to the Tribunal I should add that I do not accept the submission that there was an erroneous approach. 20 UNREPORTED JUDGMENTS The Tribunal said that a number of local practitioners, including Dr Carter, had given evidence which did not support the proposition that a locally trained nurse was the appropriate person to carry out laser treatment. The suggested error was that Dr Carter had said that it was appropriate treatment for nurses to render and attention was directed to the following passage in his evidence: Q. What opinion did you form as to whether it was appropriate for a nursing sister to be doing that work? A. Never even entered my head that it would not be appropriate for her. It's a very simple task she was given. It requires someone probably with a bit more patience than a doctor - that's a pun - that's not a pun, but it definitely required someone who had a steady hand and was going to do this sort of colouring-in of the tattooed area. The answer would appear to support the argument but the doctor's evidence obviously needs to be read as a whole. When attention is directed to the cross examination a rather different picture, in which the witness indicated that the operation should not be performed by a nurse, appears. In the light of this latter evidence I would not accept that it was inaccurate to say that Dr Carter's evidence did not support the conclusion that nurses should be performing laser operations. Nor, in my opinion, is there any substance in the suggestion that the Tribunal sought to apply overseas standards. They don't say so and they refer to the evidence of local practitioners. One of those witnesses, Dr Adriana Scheibner, who described the procedure in detail, unequivocally said that medical training, as opposed to nursing training, was an essential qualification for the use of a laser for dermabrasion. All that can be said in support of the submission is that overseas experts were expressly referred to in the reasons of the Tribunal. But that was understandable given that the appellant had indicated prior to the hearing that he proposed to call witnesses from the United States and had, in fact, done so. There is, in my opinion, no substance in these submissions and they should be rejected. Turning now to complaints number 6 and 7. It is pertinent to observe that they were based upon s27(2) of the 1938 Act as in force at the time of laying of the complaints. Under that section a medical practitioner is deemed to be guilty of "misconduct in a professional respect" if he; (i) Employs in connection with his professional practice an assistant who is not a registered medical practitioner and permits such assistant to attend, treat or perform operations upon patients in respect of matters requiring professional discretion or skill; or (ii) By his presence, countenance advice, assistance or cooperation, knowingly enables a person who is not a registered medical practitioner, to perform any act of operative as distinct from manipulative surgery upon a patient in respect of any matter requiring professional discretion or skill but shall not be deemed to be guilty of such misconduct by reason only of or of the legitimate employment of dressers, nurses, dispenses, surgery attendants, technicians, and skilled mechanics under the immediate personal supervision of such registered medical practitioner... In finding that the complaints had been made out the Tribunal expressed the opinion that the words "immediate personal supervision" involve the overseeing of the personal movements of the assistant during the operation. According to this view it is not enough that there be a medical practitioner available within the building while the operation is being carried out. URJ EDELSTEN v RICHMOND (Clarke JA) 21 The appellant's counsel submitted that this was erroneous and that no more was meant than that a medical practitioner was available within the building while the nurse, for instance, performed her tasks. The words "immediate personal supervision" fall, of course, to be construed in the context of the whole section, the major thrust of which is to categorise the conduct of a doctor who employs a person, who is not a registered medical practitioner, to perform operations, or give other treatment, which requires professional discretion or skill as misconduct in a professional respect. In subs(2) the same consequence is accorded to the conduct of a doctor who knowingly enables a person who is not a registered medical practitioner to perform any act of operative, as distinct from manipulative, surgery in respect of any matter requiring professional discretion or skill. These subsections are expressed in broad terms. For instance in subs(1) the prohibition is not confined to the performance of operations but extends to cover assistants who attend or treat patients in respect of other matters which require professional discretion or skill. Obviously medical practitioners require assistance from nurses, technicians and others in treating patients. This is particularly so in the case of operations. For that reason the legislature clearly deemed it necessary to insert a proviso to enable medical practitioners to obtain the assistance of nurses etc in their treatment of patients. But there were two conditions laid down for the application of the proviso. The assistants must be legitimately employed in their tasks and they must be under the immediate personal supervision of a registered medical practitioner. The requirement that the employment be legitimate directs attention to the area of service performed by the assistant. It obviously is legitimate to employ a nurse to carry out nursing services but not to perform brain surgery. The second condition directs attention to the quality of the supervision under which the work is to be performed. The requirement that the supervision be personal means that it must be furnished by the medical practitioner himself. Whether the supervision is or is not immediate will fall to be considered in the light of the circumstances under investigation. What is sufficient to satisfy 'immediate supervision' in some circumstances may fail to satisfy it in others. In my opinion there can be no single test appropriate for all circumstances. For instance, the supervision of the work of a theatre sister during delicate heart surgery would, it seems to me, be immediate only if the surgeon was at hand in the operating theatre. On the other hand in the case of a nurse dressing a wound it may be that it would be sufficient if there was a doctor nearby in the building. What I am seeking to emphasise is that the question whether supervision satisfies the required conditions will depend upon the particular circumstances of each case. A finding that particular supervision was or was not "immediate personal supervision" would not raise any question of law unless the primary facts found were necessarily within or without that description and a contrary decision had been made (Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139, at 156). The conclusion of the Tribunal was directed to the supervision required in the case of a nursing sister performing operative treatment. Viewed in that context I am unable to perceive any legal error. That is because it could not be said that the proven supervision, that is the presence of a medical practitioner somewhere within the building while the operations were taking place, was necessarily 'immediate personal supervision'. Accordingly, no error of law has been demonstrated. At the commencement of the hearing the appellant sought, and was granted, leave to rely on additional grounds of appeal. In essence it was sought to argue that any finding made by the Tribunal which was not a direct 22 UNREPORTED JUDGMENTS response to a question posed by the complaint was beyond jurisdiction and was made in denial of natural justice. There are some problems with this submission but insofar as I am satisfied that the appellant has failed to make good his challenge to any of the specific answers furnished to the complaints the point does not arise. In the manner in which the argument was developed these grounds of appeal would only become relevant if the court concluded that the tribunal had erred in law in Providing an affirmative answer in respect of any complaint. That situation has not arisen. For these reasons the appeal should, in my opinion, be dismissed with costs. The Proceedings should be remitted to the Tribunal which is yet to perform its function under s32R of the Act. Counsel for the Appellant: Mr A Shand QC and Dr G Flick and Mr D Wheelahan Solicitors for the Appellant: Shenker and Associates Counsel for the Respondent: Mr TK Tobin QC and Mr MG Sexton Solicitors for the Respondent: State Crown Solicitor