Report on performance
Outcomes
The preliminary decisions in Ho and Dohighlight the dangers in tying outcomes to other undecided cases – even though it was a genuine attempt to expedite resolution of several closely related proceedings.
Being subject to appeal, the substantive decisions in Hoand Do are not final. Nevertheless, they are important steps in the explication of the ‘exceptional circumstances’ provisions in section 106KA(2) and regulation 11 and indicate the level of detailed reasoning the courts expect of PSR Committees.
The decision in Bellamy makes clear that medical practitioners must heed the lawful directions of PSR Committees.
The decision in Phan confirms that it is the overall provision of procedural fairness that is important in the PSR process. This does not necessarily require the person under review to be able to comment at every possible stage, which will help avoid some possible delays.
Phan also resolves some doubts about the statistical sampling procedures, particularly where the methodology is varied on advice from an accredited statistician. Finally, Phan also reinforces the earlier decisions in Mathews, Doand Ho that Committee documents are not generally discoverable in judicial proceedings.
Carrick indicates limits to the application of Daniel, which will help to avoid nebulous and wide-ranging challenges to referrals based on alleged undertakings, understandings or disregard of relevant considerations. Carrick also approves and applies decisions in Mathews and Phan regarding the random selection of services and assertions that the Director’s actions and report may bias Committee deliberations or skew sampling procedures. These decisions will give greater certainty to the overall PSR processes.
The AAT decision in Saint shows that refusal of discovery of Committee documents in judicial proceedings cannot be bypassed using the FOI Act. This reinforces the protections for deliberative processes of Committees (and, by analogy, of the Director and Determining Authority).