FEDERAL COURT OF AUSTRALIA

Joseph v Health Insurance Commission [2005] FCA 1042

HEALTH LAW – medical practitioners – Professional Services Review Scheme – determination that practitioner engaged in inappropriate conduct – meaning of ‘general practitioner’ for purposes of the scheme – whether Professional Services Review Committee and Determining Authority adopted wrong standard of conduct – record-keeping – home visits – use of samples – whether Committee adopted incorrect approach – whether determination unreasonable

ADMINISTRATIVE LAW – application for judicial review pursuant to both Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 and Judiciary Act 1903 (Cth) s 39B – time for making application – whether Judiciary Act subs 39B(1A) diminishes importance of time limit imposed by Administrative Decisions (Judicial Review) Act s 11(1)(c) – whether discretionary relief should be refused

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, s 11

Health Insurance Act 1973 (Cth) s 3, s 19B, Part VAA

Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth)

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules O 54A r 3(2)

Health Insurance (Professional Services Review) Regulations 1999

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 cited

Azzi v Minister for Immigration and Multicultural Affairs  (2002) 120 FCR 48 distinguished

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 discussed

Lucic v Nolan  (1982) 45 ALR 411 referred to

Pradhan v Holmes (2001) 125 FCR 280 considered

Sean Investments Pty Ltd v MacKellar  (1981) 38 ALR 363 followed

Tang v Holmes (1998) 51 ALD 121 considered

ANTHONY JOSEPH v HEALTH INSURANCE COMMISSION, ALAN JOHN HOLMES, WALLACE GRIGOR, DAVID RIVETT, DIPAK HOR, NICOLAS RADFORD, MORRIS WILLIAMS AND JANE PHELAN

NSD 1297 of 2004

BRANSON J

29 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The time within which the applicant may lodge an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review in respect of the decision of the Professional Services Review Committee No 200 be extended to 3 September 2004.

2.                  The application be dismissed.

3.                  The applicant pay the respondents’ costs.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant seeks in this proceeding to challenge a final determination made by the Determining Authority (‘the Authority’) under s 106TA of the Health Insurance Act 1973 (Cth) (‘the Act’).  For this purpose the applicant seeks review not only of the determination of the Authority but also of an earlier decision of the Professional Services Review Committee No 200 (‘the Committee’) upon which the determination of the Authority was based. 

2                     By its final determination the Authority directed that the applicant be reprimanded, counselled, ordered to pay an amount of $267 999.47 to the Commonwealth and disqualified for a period of three years.  Where a person is disqualified under the Act, Medicare benefits are not payable in respect of professional services rendered by that person (s 19B of the Act).

3                     This proceeding was initiated by the filing of an application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’).  The reference in the application to ‘the accrued jurisdiction of the Court’ may be ignored as otiose. The application was not made by the filing of an application in, or substantially in, the form numbered 56 in Schedule 1 of the Federal Court Rules (‘the Rules’) as required by O 54A r 3(2) of the Rules.  It may be for this reason that attention was not paid to the requirements of s 11 of the ADJR Act and, in particular, to the period prescribed by s 11(3) within which an application to this Court under that Act must be made.

4                     Counsel for the applicant drew my attention to the judgment of Finn J in Pradhan v Holmes (2001) 125 FCR 280 (‘Pradhan v Holmes’) in which, in a case similar to this, his Honour found it unnecessary to decide certain objections taken under the ADJR Act as s 39B of the Judiciary Act was sufficient to found the Court’s jurisdiction.  Sundberg J adopted the same approach in Tang v Holmes (1998) 51 ALD 121 at 131.  In neither of the cases was consideration given to whether the insertion of subs 39B(1A) into the Judiciary Act was intended to diminish the significance of the requirement imposed by s 11(1)(c) of the ADJR Act for applications under that Act to be lodged within the prescribed period or within such further time as the court concerned allows (see Lucic v Nolan  (1982) 45 ALR 411 at 416). 

5                     As Wilcox J recognised in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applications under the ADJR Act may be of significance to persons other than the parties.  His Honour noted that in cases involving decisions affecting public administration the public interest may dictate a refusal to extend the prescribed time for lodging an application.  In such a case, in my view, it is open to be argued that any discretionary relief sought under s 39B of the Judiciary Act in respect of the same administrative decision should also be refused.

6                     In this case the respondent did not oppose the grant of the extension of time under s 11 of the ADJR Act eventually sought by the applicant to allow it to seek review under that Act of the decision of the Committee.  Had the respondent opposed the grant of an extension of time I would have been required to consider what significance should be attached to the requirement of s 106L(4) of the Act.  That subsection provides that the Committee must give its final report to the Authority not earlier than 28 days after the day on which it gives a copy of the report to the person under review.  The prescribed time for making an application to this Court or the Federal Magistrates Court under the ADJR Act is ordinarily 28 days after a record of a decision is furnished to an applicant.  It is thus arguable that the Act discloses an intention that any challenge to the findings of the Committee should be made before the Authority acts on those findings.  However, in the circumstances, the extension of time sought by the applicant will be granted.

7                     For the reasons set out below I have concluded that the application should be dismissed.

statutory scheme

8                     The Act makes provision for payments by way of medical benefits and payments for hospital services.  Part VAA of the Act establishes a scheme, called the Professional Services Review Scheme (‘the PSR Scheme’), under which a person’s conduct can be examined to ascertain whether inappropriate practice within the meaning of the Act is involved.  The conduct with which Part VAA is concerned is conduct in connection with rendering or initiating a service for which, at the time that it was rendered or initiated, a Medicare benefit was payable.

9                     Section 82(1) of the Act defines ‘inappropriate practice’ as follows:

‘(1)      A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:

(a)        if the practitioner rendered or initiated the services as a general practitioner—the conduct would be unacceptable to the general body of general practitioners; or

(b)        if the practitioner rendered or initiated the services as a specialist (other than a consultant physician) in a particular specialty—the conduct would be unacceptable to the general body of specialists in that specialty; or

(c)        if the practitioner rendered or initiated the services as a consultant physician in a particular specialty—the conduct would be unacceptable to the general body of consultant physicians in that specialty; or

(d)        if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession—the conduct would be unacceptable to the general body of the members of that profession.’

10                  Section 82(3), which was added to the Act by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) with effect from 1 November 1999, provides:

 (3)       A Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.’

11                  The formal statutory process of investigation under the PSR Scheme remains substantially the same as the process described by Finn J in Pradhan v Holmes at [9]‑[60].  I do not think it necessary to describe the process in detail again here.  The Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) inserted provisions into the Act to validate referrals which would otherwise have been invalid by reason of his Honour’s judgment in Pradhan v Holmes.

12                  It is important, however, to notice that the expression ‘general practitioner’ has an artificial meaning for the purposes of the Act (see s 3 of the Act and item 1 of Part 1 of Schedule 1 of the Health Insurance (1998‑99 General Medical Services Table) Regulations 1998 (‘the Medical Services Table Regulations’)).  Although the applicant spent his professional life practising as a general practitioner as that term is ordinarily understood he was not a ‘general practitioner’ within the meaning of the Act (see [33]‑[42] below).

13                  The items from the general medical services table prescribed for the purposes of the Act that are relevant to the proceeding are:

‘Item 53        Professional attendance at consulting rooms of more than 5 minutes duration but not more than 25 minutes duration (not being a service to which any other item applies) by a medical practitioner (not being a general practitioner)’; and

‘Item 59        Professional attendance (not being an attendance at consulting rooms, an institution, a hospital or a nursing home) of more than 5 minutes duration but not more than 25 minutes duration (not being a service to which any other item applies) by a medical practitioner (not being a general practitioner)…’.

FACTUAL BACKGROUND

14                  On 11 February 2000 a Medical Adviser from the Health Insurance Commission (‘the Commission’) interviewed the applicant at the request of the Professional Review Branch of the Commission.  A report of the interview dated 6 April 2000, which included the conclusions drawn therefrom by the Medical Adviser, was provided to the applicant.  By letter dated 17 April 2000 the applicant provided comments with respect to the report.  He indicated, amongst other things, that he was endeavouring to cut down on the number of his home visits.

15                  On 7 August 2000 a delegate of the Commission referred to the Director of Professional Services Review (‘the Director’) the conduct of the applicant ‘relating to whether he has engaged in inappropriate practice within the meaning of section 82 of the Act in connection with [the] rendering and initiating of services’.  The Director conducted an investigation under s 89 of the Act.

16                  Thereafter the Director set up the Committee.  It is not clear whether this was done by an instrument dated 14 March 2001 or by an instrument dated 21 March 2001 headed ‘Adjudicative Referral No. 200 under Section 93(1)’ (‘the Adjudicative Referral’).  The Adjudicative Referral refers in paragraph 4 to the Committee having been set up on 14 March 2001.  No document bearing this date was included in the Court Book prepared for this hearing.  The final report of the Committee records that it was established by an instrument dated 21 March 2001.  It is not necessary to resolve this question.  The Adjudicative Referral required the Committee to consider whether certain conduct by the applicant constituted engaging in inappropriate practice.  The conduct of the applicant which the Committee was required to consider was his conduct in connection with rendering the following services:

‘All Medical Benefits Schedule (“MBS”) items 53 & 59 services … from the practice location at 60 Cook Street, LITHGOW NSW 2790 and during the period on and from 1 January 1999 to and including 31 December 1999.’

17                  The Committee was constituted by three members.  The final report of the Committee describes the Chairperson as a ‘medical practitioner’.  It describes the other two members as ‘general practitioners’. 

18                  In considering whether the applicant’s conduct in connection with rendering Medical Benefit Schedule (‘MBS’) item 53 services and 59 services during the relevant period constituted engaging in inappropriate practice, the Committee placed reliance on s 106K(1) of the Act.  Section 106K(1) authorises a Committee to have regard only to a sample of the services in a particular class of services.  At the relevant time s 106K(2) of the Act provided:

‘(2)      If the Committee finds that conduct in connection with rendering or initiating all, or a proportion, of the services included in the sample constituted engaging in inappropriate practice, then, the conduct of the person under review, in connection with rendering or initiating all, or that proportion, as the case may be, of the services included in the class from which the sample is chosen, is taken, for the purposes of this Part, to have constituted engaging in inappropriate practice.

19                  The Committee conducted hearings, at which the applicant gave evidence, on 1 June 2001 and 28 June 2001.  The applicant was accompanied at the hearings by his solicitor.  During at least part of the hearings he was also accompanied by his son who is a medical practitioner.

20                  Further action by the Committee was then suspended pending the resolution of legal issues raised in Pradhan v Holmes.  Upon the coming into force of the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) the Committee recommenced its enquiries.

21                  On 4 September 2003 the Committee sent a copy of a draft report setting out its preliminary findings to the applicant.  The preliminary finding made by the Committee was that the conduct of the applicant:

‘… in connection with his rendering of Medical Benefit Schedule … items 53 and 59 services that were the subject of the Adjudicative Referral from the Director of Professional Services Review … would be, in the Committee’s opinion, unacceptable to the general body of medical practitioners.’

22                  The applicant was invited to make written submissions to the Committee suggesting changes to the draft report.  The applicant, by a letter dated 17 October 2003 from his solicitor, made lengthy written submissions to the Committee.

23                  The Committee issued a final report dated 21 January 2004.  The final report recorded the following unanimous finding by the Committee:

‘… that the conduct of the practitioner under review … in connection with his rendering some of the Medical Benefit Schedule … items 53 and 59 services that were the subject of the Adjudicative Referral from the Director of Professional Services Review … would be, in the Committee’s opinion, unacceptable to the general body of medical practitioners and therefore constitutes inappropriate practice.’

24                  The body of the Committee’s report records separate findings in respect of the MBS item 53 services and the MBS item 59 services.  In respect of the MBS item 53 services the final report records the following finding:

‘The Committee’s finding in respect of these services is that Dr Joseph engaged in inappropriate practice because he:

·          failed to take an adequate history and make an adequate examination of his patients;

·          failed to make adequate clinical input into the services;

·          lacked knowledge of the proper management of a range of medical conditions;

·          prescribed a number of drugs, including antibiotics, benzodiazepines, narcotics and codeine containing analgesics where they were not clinically indicated and despite evidence of undesirable side effects or interactions; and

·          kept medical records that were deficient in essential clinical information.’

25                  In respect of the MBS item 59 services, the final report records the following finding:

‘The Committee’s finding in respect of these services is that Dr Joseph engaged in inappropriate practice because he:

·          rendered home visits that were not medically necessary;

·          kept medical records deficient in essential clinical information;

·          failed to make adequate clinical input into the services;

·          prescribed a number of drugs including antibiotics, benzodiazepines, narcotics and codeine containing analgesics where they were not clinically indicated;

·          facilitated drug dependence in a patient;

·          lacked knowledge of the circumstances in which benzodiazepines can be safely prescribed;

·          failed to appreciate the side effects and interactions between drugs; and

·          lacked knowledge of the natural history and proper management of influenza.’

26                  As mentioned above, subs 106L(4) of the Act provides for the Committee to give its final report to the Authority not earlier than 28 days after the day on which it gives a copy of the report to the person under review.  The applicant did not challenge the final report of the Committee during the 28-day period.  The final report was given to the Authority.

27                  As the final report of the Committee contained a finding that the applicant had engaged in inappropriate practice in connection with the referred services, the Authority was required to make a draft determination in accordance with s 106U of the Act.

28                  The Authority made a draft determination on 14 May 2004 which contained the following direction:

‘(i)       Dr Joseph be reprimanded by the Director, Professional Services Review, or the Director’s nominee (paragraph 106U(1)(a) of the Act);

(ii)               Dr Joseph be counselled by the Director, Professional Services Review, or the Director’s nominee (paragraph 106U(1)(b) of the Act);

(iii)             Dr Joseph repay to the Commonwealth, Medicare benefits in the amount of $334,999.34 (paragraph 106U(1)(cb) of the Act); and

(iv)             Dr Joseph be fully disqualified for a period of 3 years from the time when any final determination takes effect (paragraph 106U(1)(h) of the Act).’

29                  The applicant, by his solicitor, made submissions concerning the draft determination.

30                  The Authority made its final determination on 6 August 2004.  The final determination was in identical terms to the draft determination except that it directed that the applicant repay to the Commonwealth Medicare benefits in the amount of $267 999.47 rather than in the amount identified in the draft determination.

31                  On 3 September 2004 the applicant instituted this proceeding.

grounds of review

32                  The application to the Court is drawn in repetitive and confusing terms.  It is therefore convenient to identify the grounds of review relied on by the applicant by reference to his written submissions and to consider them in the same order as the parties dealt with them.

Did the Committee, and thus the Authority, adopt the wrong standard of conduct?

General Practitioner

33                  The relevant definition of ‘inappropriate practice’ is contained in subs 82(1) of the Act, which is set out in [9] above.  The terms of the definition are such that a practitioner will have engaged in inappropriate practice within the meaning of the Act if a Committee concludes on reasonable grounds that the practitioner’s conduct in connection with rendering or initiating services would be unacceptable to a relevant peer group.  The conclusion of the Committee, expressed in its final report, was that the applicant’s conduct would be, in the Committee’s opinion, ‘unacceptable to the general body of medical practitioners and therefore constitutes inappropriate practice’.

34                  The applicant contended that the general body of medical practitioners was irrelevant to the standard that s 82 required the Committee to apply in his case.  He argued that the correct test was whether the applicant’s conduct was conduct unacceptable to the general body of general practitioners (see s 82(1)(a)).

35                  The expression ‘general practitioner’ is defined by s 3 of the Act in the following terms:

‘general practitioner means:

(a)        a medical practitioner in respect of whom a determination under section 3EA is in force; or

(b)        a person registered under section 3F as a vocationally registered general practitioner; or

(c)                a medical practitioner of a kind specified in the regulations.’

36                  Section 3EA of the Act allows for a determination to be made that a medical practitioner is a recognised Fellow of the Royal Australian College of General Practitioners (‘RACGP’).  The applicant did not contend that he had applied for such a determination or that he is in fact a Fellow of the RACGP.

37                  Section 3F of the Act provides for the registration of certain medical practitioners as ‘vocationally registered general practitioners’.  The applicant did not contend that he had applied for registration under this section or that he was otherwise a person registered under s 3F as a vocationally registered medical practitioner.

38                  It does not appear that any regulations made under the Act have specified a kind of medical practitioner for the purposes of paragraph (c) of the above definition of ‘general practitioner’.  In any event, the applicant did not place reliance on this paragraph of the definition.

39                  I conclude that the applicant is not a general practitioner within the meaning of the Act.  The appropriate peer group in his case was thus, as the Committee concluded, the general body of medical practitioners.

40                  It is appropriate also to note the definition of ‘general practitioner’ contained in Part 1 of Schedule 1 of the Medical Services Table Regulations.  Part 2 of Schedule 1 of these regulations contains a table of the medical services (other than diagnostic imaging services and pathology services) prescribed for the purposes of the Act.  Part 1 of Schedule 1 contains rules of interpretation for the Schedule 1 table of medical services.  The definition of ‘general practitioner’ contained in Part 1 of Schedule 1 is similar, but not identical, to the definition of ‘general practitioner’ contained in the Act.  The definition in Part 1 of Schedule 1 of the Medical Services Table Regulations is as follows:

‘general practitioner means:

(a)               a practitioner who is vocationally registered under section 3F of the Act; or

(b)               a practitioner who:

(i)                 is a Fellow of the RACGP; and

(ii)               participates in the quality assurance and continuing medical education of the RACGP; and

(iii)             meets the RACGP requirements for quality assurance and continuing education; or

(c)               a practitioner who is undertaking an approved placement in general practice:

(i)                 as part of a training program for general practice leading to the award of the Fellowship of the RACGP; or

(ii)               as part of another training program recognised by the RACGP as being of an equivalent standard.’

41                  The importance for present purposes of the above definition derives from the references contained in items 53 and 59 of the table of medical services to ‘a medical practitioner (not being a general practitioner)’ (see [13] above).  The applicant was entitled to fees under the Act in respect of the services prescribed by items 53 and 59 because he was not a ‘general practitioner’ within the meaning of Schedule 1 of the Medical Services Table Regulations.

42                  I reject the contention that the Committee erred by applying the standards of the general body of medical practitioners in determining whether the applicant had engaged in inappropriate practice within the meaning of subs 82(1) of the Act.  As the applicant was not a ‘general practitioner’ within the meaning of the Act, it was appropriate for the Committee to apply the standards of the general body of members of his profession (see par 82(1)(d)).

Reliance on Expertise of Committee Members re Records

43                  The applicant complained that the Committee wrongly relied upon the expertise of its members in considering what records a medical practitioner would need to make to enable assessment of a patient’s progress rather than determining whether any deficiencies in the applicant’s record‑keeping would be unacceptable to the general body of medical practitioners (or, as the applicant suggested, the general body of general practitioners).

44                  In respect of MBS item 53 services the Committee found that the applicant ‘kept medical records that were deficient in essential clinical information’.  The Committee’s reasons for making this finding are contained in [33] of its final report.  This paragraph states:

‘Overall, the entries in the medical records were neither sufficient to contribute to the quality and continuity of care received by the patient nor sufficiently clear and detailed so that another practitioner could safely and effectively undertake patient care.  Dr Joseph’s progress notes normally consisted of a single line entry with no written history and no written evidence of an adequate examination having been performed.  Usually the records did not help Dr Joseph recall the particular consultations discussed with him.  The records were also inadequate for his continuing management of some of his patients.’

45                  In respect of MBS item 59 services the Committee also found that the applicant kept ‘medical records deficient in essential clinical information’.  The Committee’s reasons for making this finding are contained in [53]‑[57] of its final report.  These paragraphs state:

‘53.      The Committee notes that while, for the first half of 1999, Dr Joseph did not keep records of home visits he did keep records of surgery consultations.  It would appear to the Committee that for some reason Dr Joseph did not place the same importance on recording home visits as he did on surgery consultations.  The Committee considers this practice to be at variance with the opinion of the general body of medical practitioners in that both types of attendances should be recorded adequately.

54.       The Committee acknowledges that for most of the referral period Dr Joseph was under no obligation under the Act to keep medical records.  However, the Committee considers that the subsequent introduction of legislation [introduced on 1 November 1999] essentially codified existing standards of the general body of medical practitioners.  To further qualify, the Committee considers that adequate medical records are considered by the general body of medical practitioners to be a significant component of the clinical input expected when using this item number and as such should be sufficient to facilitate:

·          the monitoring of patients’ conditions and the alteration of treatment plans;

·          the review of patients’ conditions and treatment after any considerable period of time; and

·          another practitioner to take over the management of a patient if necessary.

55.       To enable assessment of patients’ progress (or otherwise), the Committee considers a medical practitioner would need to make a legible written record of:

·          the presenting complaint;

·          an appropriate medical history of the presenting complaints and any relevant previous history;

·          any examinations performed and findings thereon;

·          a different diagnosis; and

·          a treatment plan and any follow‑up required.

56.       The Committee considers that a clinical record would not be adequate unless it contained the elements outlined in the two preceding paragraphs and in general Dr Joseph’s failed to do so.  It is the Committee’s opinion that the absence of, and when present the brevity of, Dr Joseph’s record would have made it extremely difficult for him or another practitioner to undertake or continue the care of his patients.’

46                  The legislation which came into effect on 1 November 1999, to which the Committee referred in [54] of its final report (see [45] above), introduced into s 81(1) of the Act the following definition:

‘adequate and contemporaneous recordsof the rendering or initiation of services means records that meet the standards prescribed by the regulations for the purposes of this definition.’

47                  Part 2 of the Health Insurance (Professional Services Review) Regulations 1999, which also came into operation on 1 November 1999, sets out the standards to be met for a practitioner’s records of the rendering or initiating of services to be adequate and contemporaneous records within the meaning of the Act.  It is these standards that the Committee considered ‘essentially codified existing standards of the general body of medical practitioners.’  The standard set for such a record to be ‘adequate’ is that:

‘(a)      the record clearly identify the name of the patient; and

 (b)       the record contain a separate entry for each attendance by the patient for a service and the date on which the service was rendered or initiated; and

 (c)       each entry provide clinical information adequate to explain the type of service rendered or initiated; and

(d)               each entry be sufficiently comprehensible that another practitioner, relying on the record, can effectively undertake the patient’s ongoing care.’

(see regulation 5)

48                  The standard set for such a record to be ‘contemporaneous’ is that the record must be completed:

‘(a)      at the time the practitioner rendered or initiated the service; or

 (b)       as soon as practicable after the service was rendered or initiated by the practitioner.’

(see regulation 6)

49                  The Committee found that the applicant kept no records of many home visits.  In respect of the period earlier than 1 November 1999 the Committee was satisfied that the general body of medical practitioners would regard a failure to keep records of home visits unacceptable.  Thereafter the failure was a failure to meet the standards set by the regulations identified above.

50                  The Committee did not make a finding that, to the extent that the applicant kept records, those records were not contemporaneous. It did make a finding that the records kept by him in respect of MBS item 53 services were inadequate.  It also made a finding that, to the extent that the applicant kept records in respect of MBS item 59 services, those records were inadequate.

51                  In respect of MBS item 53 services, the Committee found that the applicant’s records did not help the applicant recall particular consultations and were inadequate for his continuing management of some patients.  It also found that his records were not sufficiently clear and detailed to allow another practitioner safely and effectively to undertake patient care (see [44] above).

52                  In respect of MBS item 59 services, the Committee found that even when he kept progress notes of home visits, they were generally deficient in essential clinical information such as recording any physical examination, any plan of management and noting the type of medication prescribed, its dosage or frequency.  With respect to the applicant’s records of MBS item 59 services the Committee concluded that ‘the absence of, and when present the brevity of, [the] records would have made it extremely difficult for him or another practitioner to undertake or continue the care of his patients’ (see [45] above).

53                  The Committee’s above findings amount to findings that the applicant’s records in respect of both MBS item 53 services and MBS item 59 services did not meet the requirements of (c) and (d) of regulation 5 of the Health Insurance (Professional Services Review) Regulations 1999.  The standard prescribed by that regulation requires compliance with each of the requirements of (a)‑(d) of the regulation.  As the Committee considered that the regulation essentially codified existing standards of the general body of medical practitioners, the Committee’s findings constituted findings that the applicant’s records did not meet the standards of the general body of medical practitioners.

54                  The contention that the Committee wrongly relied upon the expertise of its members in considering what records a medical practitioner would need to make to enable assessment of a patient’s progress rather than determining whether any deficiencies in the applicant’s record‑keeping would be unacceptable to the general body of medical practitioners must be rejected.  The Committee referred expressly to the standards of the general body of medical practitioners. 

55                  Nothing in the Committee’s final report suggests that it treated the deficiencies in the applicant’s practice with respect to record-keeping as sufficient, of itself, to constitute inappropriate practice.  Rather, it took the deficiencies into account, along with other factors, in forming the view that the applicant had engaged in inappropriate practice in connection with rendering MBS item 53 services and MBS item 59 services.

56                  I reject the contention that the Committee applied an erroneous standard in determining that the applicant ‘kept medical records that were deficient in essential clinical information’.  I also reject any contention that may have been advanced that the Committee placed inappropriate weight on its determination concerning the applicant’s medical records or otherwise misunderstood the significance of its determination in the context of the finding that it was required to make as to whether the applicant had engaged in inappropriate practice.

Inability to Recall Services

57                  The applicant argued that the Committee made findings that he had engaged in inappropriate practice because he was unable to recall providing certain services.

58                  The Committee annexed a schedule to its final report in which it identified the randomly selected services considered by it, noted the transcript reference of the oral evidence concerning each of the services and summarised its findings in respect of that service.  In the column headed ‘Committee’s reasons’ the notation that the applicant could not recall the service appears frequently.

59                  In my view, the proper understanding of the references in the schedule of the Committee’s final report to the applicant being unable to recall providing certain services is that they are intended to make clear that the Committee’s evaluation of his conduct with respect to those services was made in the absence of evidence from him touching directly on them.  I do not understand the Committee’s final report to suggest that it made any finding of inappropriate practice merely because the applicant was unable to recall providing one or more services.  Indeed, the terms in which the Committee expressed its findings in respect of the two service items respectively (see [44] and [45] above) make it plain that its finding in each case was based upon the cumulative significance of a number of practice deficiencies. 

60                  This ground of review is rejected.

Home Visits Not Medically Necessary

61                  The applicant also argued that the Committee reached a conclusion that he made home visits that were not medically necessary without giving consideration to whether his conduct in respect of home visits would be unacceptable to the general body of his peers.

62                  At [41]‑[42] of its final report, the Committee set out the formal description of MBS item 59 (see [13] above) and observed:

‘Although the formal descriptor for this item relates to time, the Committee believes that the general body of medical practitioners in general practice would expect that there also be sufficient clinical input to warrant its use.’

63                  The Committee’s reference to ‘the general body of medical practitioners in general practice’ shows an intention in the Committee, as I read the above paragraph, to identify what those members of the general body of medical practitioners (ie the appropriate peer group so far as the applicant was concerned) likely to provide MBS item 59 services would regard as acceptable conduct in respect of the service.  This was not suggested to have been an inappropriate approach and it does seem to have common sense in its favour.

64                  I accept that the Committee inferred from the number of home visits made by the applicant to individual patients and the pattern of those visits that he provided MBS item 59 services without sufficient clinical input.  In the case of two of the randomly selected services considered by the Committee, being services to different patients, the Committee found that each service was one of 117 home visits from the applicant that the patient had received, according to a largely regular pattern, during the calendar year 1999.  In the case of other services, again being services to different patients, the Committee found that the service was one of 115, 95, 86, 85, 81 and 78 home visits respectively made by the applicant to the patient during 1999. 

65                  I do not accept that the Committee’s final report suggests that the Committee adopted the approach that it constitutes inappropriate practice not to recall a MBS item 59 service.  Nor do I accept that the final report suggests that the Committee adopted the approach that an MBS item 59 service is only appropriately provided in respect of a new medical problem which requires urgent attention.  The Committee, which was composed of expert members, was required to consider randomly selected samples of home visits made by the applicant.  The applicant could not recall, and had made no record of, most of these home visits.  He was thus unable to (or at least, did not) provide the Committee with any information that would undermine the inference that the Committee considered to be open in the circumstances; that is, the inference that the home visits were undertaken as a matter of routine rather than because they were medically necessary.  While it may be the case, as the applicant argued, that frequent and regular home visits to the chronically ill, or the severely ill, may be warranted, it is not for the Court to review on the merits the judgment made by the Committee, on the information available to it, following its consideration of the randomly selected sample of MBS item 59 services.

66                  The contention that the finding of the Committee that the applicant made home visits that were not medically necessary was so unreasonable that no reasonable person could have made the finding is rejected.

Conduct re Particular Drugs

67                  The applicant sought to challenge certain conclusions drawn by the Committee concerning the applicant’s prescribing of particular drugs on the basis that the conclusions were irrational.  No evidence was called to support the submission that the conclusions drawn were irrational or otherwise so unreasonable that no reasonable person could have so concluded.  It is not appropriate for this Court to review on the merits the conclusion reached by the Committee.  This ground of review is rejected.

The Sampling Methodology

68                  As mentioned above, the Committee considered whether the applicant’s conduct in connection with rendering MBS item 53 services and MBS item 59 services constituted inappropriate conduct by having regard to samples of the services in each class (s 106K of the Act).  The applicant acknowledged that an appropriate sampling methodology had been adopted in respect of the MBS item 53 services but argued that there was no evidence to establish that the methodology utilised in respect of the MBS item 59 services was appropriate.

69                  The applicant was sent a notice about the sampling methodology used by the Committee with the notice of the hearing before the Committee.  At the hearing he declined an offer to explain the sampling process to him on the basis that he would talk to his solicitor about it later on.  The applicant’s solicitor sought an assurance from the Committee that the samples that they would consider had been selected on a random basis but did not challenge the sampling methodology.  The assurance requested was provided.

70                  The Committee’s draft report contained the following paragraph:

‘Pursuant to section 106K(1) of the Act the Committee had regard to samples of services in the two classes referred, namely MBS item 53 and 59 services.  The services examined (for each class) were in accordance with the Health Insurance (Professional Services Review ‑ Sampling Methodology) Determination 2000 (No 1).’

71                  The applicant, by his solicitor, made quite detailed submissions concerning the Committee’s draft report.  None of those submissions touched upon the sampling methodology utilised by the Committee.

72                  It seems likely that the Committee sought independent assurance from an accredited statistician before it drew conclusions from the sample of MBS item 53 services because it found that only 31 of the 37 services in the sample constituted inappropriate practice (ie 83% of the sample rounded down).  It excluded three services in this sample from consideration.  The statistician advised that it was in the circumstances statistically valid for the Committee to draw a conclusion based on the sample of 37 services.  It does not appear that the Committee sought similar assurance before it drew conclusions from the sample of MBS item 59 services.  I infer that the explanation for this lies in the fact that it found that only one of the randomly selected services in the sample of MBS item 59 services did not constitute inappropriate practice.  It excluded only one further item from this sample from consideration.

73                  Nothing before me gives rise to any reason to believe that the sampling methodology used by the Committee in respect of the MBS item 59 services did not accord with the requirements of the Act.  This ground of review is rejected.

Failure to Take Into Account Relevant Considerations

74                  By his application the applicant alleged that the Authority failed to take into account the following considerations:

‘(i)       after the referral period from 1 January to 31 December 1999, the applicant had been formally counselled for the purposes of the Professional Services Review Scheme on 11 February, 2000.

(ii)               the applicant was precluded by orders of the Medical Tribunal of NSW from practising medicine

(iii)             as a result of (ii) above the applicant had a zero or practically nil earning capacity

(iv)             the time at which any inappropriate practice occurred, being in 1999

(v)               delays in the PSR process

(vi)             section 82 of the Act and amendments made to that section during the referral period

(vii)           in relation to the finding of inappropriate practice, the age of the applicant

(viii)         the relative seriousness of any inappropriate practice by the applicant in relation to the range of conduct prescribed by section 82 of the Act.

(ix)             the specific findings of the Committee in Appendices 1 & 2

(x)               the proportion of findings of inappropriate practice which relates only to medical records

(xi)             the proportion of findings where inappropriate practice was found because the applicant could not recall the service

(xii)           the difference in payment between Item 53 and Item 59 services in respect of home visits found not to be medically necessary’.

75                  By his written submissions the applicant complained particularly that the Authority failed to take into account considerations (i) and (ii) above and that it did not take into account that:

‘the applicant had not been given the benefit of changing his practice to address HIC concerns that had been raised with him.’

76                  In respect of this complaint the respondent placed reliance on the following observation of Deane J in Sean Investments Pty Ltd v MacKellar  (1981) 38 ALR 363 at 374‑375:

‘… a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account …

…where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.’ (emphasis added)

77                  I accept that the Authority could have taken into account the matters identified by the applicant.  Indeed it is plain that it did take some of them into account.  The Authority’s reasons for decision in respect of its final determination record that the material relied upon by it included the applicant’s submissions on the draft report of the Committee and his submissions to the Authority.  The Authority’s reasons for decision contain an outline of the major issues dealt with in the applicant’s submission to the Authority.  The issues outlined include considerations (vii) and (x) above.  The reasons for decision of the Authority record that the Authority reduced the severity of the sanctions, and the amount of the repayment it considered appropriate, because of the submission made to it concerning the applicant’s age and status as a retired practitioner with a reduced earning capacity.

78                  I am not satisfied that the applicant has established that there was any consideration that in the circumstances the Authority was bound to take into account that it did not take into account.  I reject the submission that the Authority was under a duty to make inquiries as to whether the applicant, an educated man with the benefit of legal representation, was likely to, or could, practice again.  If the applicant had wanted to place information before the Authority on this issue, he was free to do so.  The applicant placed reliance on Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 in which Allsop J reviewed the authorities on the duty of an administrative decision‑maker to institute enquiries.  Nothing in the authorities reviewed by his Honour at [101]‑[113] provides support for the applicant’s submission.

79                  This ground of review is rejected.

Determination Unreasonable

80                  The applicant argued that the cumulative effect of the elements of the determination of the Authority was so severe as to be unreasonable in the sense identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

81                  The applicant submitted to the Court, as he had submitted to the Authority, that his principal ‘sin’ related to deficiencies in record‑keeping.  The Authority rejected this submission, noting that the Committee’s report included examples of inappropriate practice of an extremely serious nature.  It also noted that poor record‑keeping has the potential to impact adversely on patient care.

82                  The seriousness of the conduct of the applicant found to constitute inappropriate practice was a matter for the assessment of the Authority.  The aspect of its determination that the applicant finds particularly severe is the direction that he repay Medicare benefits in the amount of $297 999.47.  The applicant is not in a position to practice medicine again.  It seems reasonable to assume that he now derives less income than he did while he practised medicine.

83                  The matters drawn to the Court’s attention by the applicant concerning the severity of the Authority’s determination are factors that it was appropriate for the Authority to assess.  Nothing suggests that the Authority did not have regard to them.  The amount of $267 999.47 is $67 000 less than the amount of Medicare benefits directed to be repaid in the Authority’s draft determination.  Nothing placed before this Court suggests that the determination of the Authority was so severe that the Authority must have been influenced by factors extraneous to the task that it was required to perform or that its determination was otherwise so unreasonable that it cannot have resulted from a proper exercise by the Authority of its statutory role.

84                  This ground of review also fails.

conclusion

85                  This application for review of the decision of the Committee dated 21 January 2004 and of the decision of the Authority dated 6 August 2004 will be dismissed with costs.

Associate:

Dated:              29 July 2005