FEDERAL COURT OF AUSTRALIA
Thoo v Professional Services Committee No 446 [2008] FCA 830
Held: refusal of adjournment did not constitute failure to accord procedural fairness.
ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – Professional Services Review Committee – whether Committee authorised to inquire otherwise than within terms of report of Director of Professional Services Review.
Held: on construction of Act, yes.
Health Insurance Act 1973 (Cth) ss 81, 93, 106H, 106K, 106KA
Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 cited
Kioa v West (1985) 159 CLR 550 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited
Touma v Saparas [2000] NSWCA 11 cited
NSD 1534 OF 2007
LINDGREN J
4 June 2008
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1534 OF 2007 |
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BETWEEN: |
JAMES CHEE MIN THOO Applicant
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AND: |
BERNARD KELLY, DAVID RIVETT AND FURIO VIRANT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 446 First Respondent
THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Second Respondent
MEDICARE AUSTRALIA Third Respondent
ALAN JOHN HOLMES IN HIS CAPACIY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW Fourth Respondent
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LINDGREN J |
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DATE OF ORDER: |
4 june 2008 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The proceeding be listed at 9.30 am on Wednesday 11 June 2008 for the making of orders (including orders as to costs) in relation to the challenge on administrative law grounds to the validity of the decision of the first respondents made on 29 June 2007.
2. The parties attempt to agree on the orders to be made.
3. By 9 June 2008, the parties provide to the Associate to Justice Lindgren the agreed form of the orders to be made, or if agreement has not by then been reached, the forms of orders for which they will respectively contend and submissions in support.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1534 OF 2007 |
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BETWEEN: |
JAMES CHEE MIN THOO Applicant
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AND: |
BERNARD KELLY, DAVID RIVETT AND FURIO VIRANT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 446 First Respondent
THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Second Respondent
MEDICARE AUSTRALIA Third Respondent
ALAN JOHN HOLMES IN HIS CAPACIY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW Fourth Respondent
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JUDGE: |
LINDGREN J |
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DATE: |
4 june 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 The applicant (Dr Thoo) applies under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) for review of a series of decisions which culminated in a decision by the first respondents (Committee), on 29 June 2007 that Dr Thoo, a general medical practitioner, had engaged in inappropriate practice in connection with providing certain services.
2 As a result of orders previously made for the trial of separate questions, the only issue before the Court to which these reasons relate is Dr Thoo’s challenge on administrative law grounds to the Committee’s decision. Accordingly, of the respondents, only the Committee has appeared on the hearing.
3 Dr Thoo relies on two grounds. First, he contends that the Committee inquired into, and made its finding in respect of, services lying outside those in respect of which it was by law authorised to make any inquiry or decision. The second ground relates to a hearing before the Committee on 3 February 2006. Dr Thoo contends that on that day the Committee denied him procedural fairness, in particular, by refusing his request for an adjournment of the hearing. Associated with that refusal, Dr Thoo complains that the Committee received submissions and/or advice from the Committee’s legal or other advisors in the course of the hearing but in the absence of Dr Thoo; that the Committee continued the hearing after he had left; and that the Committee failed to provide him with a copy of any record of the deliberations that took place in his absence. Dr Thoo does not press a complaint that the Committee received evidence in his absence at that hearing.
Legislation
4 I have found helpful both parties’ submissions in relation to the scheme of the Health Insurance Act 1973 (Cth) (the Act) and the background to the Act. For convenience, I adopt the following account from the submissions of Ms Henderson, counsel for the Committee (footnotes in her original submissions are shown within square brackets):
THE LEGISLATION
3. The relevant legislation is the Health Insurance Act 1973 (“the Act”) as amended, up to and including the amendments made by the Health Insurance Amendment (Professional Services Review and other matters) Act 2002.
4. Section 10 of the Act provides for the payment of medical benefits to an eligible person who incurs medical expenses for a professional service rendered in Australia. [The expressions “eligible person” and “professional service” are defined in s 3.] Section 20A permits a person to assign his or her medical benefit to the practitioner who rendered the service, on the basis that the medical benefit is accepted as full payment of the medical expenses; this is known as “bulk billing.”
5. Part VAA of the Act [Part VAA was inserted by the Health Legislation (Professional Services Review) Amendment Act 1994.] provides for review of the provision of services by a medical practitioner to determine whether he or she has engaged in “inappropriate practice,” as defined in s 82. Inappropriate practice means conduct that would be unacceptable to the general body of the medical practitioner’s peers.
6. The review scheme created by Part VAA involves four independent entities/persons:
6.1 The entity that pays medical benefits – previously the Health Insurance Commission, and from 1 October 2005 Medicare Australia. This entity initiates the review process by making a request to the Director of Professional Services Review (s 86).
6.2 The Director of Professional Services Review, a medical practitioner appointed to that position under s 83. On receiving a request, the Director decides whether to undertake a review (s 88A) and determines, relevantly, whether to set up a Professional Services Review Committee to investigate whether a practitioner has engaged in inappropriate practice (s 93). The Director makes a referral to a Committee (s 93).
6.3 A Professional Services Review Committee, consisting of a Deputy Director of Professional Services Review and two other practitioners [see ss 84 and 85. The Deputy Directors and the other Committee members are drawn from a Panel appointed by the Minister after consultation with relevant organisations and associations.] who practice in the same profession as the practitioner under review (ss 95(1) and 95(2)). The Committee conducts hearings (s 101), prepares a draft report on which the practitioner is invited to make submissions (s106KD) and makes a final report on whether the practitioner engaged in appropriate practice (s 106L). If the final report contains a finding of inappropriate practice, copies of it must be given to the practitioner, the Director and - after 1 month – to the Determining Authority (s 106L).
6.4 The Determining Authority established under s 106Q. If the final report contains a finding of inappropriate practice, the Determining Authority must prepare a draft determination containing one or more of the directions in s 106U (s 106T). After the medical practitioner has been given the opportunity to make submissions on the draft determination, the Determining Authority makes a final determination (s 106TA).
7. While the scheme involves discipline of practitioners, that is not its primary focus. After a comprehensive review of relevant decisions in Grey [Health Insurance Commission v Grey(2002) 120 FCR 470 at [173]] the Full Court noted consensus in the Court’s judgments in relation to various matters, including the following proposition:
Although disciplinary powers are conferred under the legislative scheme, the purpose or object of the statute is to protect both patients and the Commonwealth against abuse of the system. That is to say, as “public protective” legislation, Parts VAA and VA should not be narrowly interpreted.
PRIOR VERSIONS OF THE REVIEW SCHEME
8. The Act has always contained provisions for the review of professional services for which medical benefits were paid or payable. It originally provided that the Minister could refer to a Medical Services Committee of Inquiry “any matter … relevant to the operation or administration of [the] Act.” The Committee would investigate the matter and report back to the Minister, with a recommendation as to the determination the Minister should make.
9. A new scheme – the 1994 scheme – was introduced on 1 July 1994. [Health Legislation (Professional Services Review) Amendment Act 1994] It was reviewed and amended after the Court’s decisions in Yung [Yung v Adams (1997) 80 FCR 453, Adams v Yung (1998) 83 FCR 248], and an amended version – the 1997 scheme – commenced on 6 November 1997. [Health Insurance Amendment Act (No 1) 1997] Further amendments were made in 1999 to give effect to recommendations made in the Report of the Review Committee of the Professional Services Review Scheme – the 1999 scheme. Most of those amendments came into operation on 16 July 1999. [Health Insurance Amendment (Professional Services Review) Act 1999.]
10. After Finn J found in Pradhan [Pradhan v Holmes(2001) 125 FCR 280] that the 1999 amendments had not achieved their purpose, the Act was further amended in 2002. The amended version – the 2003 scheme – commenced on 1 January 2003. [Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002]
The Federal Court considered [the 1999] amendments in Pradhan v Holmes & Ors and made findings, which suggested the amendments may not have had the effect intended by the Review Committee. The proposed amendments address certain issues identified by the Federal Court and clarify the intended operation of the Scheme as envisaged by the recommendations of the Review Committee. [Health Insurance Amendment (Professional Services Review and other matters) Bill 2002 Explanatory Memorandum page 2]
11. The Court held in Yung and Pradhan that the Committee’s role is to investigate conduct by the practitioner that has been specified by either the Commission (Yung) [Yung at 299B] or by the Commission and the Director (Pradhan). [Pradhan at [126]] The Yung and Pradhan judgments were subjected to careful analysis by a Full Court in Grey. [Grey 120 FCRat [178] to [187]] The Court “[did] not accept that a referral is to be framed as a charge or indictment”. [Grey 120 FCR at [179]] It concluded that at the stage when a matter is referred to a Committee “the whole matter rests in inquiry, rather than charge.” [Grey 120 FCR at [182]]
12. The 2002 amendments included the removal of references to “conduct” which had previously appeared in provisions that had assumed particular significance in Yung and Pradhan. [See in particular Pradhan at [127]]
SECTION 106KA – THE “80/20 RULE”
13. Section 106KA(1) [Section 106KA was inserted into the Act to give effect to certain recommendations made in the March 1999 Report of the Review Committee of the Professional Services Review Scheme] of the Act deems inappropriate practice to have occurred in certain circumstances. It provides that a practitioner “is taken … to have engaged in inappropriate practice” during a particular period if the circumstances in which some or all of the services were rendered or initiated [Initiation of a service, for the purposes of the Act, means referring a patient to another practitioner, for example for an xray or a specialist opinion] constituted “a prescribed pattern of services”. In the case of general practitioners, rendering 80 or more services on 20 or more days during a 12-month period constitutes a prescribed pattern of services. [See reg 10 of the Regulations, made pursuant to s 106KA(3) of the HI Act.] The combined operation of s 106KA(1) and reg 10 has become known as “the 80/20 rule”.
14. The deeming effect of s 106KA(1) is displaced if the general practitioner satisfies the Committee that “exceptional circumstances” affected the rendering of the services on a particular day or days.
MBS ITEM NUMBERS
15. Section 4 of the Act provides that regulations made under the Act may provide for a general medical services table that sets out medical services items, the fees payable for each item, and rules for the interpretation of the table. The regulations cease to be in force 12 months after they are made.
16. The expression “MBS item number” refers to an item in the medical benefits schedule that forms part of the regulations made annually under s 4. The Committee in the present case considered MBS item 23 and MBS item 36 services, which are – summarising the provisions briefly - consultations at a doctor’s surgery involving a specified level of medical complexity, lasting up to 20 minutes (MBS item 23) or up to 40 minutes (MBS item 36). The full descriptors for the two items are included in the Glossary at the commencement of the Committee’s final report. [Thoo exhibit 4]
Factual Background
5 During the period 1 January 2003 to 31 December 2003, Dr Thoo claimed medical benefits that had been assigned to him under s 20A of the Act.
6 On 23 December 2004, the third respondent, then the Health Insurance Commission (HIC), made a request to the fourth respondent, Dr AJ Holmes (the Director), for review in respect of Dr Thoo in relation to all services rendered by him during the “review period”, 1 January 2003 to 31 December 2003.
7 By letter dated 10 January 2005, the Director advised Dr Thoo that he had decided to undertake a review. The letter stated:
I consider the Commission’s statistical data shows there is credible evidence that you have provided 80 or more professional attendances on 20 or more days within a 12 month period. If confirmed, this may constitute a prescribed pattern of services which is taken under the Act, subject to accepted evidence of exceptional circumstances, to constitute engaging in inappropriate practice. At this stage I have no evidence of exceptional circumstances before me.
For that reason, a Committee established under the Act could, unless exceptional circumstances exist, reasonably conclude that you have engaged in inappropriate practice.
The “80/20 rule” was discussed at [4](13) above. The Director’s letter to Dr Thoo also stated:
Following the review, I must decide whether to:
(a) take no further action in relation to the review (under section 91 of the Act), or
(b) provide you with a written report explaining why I have not decided to proceed under section 91 of the Act and invite you to make written submissions as to the action I should take in relation to the review. The options that are then open to me at that stage of the process include:
(i) a decision to take no further action in relation to the review (section 91); or
(ii) a decision to enter into an agreement with you (section 92); or
(iii) a decision to refer the matter for investigation by a PSR Committee (section 93).
8 Dr Thoo supplied a written submission dated 14 January 2005 which was acknowledged by letter dated 20 January 2005 from a “Senior Review Officer”.
9 By a letter dated 10 February 2005 the Director advised Dr Thoo that he had decided to establish a Professional Services Review Committee under s 93 of the Act and to refer to it the task of investigating whether Dr Thoo had engaged in inappropriate practice in providing the services specified in the referral.
10 The Director established the Committee and made a referral to it under an instrument executed by him on 4 February 2005 entitled “Establishment of Professional Services Review Committee No. 446 and Referral to that Committee” (the Instrument).
11 On 23 February 2005 the Committee met to consider the referral that had been made to it. The Committee decided not to investigate whether the referred services constituted a prescribed pattern of services pursuant to s 106KA of the Act (see [4](13) above), but rather to have regard only to a sample of MBS Item 23 and MBS Item 36 services among the referred services.
12 By letter dated 30 March 2005 the Committee advised Dr Thoo of this decision, and enclosed a “Notice to Produce Documents or Give Information” requiring him to produce records for certain patients to whom he had rendered MBS Item 23 and MBS Item 36 services during the review period. Dr Thoo produced records in response to the notice.
13 On 22 June 2005 the Committee met to examine the records that Dr Thoo had produced. The Committee decided that a hearing was warranted.
14 The Committee conducted a hearing, at which Dr Thoo appeared unrepresented, on 31 August 2005, 18 November 2005 and 3 February 2006. Dr Thoo was questioned by the Committee on the first two dates in relation to MBS Item 23 services and MBS Item 36 services he had provided.
15 On the third hearing date, after being refused an adjournment, Dr Thoo left the hearing. He did not give evidence or make any submissions on that date. I will discuss below the course of the hearing on 3 February 2006.
16 Subsequently, on 24 February 2006, a solicitor who had been engaged by Dr Thoo contacted the Committee and requested an opportunity to make submissions. The Committee agreed to consider such submissions before preparing its draft report. On 10 April 2006 the Committee received the solicitor’s submissions. Those submissions urged the Committee to make a formal finding that there was no evidence to support a breach of the 80/20 rule, to make no further inquiry into the provision of MBS Item 23 services and MBS Item 36 services and to prepare a draft report which did not contain any finding that Dr Thoo had engaged in inappropriate practice.
17 On 17 August 2006 the Committee forwarded its draft report to Dr Thoo. By a letter dated 29 September 2006 his solicitors supplied written submissions on the draft report.
18 The Chair of the Committee, Dr Bernard Kelly, signed the Committee’s final report on 29 June 2007, and a copy was sent to Dr Thoo’s solicitors under cover of a letter dated 2 July 2007.
19 Dr Thoo filed his application for review in this Court on 6 August 2007.
20 The second respondent (the Determining Authority) has received a copy of the final report, and has undertaken to the Court to take no action in the matter pending the resolution of this proceeding.
First Ground of Review relied on by Dr Thoo
21 The Instrument defined the “review period” as the period from 1 January 2003 to 31 December 2003 and “specified services” as the services specified in para 3 of the Instrument. Paragraph 3 was as follows:
3. I hereby make a referral to a Professional Services Review Committee No. 446 to investigate whether the person under review engaged in inappropriate practice in providing the following specified services:
• all services provided by him at or from his practice locations within Australia during the review period.
22 In para 4 of the Instrument, the three members of the Committee were appointed to constitute the Committee.
23 Paragraph 6 of the Instrument, headed “Director’s Report”, was as follows:
6. My report for the purposes of subsection 93(6) of the Act in respect of the specified services, which gives reasons why I think the person under review may have engaged in inappropriate practice in providing those services, is at Attachment B.
A copy of the HIC’s request No 446 was Attachment C to the Instrument.
24 In his report (Attachment B to the Instrument) the Director stated, under the heading “Reasons for making referral”, that he had concluded that the circumstances in which Dr Thoo provided services during the relevant period may have constituted a prescribed pattern of services, as defined in s 106KA of the Act and Pt 3 of the Regulations, because the HIC’s request had presented credible evidence that Dr Thoo had provided 80 or more professional attendances on each of 20 or more days in a 12 month period and Dr Thoo had made a submission which had not persuaded the Director that a committee could not conclude that he had engaged in inappropriate practice. The final paragraph of the Director’s report was as follows:
13. Accordingly, I decided to make a referral to a Committee in accordance with section 93 for the Committee to consider whether the provision of services by Dr Thoo during the review period constituted engaging in inappropriate practice.
25 In sum, the Director had acted because of his concern over an apparent breach of the 80/20 rule, but his referral to the Committee was to investigate whether Dr Thoo had engaged in inappropriate practice in relation to all services provided by him during the calendar year 2003.
26 Dr Thoo submits that the Committee’s authority was limited to inquiring into, and making findings in respect of, possible breaches of the 80/20 rule – the concern that had moved the Director to act.
27 In my view, subss (1) and (3) of s 106H of the Act provides a complete answer to this contention. Subsection 106H(1) provides as follows:
(1) The Committee is to make findings only in respect of the referred services.
Subsection (1) gave the Committee power to make findings in respect of the referred services. “Referred services” was defined in s 81 of the Act to mean the services specified in the referral made to the Committee under s 93 of the Act. In the present case, the referred services specified in the Instrument (the referral) were all of the services provided by Dr Thoo during the review period, being 1 January 2003 to 31 December 2003.
28 For more abundant precaution, s 106H(3) provides:
(3) The Committee's investigation of the referred services is not limited by:
(a) the reasons given in the Director's report to the Committee under paragraph 93(6)(a) or anything else in that report; or
(b) the reasons given in any request under section 86 or 106J or anything else in such a request.
Subsection (3), although not itself a “source” of power, had the effect that the Committee’s investigation of the referred services identified above was not to be limited by the reasons given by the Director or anything else in the Director’s report (or the reasons given in the HIC’s request or anything else in the HIC’s request).
29 The Director’s report to the Committee under s 93(6)(a) of the Act (see [24] above) referred to the Director’s concern that Dr Thoo may have breached the 80/20 rule, but the effect of s 106H(3) was clear: this fact was not to limit the Committee’s investigation of all services provided by Dr Thoo at or from his practice locations in Australia during the calendar year 2003.
30 Furthermore, section 106K of the Act authorised the Committee to have regard to only a sample of the services that fell within the referred services and to make a finding that Dr Thoo had engaged in inappropriate practice in providing the services included in the sample. Section 106K(1) provides that in investigating the provision of services included in a particular class of the referred services, the committee might have regard only to a sample of the services included in the class. Section 106K(2) provides that if the Committee finds that a person engaged in inappropriate practice in providing the services included in the sample, then that person was taken to have engaged in inappropriate practice in the provision of the services included in the class from which the sample was chosen.
31 The Committee submitted that they relied on s 106KA(7) as providing the source of the Committee’s power. Section 106KA deals with patterns of services and provides in subs (1) that if during a particular period, the circumstances in which some or all of the referred services were rendered or initiated constituted a “prescribed pattern of services”, the person under review “is taken, for the purposes of [Pt VAA] to have engaged in inappropriate practice in providing those services.” Subsection (3) of s 106KA provides for the prescription by regulation of services that constitute a “prescribed pattern of services”. Regulation 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) provides:
The circumstance in which services that are professional attendances constitute a prescribed pattern of services is that 80 or more such services are rendered on each of 20 or more days in a 12 month period.
32 It will be recalled that the Committee decided, in investigating whether Dr Thoo had engaged in inappropriate conduct, not to inquire whether Dr Thoo had rendered a prescribed pattern of services. Subsection (7) of s 106KA provides that s 106KA does not preclude the committee from making a finding under Subdiv C (ss 106G-106N), other than s 106KB, in relation to the provision of services during a particular period without considering whether or not the circumstances in which the services were rendered or initiated constituted a prescribed pattern of services.
33 Section 106KA(7) is concerned only with the effect that s 106KA might be thought to have had by way of limiting the Committee’s power to make findings. It did not give power. If the Committee’s power was limited by reason of matters extraneous to s 106KA, subs (7) of that section would not have overcome that limitation. However, as my reasons indicate above, the Committee’s power was not so limited.
34 There is no substance in the first ground of review relied on by Dr Thoo.
Second Ground of Review relied on by Dr Thoo
The course of the hearing on 3 February 2006
35 According to the transcript, the hearing before the Committee on 3 February 2006 commenced at 9.07 am. Present were the three members of the Committee (including the Chairman); the Committee Secretary; a member of the Committee Secretariat; the Committee’s legal adviser; Dr Thoo; and a transcriber from Auscript Australasia Pty Ltd.
36 The Chairperson made some introductory remarks and invited Dr Thoo to make an application for a short adjournment at “any time” and for “any reason”, including for the purpose of “obtaining legal advice”.
37 Dr Thoo said that he was consulting his lawyers and thought that the hearing had to be adjourned until they decided whether the hearing should continue or whether they should write to Medicare or whether they take the matter to court. By “they” Dr Thoo was referring to his lawyers. Dr Thoo added that he thought that until he had the legal advice from his solicitors, the hearing should be adjourned. The Chairperson asked Dr Thoo whether he was saying that he was unwilling to proceed at that time and he replied that he was unwilling. The Chairperson then said that the Committee would have a short adjournment while the Chairperson took advice. The Chairperson asked Dr Thoo to wait outside for a few minutes. Apparently Dr Thoo went outside at 9.11 am and the hearing resumed at 9.25 am. There is no evidence of what happened during the intervening 14 minutes but I infer that the members of the Committee discussed Dr Thoo’s application for an adjournment among themselves and with the Committee’s legal adviser.
38 On the resumption of the hearing, the Chairperson informed Dr Thoo that the Committee had considered his request for an adjournment. The Chairperson referred Dr Thoo to a letter dated 10 November 2005 which Dr Thoo had written to the Committee in which he had stated:
I would like this legal matter referred to a barristor [sic] for a legal opinion. Until this legal matter is resolved it is not appropriate to attend for review on Nov 18, 2005.
39 The Chairperson next quoted from the Committee Secretary’s reply to Dr Thoo of 15 November 2005 to the effect that as the Committee was not in a position to provide Dr Thoo with legal advice, it suggested that he seek his own legal advice on the issues he had raised. The Committee Secretary had also pointed out in her letter that Dr Thoo was entitled, subject to any reasonable limitations or restrictions imposed by the Committee, to be accompanied at the hearing by a lawyer or other adviser. The Chairperson then said:
Now, I can’t see or the Committee can’t see that the argument has changed at all so that we intend to continue with the hearing today.
40 In substance, at this point the Chairperson was indicating that as far as could be seen, Dr Thoo was raising at the hearing on 3 February 2006 the matters that he had raised twelve weeks earlier in his letter of 10 November 2005. It will be noted that Dr Thoo had in fact appeared unrepresented at the second hearing date of 18 November 2005, notwithstanding the exchange of letters between him and the Committee Secretary a few days earlier to which I have referred above.
41 Dr Thoo did not acquiesce in the Chairperson’s statement and the following exchange ensued:
DR THOO: Okay. The legal matter – I sought an opinion so I think I have grounds, okay, for not continuing because I will get the solicitor to either write to Medicare or write to you or he will decide whether to challenge the thing in court or he decide to continue on and then challenge subsequently in court because in your letter the reason for referral is due to other reasons.
In the Health Insurance Act if you have a reason you have to give me the reason and then for me to reply and go through. But in your reasons is I breached 80 20, which I didn’t, and statistics are provided which are fraudulent statistics and no court of law will uphold any fraudulent statistics. So, such that I want it to be adjourned until my lawyer get in contact with you which is reasonable under the Health Insurance Act.
THE CHAIRPERSON: Dr Thoo, you’ve had 11 weeks from the time you got the last letter to seek this legal advice and you’ve given us no communication whatever from that date. Now, what is your explanation for that?
DR THOO: That is a holiday period and I thought that I am busy with other legal matters, okay? So I couldn’t get into too many of these things because I am suing a body corp for damages. I’ve got a top solicitor, David Le Page, and so now I am getting this solicitor so he can get back to you. So, I don’t think we should proceed.
THE CHAIRPERSON: When did you discuss this matter with your solicitor?
DR THOO: I contracted recently, okay? But I will have to get more details on it and so we get back to you.
THE CHAIRPERSON: What does “recently” mean?
DR THOO: The last couple of days.
THE CHAIRPERSON: Right. So, you’ve had 11 weeks and two days before the hearing you decided that - - -
DR THOO: Because this is a matter that in any of this thing I shouldn’t prejudice my legal rights. So, what I suggest to you, that is a matter that you cannot rush into anything but I think that this should be adjourned to appropriate date when we get back to you.
THE CHAIRPERSON: All right. Well, we will adjourn the hearing for ten minutes and we will consider your submission.
DR THOO: Okay, yes.
THE CHAIRPERSON: Thank you.
42 There followed a second adjournment, apparently from 9.30 am to 9.40 am. Upon the resumption, the Chairperson read to Dr Thoo:
· an extract from a letter from the Committee Secretary to Dr Thoo dated 30 March 2005;
· an extract from a Notice of Hearing signed by the Chairperson for and on behalf of the Committee dated 19 July 2005, which had been enclosed in a letter sent to Dr Thoo from the Committee Secretary dated 20 July 2005;
· section 106KA(7) of the Act; and
· the Committee’s report dated 31 August 2005 to the effect that the Committee did not intend to inquire into whether there had been a prescribed pattern of services, and that the hearing in fact related to the question of whether Dr Thoo had engaged in inappropriate practice as defined in the Act in respect of MBS Item 23 and MBS Item 36 services during the review period of 1 January 2003 to 31 December 2003 inclusive, because he may not have provided adequate clinical input into the services and because he may not have satisfied the requirements of the relevant MBS descriptors.
43 The Chairperson said that the Committee intended to go ahead. After further resistance by Dr Thoo, the Chairperson said that Dr Thoo’s options appeared to be to stay and go through the process or leave the hearing. The Chairperson said that if Dr Thoo chose to leave, the Committee would go through the process in his absence. Dr Thoo said he decided to leave because he did not think his legal rights should be disadvantaged. The Chairperson said that Dr Thoo had previously had plenty of time to get legal representation. Dr Thoo said that he would not proceed on that day.
44 There was a third adjournment, apparently from 9.51 am to 9.52 am after which the Chairperson said that the Committee had taken legal advice. The Chairperson read part of s 104 of the Act to the effect that a committee might proceed with the hearing even if the person under review failed to appear, or appeared but refused or failed to give evidence or to answer a question. Dr Thoo asserted that that provision applied only if he stubbornly refused to cooperate. He asserted that he was “happy to cooperate” but because it was a legal problem, the hearing should be postponed. Finally, the Chairperson repeated that Dr Thoo had had ample time to obtain legal advice by the time of the hearing on 3 February 2006. The Chairperson said “good morning” to Dr Thoo at 9.53 am which was apparently the time when Dr Thoo departed.
45 The transcript does not reveal what happened subsequently on 3 February 2006.
Dr Thoo’s submissions and the legislation
46 In his affidavit Dr Thoo states that on the occasion of each adjournment, he was ushered from the hearing room, the doors of which were closed behind him. I do not think anything turns on this. The same consequences would follow whether that course was followed or the Committee and the legal adviser departed the hearing room, leaving Dr Thoo in it.
47 Counsel for Dr Thoo points out, in addition to relying on the facts revealed by the transcript, that English was not his client’s first language and that it must have been obvious to the Committee that Dr Thoo was at a disadvantage. Again, I do not think that in the circumstances anything turns on this.
48 At one point I thought that counsel’s submission was that the Committee had no power to proceed with a hearing in the absence of Dr Thoo, that is to say, that there was no power, under any circumstances and for any reason, to refuse an application for an adjournment. I would reject any such submission. The Chairperson does have power to adjourn a hearing from time to time as he or she thinks fit (see s 106(4) of the Act), but this does not signify that the Chairperson is required to grant any adjournment that is requested. Indeed, the Chairperson has a discretion in respect of the procedure for conducting the hearing (see s 106(1) of the Act).
49 Section 103 of the Act sets out certain rights of persons under review at hearings. They include a right to attend the hearing. The Committee accorded Dr Thoo that right.
50 Section 103 also includes a right to be accompanied by a lawyer at the hearing. Although the Committee refused to adjourn the hearing of 3 February 2006 when requested by Dr Thoo to do so on that date, I do not think that this amounts to denying Dr Thoo his right to be accompanied at the hearing on that date. Dr Thoo had been given notice of the hearing date and of his right to legal representation at that hearing. Dr Thoo chose to appear unrepresented.
51 Section 104(3) makes it clear that a committee may, in any case, proceed with a hearing despite s 103 even though the person under review fails to appear or appears but fails to give evidence or to answer a question. Dr Thoo appeared but indicated that he would not give evidence or answer questions because his legal objection had not been resolved. The Committee was entitled to proceed with the hearing after Dr Thoo left. The question remains, however, whether the Committee failed to accord procedural fairness to Dr Thoo in exercising its statutory power to proceed with the hearing in the circumstances that prevailed.
The authorities
52 The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ (Bhardwaj); Touma v Saparas [2000] NSWCA 11 at [27]). The procedure that will satisfy the demands of procedural fairness may differ in order “to meet the particular exigencies of the case” (Kioa v West (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 at [27]:
Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
Consideration of the second ground of review
53 In my view, Dr Thoo had a reasonable opportunity to present his case to the Committee and the Committee’s refusal to grant the adjournment did not amount to a denial of procedural fairness.
54 The Committee gave its reasons for refusing the adjournment, namely, that the reason given by Dr Thoo for the adjournment reflected a concern that he had ventilated with the Committee over a long period of time. He did not give any reason why he had not sought legal advice on the matter until a couple of days prior to 3 February 2006. No lawyer accompanied him on that date. He did not have anything in writing from his solicitor supporting his objection to the appointment and procedure of the Committee.
55 Dr Thoo had known from the time he received the letter dated 30 March 2005 from the Committee Secretary that the Committee was investigating his conduct in connection with his provision of MBS Item 23 and MBS Item 36 services. The first date of hearing was 31 August 2005. It was not until 10 November 2005, just eight days before the second hearing date, that Dr Thoo, for the first time, asserted that he believed that the Committee was inappropriately set up and invalid. His complaint in his letter of that date appears to have been that the Committee’s authority was limited by reference to the allegation that he had engaged in a prescribed pattern of services by breaching the 80/20 rule. That letter also stated that he would like the matter referred to a barrister, and that it was not appropriate for him to attend the review on 18 November 2005 (see [38] above).
56 Notwithstanding his letter, Dr Thoo did in fact attend and participate in the hearing on 18 November 2005. He conceded that he did not seek legal advice until two days prior to the hearing on 3 February 2006.
57 In the circumstances, I do not think that Dr Thoo was denied procedural fairness by the Committee’s decision to refuse his adjournment and continue the hearing in his absence. I note, though do not rely on, the fact that Dr Thoo’s solicitors were afforded the subsequent opportunity to make submissions in respect of Dr Thoo’s complaints (see [16] above).
58 I also reject counsel for Dr Thoo’s criticism of the Committee because it adjourned the hearing on several occasions to confer with a legal adviser in Dr Thoo’s absence and did not inform Dr Thoo of what had transpired in the course of that conferral. In my view, such a situation is no different to judges taking a short adjournment to confer. The Chairperson had a discretion to adjourn the proceedings pursuant to s 106(4) of the Act. The Committee was apparently provided with legal advice, and it was not incumbent on the Committee to disclose the content of the discussion it had with its legal advisers to Dr Thoo.
59 In my view, there is no substance in the second ground of review relied on by Dr Thoo.
Conclusion
60 The challenge to the Committee’s finding on administrative review grounds fails. Dr Thoo should pay the Committee’s costs of that challenge.
61 It has not been necessary for me to consider the parties’ submissions in relation to the appropriate person to whom the matter should be remitted.
62 The proceeding will be listed for the making of orders.
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I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 4 June 2008
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Counsel for the Applicant: |
M A Robinson |
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Solicitor for the Applicant: |
TressCox Lawyers |
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Counsel for the Respondents: |
R Henderson |
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Solicitor for the Respondents: |
Sparke Helmore |
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Date of Hearing: |
28 April 2008 |
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Date of Judgment: |
4 June 2008 |
