Federal Court of Australia

Amir v Director of Professional Services Review [2021] FCA 745

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first and third respondents’ costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

Introduction

1    The applicant, Dr Amir, applies for judicial review of a decision of the Director of Professional Services Review (the Director) on 14 April 2020 to set up and refer Dr Amir to a committee under s 93(1) of the Health Insurance Act 1973 (Cth) (the Act) to investigate whether Dr Amir engaged in inappropriate practice in providing the services specified in the referral.

2    Dr Amir contends that the Director had no power to make that decision on 14 April 2020 as the Director, by operation of s 94(1) of the Act, was taken to have made a decision to take no further action in relation to the review on 12 or 13 April 2020.

3    For the reasons set out below, Dr Amir’s application for judicial review must be dismissed. Costs should follow the event.

The statutory scheme

4    Part VAA of the Act establishes the Professional Services Review Scheme.

5    The object of Pt VAA of the Act is to “protect the integrity of the Commonwealth Medicare benefits, dental benefits and pharmaceutical benefits programs” and, in doing so, “protect patients and the community in general from the risks associated with inappropriate practice” and “protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice”: s 79A.

6    “Inappropriate practice” is defined in s 82. It is concerned with a medical practitioner rendering or initiating services which would be “unacceptable to the general body of” general practitioners, specialists, or consultant physicians as relevant.

7    The Chief Executive Medicare may, in writing, request the Director to review the provision of services by a person during the period specified in the request: s 86(1). The period specified in the request must fall within the two year period immediately preceding the request: s 86(2).

8    If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Chief Executive Medicare must, within seven days after making the request, give the person written notice of the request: s 87.

9    If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Director must, within one month after receiving the request, decide whether or not to undertake the review: s 88A(1).

10    The Director must decide to undertake the review if, after considering the request from the Chief Executive Medicare, and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person who is the subject of the request to the Director has engaged in inappropriate practice in providing services during the review period: s 88A(2) of the Act.

11    If the Director does not make a decision under s 88A(1) within the period of one month specified, the Director is taken to have decided, at the end of that period, to undertake the review: s 88A(3).

12    The Director must give written notice of the decision to the person whose provision of services is to be reviewed and to the Chief Executive Medicare: s 88A(4). The written notice must be given within seven days after the decision to undertake a review is made but failure to give the notice within that time or with the required content does not affect the validity of the decision: s 88A(5) and (7).

13    In accordance with s 89C(1) of the Act, following a review of the provision of services by a person, the Director must either:

(a)    make a decision under section 91 to take no further action in relation to the review; or

(b)    give the person under review:

(i) a written report setting out the reasons why the Director has not made a decision under section 91; and

(ii) an invitation to make written submissions to the Director, within 1 month, about the action the Director should take in relation to the review.

14    Section 89C(2) of the Act provides:

If the Director gives the person under review a report and invitation under paragraph (1)(b), the Director must, as soon as practicable after taking into account any submissions made as mentioned in subparagraph (1)(b)(ii):

(a)    decide to take no further action in relation to the review in accordance with section 91; or

(b)    enter into an agreement with the person under review under section 92; or

(c)    make a referral to a Committee under section 93.

15    Section 91(1) of the Act provides:

The Director may decide to take no further action in relation to a review if he or she is satisfied that:

(a)    there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in providing services during the review period; or

(b)    circumstances exist that would make a proper investigation by a Committee impossible.

16    Section 92(1) of the Act provides that the Director and a person under review for the provision of services may enter into a written agreement under which:

(a)    the person acknowledges that the person engaged in inappropriate practice in connection with rendering or initiating specified services during the review period; and

(b)    specified action in relation to the person (being action of a kind mentioned in subsection (2)) is to take effect.

17    Section 93(1) of the Act provides that:

The Director may, by writing, set up a Committee in accordance with Division 4, and make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral.

18    Section 94 of the Act provides:

(1)    If:

(a) the Director decides to review the provision of services by a person; and

(b) before the end of the period of 12 months after making the decision, the Director has not:

(i)    made a decision under section 91 to take no further action in relation to the review; or

(ii)    entered into an agreement with the person under section 92 (whether or not the agreement has been ratified by the Determining Authority); or

(iii)    referred the provision of one or more of the services to a Committee;

then, the Director is taken to have made a decision at the end of that period to take no further action in relation to the review.

…

(3)    If a notice is given under subsection 89B(2) to the person under review, or to another person, and the person concerned fails to comply with a requirement of the notice, the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period during which the person fails to comply with the requirement.

Primary facts

19    The primary facts are not in dispute.

20    On 4 April 2019, pursuant to s 86(1) of the Act, the Chief Executive Medicare requested the Director to review Dr Amir’s provision of services for the period 1 September 2017 to 31 August 2018. This request was made by email at 2.48pm.

21    On the same day, at 3.08pm, the Director sent an email to staff stating that she had “reviewed the referral and decided to conduct a review”.

22    On 16 April 2019, the Director notified Dr Amir of the review. In the letter the Director said “…today I have decided to undertake a review into your provision of those services…”.

23    On 14 August 2019 the Director issued a notice to produce to Dr Amir for records as permitted by s 89B of the Act.

24    Dr Amir answered the notice to produce on 30 August and 13 September 2019.

25    On 3 March 2020 the Director informed Dr Amir that she had not decided to take no further action in relation to the review and provided Dr Amir with a report under s 89C of the Act, and invited Dr Amir’s response.

26    On 12 March 2020, in accordance with s 94(3) of the Act, the Director determined to extend the period of 12 months referred to in s 94(1) by nine days, reflecting the period for which Dr Amir failed to comply with the notice to produce.

27    Dr Amir provided a response to the report dated 3 April 2020.

28    On 9 April 2020, as requested in Dr Amir’s response, the Director proposed to Dr Amir that he enter into an agreement under s 92 of the Act on conditions, with the agreement to be executed by 14 April 2020.

29    Dr Amir refused to accept the conditions of the proposed s 92 agreement on 14 April 2020. On the same day the Director decided to set up and refer Dr Amir to a committee as referred to in s 93(1) of the Act. The Director also notified Dr Amir of this decision on the same day.

The issue

30    The case for Dr Amir involves the following steps:

(1)    the Director decided to undertake a review as provided for in s 88A(1) of the Act on 4 April 2019;

(2)    the Director decided to extend the 12 month period for the review by nine days as provided for in s 94(3) of the Act;

(3)    the period of 12 months and nine days from 4 April 2019 expired on 12 or 13 April 2020 (depending on the operation of s 36(1) and (2) of the Acts Interpretation Act 1901 (Cth));

(4)    accordingly, on 12 or 13 April 2020 the Director was taken to have made a decision to take no further action in relation to the review as provided for in s 94(1) of the Act; and

(5)    as a result, the Director had no power to decide to set up and refer Dr Amir to a committee under s 93(1) of the Act on 14 April 2020.

31    The case for the Director and the Commonwealth involves the following steps:

(1)    the Director decided to undertake a review as provided for in s 88A(1) of the Act on 16 April 2019;

(2)    the Director decided to extend the 12 month period for the review by nine days as provided for in s 94(3) of the Act;

(3)    the period of 12 months and nine days from 16 April 2019 expired on 25 April 2020; and

(4)    as a result, the Director had power to decide to set up and refer Dr Amir to a committee under s 93(1) of the Act on 14 April 2020.

32    The debate raised by Dr Amir about 12 or 13 April 2020 is immaterial. Either way, on Dr Amir’s case, the Director was taken to have made a decision to take no further action in relation to the review under s 94(1) before the Director purported to make a decision under s 93(1).

Consideration

33    The parties agree that the reference in s 94(1)(a) “[i]f the Director decides to review…” and s 94(1)(b) “…12 months after making the decision…” involves a decision by the Director under s 88A(1) of the Act (“…the Director must, within 1 month after receiving the request, decide whether or not to undertake the review”).

34    Extensive written and oral submissions were made for Dr Amir. The key propositions for Dr Amir included that:

(1)    the scheme of the Act consistently distinguishes between the act of making a decision and the act of notifying the making of that decision – see, for example, ss 86(1) and 87(1), 88A(1) and 88A(4), 91(1) and 91(2), 93(1) and 93(7);

(2)    the distinction between the making of a decision and its notification is also apparent from ss 87(2) and 88A(5) and (7), to the effect that failure to comply with the notice requirement does not affect the validity of the decision;

(3)    “decision” and “decide” should take their ordinary meaning in the Act of “a making up of one’s mind”: Macquarie Dictionary online.

(4)    in National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 1016; (2020) 276 FCR 382 at [48] Griffiths J said that a decision was a decision “in fact” rather than a valid decision. The same approach should be applied in the present case as a matter of comity as Griffiths J is not plainly wrong;

(5)    as the Director has not given evidence it should be inferred that the evidence she would give would not have assisted her case, consistent with Jones v Dunkel (1959) 101 CLR 298;

(6)    the cases upon which the Director relies to support the proposition that a decision must be externally manifested concern different statutory regimes and different legal issues (specifically, the operation of the doctrine of functus officio) and do not govern the construction of s 94(1)(b) of the Act; and

(7)    the construction proposed by the Director does not support the purpose of the Act which is to encourage the Director not to be dilatory

35    A number of these propositions may be accepted (propositions (1), (2), (3), and (6)). On analysis, however, they do not lead to the conclusion for which Dr Amir advocates.

36    Assume, for the purpose of the argument, that the Director receives a request under s 88A(1) from the Chief Executive Medicare for a review of a person’s provision of services on 1 January. The Director must decide whether or not to undertake a review within one month of receiving the request, failing which the Director is taken to have decided to undertake the review. What constitutes the Director “deciding” for the purpose of s 88A(1)? The options are: (a) the Director making up her mind without communicating the decision to anyone, (b) the Director making up her mind and communicating the decision to her staff, or (c) the Director making up her mind and communicating the decision to the person and the Chief Executive Medicare under s 88A(4).

37    I am unable to accept that the Director “decides” whether or not to undertake a review as provided for in s 88A(1) (and thus s 94(1)(a) and (b)) of the Act as described in option (a). Option (a), in my view, is plainly untenable. If the Director does not externally manifest the decision in some way then the content and the time of the decision will be unknown other than to the Director. Further, inevitable questions arise as to both the quality of the Director’s state of mind which is necessary to amount to a decision and the capacity of the Director to change her mind within the one month period.

38    Option (b), which the submissions for Dr Amir contend was satisfied in the present case, is potentially equally problematic. The same questions arise. Having communicated a state of mind said to be a decision only to her staff, and not to any external person, why would the Director not be free to change her mind at any time within the period of one month of receipt of the request? If that is so, then the only relevant decision must be the last decision the Director communicates to her staff within the period of the month. Earlier decisions would not be decisions within the meaning of s 88A(1).

39    It was submitted for Dr Amir that arguments of uncertainty about the time at which a decision is made and associated inconvenience are insufficient to displace the ordinary meaning of “decision” of making up one’s mind: ConnectEast Management Ltd v Commissioner of Taxation [2009] FCAFC 22 at [41], Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104; (2013) 214 FCR 374 at [103]. However, the present issue does not concern mere odd or anomalous consequences or bureaucratic efficiency. Within the statutory scheme it is necessary to know when the Director decides within the meaning of s 88A(1) because that determines the beginning of the 12 month period referred to in s 94(1). Options (a) and (b) both inevitably raise: (a) qualitative questions about the state of mind of the Director whether communicated to staff or not, and (b) legal and practical questions about the capacity of the Director to change her mind at any time until the period of one month from receipt of the request has expired.

40    The reliance on the ordinary meaning of “decide” (to make up one’s mind), on analysis, does not assist the submissions for Dr Amir. When has a person in fact made up their mind? It is not difficult to accept that, in ordinary usage, a person makes up their mind only once they manifest externally that their state of mind is committed to a particular position or course of action. Before that manifestation, can it be said that the person has “decided” anything? For so long as they have not manifested their settled state of mind about a matter by communicating their commitment to a position or a particular course of action, the person has not decided one way or another. They may have a strong predisposition one way or another, but the decision is made by the manifestation of the commitment to a position or a particular course of action.

41    The fact that s 88A(1) requires the Director to “decide”, s 88A(4) requires notice to be given of the decision, and ss 88A(5) and (7) provide that a failure to comply with the notice requirements does not affect the validity of the decision are relevant. The terms of s 88A(5) in particular (“[t]he notice must be given within 7 days after the decision is made”) support the conclusion that the decision and the notice are separate and distinct, and that the former may pre-date the latter.

42    This said, the better resolution of the potentially competing considerations, in my view, is to construe “decide” in s 88A(1) as meaning an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review. This externally manifested communication of an irrevocable commitment by the Director might be to her staff or others (option (b)) or by the giving of notice as required by s 88A(4) (option (c)). Everything which occurs before either of these events does not involve the Director “making up” the Director’s mind because such acts, of necessity, are not final and are not irrevocable. They are subject to change as and when the Director determines within the period of one month provided for the making of the decision.

43    I recognise that extending the meaning of a “decision” to option (b) as described above goes further than the submissions for the Director and the Commonwealth would allow. The Director and the Commonwealth would confine the meaning of a “decision” for the purposes of s 88A(1) to a decision communicated by a notice as provided for in s 88A(4) of the Act. The reasons that I am persuaded that the concept might take a broader meaning are twofold. First, the terms of s 88A(4) suggest that a decision ordinarily will pre-date the giving of the notice. Second, and for example, assume the Director communicates to her staff on the last day of the month and in irrevocable terms that she had decided not to undertake a review and instructs her staff to prepare a notice to a person to that effect. As no notice will have been given within the period of one month, is that decision inoperative or ineffectual so that s 88A(3) operates so that the Director is taken to have decided to undertake a review and thus bound to do so? In my view, the better answer to this question is “no”. As a result, I consider that there is scope for a decision of the Director to be made (in the sense of being the subject of an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review) whether or not that communication is by way of a notice under s 88A(4) of the Act. The issue will be one of fact in the particular circumstances.

44    Within the statutory scheme the communication by the Director to her staff on 4 April 2014 involved an externally manifested communication by the Director but did not involve an irrevocable commitment by her whether or not to undertake a review. The commitment was not irrevocable because it was open to the Director to change her mind at least until she gave notice of her decision as required by s 88A(4) (and it is arguable that even a decision subject to notice under s 88A(4) is not irrevocable if the one month period referred to in s 88A(1) has not expired). Further, it is apparent from the terms of the letter of 16 April 2019 that the Director did not consider her communicated state of mind on 4 April 2019 to be irrevocable.

45    While this resolution of the statutory provisions may not be perfect, it is less imperfect than the approach advocated for Dr Amir. Dr Amir’s approach, as discussed, invites: (a) qualitative questions about the state of mind of the Director whether communicated to staff or not, and (b) legal and practical questions about the capacity of the Director to change her mind at any time until the period of one month from receipt of the request has expired. The approach which I prefer, subject to the deeming provision in s 88A(3), requires identification of an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review. This constitutes the “decision”. In this case, the best evidence of such a decision is the letter of 16 April 2019.

46    Contrary to the submissions for Dr Amir, some of the cases to which the Director referred are relevant, albeit involving different statutory schemes and different issues. In particular, in Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 Finn J considered the meaning of “decision”, saying:

19. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

20. What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.

47    On appeal in Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533 (Semunigus FFC) Spender, Higgins and Madgwick JJ each accepted Finn J’s description of a “decision”, at [11], [55], [75] and [101]. Their Honours applied the description differently but Spender and Madgwick JJ stressed the need for irrevocable communication to constitute the making of the decision, at [12] and [103]. Higgins J took a different view focusing on the making of a decision as a matter of objective fact: [78].

48    In Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 at [25]-[26] and [29] Buchanan J agreed with Finn J in Semunigus at [19] and with the judgment of Madgwick J in Semunigus FFC at [102]-[103] and Spender J at [12]. At [29] Buchanan J also disagreed with the view of Higgins J which involved a search for a decision as a matter of “objective fact”. Justice Buchanan continued at [29]:

In my respectful opinion the principles stated by Madgwick J and echoed by Spender J are a correct statement of the legal position. All three judges endorsed the statement of principle made by Finn J. That statement of principle incorporates a critical consideration. A decision maker must be precluded from revisiting the decision at his or her option before it is to be regarded as final in the relevant sense.

49    In SZQOY Logan J, at [33], agreed with Buchanan J. Justice Barker, at [50], agreed with Buchanan and Logan JJ.

50    In SZRNY at [24] and [25] Buchanan J again endorsed Finn J in Semunigus at [19] and Spender and Madgwick JJ in Semunigus FFC. Justices Griffiths and Mortimer at [94] also accepted the principle in Semunigus.

51    The principle in Semunigus concerns the meaning of a “decision” generally. It gives that term a meaning which is consistent with its ordinary meaning and which is clear and capable of application. The focus is not on a decision-maker’s mental state. It is on the external manifestation of that state of mind in some irrevocable and final manner. While this meaning will always yield to the particular statutory context, the context in the present case supports giving the words “decide” and “decision” in s 88A(1) and s 94(1)(a) and (b) this meaning.

52    National Home Doctor Service is not authority to the contrary. In that case, the issue was whether a decision must be a valid decision or a decision in fact whether or not valid. The issue is different from that which arises in the present case.

53    In the present case, the Director decided to review the provision of services by Dr Amir on 16 April 2019 as she informed Dr Amir on that date that she had so decided. The email the Director sent certain staff on 4 April 2019 did not constitute the Director deciding to review the provision of services by Dr Amir as, given the date of that email (the first day of the one month period in s 88A(1)), the state of mind of the Director communicated therein was not final and irrevocable. The Director was free to change her mind, as the terms of the letter of 16 April 2019 confirm. That is, it must be inferred from the communications that after 4 April 2019 the Director was free to change her mind and/or again to decide to undertake a review. Accordingly, the Director made no decision on 4 April 2019 for the purposes of s 88A(1) of the Act.

54    There is a further basis to reject Dr Amir’s claim. There is the internal email from the Director to certain of her staff on 4 April 2019 saying “I have reviewed the referral and decided to conduct a review” and requesting that the necessary paperwork be prepared. There is also the letter of 16 April 2019 from the Director to Dr Amir saying “Accordingly, today I have decided to undertake a review into your provision of those services in accordance with the requirements of the Act. This letter constitutes written notice of that decision for the purposes of s 88A(4)(a) of the Act” (emphasis added).

55    Dr Amir bears the onus of proof. While the relevant decision-maker is the Director, the Director is a party, and the Director has not given evidence, the only adverse inference which could be drawn against the Director is that she in fact decided to undertake the review on 4 April 2019. If that is so, the Director’s email of 16 April 2019 remains to the effect that she also decided “today” (that is, on 16 April 2019) to undertake the review. The result is that within the prescribed time period of one month, the Director made two decisions to the same effect. Of those two decisions, only one was irrevocable and communicated to Dr Amir, the decision of 16 April 2019. As such, it is the relevant decision for the purposes of the statutory provisions.

56    Alternatively, I am not satisfied that any Jones v Dunkel inference should be drawn against the Director. While all evidence is to be “weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969), it is necessary to acknowledge that the Director is responsible for deciding about all reviews under s 88A(1). The power of delegation in s 131 of the Act is limited to the Minister, the Secretary or the Chief Executive Medicare. It would be unreasonable to infer that he Director was capable of recalling her state of mind about the Chief Executive Medicare’s request in respect of Dr Amir over and above what is disclosed in the documents.

57    The Director sent the email of 4 April 2019 about 20 minutes after receiving it in circumstances where the attachments to the email from the Chief Executive Medicare comprised 102 pages. When this is taken together with the facts that: (a) an internal email of 8 April 2019 between staff of the Director records information relevant to a decision whether or not to undertake a review of Dr Amir’s provision of services, and (b) the letter from the Director to Dr Amir of 16 April 2019 is hand dated and expressly states that the Director had made the decision to undertake the review “today”, I would not infer that the Director had in fact decided on 4 April 2019 to undertake the review.

58    As submitted for the Director and the Commonwealth, the evidence taken as a whole supports the inference that the Director’s mental processes about a review of Dr Amir’s provision of services continued until 16 April 2019. It would not lightly be inferred that the Director misrepresented the fact in the letter to Dr Amir of 16 April 2019 that she had made the decision to undertake the review on that date. Taken with the other facts and circumstances, the inference that should be drawn is that the email of 4 April 2019 expressed a preliminary, even if strong view, of the Director, that she would be deciding subsequently to undertake a review. That is not a decision for the purposes of s 88A(1) of the Act.

59    For these reasons, the originating application must be dismissed with costs.

Associate:

Dated:    2 July 2021