Federal Court of Australia
Kew v Director of Professional Services Review [2021] FCA 1607
ORDERS
Applicant | ||
AND: | DIRECTOR OF PROFESSIONAL SERVICES REVIEW First Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE NO 1059 Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The originating application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to her application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BEACH J:
1 Dr Jacqueline Kew, the applicant, is a radiologist providing specialist medical services to patients in South Australia.
2 On 9 October 2017, the Director of Professional Services Review, the first respondent, established a committee, the second respondent, to investigate whether Dr Kew had engaged in inappropriate practice concerning her rendering of services during the period 1 January to 31 December 2015 (the review period) under items 104 (professional attendance), 105 (subsequent professional attendance), 18216 (intrathecal or epidural infusion) and 18222 (infusion of a therapeutic substance) of the Medicare Benefits Schedule (MBS).
3 The Health Insurance Act 1973 (Cth) provides for the payment of Medicare benefits for professional services by medical practitioners that are calculated in accordance with the MBS, which was set out at the relevant time in the Health Insurance (General Medical Services Table) Regulation 2014 (Cth) and part way through the review period the equivalent 2015 Regulation (the GMST Regulation).
4 Part VAA of the Act provides for a scheme of professional services review, which enables a committee to be established to investigate whether a practitioner has engaged in “inappropriate practice” in rendering one or more services (s 93). Inappropriate practice is relevantly defined as conduct in connection with the rendering or initiating of services such that a committee could reasonably conclude that “the conduct would be unacceptable to the general body of specialists” (s 82(1)(b)).
5 After conducting a review, the committee is required to provide a final report setting out its findings with respect to the referred services (s 106L). Where it makes a finding of inappropriate practice, the final report must then be given to the Determining Authority (s 106L(3)(b)), who may impose one or more sanctions on the practitioner including requiring the repayment of benefits paid and the suspension from the right to render some or all services under the MBS for a specified period of time (s 106U).
6 In the present case, the services referred to the committee concerning the conduct of Dr Kew during the review period were referable to the following MBS items:
(a) item 104 — “Professional attendance at consulting rooms or hospital by a specialist in the practice of his or her specialty after referral of the patient to him or her—each attendance, other than a second or subsequent attendance, in a single course of treatment, other than a service to which item 106, 109 or 16401 applies”; GMST Regulation, Div 2.4—Group A3, Pt 2 of Schedule 1;
(b) item 105 — “Professional attendance by a specialist in the practice of his or her specialty following referral of the patient to him or her — an attendance after the first in a single course of treatment, if that attendance is at consulting rooms or hospital”; GMST Regulation, Div 2.4—Group A3, Pt 2 of Schedule 1;
(c) item 18216 — “Intrathecal or epidural infusion of a therapeutic substance, initial injection or commencement of, including up to 1 hour of continuous attendance by the medical practitioner (Anaes.)”; GMST Regulation, Div 2.42—Group T7, Pt 2 of Schedule 1;
(d) item 18222 — “Infusion of a therapeutic substance to maintain regional anaesthesia or analgesia, subsequent injection or revision of, if the period of continuous medical practitioner attendance is 15 minutes or less”; GMST Regulation, Div 2.42—Group T7, Pt 2 of Schedule 1; and
(e) item 57341, but in respect of which the committee decided to discontinue its review, upon a preliminary review of the relevant medical records.
7 The committee’s task was to investigate whether Dr Kew had engaged in inappropriate practice in providing the referred services (s 93(1)). Dr Kew rendered the referred services as a specialist in the particular specialty of diagnostic radiology. The specific question for the committee under s 82(1)(b) was whether her conduct in connection with rendering the referred services was “such that a committee could reasonably conclude that … the conduct would be unacceptable to the general body of specialists in that specialty”.
8 The committee consisted of the following members, who had been appointed by the Director:
(a) Dr Karen Flegg, a medical practitioner and Deputy Director, as Chair; and
(b) Professor Kevin Bell and Dr Thomas Snow, both radiologists, as panel members.
9 I note that the two non-Chair panel members were required to be radiologists because Dr Kew was a radiologist at the time of rendering the referred services (s 95(4)). Further, the Chair had to belong to the same profession as Dr Kew (s 95(2)).
10 In the present case the committee conducted a hearing over three days. It reviewed a sample of services for each of the four MBS item numbers. In investigating the provision of item 104, item 105, item 18216 and item 18222 the committee had regard to a sample of 30 of the services included in each of those particular classes of the referred services, which was permitted by s 106K(1).
11 On 27 July 2020, the committee delivered its final report, including some 450 pages or so of detailed appendices, which concluded that Dr Kew had engaged in inappropriate practice in all of the services rendered under each item number. In summary, it found as follows (at [1] to [3]):
The Committee’s finding is that Dr Kew … engaged in inappropriate practice in connection with providing the Referred Services.
In particular, the Committee finds that the conduct of Dr Kew in connection with providing the services referred to below would be unacceptable to the general body of radiologists as defined in section 82(1)(b) of the Health Insurance Act 1973:
100% of the MBS item 104 services;
100% of the MBS item 105 services;
100% of the MBS item 18216 services; and
100% of the MBS item 18222 services examined by the Committee.
Appendices 1, 2, 3 and 4 set out reasons why the Committee finds that the conduct of Dr Kew in connection with providing the services described in the Appendices would be unacceptable to the general body of radiologists. In making the findings in paragraph 2 which refer to a percentage of services, the Committee has applied the Health Insurance (Professional Services Review – Sampling Methodology) Determination 2017 made under section 106K(3) of the Act to its findings in the Appendices.
12 Now as the committee found that Dr Kew had engaged in inappropriate practice in providing each of the 30 sample services in each class, Dr Kew was taken for the purposes of Pt VAA to have engaged in inappropriate practice in the provision of all of the services in the complete set for each class (s 106K(2)).
13 I should note at this point that the committee set out in appendices 1 to 4 of its report its detailed reasons for finding that Dr Kew had engaged in inappropriate practice in respect of each of the samples in each class.
14 By her originating application before me, Dr Kew seeks a review of these findings of inappropriate practice. And in that respect she relies on 8 grounds, invoking jurisdiction under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). In summary, she has asserted that:
(a) in evaluating her conduct, the committee misconstrued the requirements of the MBS;
(b) the committee asked itself the wrong question when purporting to consider whether she had engaged in inappropriate practice; and
(c) the committee failed to have regard to relevant material to which it was bound to have regard.
15 Contrastingly, the Director challenges Dr Kew’s assertions.
16 First, as to grounds 1 to 4, the Director says that the committee’s conclusion that Dr Kew engaged in inappropriate practice within the meaning of s 82(1)(b) by billing items 104 and 105 in conjunction with radiology items was based on its factual findings, having heard Dr Kew’s evidence and having reviewed her records. It held that there was no evidence of any meaningful consultation having taken place on those occasions. The Director says that there was no misconstruction of any subordinate instrument.
17 Second, as to grounds 5 and 6, the Director says that when the committee’s report is read as a whole, it is clear that the committee properly understood and applied the record-keeping requirements in s 82(3), and that it was open to the committee to make the specific factual findings sought to be impugned.
18 Third, as to grounds 7 and 8, the Director says that the committee applied the plain meaning of items 18216 and 18222 to the facts found. Moreover, the Director says that Dr Kew’s submission that she could have charged more for those items had she charged them correctly did not require the committee to not conclude that she had engaged in inappropriate practice by wrongly billing those items. Dr Kew’s submission more went to the question of any sanction to be imposed.
19 For the reasons that follow, I would reject Dr Kew’s challenge.
The Professional Services Review Scheme
20 As I have indicated, the professional services review scheme is dealt with in Pt VAA of the Act. As s 79A makes plain, the object of that Part includes to protect the integrity of the Commonwealth medicare benefits program and, in doing so, to protect patients and the community in general from the risks associated with inappropriate practice and to protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
21 It is appropriate to identify relevant aspects of the legislative scheme. But before proceeding further, let me say something about definitions.
22 As s 81(1) stipulates, various meanings of “inappropriate practice” are given in s 82. Relevantly for present purposes, s 82(1)(b) provides:
(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:
…
(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 …
23 It may be observed that the test in s 82(1)(b) does not require a unanimity of view among the members of the relevant specialty. I will also say something about s 82(3) later.
24 The term “service” is defined to mean relevantly a service that has been rendered if, at the time it was rendered, a “medicare benefit” was payable in respect of the service (s 81(1)). A “medicare benefit” means “a medicare benefit under Part II” (s 3(1)). Relevantly, s 10(1) provides:
Where, on or after 1 February 1984, medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with subsection (2) is payable, subject to and in accordance with this Act, in respect of that professional service.
25 The expression “professional service” is defined under s 3(1) to mean, relevantly:
(a) a service (other than a diagnostic imaging service) to which an item relates, being a clinically relevant service that is rendered by or on behalf of a medical practitioner; or
…
(f) a diagnostic imaging service that is rendered by or on behalf of a medical practitioner pursuant to a subsection 16B(1) request; or
(g) a diagnostic imaging service (other than a service referred to in paragraph (f)) that is a clinically relevant service rendered by or on behalf of a medical practitioner (s 3(1)).
26 The expression “diagnostic imaging service” means either “an R-type diagnostic imaging service” or “an NR-type diagnostic imaging service”, to which “an item of the diagnostic imaging services table relates” (s 3(1)).
27 The expression “clinically relevant service” as used in paragraphs (a) and (g) of “professional service” means, relevantly, a service rendered by a medical practitioner that is generally accepted in the medical profession as being necessary for the appropriate treatment of the patient to whom it is rendered (s 3(1)).
28 So, for each service rendered and for which a medicare benefit is claimed, the service must be a clinically relevant service. This in turn imports an evaluative standard as the definition of “clinically relevant service” in s 3(1) make clear.
29 I should also note that the word “item”, used in paragraph (a) of the definition of “professional service” and in the definition of “diagnostic imaging service” means an item in the table consisting of, relevantly:
(a) the general medical services table, being the table prescribed under s 4; or
(b) the diagnostic imaging services table, being the table prescribed under s 4AA.
30 Section 3(1) contains definitions for “item” and “table” which make this apparent; I do not need to set these out.
31 Now during the review period the “general medical services table” under s 4 was in the GMST Regulation.
32 Further, during the review period, the “diagnostic imaging services table” under s 4AA was in the Health Insurance (Diagnostic Imaging Services Table) Regulation 2014 (Cth) and then the Health Insurance (Diagnostic Imaging Services Table) Regulation 2015 (Cth) (the DIST Regulation).
33 I have set out the terms of the relevant items earlier. There were no material changes to the items comprising the referred services during the review period.
34 I should also note that Items 104 and 105 were contained in Division 2.4—Group A3, which is headed “Specialist attendances to which no other item applies”.
35 Further, I should also note that reg 1.2.12 of the DIST Regulation, headed “[m]ultiple services”, relevantly provided:
…
(2) If a medical practitioner renders at least one R‑type diagnostic imaging service and at least one consultation service for the same patient on the same day, the highest fee, set out in the items that apply to diagnostic imaging services rendered by the practitioner for that patient on that day, is reduced:
(a) if the fee for the relevant consultation is at least $40—by $35; or
(b) if that fee is less than $40 but more than $15—by $15; or
(c) if that fee is less than $15—by the amount of that fee.
(3) For subclause (2), if more than one consultation has occurred, the relevant consultation is the consultation having the highest fee set out in the items that apply to the consultation.
…
36 I also note that reg 1.2.12(11) stipulates that “consultation” means “a service under an item listed in Divisions 2.1 to 2.14 of the general medical services table”.
37 Let me move beyond definitions and now say something about professional services review committees.
38 Section 93(1) 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.
39 Relevantly to the present context, and as I have already touched on, if the person under review was a practitioner who rendered or initiated all of the referred services and was a specialist in relation to a particular specialty, then the committee set up under s 93 must relevantly consist of a chairperson who is a Deputy Director (s 95(1)(a)), and must be a practitioner who belongs to the profession in which the practitioner was practising when the services were rendered or initiated (s 95(2)), and two other panel members (s 95(1)(b)), who must be practitioners who belong to the profession in which the practitioner was practising when the services were rendered or initiated (s 95(2)) and specialists in relation to the relevant specialty (s 95(4)).
40 The services specified in the s 93(1) referral are “referred services” (s 81(1)).
41 Now as s 106K(1) provides, in investigating the provision of services in a particular class of the referred services, the committee may have regard only to a sample of the services included in the class. And in that event, and as s 106K(2) stipulates:
If the Committee finds that a person has engaged in inappropriate practice in providing all, or a proportion, of the services included in the sample, then, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in the provision of all, or that proportion, as the case may be, of the services included in the class from which the sample is chosen.
42 The content and form of the sampling methodology to be used was relevantly set out in a determination made under s 106K(3); there is no issue with the sampling methodology that was used in the present case.
43 If it appears to the committee that the person under review may have engaged in inappropriate practice in providing the referred services, then the committee must hold a hearing (s 101(2)). In the present case the committee did so. The person under review is relevantly entitled to attend the hearing, be accompanied by a lawyer, call witnesses to give evidence, question any person giving evidence, produce written statements about the person’s character, address the committee on questions of law arising during the hearing, and make closing submissions (s 103(1)). Dr Kew availed herself of these rights.
44 The committee was not bound by the rules of evidence but could inform itself on any matter in any way it thought appropriate (s 106(2)).
45 Now the committee had to prepare a written draft report of the preliminary findings of its members (s 106KD(1)) and the reasons for those preliminary findings (s 106KD(1A)). If the draft report contains preliminary findings of all, or a majority, of committee members that the person under review engaged in inappropriate practice, then the committee must give to the person under review a copy of the draft report together with a notice inviting the person to make written submissions suggesting changes to the draft report (s 106KD(3)). The provision of a draft report satisfies the statutory procedural fairness obligation imposed on the committee (see ss 106H(4) and (5)). Such steps were followed in the present case.
46 After taking into account any submissions made by the person under review, the committee must prepare a final report setting out the committee’s findings (s 106L(1)). The final report must not include a finding of inappropriate practice unless that finding and the reasons for it have been included in the draft report (s 106L(1B)). All of these steps and requirements were complied with in the present case.
47 Now I have already set out s 82(1)(b) concerning inappropriate practice. But I should also say something about s 82(3).
48 Section 82(3) provides:
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.
49 I also note that s 81(1) relevantly provides that “adequate and contemporaneous records of the rendering or initiation of services means records that meet the standards prescribed by the regulations for the purposes of this definition”.
50 Now during the review period, reg 5 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) relevantly provided:
For the definition of adequate and contemporaneous records in section 81 of the Act, the standard to be met in order that a record of service rendered or initiated 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.
51 Now before turning to the grounds of review I should say something more about the committee, its expert composition and its task.
52 First, as I have indicated, by enacting s 93 and Div 4 of Pt VAA, a regime was established whereby the Director could refer the conduct of a medical specialist to a committee comprising a Deputy Director chair from the medical profession and two panel members from the same specialty, thereby ensuring that the question whether a specialist had engaged in inappropriate conduct was investigated and determined by persons with an expert understanding of the issues involved. Such a panel was suited to answering the relevant question under s 82(1)(b).
53 Second, in the present context I am not of course engaged in any merits review. Fact finding was for the committee. Moreover, to the extent that any ground of review raises the question of legal unreasonableness, irrationality or a no evidence ground that requires some analysis of the facts, deference ought to be paid to the views of the committee given their expertise, particularly as it concerned the relevant specialty and including the use which could be made of statistics. I am not here concerned with what I would describe as jurisdictional fact finding in the strict sense.
54 The following observation in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [47] per Gleeson CJ, Gummow, Kirby and Hayne JJ is apposite:
The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning…
55 And more specifically to the present context, in finding facts about the conduct of a peer practising in the same area of specialty, and forming the evaluative judgment required by s 82(1)(b), the expertise of the committee is of some significance as explained by Logan J in Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524 at [65]. The committee is not a lay tribunal that is necessarily reliant on the independent expert opinion of others in order to make findings of fact calling for expertise. It is constituted as a group of professional peers, charged with investigating whether there has been inappropriate practice and then making consequential findings against specified criteria. Each member of the committee brings to the deliberations their own knowledge and experience that qualified them for appointment. And in that context the committee was entitled to reach its own views on the basis of the professional training, knowledge and experience of its members, as to whether it would be reasonable to conclude that the relevant conduct would be unacceptable to the general body of specialists in this case.
56 Third, the committee was required to construe and apply various provisions of the Act and relevant sub-ordinate instruments. And in the present context that has raised several legal issues. Now generally speaking, I would not accord any deference to the committee’s views on construction questions. Having said that, where the relevant instruments embody concepts within the committee’s field of expertise, I have taken their views into account on construction questions, although their views cannot be dispositive.
57 Fourth and more generally, I have considered the committee’s reasons bearing in mind the observations of Mortimer J in Sevdalis v Director of Professional Services Review (No. 2) [2016] FCA 433 at [132] to the effect that in reviewing the reasoning of the committee I should not over-scrutinise that reasoning, nor to parse it, nor to separate it from its context especially as the committee members are not qualified lawyers. Further, as Mortimer J explained, I should read the reasons fairly, in terms of reading them as a whole, including the 450 pages of appendices dealing with each of the case studies.
Construction of items 104/105, statistics and other issues (grounds 1 to 4)
58 Grounds 1 to 4 are expressed in the following terms:
1. The PSRC erred in its construction of items 104 and 105 of the Medicare Benefits Schedule Book (MBS), by construing that item to require a consultation in addition to that “necessarily required in the performance of a diagnostic imaging service” and/or a “separate consultation service”.
As a consequence it:
(a) asked itself the wrong question; and/or
(b) had regard to an irrelevant consideration.
2. In considering whether the general body of radiologists would regard the Applicant’s conduct in relation to the rendering of items 104 and 105 as unacceptable, the PSRC failed to consider:
(a) whether the general body of radiologists would require clinical input beyond that which would “ordinarily form part of the co-billed radiology service”; and/or
(b) statistics of the prevalence of a co-billed radiology service during the review period.
In the circumstances, it constructively failed to exercise jurisdiction and/or asked itself the wrong question and/or failed to have regard to a relevant consideration.
3. In view of its finding that “during the review period there was a degree of ambiguity within the profession regarding the co-billing of attendance and diagnostic imaging services”, it was not open for the PSRC to conclude that the general body of practitioners in that profession would have regarded the Applicant’s conduct in relation to the rendering of those services as unacceptable.
It thereby made a decision that was legally unreasonable and/or failed to have regard to a relevant consideration and/or asked itself the wrong question.
4. In construing items 104 and 105 of the MBS, the PSRC failed to have regard to and/or apply G.14.3, which provides for “consultation and procedures rendered at one attendance”. It thereby erred by failing to have regard to a relevant consideration or asked itself the wrong question.
59 Let me set out Dr Kew’s arguments presented by her counsel, Mr Benjamin Jellis, concerning grounds 1 and 4, and then her arguments concerning grounds 2 and 3.
The construction of MBS items 104 and 105 (grounds 1 and 4).
60 Now Dr Kew points out that during the review period she rendered some 8,320 consultations under MBS item 104 and 1,471 consultations under MBS item 105 and that it was not controversial that she saw each of those patients.
61 The committee reviewed a sample of the services provided by Dr Kew during the review period under each of these item numbers and concluded that she had engaged in inappropriate practice in connection with those services.
62 Now as I have already set out, MBS item 104 was relevantly defined as “Professional attendance at consulting rooms or hospital by a specialist in the practice of his or her specialty after referral of the patient to him or her - each attendance, other than a second or subsequent attendance, in a single course of treatment”, and MBS item 105 was defined as “Professional attendance by a specialist in the practice of his or her specialty following referral of the patient to him or her - an attendance after the first in a single course of treatment, if that attendance is at consulting rooms or hospital”.
63 The concept of “professional attendance”, as referred to in items 104 and 105, was elucidated in the GMST Regulation. In this respect regs 1.2.3(1) and (2) provided:
(1) Use this clause for items 3 to 338, 348 to 389, 410 to 417, 501 to 600, 900, 903, 2497 to 2840, 3003, 3005 to 3028, 5000 to 5267, 6004, 6007 to 6016, 10905 to 10929, 13210, 16399, 16401, 16404, 16406, 16590, 16591 and 17609 to 17690.
(2) A professional attendance includes the provision, for a patient, of any of the following services:
(a) evaluating the patient’s condition or conditions including, if applicable, evaluation using a health screening service mentioned in subsection 19(5) of the Act;
(b) formulating a plan for the management and, if applicable, for the treatment of the patient’s condition or conditions;
(c) giving advice to the patient about the patient’s condition or conditions and, if applicable, about treatment;
(d) if authorised by the patient - giving advice to another person, or other persons, about the patient’s condition or conditions and, if applicable, about treatment;
(e) providing appropriate preventive health care;
(f) recording the clinical details of the service or services provided to the patient.
64 As I have already indicated, Div 2.4, Pt 2 of Schedule 1 sets out a description of items 104 and 105. But those descriptions appear under the heading “Division 2.4 – Group A3: Specialist attendances to which no other item applies”.
65 I should also note the medicare benefits schedule book (MBS book), which Dr Kew drew attention to, which addressed the circumstances in which a radiologist renders both a diagnostic imaging service and a professional attendance on the same patient.
66 In the section headed: “DIJ... Multiple Service Rules” it was provided:
Rule B. When a medical practitioner renders at least one R-type diagnostic imaging service and at least one consultation to a patient on the same day, there is a deduction to the Schedule fee for the diagnostic imaging service with the highest Schedule fee as follows:
if the Schedule fee for the consultation is $40 or more - by $35; or
if the Schedule fee for the consultation is less than $40 but more than $15 - by $15; or
if the Schedule fee for the consultation is less than $15 - by the amount of that fee.
67 Further, section G.14.3 provided as follows:
G.14.3. CONSULTATION AND PROCEDURES RENDERED AT THE ONE ATTENDANCE
Where, during a single attendance, a consultation (under Category 1 of the MBS) and another medical service (under any other Category of the Schedule) occur, benefits are payable subject to certain exceptions, for both the consultation and the other service. Benefits are not payable for the consultation in addition to an item rendered on the same occasion where the item is qualified by words such as “each attendance”, “attendance at which”, “including associated attendances/consultations”, and all items in Group T6 and T9. In the case of radiotherapy treatment (Group T2 of Category 3) benefits are payable for both the radiotherapy and an initial referred consultation.
Where the level of benefit for an attendance depends upon the consultation time (for example, in psychiatry), the time spent in carrying out a procedure which is covered by another item in the MBS, may not be included in the consultation time.
A consultation fee may only be charged if a consultation occurs; that is, it is not expected that [a] consultation fee will be charged on every occasion a procedure is performed.
68 Now according to Dr Kew, the MBS may be understood as having three essential features. First, a radiological service and a consultation may be rendered to the same patient on the same day. Second, a consultation fee may only be charged if a consultation occurs, and it is implicit in this that not every radiological service will involve a consultation. Third, in the event that a consultation fee is charged together with a fee for a radiological service, the fee for the radiological service is reduced where that radiological service is a diagnostic imaging service.
69 Dr Kew says that she gave evidence to the committee that on every occasion she rendered an item 104 or 105 service, together with an item number for a radiological service, she had also consulted with the patient. As a consequence, where applicable, the benefit payable for the radiological service was therefore reduced.
70 But the committee concluded that in every case where Dr Kew had rendered a radiological service together with a consultation, she had failed to meet the requirements of the MBS item and therefore engaged in inappropriate practice.
71 Now Dr Kew says that this conclusion was based on a misconstruction of the MBS or more specifically, a misconstruction of the relevant subordinate instruments in which the MBS is located.
72 Dr Kew says that on the plain words of items 104/105 a practitioner was entitled to render both a consultation and a radiological imaging item number, provided only that both an imaging service and a consultation was provided, and that where appropriate the fee for the radiological service was correspondingly reduced.
73 Now according to Dr Kew, the committee variously concluded that to bill a consultation together with an imaging service, it was essential that there was “both an imaging service and a separate consultation service” [79], a consultation other than one that “the general body of radiologists would expect to be done as part of another MBS item” [88], or a radiological service and a consultation beyond what “would ordinarily form part of the co-billed radiology service” [153].
74 But Dr Kew says that in so construing the relevant item numbers, the committee erred.
75 She says that the MBS did not limit the circumstances in which a consultation item number could be charged in the manner suggested. Instead, she says that the MBS contemplated that such items could and would be rendered together, provided only that both a radiological service and a consultation occurred.
76 Further, insofar as there might arise any overlap between the radiological service and the consultation such that they were not separate, this was expressly dealt with in the MBS by the reduction of the benefit payable. And she says that once it is recognised that any overlap between a consultation and a radiological service was already dealt with, where applicable, by a corresponding reduction in the benefit payable for the radiological service, the introduction of an additional requirement of a separate or additional consultation made no sense. Moreover, it required impermissibly reading words into the text of the regulations.
77 She says that the committee’s construction was, moreover, a construction that failed to identify that the MBS had already dealt by way of a reduction of fees with the circumstance that both a professional attendance and a radiological service were provided at the same consultation, described as “co-billing”.
78 She says that the conclusion of the committee was, in substance, that co-billing under the MBS for an attendance was impermissible where it involved things that the general body of radiologists would expect to be done as part of another MBS item (the relevant condition).
79 Now the Director before me characterised the overall assessment by the committee as one involving a factual assessment of the merits alone. But Dr Kew says that this approach does not deal with the threshold legal question, which is whether it is correct to construe the MBS as permitting co-billing for item numbers only in accordance with the relevant condition.
80 First, she says that of its nature the relevant condition is a legal requirement. It is only the answer to the relevant condition that is a factual conclusion and therefore subject only to merits review.
81 Second, she says that an analysis of the requirements of the MBS for the rendering of a service must precede any analysis of whether the conduct of the practitioner in rendering that service was as a matter of fact contrary to the expectations of the profession.
82 Third, she accepts that in each case, the committee expressed the positive conclusion that Dr Kew had failed to comply with the MBS item. But she says that embedded in that factual conclusion or at least anterior to it, is a legal conclusion as to what is precisely the MBS item requirement.
83 More generally, she says that by misconstruing the requirements of the MBS, the committee has assessed her conduct by reference to the wrong legal standard in concluding that she failed to comply with the requirements of the MBS item descriptors. She says that the committee asked itself the wrong question and therefore constructively failed to exercise its jurisdiction.
84 Before turning to an analysis of these arguments, I should identify Dr Kew’s arguments concerning grounds 2 and 3.
Failure to correctly apply the definition of “inappropriate practice” (grounds 2 and 3).
85 Now the ultimate issue for the committee was whether, for each of the reviewed services, Dr Kew had engaged in inappropriate practice.
86 Again, it is convenient to set out s 82(1)(b) which provides:
(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:
…
(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
…
87 For each of the reviewed services, the committee concluded that Dr Kew had engaged in inappropriate practice by rendering a consultation item number together with an item number for a radiological service.
88 Now in addition to the asserted misconstruction of the requirements of the MBS or the relevant regulations, Dr Kew says that the findings also involved further error.
89 Dr Kew says, and as the committee accepted, that there was “a degree of ambiguity within the profession regarding the co-billing of attendance and diagnostic imaging services” (at [153]), as to the circumstances in which those services might permissibly be rendered together.
90 Further, she says that it was not statistically unusual for a radiologist such as herself to render a professional attendance together with a diagnostic imaging service, as the committee accepted.
91 Now having regard to the requirement in s 82(1)(b), an essential feature of the scheme for professional services review is the assessment of what the general body of practitioners would regard as unacceptable. And a finding of inappropriate practice is not to be lightly made, as is made clear by the definition, which is in terms of what the general body would consider to be unacceptable, which express unqualified conclusions. And in this context, insofar as there would be any ambiguity or reasonable disagreement within the general body, such a threshold would not ordinarily be met.
92 Further, she says that the intended gravity of a finding of inappropriate practice is demonstrated by the history and context of the provision. I should say now that I do not need to be persuaded of such intended gravity which is well apparent.
93 Now in the present case, the committee suggested that “[t]he view of the general body is a singular threshold, which is determined having regard to the usual variances of practice and differences of opinion within the profession” (at [150]).
94 Now insofar as this passage indicates that an assessment of what the general body of specialists would regard as unacceptable must have regard to acceptable variances of practice within the general body, then Dr Kew accepts this to be correct.
95 But insofar as it suggests that, ultimately, there is some singular standard to be found by the committee, Dr Kew says that this is a mistaken approach. Different members of the general body of specialists may legitimately hold different views, neither of which could then be said to be unacceptable to the general body of specialists.
96 Now in the present case, Dr Kew says that the committee accepted that during the review period there was a degree of ambiguity among the general body of radiologists as to when a consultation may be rendered together with a radiological imaging service.
97 But by definition, having found a degree of ambiguity in the standard recognised by the general body of specialists at the relevant time, Dr Kew says that it was not then open for the committee to conclude that that same body of practitioners would nonetheless have regarded Dr Kew’s conduct as unacceptable. The word “unacceptable”, on its ordinary meaning, is something that is so far from a required standard, norm, expectation, etc., as not to be allowed.
98 Dr Kew also says that the committee failed to engage with the relevant statistical evidence and so compounded their error.
99 At this point, I should linger a little on the statistical material that had been put to the committee.
100 Before me, Dr Kew drew attention to some statistical data concerning the billing by radiologists over the period 1 January to 31 December 2015 concerning:
(a) item 18222;
(b) item 18222, and at the same time item 104;
(c) item 18222, and at the same time item 105;
(d) item 104 or item 105, and at the same time item 18222;
(e) item 18216;
(f) item 18216, and at the same time item 104;
(g) item 18216, and at the same time item 105; and
(h) item 104 or item 105, and at the same time item 18216.
101 This data had been received by the committee after its hearing, but with written submissions made by Dr Kew’s solicitor to the committee concerning the significance of this data. It is fair to say that the data on its face showed a significant number of occasions where there had been a billing at the same time of:
(a) item 18222, with item 104 or item 105; and
(b) item 18216, with item 104 or item 105.
102 For example, the data showed that in respect of the service billings for item 18222, X% was tabulated to be “in association with 104” and Y% was tabulated to be “in association with 105”. Dr Kew submitted that the data showed her billing practices in a favourable light concerning items 104 and 105, in the context of also billing for item 18222. Her practice was submitted to be “in line with peer practice”. A similar point was made in the context of also billing for item 18216.
103 Of course, this data as presented was raw data. It was not individually contextualised, and nor was it subject to the usual methods for statistical testing.
104 Now in addressing this issue, the committee said at [175]:
The Committee considers the statistical information to be of limited use in its task as it has not had an opportunity to investigate the systems of work of other radiologists. It does not follow that simply because many other radiologists have a similar billing profile to Dr Kew, or that certain MBS items such as 104 and 105 are regularly billed with procedures such as MBS item 18222, that Dr Kew’s particular practice in billing these services would be deemed acceptable by her peers. The Committee’s review of the Referred Services is not based on statistics but is conducted with the benefit of the records and Dr Kew’s evidence about particular services.
105 But Dr Kew says that such reasoning demonstrates legal error.
106 First, she says that such reasoning inverts the proper question. It was not for Dr Kew to establish that her approach would be deemed acceptable by her peers. A finding of inappropriate practice was only available if the committee was positively satisfied that it would be regarded as unacceptable. She says that once it recognised that the statistics indicated that other practitioners also regularly billed a consultation together with procedural items, and in the absence of any attempt to ascertain whether Dr Kew’s approach was any different from the systems of work of other radiologists, it was not open to be satisfied to the required standard of inappropriate practice. It is said that this fact was obscured by the committee, who instead cast the burden of proving acceptability onto Dr Kew.
107 Second, she says that such reasoning manifests a failure to have regard to a relevant consideration. Those statistics were contrary to the proposition that Dr Kew’s rendering of attendance items together with radiological procedures was different from that of her peers and for that reason unacceptable. Yet the committee dismissed the statistics on the basis that “it has not had an opportunity to investigate the work of other radiologists” (at [175]). Dr Kew says that the committee had broad powers to investigate, including to seek documents and to inform itself of any matter in any way it thought appropriate. It did not do so. She says that the committee ought to have but failed to have regard to the statistical information it had.
108 Third, she says that such reasoning revealed a methodology and conclusions that were irrational or legally unreasonable. But I note that in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said (at [131] and [135]):
…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
109 Now the committee purported to deal with the statistics by suggesting that its approach was “not based on statistics” but “is conducted with the benefit of the records and Dr Kew’s evidence about particular services” [175]. But Dr Kew says that this is a non-sequitur. The same error is also made at [156].
110 Dr Kew says that her conduct is to be established by reference to the records and her evidence. But the standard against which that conduct is to be assessed is necessarily external to clinical records and her testimony. So, to understand what the general body of specialists would have regarded as unacceptable or not, it was necessary to look beyond the instant case and to ask that question by reference to broader evidence, which necessarily included the relevant statistical data, particularly where there was ambiguity within the profession at the relevant time as to the co-billing of an attendance together with a radiology service.
111 Now the committee, as Dr Kew described it, dismissed the relevance of the statistical material on the basis that an assessment of inappropriate practice depended entirely on the facts of each case. But by this approach, Dr Kew says that the committee put to one side factual material that was critical to her case.
112 Further, although tasked with evaluating the expectations of the general body, Dr Kew says that the committee had no information about the other cases as embodied in the statistics. What then, Dr Kew asks, was the basis for the comparison between the facts of each case, when the committee had and sought no information about the approach of the general body as reflected in the statistics?
113 In summary, Dr Kew says that the failure to have any regard to this was a failure to have regard to a material consideration and also resulted in reasoning that was legally irrational.
Analysis
114 Let me begin with grounds 1 and 4 which assert a misconstruction of items 104 and 105 and, generally, the subordinate legislation within which they appear. Further, in this context reference to the MBS book has been made.
115 Now the committee’s conclusions of inappropriate practice in respect of co-billing item 104 or 105 together with diagnostic imaging items are the product of the committee’s factual findings.
116 And they were reached after a detailed review of the documents about the sample services and the relevant evidence, and the application of s 82(1)(b) to those findings. These factual findings are set out in copious detail, particularly in the voluminous appendices.
117 Importantly, the committee observed in the report that the legislative scheme did not preclude billing for item 104 or 105 in conjunction with a specific radiological service. Indeed, it said that where a consultation was a clinically relevant service, there was a valid referral and sufficient clinical input was provided into the service and this was recorded, it is appropriate and permissible for diagnostic imaging and consultation services to be concurrently billed.
118 So the committee said (at [140]):
The Committee accepts that the MBS Schedule does allow for the billing of consultation services (such as MBS items 104 and 105) in conjunction with a diagnostic imaging service and notes where services are provided concurrently the Medicare rebate is reduced under the Multiple Services Rule. The Committee has never indicated that it considered such billing was precluded. Of course, where a consultation was a clinically relevant service, there was a valid referral, sufficient clinical input was provided into the service and this was recorded, it is appropriate and permissible for diagnostic imaging and consultation services to be concurrently billed. What the Committee has found in examining the services provided by Dr Kew is that the circumstances in which such co-billing would be acceptable to Dr Kew’s peers were not met (for the reasons set out in the appendices).
119 So, on the facts applicable to Dr Kew, the committee found, for the reasons set out in the appendices, that “the circumstances in which such co-billing would be acceptable to Dr Kew’s peers were not met” (at [140]).
120 The assertion that the committee’s findings of inappropriate practice for co-billing were based on a misconstruction of the MBS cannot be maintained on the face of the reasons given by the committee in the report.
121 Further, as the committee observed, items 104 and 105 are in a group headed “Specialist attendances to which no other item applies”. It observed (at [88]):
One of the aspects of MBS item 104, which is an overriding element, is that it is an item for ‘Specialist attendances to which no other item applies’. This means that if the things that were being done in the course of an attendance were, in fact, what the general body of radiologists would expect to be done as part of another MBS item, then those matters cannot be billed as an MBS item 104 service. Instead, they are part of the other MBS service that is being billed. For example, if the general body of radiologists expects that, in the course of rendering a particular radiological procedural service, the radiologist would examine the patient, discuss treatment options, obtain consent, perform the procedure itself, and provide advice regarding the after-effects of the procedure, then all of those matters would be part of what is expected to be done in rendering the procedural item, and cannot be billed as a separate attendance item.
122 A similar point could be made concerning item 105.
123 That approach is consistent with the definition of “clinically relevant service”, which turns on whether the treatment rendered “is generally accepted in the [medical profession] as being necessary”, and that the treatment rendered that is an “essential element of” or “part of” a service performed and billed is not billable as a separate service.
124 Generally, as the committee recognised, it follows that the legislative scheme permits but does not require co-billing. So, whether co-billing was permitted in a particular case turned on a question of fact. And relevantly to the present context, the committee found against Dr Kew on the facts.
125 In my view, when the report is carefully read and the committee’s comments contextualised, no anterior legal construction error of the type asserted by Dr Kew has been made out. As a matter of construction, the committee accepted that in certain circumstances co-billing was permitted and could be justified. But in assessing Dr Kew’s conduct it was not justified.
126 Further, it is important to be clear here about what the committee was construing and what it was required to construe. I say that because Dr Kew made reference to parts of the MBS book which was not part of or incorporated in the relevant subordinate instruments. But in any event, given the manner in which the committee proceeded, section G.14.3 hardly made Dr Kew’s case.
127 In my view, no construction error was made. Rather, Dr Kew’s real challenge concerns the facts and impermissibly seeks to indirectly engage in merits review under the guise of erecting a legal issue.
128 I reject grounds 1 and 4. Let me then turn to grounds 2 and 3 which challenge the committee’s approach to answering or applying the s 82(1)(b) question. I should say that in what follows I have applied the passages in SZMDS that I have set out earlier. Further, I should note that Dr Kew in her submissions did not seek to draw any bright line distinction between irrationality and unreasonableness.
129 Now following provision of the committee’s draft report, Dr Kew submitted to the committee that it had erred in how it applied the statutory test concerning the opinion stipulated in s 82(1)(b). But in my view the committee adequately addressed this question.
130 The committee said in its final report (at [149] and [150]):
In assessing whether [the applicant] engaged in inappropriate practice the Committee has fully informed itself of the statutory test it is to apply and has bought this test to bear, and no other, when performing its functions. It has had regard to the totality of [the applicant’s] conduct in connection with the reviewed services including her individual circumstances, the nature of her practice and her experience. The Committee accepts that a finding of inappropriate practice is serious and that a high bar must be met. It understands it is required to reach a positive conclusion regarding the unacceptability of [the applicant’s] conduct. The Committee has not made findings of inappropriate practice lightly or on the basis of conduct that is merely different to that of the Committee or which the Committee considers merely criticisable. The Committee has proceeded to make findings of inappropriate practice only in circumstances where it considers [the applicant’s] conduct would be unacceptable to her peers.
A consistent theme in the submissions was that as [the applicant’s] conduct was reasonable/within the ambit of reasonable disagreement/such that reasonable minds may differ, the Committee is bound not to make a finding of inappropriate practice. The Committee considers these submissions somewhat miscast its role and function. The test to be applied is not whether one member, or a part of, the general body of radiologists would consider [the applicant’s] conduct acceptable and if so, this would preclude the Committee from making findings of inappropriate practice. Rather, the Committee is to apply the test of what the general body would consider unacceptable, having regard to [the applicant’s] circumstances. The view of the general body is a singular threshold, which is determined having regard to the usual variances of practice and differences of opinion within the profession.
131 I will discuss aspects of [150] later.
132 Now Dr Kew contends that the committee, which accepted that “during the review period there was a degree of ambiguity within the profession regarding the co-billing of attendance and diagnostic imaging services” (at [153]), was bound to conclude that the test in s 82(1)(b) had not been met. But I disagree that the committee was so bound. Clearly these matters had to be considered and addressed. But that is what the committee did.
133 The committee said in its report (at [153], [156], [157], [163], [168] and [169]):
With respect to the second and third consequences, the Committee has had regard to the evidence from Dr Kew and that of other practitioners set out in the submissions. It accepts that during the review period there was a degree of ambiguity within the profession regarding the co-billing of attendance and diagnostic imaging services. When assessing Dr Kew’s conduct in relation to the consultation services she provided the Committee has not set an overly high bar, but has given weight to the range and differences in practice of radiologists in place during the review period. What the Committee has looked for is whether there is adequate evidence that Dr Kew provided a meaningful consultation. However, in the reviewed services there was repeatedly no adequate evidence in the clinical record in support of a meaningful consultation having taken place. Rather the records reflected the provision of only minimal clinical input that would ordinarily form part of the co-billed radiology service.
…
In the Committee’s view, the fact co-billing of consultation and diagnostic imaging services is not prohibited and not statistically unusual, does not provide probative evidence that the actual co-billing undertaken by Dr Kew would be acceptable to her peers. Whether such co-billing is appropriate will depend on the individual circumstances of each case, which the Committee has had the benefit of reviewing and considering prior to making any findings of inappropriate practice.
The Committee has had regard to Dr Kew’s description of her practice and the clinical input she has described providing into each attendance. As set out in this Report the Committee considers that the assessment made, advice provided, history taken and examination performed as described by Dr Kew are all at the level expected as part of rendering the co-billed diagnostic procedure. The level of clinical input provided distinct from the diagnostic procedures was insufficient to justify the billing of a separate consultation service.
…
The Committee notes the Checklist was not available to practitioners during the Review Period, but was distributed to radiologists later to assist in uncertainty within the profession regarding when consultant and imaging services were able to be co-billed. It accepts the Checklist describes that only a relatively a low level of clinical input is required to justify billing an attendance item in association with an imaging service. This has contributed to the Committee’s consideration of Dr Kew’s services and is one of the reasons the Committee has not set an overly high bar or insisted of specific technical compliance with legislative or MBS requirements. Rather, the Committee has only sought to see demonstrated evidence in the clinical record of a meaningful consultation in the services under review. Even applying this low threshold in assessing Dr Kew’s services the Committee considers that her conduct in the provision of her consultation services would not be considered acceptable by the general body of radiologists.
…
The submissions contend that if Dr Kew thought fit to conduct and claim for a professional attendance consultation, it was in circumstances where she was required to ascertain whether the proposed, or any, procedure was clinically indicated. The submissions go on to say there is no cogent evidence from which the Committee can now gainsay Dr Kew’s professional opinion at the time of the services. This contention would seemingly preclude a Committee from being able to form the view that any of the services billed by Dr Kew was not clinically indicated. The Committee accepts Dr Kew may have considered all of her services were clinically indicated, but it does not accept that her view would be acceptable to the general body of radiologists. The Committee has had the benefit examining the records for each service provided as well as hearing Dr Kew’s oral evidence. It is based on these materials the Committee has, using its professional expertise, concluded that some (not all) of Dr Kew’s consultation services were not clinically indicated.
In reaching the conclusions set out in the Report the Committee has not misunderstood the role Dr Kew was performing as a clinical radiologist or suggested that Dr Kew should have blindly followed the referral of a referring practitioner rather than applying her own clinical judgement. The Committee entirely accepts that in some cases it is appropriate for a radiologist to consult with a patient prior to a procedure and in some cases this may lead to a change in investigation or treatment or no investigation or treatment being provided. If there was evidence of an indicated and meaningful consultation with a patient leading to a change in investigation or treatment, this would have been considered, however such evidence was not observed by the Committee.
134 Clearly, the committee accepted that, as permitted by the legislative scheme, conduct might justify billing item 104 or 105 in addition to the co-billed radiological item. But it found on the facts that Dr Kew was not within that permissible zone.
135 In my view, the committee was entitled to so find. Dr Kew’s challenge amounts to little more than merits review.
136 Now as to the statistical material, Dr Kew’s submissions to the committee were to the effect that a majority of radiologists billed items 104 or 105 in association with a diagnostic imaging item and item 18222 was rendered in association with item 104 or 105 in almost A% of cases and item 18216 was rendered in association with item 104 or 105, B% of the time. Therefore, so it was said, the committee could not be satisfied that Dr Kew’s peers would consider the conduct unacceptable.
137 But whether co-billing was justified or not depended on the facts of each case.
138 In my view, the committee appropriately disposed of Dr Kew’s argument without error (at [156] and [175]). I have already set out [156]. Let me set out [175]:
Both the Submissions and the submissions on the Draft Report relied on data provided to Dr Kew by the Committee (via the Department of Health) which reflected how many radiologists in Australia co-billed certain diagnostic procedure and consultation items during the Review Period. The Committee considers the statistical information to be of limited use in its task as it has not had an opportunity to investigate the systems of work of other radiologists. It does not follow that simply because many other radiologists have a similar billing profile to Dr Kew, or that certain MBS items such as 104 and 105 are regularly billed with procedures such as MBS item 18222, that Dr Kew’s particular practice in billing these services would be deemed acceptable by her peers. The Committee’s review of the Referred Services is not based on statistics but is conducted with the benefit of the records and Dr Kew’s evidence about particular services.
139 In my view the committee was entitled so to proceed.
140 First, its approach was, if I might say so, transparently rational. Statistics are one thing, and they were considered by the committee. But they could not or at least did not trump the committee’s more detailed consideration. I also note here that the label “statistics” may over-state what was really being provided, which was in essence summarised aggregate data.
141 Second, of course the committee was not bound to take the statistics into consideration. But it did consider them as part of the matrix of material before them.
142 Third, I reject the suggestion that the committee was obliged to go away and investigate the particular circumstances behind the underlying data.
143 Fourth, I have little difficulty with the committee’s analysis in [150] addressed in context to the expression “the general body of specialists”. Perhaps the reference to “singular threshold” is a little infelicitous. No matter. All that the committee was saying was that the hypothetical views of “one member, or a part of, the general body of radiologists” was not the relevant lens, although of course they could be taken into account. And as they say. “the usual variances of practice and differences of opinion” are relevant.
144 Fifth, if one appreciates the point that I have just made, then the committee’s observations at [153] are both consistent and unremarkable. Moreover, the latter part of [153] is grounded in the factual reality of the precise circumstances before them concerning Dr Kew’s conduct and what the records reflected or otherwise.
145 Sixth, notwithstanding how the committee expressed itself at [175], Dr Kew was not required to establish the positive proposition that what she had done was acceptable to her peers. She did not carry the onus. Moreover, s 82(1)(b) required the committee to consider whether her conduct would be unacceptable. But on a review of the reasons as a whole, I am satisfied that the committee did not reverse any onus.
146 Seventh, there was no positive other evidence of peer practice before the committee apart from the statistics. But then there did not need to be given the direct evidence of Dr Kew’s conduct, the legal requirements and the fact that the members of the committee had relevant specialist expertise.
147 Eighth, for all one knows in terms of the statistics, where other specialists were charging both fees they may have been doing so where there was meaningful consultation. But in Dr Kew’s specific case the committee concluded otherwise.
148 In summary, none of grounds 1 to 4 have been made out.
Adequate and Contemporaneous Records (grounds 5 and 6).
149 Grounds of review 5 and 6 are expressed in the following terms:
5. In construing item 5(b) of the Health Insurance (Professional Services Review) Regulations 1999, the PSRC erred by construing that provision as if it required a “separate entry” for each service rendered by the practitioner, rather than each attendance by the patient.
As a consequence it:
(a) asked itself the wrong question; and/or
(b) had regard to an irrelevant consideration.
6. In finding that the patient history recorded in a “Checklist” document “appears ... to be a form completed and history taken by the radiographer” in respect of reviewed services numbered, 9, 12, 20 and 28 of Appendix 1 of the Decision, the PSRC erred because:
(a) there was no evidence to support this finding; and
(b) the finding was legally unreasonable.
150 Now as I have already indicated, the definition of “inappropriate practice” requires the committee to assess whether the practitioner has made an adequate and contemporaneous record (s 82(3)). And as I have indicated, the requirements for an adequate and contemporaneous record were set out in reg 5 of the Health Insurance (Professional Services Review) Regulations 1999. It relevantly provided in reg 5(b) that to be adequate, the patient or clinical record needs to “contain a separate entry for each attendance by the patient for a service and the date on which the service was rendered or initiated”. Reg 5(c) provided that each entry needs to “provide clinical information adequate to explain the type of service rendered or initiated”.
151 Now with respect to a number of services under review, the committee concluded that Dr Kew had failed to maintain an adequate and contemporaneous record.
152 Now Dr Kew says that in doing so, it construed such regulations as if they required an “identifiably separate record of an attendance in the patient’s record”. So, for example, in relation to the conclusions for patient 1 in appendix 1, the committee stated:
Clinical Record
Paragraph 5(b) of the Health Insurance (Professional Services Review) Regulations 1999, which defines an “adequate record” for the purpose of the definition of “adequate and contemporaneous records” in section 81 and subsection 82(3) of the Act requires that “the record contain a separate entry for each attendance by the patient for a service” and paragraph 5(c) of those regulations requires that “each entry provide clinical information adequate to explain the type of service rendered or initiated”.
There is no identifiably separate record of an attendance in the patient’s record from that relating to the diagnostic imaging and the procedure that was performed. The entry for the diagnostic imaging and the procedure that was performed does not state that a separate attendance was rendered nor does it contain any information other than that which the general body of radiologists would expect to see within a standard report of the diagnostic imaging and the procedure that was performed. Accordingly, neither paragraphs 5(b) nor 5(c) of the Regulations have been satisfied in relation to an attendance service.
There is no record of a meaningful consultation having occurred. While Dr Kew said that she would have taken a history and examined the patient as part of a separate attendance, it has not been recorded as such. Thus no adequate and contemporaneous record of an MBS item 104 service has been kept by Dr Kew.
153 Dr Kew says that in so concluding, the committee erred. It misconstrued reg 5(b) by requiring a separate entry for each “attendance”. And insofar as it referred to reg 5(c), it made the error of requiring a separate consultation from a radiological service.
154 Further, Dr Kew says that with respect to the relevant documentation, there were four patients where the committee concluded that the patient history had been recorded by the radiographer, rather than Dr Kew. But she says that in each case she gave unchallenged evidence that she took the history not the radiographer. Accordingly, Dr Kew says that the conclusion of the committee to the contrary was not open on the evidence.
155 But I would reject these grounds. Let me deal with ground 5 first and make some general points concerning the question of record keeping.
156 First, the function of the regulations is to prescribe standards. But their content and application very much require an evaluative exercise that the committee was best placed to undertake with its expertise.
157 Second, s 82(3) focuses on the question of records concerning the rendering or initiation of the services. So, it is focusing on services rather than attendances per se. And this is a point that has been glossed over by Dr Kew. There must be a record of the service. In terms of the attendance, it is the attendance to provide the service. So, if there is an inadequate or no record of the service, then there is an absence of evidence for a meaningful attendance or consultation. Further, regs 5(b) and (c) in terms make it plain that the focus of record keeping concerns services.
158 Generally, s 82(3) requires the committee, when determining whether a practitioner has engaged in inappropriate practice in respect of the services in the Director’s referral, to examine and take into account “whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services”. The keeping of adequate and contemporaneous records is a relevant consideration in the committee’s determination concerning inappropriate practice. Clearly, the committee took that consideration into account. And as to the kinds of findings that it made, they were at the level of fact and professional opinion that the committee was entitled to make (see, in a generally analogous case, Sevdalis at [105] per Mortimer J).
159 Now in identifying its concerns about items 104 and 105, the committee, in assessing the facts, stated (at [79]):
The Committee’s overarching concern with the reviewed MBS item 104 and 105 services was the lack of evidence in the records of a meaningful consultation having occurred. The history, examinations and advice provided at these services as described by [the applicant] during the hearing were persistently absent from the reviewed records. The report of the diagnostic imaging service provided on the date of the billing of the consultation service was entirely consistent with the reporting of an imaging service, but not consistent with the reporting of both an imaging service and a separate consultation service.
160 In explaining the factual basis for its conclusion of inappropriate conduct in respect of those items, the committee stated (at [141]):
The Submissions contain information regarding how [the applicant] performed her consultation services. The Committee has considered this evidence alongside the medical records available to it and finds it hard to reconcile [the applicant’s] description of her services with the lack of records supporting the process she has described including taking patient histories, formulating a management plan, providing advice on appropriate treatment and obtaining patient consent…
161 Now Dr Kew refers to particular verbal formulations in the appendices as demonstrating a failure to properly apply reg 5. But the committee’s reasons must be read as a whole. And when one does so, they do not demonstrate any error.
162 Now at [188], the committee explained:
In the absence of any record of a consultation service, or even of part of the imaging report explaining that a consultation service was provided, the Committee considers that if a consultation service did occur, the record does not contain adequate information to explain the service and Dr Kew did not keep an adequate record…
163 In my view that conclusion has not been successfully impugned.
164 Let me turn to ground 6 which asserts that the committee’s findings in respect of services numbered 9, 12, 20 and 28 of appendix 1 to the report include findings for which there was no evidence or which were otherwise unreasonable.
165 When the committee’s relevant findings are properly considered, it is apparent that this ground must fail.
166 Take for example service 9 which was highlighted by Ms Sashi Maharaj QC for the Director, what is relied on by Dr Kew is not the dispositive factual finding but an additional observation. By way of example, the complete relevant paragraph in respect of service 9 (appendix 1) states:
The Committee notes that there is some history recorded on the ‘Checklist’ document, noted above. While it is recorded separately from the report of the diagnostic imaging, it was taken for the purpose of, and was necessary for, the diagnostic imaging service and, as such it would not justify billing a separate attendance service. Additionally, it is not at all clear this was a record of a consultation with Dr Kew. It appears to the Committee to be a form completed and history taken by the radiographer.
167 The important finding is in the statement “it was taken for the purpose of, and was necessary for, the diagnostic imaging service and, as such it would not justify billing a separate attendance service”.
168 The last two sentences are referable to an added observation, not connected to the dispositive finding. The final sentence, which is the subject of ground 6, provides the basis for the added observation, and is also unrelated to the dispositive finding in the second sentence.
169 Similar points can be made concerning services 12, 20 and 28.
170 In any event, I am not persuaded that there was not a rational foundation for the committee to make the finding that the histories were taken by the radiographer in those four cases. In evidence before the committee it appears from the difference in handwriting on each of the four checklists that services 9, 12 and 28 were each completed by different people, whereas it would seem that service 20 was completed by the same person as service 9. That is consistent with the initials of the Radiographer in each case — with services 9 and 20 having radiographer “MM”, and the others someone else. In any event, the differing handwriting is not consistent with Dr Kew having completed the checklists. Further, the checklist said “MRI operator to complete checklist”. Two of the boxes to tick were “[t]he patient (or relative) has completed the MRI Safety Questionnaire” and “I am satisfied that the patient (or relative) has adequately completed and understood the MRI Safety Questionnaire”. The MRI Questionnaire had a line “Checked by_________(MRI Staff)”. In service 9, this was initialled “MM”, the same as the MR Radiographer. In service 20, on the Correct Patient & Procedure Matching Checklist, the only procedure was MRI, and Radiographer was circled, with initials “MM”. It is not necessary to delve further.
171 In summary, I would reject these grounds.
Epidural Injection/Infusion (grounds 7 and 8)
172 Grounds 7 and 8 are expressed in the following terms:
7. The PSRC erred in its construction of items 18216 and 18222, by construing those provisions so as to exclude the procedures conducted by Dr Kew, on the basis that they were an injection not an infusion. It therefore erred in law.
8. In finding that the Applicant had engaged in inappropriate practice in connection with the rendering of items 18216 and 18222, the PSRC failed to consider that the services could have been rendered by her under item 18232, for which a higher benefit is payable. The PSRC thereby failed to have regard to a relevant consideration and/or made a decision that was legally unreasonable.
173 These grounds concern services rendered by Dr Kew under items 18216 and 18222. The committee’s conclusions concerning those services were set out in appendices 3 and 4.
174 As to the relevant item numbers, item 18216 stated “Intrathecal or epidural infusion of a therapeutic substance, initial injection or commencement of, including up to 1 hour of continuous attendance by the medical practitioner (Anaes.)”, and item 18222 stated “Infusion of a therapeutic substance to maintain regional anaesthesia or analgesia, subsequent injection or revision of, if the period of continuous medical practitioner attendance is 15 minutes or less”.
175 Now in assessing the services rendered by Dr Kew under items 18216 and 18222, the committee found that she did not satisfy the MBS item descriptor for those items. The basis for this finding was its construction of “infusion”, which it found did not cover the procedures performed by Dr Kew, which it characterised as being an “injection”.
176 Now Dr Kew pointed out that if item numbers 18216 or 18222 did not apply, then she would have been able to bill those same services under item 18232 which provided:
Intrathecal or epidural injection of substance other than anaesthetic, contrast or neurolytic solutions, other than a service to which another item in this Group applies (Anaes.).
177 Accordingly, she says that the use of items 18216 and 18222 resulted in a significantly reduced fee payable to her by Medicare.
178 Dr Kew says that the committee ought to have considered whether the rendering of the service could have been supported under a different item number, because to do so would involve no failure to comply with the MBS.
179 She also says that there was evidence that Medicare had accepted this proposition by, subsequent to the review period, permitting Dr Kew to render the equivalent services under item 18232.
180 Generally, Dr Kew says that the committee did not bring this into account in its reasons.
181 She also says that the committee did not confront the essential question: why would the general body of specialists regard it as unacceptable for a radiologist to render the service under a particular item number that resulted in a significant reduction in the amount payable to her? And she says that the significance of this is twofold.
182 First, it indicates that the committee erred in its construction of the word “infusion” as excluding an “injection”. She posed the question: why would that strict construction be preferred, when it would only work to increase the fees for the service rendered, by requiring it to be billed under a more expensive item number? On this aspect, I am unconvinced of Dr Kew’s assertion of error as I will discuss in a moment.
183 Second, she says that there was a failure to address a submission centrally relevant to the decision being made, giving rise to a failure to have regard to relevant material. Now the committee addressed this issue by stating that “the Committee is not tasked with considering potential alternative appropriate MBS item numbers”. But in doing so, Dr Kew says that it too narrowly conceived of its statutory task. She says that such an analysis was capable of being accommodated within the broader task of evaluating whether the practitioner had engaged in inappropriate practice. Accordingly, she says that the committee erroneously refused to have regard to a relevant matter, and so reached the untenable conclusion that Dr Kew had engaged in inappropriate practice by charging less for the rendered services than she was entitled to.
184 But I would reject these grounds of review, notwithstanding their superficial allure.
185 In my view the committee properly concluded that item 18216 was applicable only if:
(a) the therapeutic substance was infused into the intrathecal space or epidural space;
(b) it was the initial injection or commencement of that infusion; and
(c) the practitioner attended for a period of up to an hour whilst the therapeutic substance was infused.
186 Similarly, item 18222 was for an “infusion”.
187 The committee explained its conclusion on those items as follows (at [191]):
…The Committee has applied the ordinary meaning of the word infusion when considering the meaning of the MBS item descriptors. The Committee considers the MBS describes a clearly identifiable clinical procedure in relation to both MBS items 18216 and 18222. The procedures performed by Dr Kew were not an infusion, but an injection…
188 That is an unremarkable example of the reasoning of an expert committee applying technical standards to factual findings within their field of expertise.
189 Further, there was no failure to take into account a relevant consideration or legal unreasonableness.
190 The committee accepted that Dr Kew incorrectly understood that she was able to bill those items for injections, rather than only infusions. Nevertheless, the committee “consider[ed] this practice to be so removed from that of the general body of radiologists, that it would be considered unacceptable by Dr Kew’s peers” (at [146]).
191 Further, as to Dr Kew’s misunderstanding having the consequence that she was billing less for those services than she might otherwise have done, the committee observed that “the [c]ommittee is not tasked with considering potential alternate appropriate MBS item numbers and has not assessed each service to determine if another item number was appropriate” (at [146]). I should note here that contrary to Dr Kew’s submission, the committee did not accept that she could have alternatively billed in all or most cases.
192 In my view, the committee was entitled to make the findings it made, both at the level of fact and professional opinion, on the evidence before it in coming to the conclusion that Dr Kew had engaged in inappropriate practice within the meaning of s 82(1)(b).
193 Of course, in relation to this particular matter, at most it may only justify counselling or a reprimand (s 106U(1)(a) or (b)) rather than repayment of the relevant fees.
194 Grounds 7 and 8 are rejected.
Conclusion
195 None of Dr Kew’s grounds of review have been made out. Accordingly, her application will be dismissed with costs.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. |
Associate:
