Federal Court of Australia
Raiz v Director of Professional Services Review (No 2) [2023] FCA 1293
ORDERS
Applicant | ||
AND: | DIRECTOR OF PROFESSIONAL SERVICES REVIEW UNDER SECTION 83 HEALTH INSURANCE ACT 1973 (CTH) First Respondent MEMBERS OF THE PROFESSIONAL SERVICES COMMITEE NO. 1095 Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The further amended originating application be dismissed.
2. The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SARAH C DERRINGTON J:
INTRODUCTION
1 Dr Danny-Glen Raiz (Dr Raiz), a specialist anaesthetist, is aggrieved by two decisions. The first, he contends, was made by the Director of Professional Services Review on 2 March 2018, in breach of s 89C(2) of the Health Insurance Act 1973 (Cth) (HIA), to set up Professional Services Review Committee No. 1095, and make a referral to it of his case (the Referral). The Referral was made on the basis of the Director’s conclusion that Dr Raiz may have engaged in inappropriate practice, as defined by the HIA, in three respects: not satisfying the relevant medical benefit scheme (MBS) requirements; not providing an appropriate level of clinical input into the services; and keeping records that were deficient in essential clinical information. The second is the subsequent decision of the Committee to issue a Draft Report of its inquiry into the referral of Dr Raiz’s case on 30 September 2021, in accordance with s 106KD of the HIA, in which it made the preliminary finding that Dr Raiz had engaged in inappropriate practice in connection with providing the referred services.
2 The two decisions under challenge were triggered by a request made to the Director on 3 March 2017 by Mr Kris Kandasamy, delegate of the Chief Executive Medicare (CEM), to undertake a review of Dr Raiz’s provision of services as an anaesthetist for the period of 1 August 2015 to 31 July 2016 (Review Request). That request was made pursuant to Pt VAA of the HIA, which establishes a Professional Services Review Scheme. The Review Request was consequent upon concerns having been raised with Dr Raiz, at least by 19 January 2016, about his Medicare servicing. The delay in reaching this point in the proceeding is inexplicable, particularly as Dr Raiz has been represented throughout by solicitors and counsel.
3 The Review Scheme provides a tiered approach to evaluate a person’s conduct to determine whether the person has engaged in “inappropriate conduct”, as defined by s 82 of the HIA. In National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 386; 276 FCR 338 (NHDS), Griffiths J provided a comprehensive analysis of the Review Scheme at [9] to [65]. His Honour’s analysis, adopted in Yoong v The Chief Executive of Medicare [2021] FCA 701 and Karmakar v Minister for Health (No 2) [2021] FCA 916 at [11], divides the Review Scheme into the following four tiers, as summarised at [42] in Yoong:
(a) Tier 1—a request by the Chief Executive to the Director to review the provision of services: Div 3, ss 86–87;
(b) Tier 2—a decision by the Director as to whether or not to undertake the review, the undertaking of any review, and then a decision as to whether to take no further action, enter into an agreement, or make a referral to a Committee: Div 3A, ss 88–94;
(c) Tier 3—a referral by the Director to a Committee to investigate whether the person engaged in inappropriate practice, and investigation by the Committee: Divs 3A and 4, ss 93 and 95–106N;
(d) Tier 4—the imposition of sanctions by the Determining Authority if the Committee makes a finding that the person engaged in inappropriate practice: Divs 5 and 5A, ss 106Q–106XB.
4 The claims against the Director fall within the scope of activities encompassed by Tier 2 of the Review Scheme. As against the Director, Dr Raiz claims that she should have recused herself from dealing with his case on the ground of apprehended bias. In any event, he says that the instrument dated 9 March 2018, by which the Director established the Committee and made the Referral, post-dated the “actual decision” made by the Director on 2 March 2018 to take those steps. Dr Raiz contends that, at that point in time, she could not have given the consideration to his Submissions dated 21 February 2018, as required by s 89C(2) of the HIA because she was not provided with a hard copy of the Submissions until 2 March 2018.
5 The claims in relation to the Committee fall within the scope of Tier 3 of the Review Scheme. As against the Committee, Dr Raiz contends that its decision to issue the Draft Report is vitiated by the absence of the Chairperson from three of the six Committee meetings, thereby rendering the constitution of the Committee unlawful under s 96A of the HIA. Dr Raiz claims further that the Committee denied him procedural fairness, took into account irrelevant considerations and failed to take into account relevant considerations, and that various findings of the Committee are unreasonable at law.
6 Through his solicitors, Dr Raiz made submissions in response to the Draft Report on 30 September 2022. By order of Wheelahan J made on 10 March 2022, the Committee was restrained from taking any further action in respect of the Draft Report until the hearing and determination of the proceeding.
7 By a further amended originating application filed on 15 August 2022, Dr Raiz seeks judicial review of both decisions pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) or, in the alternative, s 21 of the Federal Court of Australia Act 1976 (Cth). Dr Raiz seeks the following orders:
(1) A declaration that the Referral is void and of no effect.
(2) A writ of certiorari quashing or setting aside the Referral.
(3) A declaration that the Draft Report is void and of no effect.
(4) A writ of prohibition or, alternatively, an injunction restraining the Committee from proceeding further with an inquiry pursuant to the Referral.
8 The Committee has filed a submitting notice.
9 Eleven grounds of review were pleaded. Dr Raiz pressed 9 of those grounds. Grounds 1 and 2 concern the Director. The remaining Grounds are concerned with the decision of the Committee.
Ground 1: The Referral by the Director was made in breach of s 89C of the HIA.
Ground 2: The Director demonstrated a reasonable apprehension of bias against Dr Raiz.
Ground 4: The Committee was unlawfully constituted.
Ground 5: The proceeding of the Committee was unlawful.
Ground 6: Dr Raiz was denied procedural fairness in respect of five specified matters.
Ground 7: The Committee took into account actions of Dr Raiz that were beyond the scope of its inquiry into “inappropriate practice”.
Ground 9: The Committee took into account irrelevant considerations that prejudiced the findings in the Draft Report.
Ground 10: The Committee failed to take into account relevant considerations in arriving at its findings in the Draft Report.
Ground 11: Various Committee’s findings in the Draft Report are unreasonable at law.
10 Dr Raiz relied upon two affidavits filed on 16 May 2023 (First Raiz Affidavit) and 11 August 2023 (Second Raiz Affidavit) respectively.
11 For the reasons which follow, Dr Raiz’s application for judicial review must be dismissed.
THE CIRCUMSTANCES FOLLOWING THE REVIEW REQUEST
The Review Scheme
12 The object of Pt VAA, under s 79A of the HIA, is to protect the integrity of the Commonwealth Medicare benefits, dental benefits and pharmaceutical benefits program and, in doing so, protect patients and the general community from the associated risks of inappropriate practice, and to protect the Commonwealth from having to meet the services costs provided as a result of inappropriate practice.
13 The main features of the Review Scheme are described in s 80:
80 Main features of the Professional Services Review Scheme
(1) This section summarises the main features of the Professional Services Review Scheme established by this Part.
(2) The Professional Services Review Scheme is a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice.
(3) The Chief Executive Medicare can request the Director to review the provision of services by a person and the Director must decide whether to undertake a review.
(4) Following a review, the Director must:
(a) decide to take no further action in relation to the review; or
(b) enter into an agreement with the person under review; or
(c) make a referral to a Committee.
(5) If the Director enters into an agreement with the person under review, the agreement must be ratified by the Determining Authority before it takes effect. Having an agreement ratified avoids a Committee investigation.
(6) A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review.
(7) Committee members must belong to professions or specialities relevant to the investigation.
(8) Committees can hold hearings and require the person under review to attend and give evidence. Committees also have the power to require the production of documents (including clinical records).
(9) Committees can base findings on investigations of samples of services.
(10) If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take.
(11) Provision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given.
(12) A Committee cannot make a finding of inappropriate practice unless it has given the person under review:
(a) notice of its intention to do so; and
(b) the reasons for the finding; and
(c) an opportunity to respond.
(Emphasis added.)
14 Section 81 provides definitions for terms used throughout the Review Scheme. Of particular relevance to this matter, s 81 defines the following:
Committee means a Professional Services Review Committee set up under section 93.
referral means a referral to a Committee under section 93.
referred services, in relation to a Committee investigation, means the services specified in the referral made to the Committee under section 93.
service means:
(a) a service that has been rendered if, at the time it was rendered, medicare benefit or dental benefit was payable in respect of the service; or
(ab) a service that has been initiated (whether or not it has been or will be rendered) if, at the time it was initiated, medicare benefit would have been payable in respect of the service had it been rendered at that time; or
(b) a service rendered by way of a prescribing or supply of a pharmaceutical benefit by a medical practitioner, a dental practitioner, an optometrist, a midwife or a nurse practitioner; or
(c) a service that:
(i) has been rendered in connection with the provision of treatment under a relevant DVA law; and
(ii) is of a kind that, if the service had not been rendered in connection with the provision of treatment under the relevant DVA law, medicare benefit or dental benefit would have been payable in respect of the service.
Note 1: See Part II, and in particular section 10, for when a medicare benefit is payable.
Note 2: See the Dental Benefits Act 2008 for when a dental benefit is payable.
15 Section 82 defines a broad range of conduct amounting to “inappropriate practice” for the purposes of Pt VAA:
82 Definitions of inappropriate practice
Unacceptable conduct
(1) A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services (other than a service of the kind referred to in paragraph (c) of the definition of service in subsection 81(1)) is such that a Committee could reasonably conclude that:
(a) if the practitioner rendered or initiated the services as a general practitioner—the conduct would be unacceptable to the general body of general practitioners; or
(b) if the practitioner rendered or initiated the services as a specialist (other than a consultant physician) in a particular specialty—the conduct would be unacceptable to the general body of specialists in that specialty; or
(c) if the practitioner rendered or initiated the services as a consultant physician in a particular specialty—the conduct would be unacceptable to the general body of consultant physicians in that specialty; or
(d) if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession—the conduct would be unacceptable to the general body of the members of that profession.
Prescribed pattern of services
(1A) Subject to subsections (1B) and (1C), a practitioner engages in inappropriate practice in rendering or initiating services during a particular period (the relevant period) if the circumstances in which some or all of the services were rendered or initiated constitute a prescribed pattern of services.
(1B) A practitioner does not, under subsection (1A), engage in inappropriate practice in rendering or initiating services on a particular day during the relevant period if a Committee could reasonably conclude that, on that day, exceptional circumstances existed that affected the rendering or initiating of the services.
(1C) Subsection (1B) does not affect the operation of subsection (1A) in respect of the remaining day or days during the relevant period on which the practitioner rendered or initiated services even if the circumstances in which the services were rendered or initiated on that day or those days would not, if considered alone, have constituted a prescribed pattern of services.
(1D) The circumstances that constitute exceptional circumstances for the purposes of subsection (1B) include, but are not limited to, circumstances that are prescribed by the regulations to be exceptional circumstances.
Causing or permitting inappropriate practice
(2) A person (including a practitioner) engages in inappropriate practice if the person:
(a) knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed or otherwise engaged by the person to engage in conduct that constitutes inappropriate practice by the practitioner under subsection (1) or (1A); or
(b) is an officer of a body corporate and knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed or otherwise engaged by the body corporate to engage in conduct that constitutes inappropriate practice by the practitioner under subsection (1) or (1A).
Matters to which Committee must have regard
(3) A Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.
(Emphasis in original).
16 The HIA provides for the establishment of the Professional Services Review Panel under s 84, while ss 83 and 85 concern the appointment of the Director and Deputy Directors of Professional Services Review.
17 Sub-division A of Div 4 of the HIA concerns the constitution of committees. Relevantly, s 95 provides that a committee consists of a Chairperson and two other panel members, who, in the case of the review of a specialist practitioner, must also be specialists in relation that specialty. Section 96A provides for the circumstances where a member of the committee is unavailable and is discussed further below in relation to Ground 4.
18 The powers and role of the committee, alongside guidelines for the convention and conduct of hearings, are provided under ss 97 to 106F of the HIA. While a committee may regulate the proceedings of the meetings as it sees fit, pursuant to s 98(1), additional procedural matters relating to the conduct of meetings is provided under s 99. This includes a requirement that the Chairperson preside at all meetings they are present but allows for the members to elect one among them to preside in their absence under ss 99(1)-(2). In NHDS, Griffiths J summarised the committee role:
[44] The constitution, membership, and powers and procedures of a Committee are set out in Div 4, Subdiv A of Pt VAA. Meetings of the Committee must be held in private (s 98(2)). The Committee is also empowered, at any meeting, to hold a hearing at which evidence is given, and/or documents are produced, to the Committee (s 101(1)). The Committee is empowered to hold a hearing if it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services (s 101(2)). If the Committee proposes to hold a hearing, it must give to the person under review written notice, at least 15 days before the day of the proposed hearing, of the time and place proposed for the hearing (s 102(1) and (2)). The notice must also give particulars of the referred services to which the hearing relates (s 102(3)).
[45] Section 103 sets out at some length the rights of a person who is under review. They include (subject to any reasonable limitations or restrictions that the Committee may impose) the right to attend the hearing, to be accompanied by a lawyer, to call witnesses to give evidence and to address the Committee.
…
[47] The Committee is empowered to require the production of documents or the giving of information relevant to the referral, including clinical or practice records of services rendered or initiated during the review period, by inter alia the person under review or a practitioner employed by the person under review (s 105A).
[48] The Committee is not bound by the rules of evidence and may inform itself on any matter in any way it thinks appropriate (s 106(2)). Evidence at a hearing may be taken on oath or affirmation (s 106A).
[49] The Committee has a statutory duty to carry out its functions so that its final report is given relevantly to the Determining Authority or the person under review within six months after the day on which the referral is received by the Committee, subject to the Director exercising a discretion to allow a further period or periods of three months (s 106G).
(Emphasis in original.)
19 The scope of a committee’s investigation is prescribed by s 106H of the HIA, which relevantly provides:
106H Committee findings, scope of investigation etc.
(1) The Committee is to make findings only in respect of the referred services.
(2) …
(3) The Committee’s investigation of the referred services is not limited by:
(a) the reasons given in the Director’s report to the Committee under paragraph 93(6)(a) or anything else in that report; or
(b) the reasons given in any request under section 86 or 106J or anything else in such a request.
(4) Before the Committee makes a finding of inappropriate practice, it must:
(a) notify the person under review of its intention to do so; and
(b) provide the person under review with the reasons on which the Committee intends to base its finding; and
(c) give the person under review an opportunity to respond.
(5) The Committee complies with subsection (4) if it provides a draft report to the person under review in accordance with section 106KD.
(Emphasis added.)
20 Section 106KD of the HIA concerns the draft report. It provides:
106KD Preparation of draft report
(1) The Committee must prepare a written draft report of preliminary findings setting out:
a. if the Committee members are unanimous in their preliminary findings—those preliminary findings; or
b. if a majority of the Committee members are agreed on preliminary findings—those preliminary findings and the preliminary findings of the other Committee member or Committee members; or
c. if there are not a majority of the Committee members who are agreed on preliminary findings—the respective preliminary findings of the Committee members.
(1A) The draft report must set out the reasons for the preliminary findings.
(2) If the person under review is a practitioner, the draft report may, with the person’s written consent, include recommendations:
a. for the practitioner to be fully or partly disqualified; and
b. about the nature and period of the disqualification.
(3) Unless section 106KE applies, the Committee must give to the person under review a copy of the draft report together with a notice inviting the person to make to the Committee, within 1 month after the day on which the copy of the draft report is given to the person, written submissions suggesting changes to the draft report.
21 Section 160KE of the HIA applies where the draft report does not contain a finding by all, or the majority, of the committee members that the person under review engaged in inappropriate practice in providing some or all of the referred services. In that instance, the draft report is the final report of the committee: ss 106KE(1)-(2).
22 Section 106L is concerned with the committee’s final report. It applies after the person under review has been given notice in accordance with s 106KD(3) and afforded a period of one month to make submissions on changes to the draft report.
23 The committee must prepare the final report, after taking into account any submissions made by the person under review, and set out the following in accordance with s 106L(1):
(a) if the Committee members are unanimous in their findings—those findings; or
(b) if a majority of the Committee members are agreed on findings—those findings and the findings of the other Committee members or Committee member; or
(c) if there are not a majority of the Committee members who agreed on findings—the respective findings of the Committee members.
24 Pursuant to s 106L(1B), the final report must not include a finding of inappropriate practice unless the reasons for the finding were included in the draft report under s 106KD. Section 106L(2) provides that if the person under review is a practitioner, the final report may include recommendations of the kind in s 106KD(2) with the individuals written consent. The delivery of the final report is dealt with in the remainder of s 106L.
25 If the final report contains a finding that the person under review engaged in inappropriate practice, the committee must then give it to the Determining Authority in accordance with s 106L(3)(b).
26 This marks the end of the provisions of the Review Scheme. The functions of the Determining Authority are provided for in Div 5 of Pt VAA – to make final determinations under s 106U, including: reprimanding or counselling the person under review; that the provisions of services by the person under review cease to be eligible for Medicare or dental benefits; disqualification if the person under review is a practitioner; or a requirement to repay the Commonwealth part, or the whole, of any such benefit received.
27 On 6 April 2017, Dr Raiz was informed by the Director, pursuant to s 88A(4)(a) of the HIA, that she had received a request from the CEM to review his provision of services for the relevant period and that she had decided to undertake a review. On 3 May 2017, pursuant to s 89B, the Director issued Dr Raiz with a notice to produce documents.
The Director’s review
28 Section 89C provides:
89C Director’s action following review
(1) 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.
(2) 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.
(Emphasis added.)
29 The Director wrote to Dr Raiz on 13 December 2017 to propose a meeting, of approximately an hour’s duration, be held on 20 December 2017. The letter outlined the Director’s concerns in relation to the services provided by Dr Raiz and indicated the meeting would include a discussion on the Director’s preliminary views formulated on a review of the clinical records.
30 Following the meeting the Director wrote to Dr Raiz on 21 December 2017 to inform him, in accordance with s 89C(1)(b)(ii), that her review was complete and that she had “not made a decision under section 91 of the Act to take no further action” in relation to the review (emphasis added). I pause to observe that the drafting of Pt VAA is not dissimilar to the “legislative porridge” referred to by Rares J in Wingecarribee Shire Council v Lehman Bros Australia Ltd (in liq) [2012] FCA 1028 at [948], albeit in relation to the Corporations Act 2001 (Cth). The letter attached a report setting out the Director’s reasons for that decision and, in accordance with s 89C, invited Dr Raiz to make written submissions by 5:00pm on 16 February 2018 about the action she should take in relation to the review.
31 Five days after the submission deadline, on 21 February 2018, Dr Raiz provided the written Submissions by email, consisting of 12 written pages by Dr Raiz and approximately 500 pages of supporting documentation. A hard copy file was provided on 2 March 2018.
Setting up and referral to a Committee
32 By instrument dated 9 March 2018, the Director purported, in accordance with s 93(1) of the HIA, to constitute the Committee and made the Referral.
33 Section 93 provides the following:
93 Referral to a Committee
(1A) This section applies if it appears to the Director that a person under review may have:
(a) provided services during the review period; and
(b) engaged in inappropriate practice in the provision of services.
(1) 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.
Note: Investigating whether the person under review engaged in inappropriate practice in providing the services may include investigating whether the services were provided by the person or another person.
(2) …
(3) Subject to this section, the content and form of a referral must comply with any guidelines made under subsection (4).
(4) The Minister may, by legislative instrument, make guidelines about the content and form of referrals.
(6) If the Director makes a referral, the Director must:
(a) prepare a written report for the Committee, in respect of the services to which the referral relates, giving reasons why it appears to the Director that the person under review may have engaged in inappropriate practice in providing the services; and
(b) attach the report to the referral.
Note: The reasons given by the Director may relate solely to the services being rendered or initiated in circumstances that constitute a prescribed pattern of services.
(7) Within 7 days after making the referral, the Director must give a copy of the referral and report to the Chief Executive Medicare and the person under review.
(7A) The copy given to the person under review must be accompanied by a written notice setting out the terms of sections 102, 106H and 106K.
(7B) The services that may be specified in the referral are any or all of the services provided by the person under review during the review period.
(7C) Subsection (7B) is not limited by the terms of the Director’s report under subparagraph 89C(1)(b)(i).
(7D) Failure to comply with subsection (7) or (7A) does not affect the validity of the referral.
(8) If, in the course of the review that gave rise to the referral:
(a) the Director formed an opinion that any conduct by the person under review caused, or was likely to cause, a significant threat to the life or health of any person and sent a statement of his or her concerns to a person or body under section 106XA; or
(b) the Director formed an opinion that the person under review failed to comply with professional standards and sent a statement of his or her concerns to an appropriate body or bodies under section 106XB;
the referral must contain a statement that the Director formed that opinion and set out the terms of the statement sent to the person, body or bodies.
(9) The Director must disregard any opinion formed as mentioned in subsection (8) when making the referral.
(Emphasis and Italicism added.)
34 The Director’s Referral and establishment of the Committee marks the conclusion of the second tier of the Review Scheme as described by Griffiths J in NHDS at [70]:
As noted, there are explicit procedural fairness requirements imposed upon the Director by s 89C. Following the Director’s review of the provision of services by a person, the Director has two options. First, he or she may make a decision under s 91 to take no further action in relation to the review. Secondly, if that first option is not taken, the Director must give the person under review a written report setting out the reasons why that Director has not made a decision under s 91 and the Director must also invite the person to make written submissions, within one month, about the action the Director should take in relation to the review. The Director is required to take any such submissions into account in reaching a decision as to what future course of action the Director will take (s 89C(2)). These provisions are meant to give the person under review a chance to respond and be heard with respect to, for example, whether or not the Director should take the next step of referral to a Committee.
(Emphasis added.)
35 The Referral is challenged by Dr Raiz’s first ground of review.
CLAIMS AGAINST THE DIRECTOR
Ground 1: The Referral was in breach of s 89C
36 As set out above, s 89C(2) 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):
…
(c) make a referral to a Committee under section 93.
(Emphasis added.)
37 By para [11] of the FASOC, Dr Raiz pleads that, in breach of s 89C, the Director made the decision to set up the Committee and made the Referral without having personally read or taken the Submissions in to account. He particularises that:
11.5 The logical inference is that the [Director] had contacted the Committee members about accepting those appointments at some time before 2 March 2018 and hence before having received the mere summary from Ms Lardnar [sic] on 2 March 2018 and before having personally read the Applicant’s submissions sometime in the following week.
38 Dr Raiz submits that, on the proper construction of s 89C, the Director is required to invite, receive, and take into account the submissions of the person under review prior to deciding to set up a committee and make a referral to that committee for inquiry. Dr Raiz contends this means the Director must not take any of the allowable statutory steps under s 89C(2)(a)-(c) until she has taken the Submissions into account; including making a referral under s 93 pursuant to s 89C(2)(c).
39 The Director submits that the only the relevant question is whether the Submissions were taken into account prior to making a referral. The Director contends that “to make” is a narrower concept than “to decide” and so it is not until the instrument is issued, being the writing referred to in s 93(1), that a referral is in fact made and the time by which Submissions were required to have been taken into account can be assessed.
40 Dr Raiz concedes that no legally operative decision is taken until the date of the formal instrument setting up the Committee and making the Referral. He contends, however, that does not mean that the actual decision had not already been taken by the Director at an earlier time, and without her having “engaged in an active intellectual process” of considering his submissions: see the principles summarised by Griffiths J in EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866 at [26]-[37]. The point of referral, he contends, is the point in time in which the Director had decided to refer the matter to the Committee, a date which he puts as 2 March 2018, and that is the date by which his Submissions were required to have been taken into account.
41 Both as a matter of statutory construction, and as a matter of fact, this ground cannot succeed.
Construction of ss 89C and 93 of the HIA
42 The principles applicable to the construction of a statute, which require consideration of the text, context and purpose, are well established: see, in particular, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]-[26]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]. In R v A2 [2019] HCA 35; 269 CLR 507, the High Court has reiterated, at [33] per Kiefel CJ and Keane J (with whose reasons Nettle and Gordon JJ agreed) that:
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
43 The primacy that is to be afforded to the text and structure of a statute, which is relevant to the present task of ascribing meaning to the text of ss 89C and 93, was explained by Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 at [4]-[5]:
… The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted]
There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985.
44 In relation to statutory purpose, French CJ and Hayne J emphasised in Certain Lloyd’s Underwriters, at [25]:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
To similar effect, the majority in Lacey v A-G (Qld) said:
Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
(Emphasis added.)
45 The question of construction is whether the Director can be found to have “made a referral” under s 89C(2)(c) prior to issuing the written instrument on 9 March 2018.
46 Section 89C(2) requires, by reason of the word “must”, the Director to do one of three things after taking into account any submissions:
(a) decide to take no further action; or
(b) enter into a s 92 agreement with the person; or
(c) make a referral under s 93.
47 To decide to take no further action is an option for a Director under s 91. Such a “decision” may be made if the Director is satisfied that there are insufficient grounds on which a committee could reasonably find the person has engaged in inappropriate practice, or circumstances exist that would make a proper investigation impossible.
48 Entering into agreement pursuant to s 92 does not connote a “decision” having been made by the Director. Sections 92(1)(a)-(b) provide that a “person under review and the Director may enter into a written agreement under which the person under review acknowledges [he or she has] engaged in inappropriate practice” and specified action of the kind referred to in subsection (2) is to take effect. The voluntary and cooperative character of entering into agreement, as opposed to being the consequence of a decision, is demonstrated by s 92(6) which prohibits the Director from disclosing the content of any communications in relation to proposals for an agreement, or even whether any such communications have taken place.
49 Section 93 is permissive. By s 93(1) it provides that the Director may set up a committee in accordance with Div 4 and make a referral to it. There are two circumstances in which the Director might be asked to conduct a review which might lead to a referral: the first is on receipt of a request by the CEM, and the second arises from a request made by a committee under s 106J(1). The discretion conferred by s 93(1) relates to the second type of request. In such circumstances, the Director may make the referral to the committee who made the request, rather than “set up” a different committee in accordance with Div 4. That is the extent of the discretion. Where the Director has made a decision not to take no further action (s 89C(2)(a)), or has not entered into an agreement (s 89C(2)(b)), the Director must make a referral to a Committee under s 93 (s 89C(2)(c)). Within 7 days of making the referral, she must give a copy of the referral and report to the CEM and the person under review: s 93(7). Similarly, if after entering an agreement, the Determining Authority refuses to ratify the agreement, and before the end of three months, the Director has not made a decision under s 91 or a referral under s 93, the Director must make a referral: s 92A.
50 If the Director does not do one of the three things required by s 89C(2) before the end of 12 months after making the decision to review the provision of services, s 94(1) provides that “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” (emphasis added).
51 To the extent that s 94(1) informs the question of whether making a referral is a decision for the purposes of the statutory scheme, two possibilities emerge. One reading of s 94(1) might be said to support a construction that each of the actions available to the Director in subsections (a)-(c) are in themselves “decisions”: either to take no further action; to enter into an agreement; or to make a referral. This construction is supported by the use of the indefinite article in s 94(1), rather than by providing that “the Director is taken to have made the decision to take no further action”. Alternatively, given the decision that is deemed to have been made under s 94(1) is the only “decision” referred to in s 89C(2), the better view is the making of a referral is not a decision. Such a construction is also supported by the usual canon of construction that where the Parliament has used different words, a different meaning is intended.
52 The statutory context assists in informing such a construction. The making of a referral has statutory obligations and consequences:
• the Director must prepare a written report for the Committee in respect of the services to which the referral relates: s 93(6)(a);
• within 7 days after making the referral, the Director must give a copy of it and the report to the Chief Executive Medicare and the person under review: s 93(7);
• the Committee must convene within 14 days: s 97(1);
• Subject to provision for extensions the Committee has a duty to carry out its functions so that its final report is given to the Determining Authority (or the person under review) within 6 months after the day on which the referral is received by the Committee.
53 None of these statutory obligations could be reckoned were it possible for there to be a “decision to make a referral” at a point in time prior to the issue of the instrument pursuant to s 93(1) of the HIA. The logic of such a conclusion is elucidated by the applicable principles for ascertaining when a “decision” is relevantly made for the purposes of a statutory scheme such as that in the HIA. The principles were discussed by Finn J in Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422 (upheld on appeal [2000] FCA 240; 96 FCR 533) at [19]-[20]:
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.
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.
(Emphasis added).
54 In Amir v Director of Professional Services Review [2021] FCA 745 (Amir 2021), upheld on appeal [2022] FCAFC 44; 290 FCR 355 (Amir 2022), a decision concerned with the construction of s 88A – being the Director’s decision whether or not to undertake the review after a request from the Chief Executive Medicare, Jagot J said, at [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.
(Emphasis added.)
55 The factual circumstances in Amir 2021 were not dissimilar to those in the present case. They are described by the Full Court in Amir 2022 at [36]-[51]. In summary, on 4 April 2019, the Chief Executive Medicare requested the Director to review Dr Amir’s provision of services over a specified period. At 3:06pm on 4 April 2019, Mr Andrew Shelley emailed the Professional Services Review Agency (PSRA) staff circulating the request and the accompanying materials. At 3:08pm on the same day, the Director emailed certain staff PSRA staff stating:
I have reviewed the referral and decided to conduct a review
Please prepare the necessary paperwork
…
I had a brief chat to Andrew and we’ll progress as per usual but not in any hurry so as to give the Committee time to progress.
56 At 3:18pm, Mr Shelley forwarded that email to certain other staff and said, inter alia, “I’d send the kick-off letter [being the letter required by s 88A(5) giving notice that decision to undertake a review had a review directly to Dr Amir], unless (noting they won’t get signed for more than a week) we hear from [the lawyers in the Committee matter] in the meantime”. On 16 April 2019, the Director notified Dr Amir of her decision to undertake a review, as required by s 88A(5), and said “… today I have decided to undertake a review into your provision of those services…”.
57 As is the case in the current proceeding, Dr Amir bore the onus of proof. The Director was the decision-maker and a party but chose not to give evidence. Justice Jagot held, at [55] of Amir 2021, that the only adverse inference which could be drawn against the Director was that she in fact decided to undertake the review on 4 April 2019. If that were so, the later email remains to the effect that she also decided, on 16 April 2019, to undertake the review. Her Honour held at [55] that the consequence was that, within the prescribed period, the Director had made two decisions, but only one was irrevocable and communicated to Dr Amir. The later email, therefore, was the relevant decision for the purposes of the statutory provisions.
58 Dr Raiz submits that there is evidence from which it should be inferred that the Director had made up her mind to establish a Committee before she read the Submissions or even the summary prepared by Ms Ellen Lardner, a case manager for the PSRA. That evidence was said to comprise an email that was Annexure DR-19 to the Second Raiz Affidavit, which was ultimately not pressed, the email of 2 March 2018, and the alleged failure of the Director to consider Dr Raiz’s suggestion in his submission to the Director on 21 February 2018 that she consider entering into an agreement under s 92.
59 The email of 2 March 2018 was sent at 8:55am by Ms Lardner to the Director attaching Dr Raiz’s submissions, and indicating that Dr Raiz had provided a “large, hard copy folder of attachments to his submissions” which had been left on the Director’s desk. In response, approximately half an hour later, the Director replied, “I’ll review the file and make a decision next week” – “I’m inclined to refer to a Committee at this stage”. The email contained what purported to be a summary of Dr Raiz’s submissions spanning approximately one page.
60 At 4:33pm on 2 March 2018, Mr Shelley emailed the Director with a list of proposed committee members for Dr Raiz’s matter. Subsequent to receiving that list, the Director emailed Dr Debra Coleman at 5:25pm on that date (Affidavit of Ms Margaret Parker of 30 August 2023 Annexure MP-2, (Parker Affidavit)). The email records that the Director telephoned Dr Coleman to “see if she were interested in hearing the case” but the message went to voicemail. Dr Coleman responded that she would call on Monday.
61 There followed an email from the Director to Mr Shelley on 5 March 2018 saying, “Martine has agreed. It is a long weekend in WA so the other two are currently away”. The Director then emailed Mr Shelly, on 6 March 2018 (6 March 2018 email), to say “[a]ll Committee members are on board. Can the necessary paperwork please be prepared”. In the same email, the Director raises concerns about the recording of schedule 4 and 8 drugs and requested that “this concern is raised in the referral”.
62 Dr Raiz submits that the appropriate inference to be drawn from this evidence is that the Director had communications with the proposed committee members either during the morning of Friday 2 March 2018 or before, and if before, she would not have even had the summary from Ms Lardner, let alone the time to have read and digested over 500 pages of submissions.
63 I reject Dr Raiz’s submission that the evidence supports a logical inference that the Director had contacted the potential committee members prior to 2 March 2018. The evidence supports an inference that, by 4:33pm on Friday 2 March 2018, almost seven hours after being copied in on an email between the Director and Ms Lardner in which the Director indicated that at this stage she was “inclined to refer”, Mr Shelley had turned his mind to possible committee members. As Ms Parker testified, it was usual practice to sound out potential committee members’ availability prior to a referral being made.
64 It is also reasonable to infer that the Director’s “inclination” to refer was informed not merely by the summary prepared by Ms Lardner. It must also be recalled that, by this date, the Director had been involved with the matter for almost a year. She had received the Review Request from the CEM on 3 March 2017. That request contained six attachments being: Practitioner Review Program – review decision; Review of Medicare servicing and invitation to provide a written submission; a 10-page written submission from Dr Raiz; a 3-page response to the submissions by the CEM; MBS and PBS billing summary; and two referee reports. Further, the Director had reviewed a sample of service items received from the Department of Human Services pursuant to a request dated 6 April 2017. The Director also had the clinical records produced by Dr Raiz in response to the Notice to Produce issued to him on 3 May 2017. She had held a meeting with Dr Raiz, his professional indemnity representative and his legal representative on 20 December 2017. The Director had also prepared the s 89C report of 21 December 2017.
65 Against this background, I find it unsurprising that, on 2 March 2018, after reading Ms Lardner’s summary and even if only after a cursory review of the Submissions, the Director was able to express a preliminary view that she was inclined to refer the matter to a Committee. Nevertheless, the Director allowed herself ample time to consider Dr Raiz’s submissions, not making the Referral until 9 March 2018.
66 Ms Parker, a Special Counsel employed by the PSRA, gave evidence that she had assisted the Director and the Committee in relation to this proceeding and is the PSRA officer allocated responsibility for managing the proceeding: Parker Affidavit at [1], [4], [5]. Ms Parker was cross-examined about her experience of the manner in which committees were typically established. She had no recollection of being involved in the committee selection process for Dr Raiz’s case. Senior Counsel for Dr Raiz pressed Ms Parker as to whether it was usual to contact potential committee members and ask them to block out time “unless some decision had been taken that a committee was going to be established”. Ms Parker testified that such a course would be taken “if it was the Director’s current intention to establish the committee”. She went on to say, “I’ve experienced occasions where we have contacted members, and then – or a reason – no committee was subsequently constituted. So we need to be prepared in case a committee is decided upon”. It was put to her that intentions may later change, which she accepted.
67 Ms Parker’s evidence was unremarkable and can be readily accepted. It is unsurprising that the PSRA would have a practice of sounding out potential committee members’ willingness to participate in, and their availability for hearings, prior to issuing an instrument in which the Committee members must be identified.
68 In the present case, the Referral records that the Director “by this instrument”, which is dated 9 March 2018, sets up the Committee and refers an investigation to that Committee. Letters dated 9 March 2018 with the subject matter “Request to Review No. 1095 – constitution of Professional Services Review Committee No. 1095” were provided to Dr Debra Coleman, Dr Nedra Vanden Driesen, and Dr Martine Walker. A letter with the same subject matter was provided to Dr Raiz on 9 March 2018 enclosing, pursuant to s 93, the notice setting out the terms of ss 102, 106H and 106K, a copy of the Director’s report for the Committee, and a copy of Medicare’s Request for Review No. 1095 received by the Director on 3 April 2017.
69 The making of the Referral is the unequivocal manifestation of a decision that has been made by the Director not to take no further action in accordance with s 91, coupled with having not reached an agreement with Dr Raiz under s 92. To that extent, it has the same characteristic described by Jagot J in Amir 2021 at [45] of being an externally manifested communication by the Director of an irrevocable commitment by her to set up the Committee and to refer to that Committee the investigation about possible inappropriate practice by Dr Raiz.
70 As the Full Court said in Amir 2022 at [66]:
The ordinary meaning must necessarily yield to the relevant statutory context. In the present circumstances, the relevant decision functions within the statutory scheme as the trigger to start time running on the finite period within which the Director can perform her function in the first part of the review process. To seek to anchor the temporal guillotine of the Scheme, which carries real legal consequences, to the subjective state of mind of the particular office bearer without any requirement for a committed demonstrable manifestation of that state of mind is to divorce impermissibly the meaning of the term decision from its statutory context.
(Emphasis added.)
71 In circumstances such those in the present case, it is the Referral that triggers the provisions of Div 4 in the HIA governing the manner in which the Committee is to conduct its investigations, the rights of the person under review, and the actions that can be taken by the Committee, including the provisions relating to draft and final reports, and referrals to regulatory bodies. There is no express power in the HIA to withdraw a referral. The process triggered by a referral can only be interrupted by written notice, under s 106GA, from either the Director or the Committee to the other on being satisfied that circumstances exist that would make a proper investigation by the Committee impossible.
72 Further, unlike the position in Amir 2021, where the Director had indicated in her first email that she had decided to conduct a review, the Referral was not preceded by a decision. The email of 2 March 2018, which Dr Raiz contends is the relevant decision, is entirely equivocal, indicating no more than an “inclination” to refer. That email, and the subsequent emails to the Committee members detailed below, can be described as revocable acts of necessity in the referral process. As Jagot J observed in Amir 2021, at [40], while the Director may have “a strong predisposition one way or another”, or an inclination to a particular course, this is distinct from the “manifestation of the commitment to a position or a particular course of action”.
73 As a matter of construction, the time by which the Director was required to take into account any submissions made by Dr Raiz was when she made the Referral to the Committee, being 9 March 2017.
Personal consideration by the Director of Dr Raiz’s submissions
74 Dr Raiz contends that even if the relevant date for the consideration of his Submissions was 9 March 2018, the Director did not do so, or alternatively, relied on a wholly deficient summary prepared by Ms Lardner.
75 The principles which guide the personal consideration of submissions by an administrative decision maker were summarised by Griffiths J in AFF20 at [27]-[33], drawing upon established caselaw in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 and Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335. They include:
[27] First, the Court needs constantly to be alert to the risk that the phrase “proper, genuine and realistic consideration” might draw the Court into an impermissible merits review.
[28] Secondly, … the Minister is obliged by law to engage in an “active intellectual process” in assessing the merits of a particular case.
[29] Thirdly, the Court’s assessment of whether the Minister has discharged that legal obligation involves an evaluative judgment, taking into account the available evidence and reasonable inferences. Necessarily each case will turn on its own particular facts and circumstances as established by the evidence. This means that the question whether or not an active intellectual process has been engaged in any particular case is highly unlikely to be resolved merely by comparing the facts and circumstances with other cases. This is not an area where legal challenges are capable of being resolved by a “tick the box” approach.
…
[33] Seventhly, a finding a Minister has not engaged in the requisite active intellectual process will not be lightly made and must be supported by clear evidence, bearing also in mind that the judicial review applicant carries the onus of proof.
76 As was held in Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41], the Director is not obliged to consider each and every statement within Dr Raiz’s Submissions but must consider the Submissions and representations as they relate to the document as a whole.
77 That the Director did give active intellectual consideration to the Submissions is supported by the Referral itself. The onus remains on Dr Raiz, as the applicant for judicial review, to demonstrate evidence to the contrary: AFF20 at [33]. Subject to any such evidence, of which none was adduced, the Director’s statements in Attachment B to the Referral that the Submissions had been taken into account are to be taken at face value: see Parker v Minister for Immigration & Border Protection [2017] FCAFC 115 at [22]-[23].
78 Dr Raiz seeks to rely on the principles of Jones v Dunkel [1959] HCA 9; 101 CLR 298 to invite the Court to infer insufficient consideration because the Director did not give evidence to substantiate her consideration of the Submissions at the time of the Referral. While the Court may be entitled to do so, a finding that the Director had not engaged in the appropriate act of intellectual process in the making of the Referral is not one to be made lightly and must be supported by clear evidence: AFF20 at [33]. 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; 98 ER 969), it is necessary to acknowledge that the Director is responsible for deciding about all reviews under s 88A(1) and taking any subsequent action under s 89C. As Jagot J observed in Amir 2021 at [56], the power of delegation in s 131 of the HIA is limited to the Minister, the Secretary or the CEM.
79 There was no evidence as to how many reviews under s 88A(1) were undertaken in the past five years. Ms Parker testified that, over the relevant period, she had been involved in approximately 10 committees per year. It can safely be assumed that there were more reviews under s 88A(1) that did not proceed to a committee but which would nevertheless have required the Director’s attention to the submissions of persons whom the CEM had asked her to review. In this context, it would be unreasonable to infer that the Director was capable of recalling the extent of her consideration of the Submissions of one person more than five years ago over and above what is disclosed in the documents.
80 The extent of the Director’s consideration of Dr Raiz’s Submissions as revealed in her Report, which was attached to the letter provided to Dr Raiz on 9 March 2018, must be assessed against the content of the Submissions themselves. Apart from the attachments, the Submissions themselves were only 12 pages in length and contained several pages of what was described as “Preliminary matters” and “My practice and background”, before addressing the concerns raise about his clinical records. The “Submission regarding your decision” spanned just over two pages.
81 The Director indicates clearly in the Report that the Referral is based on a consideration of a list of materials, including the “Submissions that Dr Raiz provided, dated 21 February 2018”. Dr Raiz criticises part of the Report on the basis that certain paragraphs are identical to paragraphs contained in the 21 December 2017 report recording the Director’s decision not to take no further action. Such criticism is unwarranted. The paragraphs to which Dr Raiz refers as duplicative record matters that have not changed between the two Reports: the nature of Dr Raiz’s practice, the list of the Director’s concerns with respect to the four MBS items; and the circumstances of the ongoing fraud investigation. It is unsurprising that the Director would use the same language in respect of the exact same matters in both Reports where those matters are unaffected by Dr Raiz’s Submissions. Similarly, to the extent that Dr Raiz has identified the Director’s use of aspects of Ms Lardner’s summary in the Report, that submission does not gainsay the Director’s personal consideration of the Submissions, as will be seen.
82 The Director refers to the content of the Submissions throughout the Report, in particular noting at [12] that Dr Raiz’s submissions “have not allayed the concerns that were expressed in [her] section 89C report”. Various direct references to the substance of Dr Raiz’s Submissions can be found throughout the reasons, including at [15]-[18], [21]-[23], and [26]. Some of these paragraphs include references to matters that were not contained in Ms Lardner’s summary of 2 March 2018 – Dr Raiz’s advice to diabetic patients to bring their own insulin and glucometer; that he had consulted Victorian colleagues; and that it was not common practice to record temperatures during day surgical procedures. Additionally, the Director refers to the supporting materials attached to the submissions and, in particular, to a letter from anaesthetist, Dr Mark Sinclair. Although that letter had been attached to the email sent by Ms Lardner on 2 March 2018, its contents had not been summarised by her for the Director.
83 Dr Raiz submits nevertheless that an inference should be drawn that the Director did not consider the Submissions because there was a complete absence to consider his suggestion in the final sentence of his Submissions that she “consider entering into an agreement with me”. Although not pleaded in terms, this was also put in submissions as a failure to take into account a relevant consideration.
84 The submission cannot be accepted.
85 First, as has already been observed above, s 92 is available to the Director where “the person under review acknowledges that the person has engaged in inappropriate practice in connection with the provision of specified services”. Nothing in Dr Raiz’s Submissions can be construed as such an acknowledgment. At their highest, they reveal a grudging acknowledgement of some poor practice but seek to justify the conduct under review:
I acknowledge that some of my records which you have reviewed may not be of the standard required by the Health Insurance Act and the regulations. However, I submit that my records do accord with the standard of clinical records of my peers and on that account are of an acceptable standard. Each of the procedures was referred to me and has a complete paper trail corroborating my professional interaction.
I have learned a great deal from this review and will continue to improve my practice.
86 Secondly, the Director’s Report makes plain that, despite the Submissions and her meeting with Dr Raiz, she remained of the view that a Committee could make findings of inappropriate practice. That being her conclusion, in the absence of any acknowledgment of inappropriate conduct by Dr Raiz, an agreement could not reasonably be within her contemplation.
87 Thirdly, the absence of any document that might reveal the Director’s consideration of the suggestion that an agreement be entered into cannot be used to support an inference that she did not consider it. That is for two reasons. First, because there is nothing in s 89C(2), nor in the structure of the Review Scheme as whole that obliges the Director to give reasons for not entering into an agreement: Barnes v Director of Professional Services Review [2023] FCA 129 at [77]. Secondly, because under s 92(6), the Director is precluded from disclosing the content of any communication between herself and the person under review in relation to proposals for an agreement, or even whether any such communications have taken place, except to a consultant appointed under s 90(1) (which in this case is the person referred to in [7] of the Report).
88 The content of the Director’s Report readily supports the inference that she had personally considered Dr Raiz’s Submissions. In accordance with the principles espoused under AFF20, and with reference to the requisite date of 9 March 2017, it is apparent that the engagement by the Director in response to the Submissions provided by Dr Raiz satisfies the requirements for s 89C(2).
89 For these reasons, Ground 1 must be dismissed.
Ground 2: Did the Director demonstrate a reasonable apprehension of bias against Dr Raiz?
90 By Ground 2, Dr Raiz contends that the Director should have recused herself from considering the CEM’s request to review the provision of services by him.
91 Dr Raiz pleads that a reasonable person would apprehend bias from the following facts:
• Prior to the Referral, Dr Raiz was known personally to the Director and her husband (Dr Petersen), through personal dealings between the three of them in relation to the management of the Barton Private Hospital (BPH) and the Barton Specialist Centre (BSC);
• When the Director and Dr Petersen came to Canberra in 2016, Dr Raiz was: a major shareholder and board member of the BPH; director of anaesthetic clinical practice at the BPH; a major shareholder in and director of Barton Property Partnership 2 (BPP2), being a trust that owned and ran the BSC; Medical Director for BPP2, which oversaw the Barton General Practice (BGP) and also had involvement in BSC;
• In about June 2017, the Director and Dr Petersen applied for and were granted clinical privileges at the BPH, and rooms in the BSC, where Dr Raiz had a management role in the BSC and supervised clinical practice at the BGP;
• In those capacities, Dr Raiz dealt with the Director and Dr Petersen about complaints they made concerning the standard of the fit out of their rooms and some repair issues;
• An internal BPH management issue arose that involved Dr Raiz. Dr Petersen chaired an internal hospital committee inquiring into the issue, which delivered negative findings against Dr Raiz, and, in part as a consequence of which, he was removed from the board of the BPH;
• The adverse finding was referred to the Australian Health Professional Regulation Agency (AHPRA), which inquired into the matter and dismissed the complaint against Dr Raiz. The subject matter of this complaint was unrelated to the those contained in the Referral;
• Dr Raiz believes the Director was directly involved in making the complaint to AHPRA. The Referral was made after the unsuccessful complaint to AHPRA;
• Dr Raiz believes that the Director and Dr Petersen bear personal animosity towards him and that this attitude has infected the statutory decision making of the Director, who should have recused herself from considering Dr Raiz’s case.
92 Whilst Dr Raiz resiled from an allegation of actual bias that had been made in earlier iterations of the pleadings, the last particular remained, albeit in relation to the allegation of apprehended bias.
93 The test of apprehended bias is not in doubt. It is as stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [20], per Gleeson CJ, McHugh, Gummow and Hayne JJ, with Callinan J concurring. As reiterated by the High Court in Charisteas v Charsiteas [2021] HCA 29; 273 CLR 289 at [11], per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ:
The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” … Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
94 In Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, Deane J identified four, sometimes overlapping, categories of case in which a reasonable apprehension of bias may arise:
The first is disqualification by interests, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to an apprehension of bias.
(Emphasis added.)
95 As Dr Raiz put his case, albeit not entirely clearly, the circumstances as pleaded fall into either category three and/or four. First, it is said that the Director’s marital relationship is sufficient to raise an apprehension of bias in circumstances where Dr Raiz had been the subject of adverse findings by a committee chaired by Dr Petersen. Alternatively, it is said that the email of 6 March 2018 from the Director to Mr Shelley, identifying a particular concern about the recording of schedule 4 and 8 drugs, raises an inference that the Director could only have received this information, which is said to be extraneous, from Dr Petersen and so reference to it gives rise to an apprehension of bias.
96 As to Dr Raiz’s plea that he believes the Director and Dr Petersen bear personal animosity towards him that has infected the Director’s decision making, there is not a scintilla of evidence to support such a plea. Dr Raiz does not depose to such a belief in either of his affidavits.
97 The only evidence of acrimony between any persons involved in the matter that can be gleaned from Dr Raiz’s affidavit is to be found in a letter of 24 July 2019 from AHPRA to Dr Raiz’s solicitors (Annexure DR-14 to the Second Raiz Affidavit). The letter refers to Dr Raiz’s acknowledgement of “a difficult relationship with the CEO at the hospital [who I interpolate was neither the Director nor Dr Petersen] and significant and longstanding issues with some other partners. However, he had good relationships with other partners…”. It also noted the assertions of the solicitors “that many of the allegations regarding Dr Raiz’s unprofessional conduct were solicited from other staff and patients by Ms McGowan after the fact as part of her campaign to remove Dr Raiz”, albeit that Dr Raiz had acknowledged “some issues”.
98 To the extent that the Court is invited to draw an inference of animosity on behalf of the Director and Dr Petersen from the complaints made by them about the standard of the fit out of their rooms and repair issues, nothing in Dr Raiz’s evidence rises any higher than the fact that complaints were made at some indeterminate time in early 2017 (Second Raiz Affidavit at [12]). The documents referred to in that paragraph do not shed any light on when complaints were made, nor the nature of those complaints. It can be reasonably inferred that it is not uncommon for new tenants to raise issues relating to the state of offices when they first take over a tenancy. There is nothing on the evidence to suggest that the complaints referred to were unreasonable or led to any acrimony.
99 As to the concern about the content of the 6 March 2018 email, it must be recalled that the request to the Director by the CEM to conduct a review was made on 3 March 2017. By letter dated 21 December 2017 to Dr Raiz, the Director raised concerns about his recording of drug administration including the matters mentioned in the 6 March 2018 email by reference to a review of his records in relation to four specified MBS items. By the time of the 6 March 2018 email, the Director had been in receipt of Dr Raiz’s submissions and accompanying attachments since 2 March 2018, which attachments included examples of redacted “Accountable Drugs Register (S8D) Register” for the review period.
100 Dr Raiz deposes that Dr Tonks, Chair of the BPH Board and Ms Jessie McGowan, CEO of the BPH expressed their concerns about Dr Raiz supplying drugs at the hospital from his own stocks. He deposes that in about June 2017, Dr Tonks and Ms McGowan determined to refer his actions relating to that supply to the Medical Assessment Committee (MAC) of the BPH (Second Raiz Affidavit at [21]). The letter of referral was not annexed to Dr Raiz’s affidavit. Annexure DR-6 is a letter dated 9 August 2017, informing Dr Raiz the MAC had resolved that the matter had been adequately addressed. In reaching this conclusion, the MAC referred to: Dr Raiz’s confirmation that he will work in accordance with the requirements in relation to the supply and use of drugs; his confirmation that he maintains a register of restricted substances; Dr Raiz’s provision of drugs on request to BPH, but noting that is no longer required; and the letter from Dr Gallagher confirming “there were no adverse outcomes either during or after the list”.
101 Subsequently, as deposed to by Dr Raiz (Second Raiz Affidavit at [23]-[24]), on 12 July 2017 Dr Tonks and Ms McGowan made another referral to the MAC, differently constituted, albeit in relation to different matters of concern. Dr Raiz says he “believe[s] Dr Petersen was appointed as one of the MAC members”. Dr Raiz deposes to having been provided with a copy of the referral and the witness statements annexed to his affidavit marked DR-7 on 12 July 2017. Those witness statements are at pp 52-67 of the Second Raiz Affidavit. Pages 53-55 comprise a “Summary of incidents involving Dr Danny Raiz” between January 2016 and June 2018. That document is unlikely to have been available on 12 July 2017. Similarly, all the documents from pp 56-67 bear 2018 dates.
102 Dr Raiz deposes that, following the 12 July 2017 referral, the “MAC appointed a Sub committee”, which he “believe[s] included Dr Petersen and a nurse” (Second Raiz Affidavit at [27]). Dr Raiz contends that the document annexed to the Raiz Second Affidavit (DR-8) demonstrates that the sub-committee met on 5 March 2018 and reported on 14 March 2018 “without hearing from me”.
103 He deposes further that “Dr Petersen also headed a special subcommittee to review my black and white redacted photocopy of the S8 register using retired hospital stationary [sic]”.
104 The document DR-8 appears to be a collection of minutes. The notes of 6 February 2018 record, inter alia:
A deadline of 31 March 2018 was decided on for the final date for presentation of records…
ADDIT: Photocopy of ‘register’ presented on request to Louise Haines by Dr Raiz on 7 February 2018. Photocopy has names blanked out. Dr Raiz advised that this was done on legal advice to protect the identity of patients. Original of the register was also sighted by Jessy McGowan, Louise Haines and Rodney Petersen. Several unusual record keeping aspects noted which will be discussed further with MAC.
105 The notes of 30 May 2018 record, inter alia:
Dr Danny Raiz presented a photocopied document re-titled as RAIZ Stock for BPH “Accountable Drugs Register (S8D) Register” as requested by the MAC from ongoing incident regarding supply of own stocks of Remifentanil for use at Barton Private Hospital when the Hospital was not able to source this drug. Dr Raiz refused to use any alternative medication offered to him from BPH stock.
The photocopied document, in which the names of the patients had been blanked out, was reviewed by Louise Haines and Rod Petersen initially on 5 March 2018. Dr Paul Whiting had also initially been requested to attend the review process however resigned as Chairman of the MAC and from the committee prior to the review taking place. Following the review of the document, an email was sent to Dr Raiz on 14 March 2018 to note the following anomalies: time of administration not completed; dose administered not completed; dose administered and discarded was not recorded; no signature was recorded of the person checking the drug. No response was received. A copy of the register was emailed to the MAC members.
…
OUTCOME – The MAC regarded this incident as being completed and not requiring further action or notification to regulatory authorities.
(Emphasis in original.)
106 The notes of 6 June 2018 record the contents of an email sent from the BPH chairman to the MAC chairman inviting the MAC to “consider presenting these records to the ACT Health Protective Services to ensure they comply with the standards expected”.
107 The notes of 18 June 2018 relate to the extraordinary meeting convened in response to that invitation. They refer to the review of Dr Raiz’s register conducted by Dr Petersen and Ms Louise Haines on 5 March 2018. They record that the “missing elements” of the register were advised to Dr Raiz by email from Ms Haines on 14 March 2018, as referred to in the notes of 30 May 2018. The notes continued:
A copy of the document was presented at the MAC for review at 30 May 2018. No further action was advised at that meeting.
Since that meeting a pharmaceutical supplier to the hospital has received a phone call from Dr Raiz enquiring about pricing, availability and ordering process of a variety of drugs including Remifentanil as a representative of Barton Private Hospital… Members of the MAC again reviewed the Remifentanil Register provided by Dr Raiz. In light of the new information, it was decided that an expert opinion should be sought.
The decision was made unanimously that an opinion be sought from ACT Health Protective Services with regards to Dr Raiz Register. Any further action required would be based on the advice given.
Action: That an opinion be sought from ACT Health Protective Services with regards to Dr Raiz Register.
Responsibility: Jessy McGowan.
(Emphasis in original.)
108 Annexure DR-9 to the Second Raiz Affidavit evidences that such an opinion was sought in an email sent from Ms McGowan to Mr Shallwin Varghese of ACT Health on 19 June 2018. Mr Varghese responded by email dated 21 June 2018 in which he confirmed there were a number of potential breaches in controlled medicine register entries. Annexure DR-11 evidences the complaint that was ultimately made to AHPRA on behalf of the BPH on 8 October 2018. On 24 July 2019, Dr Raiz was notified that AHPRA had decided to take no further action (Annexure DR-14).
109 The evidence establishes the following. First, the persons who made the referrals to the MAC in June and July of 2017 were Dr Tonk and Ms McGowan. Secondly, the MAC was chaired by Dr Divy Dua, not Dr Petersen. It is a reasonable inference that Dr Petersen was a member of the MAC at least from 6 February 2018. Dr Raiz provides no basis for his “belief” that Dr Petersen was appointed to the MAC in July 2017. There is no evidence to establish his membership from that date one way or the other. Thirdly, Dr Petersen, together with Ms Haines, was tasked by the MAC with reviewing Dr Raiz’s drug register, which review was done on or about 5 March 2018. To the extent that Dr Raiz refers to it as a “sub-committee”, the sub-committee was intended to be comprised also of Dr Whiting. No person is identified as the chair of that “sub-committee” but to the extent that any follow-up with Dr Raiz was required with respect to the register, that was done by Ms Haines, not Dr Petersen. Fourthly, following the review by Dr Petersen and Ms Haines, the MAC resolved on 30 May 2018 to take no further action. Fifthly, in June 2018, new information relating to Dr Raiz was provided to Ms McGowan by a pharmaceutical supplier. On receipt of that information, the MAC resolved to seek an expert opinion from the ACT Health Protective Services. That opinion was received on 12 June 2019. Finally, BPH referred a complaint to AHPRA on 8 October 2018, which on 24 July 2019, decided to take no further action.
110 Contrary to the pleading in the FASOC, the evidence does not establish that Dr Petersen chaired an internal hospital committee which delivered negative findings against Dr Raiz. Further, there is no basis for the allegation that Dr Petersen himself made an adverse finding and that it was his adverse finding that was referred to AHPRA. To the extent an adverse finding was made, it was made by the MAC after seeking the opinion of the ACT Health Protective Services. Nor is there any evidence whatsoever for the allegation that the Director “was herself directly involved in the making of this complaint to AHPRA”. Further, the allegation that the Director’s decision to refer Dr Raiz to the Committee was taken by the Director after the unsuccessful complaint to APHRA is simply wrong as a matter of fact. As I have concluded above, the Referral was made on 9 March 2018. The complaint to AHPRA was not resolved until 16 months later.
111 It is therefore necessary to consider whether the fact of the Director’s marriage to Dr Petersen, might lead the Director to make a referral to a committee under the HIA other than on its legal and factual merits given the following circumstances:
(a) Dr Petersen was not the chair of any committee;
(b) Dr Petersen was one of two people who did an initial review of Dr Raiz’s register on 5 March 2018;
(d) that review was then considered by the MAC as a whole on 30 May 2018;
(e) the MAC then resolved to take no further action (until new information was provided to Ms McGowan and expert opinion sought); and
(f) the Director had already considered Dr Raiz’s register for the purposes of her review in 2017, culminating in her not making a decision under s 91 of the HIA to take no further action in relation to the review on 21 December 2017.
112 In all the circumstances, I am unable to conclude that the mere fact of the Director’s marriage to Dr Petersen might cause a fair-minded lay observer to reasonably apprehend that the Director might not bring an impartial mind to the task she was requested to undertake by the CEM and lead her to decide a case other than on its legal and factual merits, as required by the first limb of the Ebner test. Contrary to Dr Raiz’s submission, it does not follow from the evidence that the contents of the 6 March 2018 email could only have come to the Director through Dr Petersen. To the contrary, the evidence is plain that the information was obtained by the Director through the Medicare review and the information she gained from Medicare through her s 88 request, referred to in the letter of 21 December 2017. This information pre-dated Dr Petersen’s involvement in the review of the S8 Register by at least 3 months.
113 Even if the first limb of the Ebner test were satisfied, the second is not. It is uncontroversial, as pleaded by Dr Raiz, that the subject matter of the APHRA complaint was unrelated to the matters referred to in the Referral. There is therefore no logical connection between the matter that was to be decided by the Director and the feared “infection” of that process by any knowledge that might have been conveyed to her by Dr Petersen.
114 Ground 2 must be dismissed.
Disposition of Claim against the Director
115 For these reasons, Dr Raiz’s claims for relief against the Director must be dismissed.
COMPLAINTS AGAINST the Committee
Grounds 4 & 5: The Committee was unlawfully constituted rendering the proceeding of the Committee unlawful.
116 These grounds depend on the proper construction of s 96A of the HIA. It is Dr Raiz’s contention that, without his consent, the absence of the chairperson, Dr Walker, for the first three days of the hearing rendered the constitution of the Committee unlawful and so too the proceeding of the Committee.
117 The instrument dated 9 March 2018 appointed Dr Walker, a general practitioner, as Chairperson of the Committee in accordance with s 95(1)(a) of the HIA. Drs Debra Coleman and Nedra Vanden Driesen, both anaesthetists, were appointed members in accordance with s 95(1)(b). Dr Raiz was informed of the establishment of the Committee on that same day.
118 Dr Walker is a general practitioner. There was no longer any dispute before this Court that other two members appointed to the Committee, who were both anaesthetists, were of the same specialty as Dr Raiz.
119 On 5 June 2019, Dr Raiz was informed that the Committee would hold hearings on 20 and 21 June 2019, 16 and 17 July 2019, and 1 and 2 August 2019.
120 Dr Raiz wrote the Committee on 14 June 2019 to inform them of his intention to call two experts to give evidence at the hearings and reserve his right to call further experts. He advised the Committee on 18 June 2019 that a further expert would appear.
121 The first Committee meeting was held on 20 June 2019, where Dr Raiz appeared alongside counsel. Dr Raiz was informed that the Chairperson was unexpectedly unavailable for the first meeting. The Chairperson did not attend the Committee’s second hearing, held on 21 June 2019, nor the third on 16 July 2019. The Chairperson did attend the fourth Committee meeting, which was held on 17 July 2019, and the fifth and sixth Committee meetings on 1 and 2 August 2019.
122 It is relevant to observe that in the Committee hearings, Dr Raiz was represented by Counsel, instructed by solicitors. In his submissions in response to the Draft Report, which were prepared by Counsel, Dr Raiz submitted that he “was not informed of the terms of section 96A and his consent to the Committee continuing in the absence of the Chair was not sought”.
123 Section 96A of the HIA provides:
96A If Committee members are unavailable
(1) If, before the Committee starts its investigation, a Committee member ceases to be a Panel member or, for any other reason, is unable to take part in the investigation, the Director may appoint another Panel member to the Committee as a replacement.
(2) If:
(a) the Committee has started its investigation; and
(b) before the Committee completes its final report, a Committee member ceases to be a Panel member or, for any other reason, is unable to take any further part in the investigation or preparation of reports;
the remaining Committee members may, if the person under review consents, constitute the Committee for the purpose of:
(c) if the Committee’s investigation is not yet complete—completing its investigation; and
(d) preparing the Committee’s reports.
(3) If the person under review does not consent to the remaining Committee members constituting the Committee, the Director must set up another Committee under subsection 93(1).
(Emphasis added.)
124 On its face, s 96A is concerned with circumstances where a member of the Committee is permanently unable to take any further part in the investigation or preparation of reports. In such a circumstance, there is a logical reason for requiring the consent of the person under review – being that the ultimate outcome for that person will be arrived at by three members, necessarily ensuring that the two members of the same specialty have appropriate input into completing the investigation and preparing the Committee’s report. The temporary absence of a Committee member does not prevent all three members completing the investigation or preparing the reports because, by definition, that Committee member’s temporary absence will cease and he or she will remain a Committee member able to take further part in the investigation and the preparation of reports.
125 This textual interpretation of s 96A is fortified by its statutory context. Within the same division of the HIA as s 96A, sub-div B is concerned with the proceedings of Committees. Section 99 provides that the Chairperson must preside “at all meetings at which he or she is present”, failing which the remaining members are to elect one of their number to preside. A quorum for a meeting is stipulated to be “a majority of Committee members”. Section 99 evinces a clear legislative intent that Committee meetings at which the Chairperson is absent remain lawfully constituted, subject to there being a quorum. Section 96A deals with the very particular situation where one Committee member is permanently unable to continue as a Committee member, not merely unable to attend one or more meetings.
126 Grounds 4 and 5 must be dismissed.
Ground 6: Dr Raiz was denied procedural fairness in respect of five specified matters.
127 In the Second Further Amended Statement of Claim, Dr Raiz articulated five matters which are said to evidence a lack of procedural fairness in the hearings before the Committee. Ultimately, only two were pressed, being paras [39] (as particularised in 39.2-39.5) and [40]. Both relate to the issue of clinical notes in the possession of the dental practices with which Dr Raiz worked.
128 Dr Raiz contends that the Committee denied him procedural fairness by completing its Draft Report without having provided to him relevant information that was in the possession of the Committee. The unfairness is said to be manifest by:
• questioning him on the notes which he said were not his;
• his counsel raising objections to the Committee questioning and reserving his right to inspect the notes and lead further evidence, which opportunity was never afforded to him;
• his being unsure as to whether all relevant clinical notes were obtained and the Committee’s failure to undertake further inquiry to ensure it had the complete clinical notes;
• the tender of a letter from Ms Samantha Williams that was never shown to him; and
• without having sought or asked for evidence from his patients.
129 There is no basis for this complaint.
130 First, although the letter from Ms Williams was tendered in the hearing on 17 July 2019 before Dr Raiz had seen it, it was emailed to him that same day. As is discussed below, Dr Raiz has had ample opportunity to deal with any issues arising from that correspondence before the finalisation of the Draft Report, including in the subsequent two days of the hearing on 1 and 2 August and in any final address to the Committee.
131 Secondly, the Committee issued notices to produce to each of the Bond Street Dental and Malo Clinic, Gentle Dental Care, Dentistry@Ballarat, Coburg Dental Group, Healthy Smiles Dental, Karabar Private Dental, Olstein Dental Clinic, Central Park Periodontics and Implant Dentistry. Records were produced by all. The documents were tendered into evidence on 17 July 2019 at the Committee hearing and were marked “Exhibit 14”. To the extent that Dr Raiz submitted the Committee failed to make relevant inquiries of dental practices to obtain the relevant patient records, the submission must be rejected on the face of the record. In any event, there is no general duty for an administrative decision-maker to undertake its own inquiries in addition to information provided to it by the person with whom the decision-maker is concerned: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [1]; Fulton v Chief of Defence Force [2022] FCA 1582; 178 ALD 184 at [66].
132 Thirdly, it may be accepted that Dr Raiz was questioned about notes that were not his property, that he had not seen, and that were provided by staff from the various clinics. Contrary to Dr Raiz’s pleaded case, his counsel did not object to the Committee questioning him about the notes. Rather, at p 352 from the transcript from 17 July 2019 (as pleaded at [39.3]) records:
MR FORRESTER: I don’t think well address that now. I think we need to look into the specifically the dental notes and speak to the people at the dental surgery to find out who, you know, wrote the notes and et cetera … so once we get to the bottom of that we might have a better – might be able to provide you with some evidence from our side.
133 Nevertheless, no procedural unfairness has been established.
134 It will be recalled that the Draft Report is dated 30 September 2021.
135 On 6 August 2019, Dr Raiz’s solicitors wrote to the Committee requesting copies of all correspondence or notices sent to the dental clinics where requests for production were made. The Committee responded on the same day attaching a zip file of the documents.
136 On 21 August 2019, Dr Raiz’s solicitors wrote to the Committee requesting the transcript of the hearings on 1 and 2 August 2019 to enable them “to finalise further instructions to the experts our client intends to call in this hearing” and indicating “we expect to be able to file summary reports from our client’s experts by 15 September 2019”.
137 The Committee wrote to Dr Raiz’s solicitors on 1 November 2019 querying the timing for the provision of the summary reports and indicating that the Committee “has not closed its hearing of the matter pending receipt of further material from your client’s experts and in light of the right your client and his legal advisor have to make a final address to the Committee”. The letter also noted that it would be prepared to provide an opportunity for a written final address in lieu of oral submissions.
138 Dr Raiz’s solicitors responded on 13 November 2019 saying they “will write back to you next week. I can confirm that we intend to file expert reports”. Apparently, no correspondence from Dr Raiz’s solicitors was forthcoming. The Committee followed up on 15 January 2020, providing a date of 31 January 2020 for the provision of expert reports and, in the event none was forthcoming, allowing Dr Raiz until close of business on 14 February 2020 to provide any written final address.
139 On 29 January 2020, Dr Raiz’s solicitors informed the Committee that he and a number of the expert witnesses had spent the majority of January away on leave and that the deadline of 31 January 2020 was not feasible. A date of 13 March 2020 was proposed for the filing of expert reports. The letter also indicated that Dr Raiz expects to file written submissions and “therefore we request the parties settle on a mutually convenient date for such once the expert reports are filed”.
140 On 13 March 2020, Dr Raiz’s solicitors informed the Committee that the solicitors’ offices had had to be closed for “deep cleaning” after a suspected case of coronavirus and that the documents would be emailed on 16 March 2020.
141 The Committee became aware that Dr Raiz was pursuing a Freedom of Information matter before the Administrative Appeals Tribunal, which had been filed on 27 February 2020 and which was scheduled for hearing on 28 and 29 April 2021. It wrote to Dr Raiz’s solicitors on 16 April 2021 extending the date for the provision of expert reports to 11 June 2021, failing which a final address could be made by close of business on 25 June 2021.
142 It is apparent that no additional evidence was provided by Dr Raiz to the Committee, nor did he or his legal advisors avail themselves of the opportunity to make a final address to the Committee.
143 The Committee cannot be criticised for failing to afford Dr Raiz procedural fairness in the finalisation of its Draft Report. Dr Raiz was provided with the documents held by the Committee on 6 August 2019. As his counsel said during the hearing, the adequacy and/or completeness of those records was a matter for Dr Raiz to “look into”. Dr Raiz and his legal team were afforded the best part of two years to submit further evidence and to make a final address. There has been no denial of procedural fairness.
144 Ground 6 must be dismissed.
Ground 7: The Committee took into account actions of Dr Raiz that were beyond the scope of its inquiry into “inappropriate practice”.
145 Dr Raiz contends that the Committee took into account matters of clinical judgment or clinical input which, he says, is beyond the scope of the Committee’s review. He submits that the ground rests on the proper construction of s 82 of the HIA and, in that regard, submits that the concept of “inappropriate practice” must relate to the facts of medical service delivery within the parameters of the relevant legislative scheme. He submits that the scheme is defined by ss 81 and 82 of the HIA, and the Health Insurance (Professional Services Review) Regulations 1999 (Cth) for “the protection of Medicare or the Commonwealth revenue”. He submits it is not intended to be a substitute or competitor for jurisdiction with AHPRA.
146 As has already been discussed above, pursuant to s 80(2), the Review Scheme is “to determine whether the person has engaged in inappropriate practice”. If a Committee finds that the person has engaged in inappropriate practice, the finding is reported to the Determining Authority in accordance with s 80(10), who is then responsible for determining any consequences.
147 The Review Scheme contemplates three things. First, the conduct must be “in connection with rendering or initiating” services for which a Medicare or PBS benefit is payable: Wong v Commonwealth [2009] HCA 3; 236 CLR 573 at [213]. Secondly, the conduct must be such that the Committee could “reasonably conclude” that the conduct would be unacceptable to the general body of relevant practitioners. As such, it is an objectively determined standard: Wong at [218]. Thirdly, the breadth of what falls within the concept of “inappropriate practice” is framed by reference to professional opinion: Wong at [224].
148 Section 82 of the HIA is set out in full above. 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 (other than a service of a kind referred to in paragraph (c) of the definition of service in subsection 81(1)) 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
…
(Emphasis in original.)
149 Relevantly, as defined under s 81, “service” means, inter alia, “a service that has been rendered if, at the time it was rendered, medicare benefit or dental benefit was payable in respect of the service”.
150 Contrary to Dr Raiz’s submissions, the object of the scheme is broader than that for which he contends. Whilst the object is stated to be “to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs”, the purpose of the object is to protect patients and the community in general from the risks associated with inappropriate practice.
151 As the High Court discussed in Wong at [211], the concept of “inappropriate practice” was introduced into the HIA by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth). It replaced the concept of “excessive services”, being services in respect of which a Medicare benefit was payable which were not reasonably necessary. The Explanatory Memorandum to the Bill which became the Amendment Act (Explanatory Memorandum Health Legislation (Professional Services Review) Amendment Bill 1993 (Cth)) recorded at p 4 that, in addition to the concept of “excessive services”:
[I]t will allow a Committee to examine, where relevant, aspects of a practitioner’s practice broader than purely the excessive servicing of patients. A Committee will have the capacity to consider the conduct of the person under review in his or her practice and determine whether that conduct is acceptable to the general body of his or her profession or specialty.
152 The breadth of the Committee’s role was further expanded by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) by the insertion of s 106H into the HIA, which relevantly provides:
106H Committee findings, scope of investigation etc.
(1) The Committee is to make findings only in respect of the referred services.
(2) ….
(3) The Committee’s investigation of the referred services is not limited by:
(a) the reasons given in the Director’s report to the Committee under paragraph 93(6)(a) [the basis of the Referral] or anything else in that report; or
(b) the reasons given in any request under section 86 or 106J or anything else in such a request.
(4) Before the Committee makes a finding of inappropriate practice, it must:
(a) notify the person under review of its intention to do so; and
(b) provide the person under review with the reasons on which the Committee intends to base its finding; and
(c) give the person under review an opportunity to respond.
Note: Section 25D of the Acts Interpretation Act 1901 provides for findings on material questions of fact to be included with the reasons under paragraph (b).
(5) The Committee complies with subsection (4) if it provides a draft report to the person under review in accordance with section 106KD.
153 The Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review and Other Matters) Bill 2002 identified, at p 3, that one of the main amendments was:
Strengthening the provisions relating to a Committee’s investigation of a person under review by making it clear that the Committee is not to be confined by the Director’s (or the Commission’s) grounds of why the conduct of the person under review may be inappropriate (section 106H). The PSR Committee may inquire into any practice issues arising from the referred services and should form its own view with reference to the profession’s established standards of appropriate practice.
(Emphasis in original.)
154 To the extent that clinical practice involves record keeping and note taking, s 106KB make clear that the Committee may make generic findings of inappropriate practice, particularly where “there are no clinical or practice records or some or all of the clinical or practice records are missing, inadequate, illegible or otherwise incomprehensible”.
155 Part 2 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth), which were in force at the relevant time, regulated “Adequate and contemporaneous records”:
This Part sets out the standards to be met in order that a practitioner’s records of the rendering or initiation of services be adequate and contemporaneous records.
Note: See subsection 82(3) of the Act for the significance of adequate and contemporaneous records.
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.
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 a service rendered or initiated be contemporaneous, is that record must be completed:
(a) at the time the practitioner rendered or initiated the service; or
(b) as soon as practicable after the service was rendered or initiated by the practitioner.
156 The substance of that regulation is now found in reg 6 of Pt 2 of the Health Insurance (Professional Services Review Scheme Regulations) 2019 (Cth).
157 It can be readily understood that the manner in which a practitioner delivers his or services might reveal itself through claims made to Medicare. As the High Court observed in Wong at [215]:
No doubt the expression “in connection with” is not to be given a narrow or confined construction. But the provision requires that a connection be demonstrated between the identified conduct and rendering or initiating services for which benefits are payable.
158 In that context, the High Court’s doubt about whether all questions of clinical competence and performance will come within the expression can be readily appreciated. As the Court said, at [215], “[t]here may be room for debate about whether issues like general questions about a practitioner’s physical or mental competence or a practitioner’s substance abuse will come within the expression ‘conduct in connection with rendering or initiating services’”. That is not something that needed to be decided in Wong, nor is it in this case.
159 Dr Raiz’s submission that the Committee ought to have been solely concerned with the protection of Medicare or Commonwealth revenue must be rejected. In the present case, the Committee’s finding concerning the nature of Dr Raiz’s practice clearly were “in connection with” the serviced for which benefits were claimed. They arose out of the Committee’s examination of the 202 cases listed in the table to the Draft Report, in respect of each of which the Committee attempted to correlate the fees charged with the clinical notes. In some cases, this exercise raised concerns about procedures undertaken in out-patient settings, in some as to whether informed consent had been obtained, and in others the concerns related to the inadequacy and/or illegibility of record keeping.
160 Dr Raiz sought to rely on s 106M to support his contention that a Committee cannot consider clinical matters. This argument is misconceived. Section 106M operates when a Committee forms an opinion that the person under review caused, or was likely to cause, a significant threat to the life or health of another person and sent a statement of its concerns to the Director under s 106XA.
161 As the High Court explained in Wong at [216], the HIA recognises that some conduct may not fall within “inappropriate practice” but nonetheless fall within some other definition of unprofessional practice:
Provision is therefore made by s 106XA for referring to an appropriate regulatory body any significant threat to life or health that comes to light “in the course of the performance of functions or the exercise of powers” under Pt VAA of the Act. And s 106XB provides for reference to an appropriate regulatory body of any non-compliance by a practitioner with professional standards. These provisions show that it is neither necessary nor appropriate to attempt to stretch the concept of “inappropriate practice”, or its definition as “conduct in connection with rendering or initiating services”, to embrace all forms of conduct by a practitioner that would merit professional condemnation. Rather, the focus of Pt VAA must remain fixed upon conduct in connection with rendering or initiating services for which benefits are payable.
162 The HIA therefore clearly distinguishes between findings of inappropriate practice following an opportunity for the practitioner to make submissions in response under s 106KD, which will be provided to the Determining Authority in accordance with s 106L, and the forming of an opinion of more serious conduct, under which an opinion must be disregarded under s 106M(3) when making findings simply of “inappropriate conduct”, because more serious conduct must be referred in writing to the Director pursuant to s 106XA.
163 Ground 7 must be dismissed.
Ground 9: The Committee took into account irrelevant considerations that prejudiced the findings in the Draft Report.
164 Dr Raiz contends that the Committee took into account data supplied by Medicare that was not data relating to services provided by him. In particular, he says the Committee took into account six service items that were not related to Dr Raiz and were the subject of findings of third-party fraud by Medicare, one service item relating to another anaesthetist, and service items that had already been the subject of voluntary disclosure to Medicare by Dr Raiz.
165 The Notice to Produce of 5 February 2019 directed to Dr Raiz appended a list of 206 patients in respect of whom records were sought. By letter from the Department of Human Services to Dr Walker dated 1 May 2018 (Affidavit of Ben Dube filed 21 July 2023, BD-2), the Committee was informed that data for 9 patients had been removed from the report for the patients from the supplied list after internal compliance checks. Of those 9 patients, 4 were never included in the 206 listed in the Notice to Produce – MA, DH, EH and NM. The remaining 5, who were included in the Notice to Produce – TDa, TDi, TN, MY and CZ – do not appear in the Draft Report. Although that might suggest that the Committee considered one case that was not attributable to Dr Raiz, it is apparent that the Committee’s assessment of 202 cases, rather than 201, was consequent upon one patient, MC, receiving two services within the relevant time period.
166 Secondly, the patient who was serviced by another anaesthetist was excluded from the Committee’s consideration as is made clear by the transcript of the hearing on 16 July 2019 at P-190 and the exclusion of that service as referred to in Table 1 of Appendix 1 to the Draft Report.
167 No evidence was led to suggest that the Committee took into account any service items that already been the subject of voluntary disclosures by Dr Raiz.
168 Ground 9 must be dismissed.
Ground 10: The Committee failed to take into account relevant considerations in arriving at its findings in the Draft Report.
169 This ground is concerned with the findings made by the Committee in the Draft Report of “inappropriate practice on the basis that Dr Raiz’s fees were excessively high with respect to the relevant ASA recommended rate and the usual MBS fees for those services” (DR at [106]). Dr Raiz contends that the Committee failed to take into account, or explain how it took into account, the terms of the Relative Value Guide (RVG) published by the Australian Society of Anaesthetists (ASA) or Dr Raiz’s overheads before reaching this unfavourable finding.
170 The Director and the Committee submitted that these matters are not relevant considerations in the absence of any identified legislative basis that makes them so. I reject that submission. The original request for a review of the provision of services on 3 March 2017 by the CEM identified, as one of the considerations in making his decision to request a review, “Dr Raiz’s billing under the MBS and prescribing under the PBS during the review period, in comparison with the data of all active anaesthetists in Australia”. Further, the Director’s notification letter of her decision to undertake a review, dated 6 April 2017, informed Dr Raiz that she “may review any or all of the services you provided or initiated during the review period that have attracted a Medicare or Pharmaceutical benefit” in accordance with s 88B of the HIA. To the extent that Dr Raiz raised the RVG and his overheads during the hearing in an attempt to explain the concerns that had been identified in relation to his billing, they were relevant considerations. There is, however, no merit to Dr Raiz’s complaint that they were not taken into account.
171 The Draft Report referred to Dr Raiz’s evidence in respect of these two issues at [96]. As to the RVG, the Committee referred to Dr Raiz’s evidence that “he would charge patients according to the ASA Relative Value Guide but that he did not follow the recommended unit fees”. The Transcript reference in the Draft Report appears to be an error. Nevertheless, the Transcript of the hearing on 17 July 2019 at P-251 records:
DR COLEMAN: I just want to ask a few questions just expanding on some of those answers that Dr Raiz has just given. Dr Raiz, you say you used the ASA Relative Value Guide to guide you for your billing. Are you aware that the Relative Value Guide has recommended unit fees? I understand the Relative Value Guide, you charge for units of anaesthetic time and there is a unit fee by which you multiply the number of units that you have provided. Are you aware of that system?
DR RAIZ: Yes.
DR COLEMAN: And you follow the Relative Value Guide when it comes to choosing item numbers but you don’t actually use the system of billing advised by the ASA Relative Value Guide. Is that correct?
DR RAIZ: My accounts are not produced in that manner. It’s a requirement by Medicare to produce an account with Medicare or MBS schedule item numbers, which is done in each and every case.
DR COLEMAN: I just meant - - -
DR RAIZ: Medicare do not observe or look at the unit value. They bill and rebate on the Medicare benefit schedule item numbers and it’s only a guide for intra-operative procedures.
DR COLEMAN: I understand that but I just wanted to understand how you arrive at your fee. You don't arrive at your fee using the Relative Value Guide unit fees. You just use the Relative Value Guide for getting your numbers.
DR RAIZ: No, I use the Relative Value Guide to produce an invoice with item numbers so the patient can get their legislation entitlement, which is their rebate, and it's composed of two components in outpatients and one component in relation to inpatient procedure, of which I do both.
Inpatient procedures get a Medicare benefit schedule in accordance with an inpatient based rebating system and are entitled to private health under the legislation for the balance of the component to the Medicare benefit schedule item numbers, not to the unit value but to the MBS schedule item numbers, and also the outpatient based procedures get a different rebate from the Medicare benefits schedule. It's not - it's 85 per cent of the scheduled fee and then the patient may or may not be entitled to a safety net rebate.
DR COLEMAN: But in terms of your billing, you don't use the unit value to calculate how much you're going to charge the patient.
DR RAIZ: When I charge the patient in an outpatient setting, because of the AMA rate and the ASA schedule, which vary from each other, I follow the ASA, not the AMA rate - schedule document, which details the RVG. I also have to take into account the huge number of expenses I have in and above those of other anaesthetists who do not provide equipment, maintenance of equipment, consumables and drugs which, as you're aware, is very expensive, which is why most of the hospitals in this country run at a loss.
172 That evidence was clearly taken into account and the finding at [96] was consistent with that evidence.
173 As to Dr Raiz’s overheads, the Transcript extract above continued at P-252:
DR COLEMAN: So I understand that part of your bill then will be to cover facility costs.
DR RAIZ: No, I do not charge a facility fee in my anaesthetic - - -
DR COLEMAN: What do you understand the facility fee to be for?
DR RAIZ: To cover the costs of the facility. I am not a facility. I'm an independent practitioner.
MR FORRESTER: I think maybe there's some misunderstanding. I assume what Dr Coleman is saying is that there's a fee to rent a room, if you will.
DR COLEMAN: Well, it's the room, what the room contains, all the incidental - - -
MR FORRESTER: Well, that does form part of Dr Raiz's fees.
DR COLEMAN: Yes.
MR FORRESTER: The machinery that's installed, the drugs and all the incidentals.
DR RAIZ: I do not pay for the rooms.
DR COLEMAN: That’s all part of the facility.
MR FORRESTER: Yes, because they don’t pay the rooms.
DR COLEMAN: No.
MR FORRESTER: They pay for all the machinery, equipment, drugs, et cetera. What we will be intending to do at some point is produce some schedule of the costs and expenses that form part of the business facilities to give an indication of all of those costs.
DR WALKER: So at the moment, Medicare is subsidising your equipment costs.
DR RAIZ: No.
DR WALKER: Well, you've just told us that that's the thing that determines your higher billing than other anaesthetists.
DR RAIZ: No. As I've already told the committee in your absence, that I determined the charges for my services over 10 years ago - I think it’s probably 12 or 13 years - and my fees have not varied in the whole time for the major procedures that I perform in complete isolation with the provision of all the equipment, drugs and consumables that I provide as part of my service to the community.
174 The Committee accurately referred to this evidence in the Draft Report. There is no basis for the contention that Dr Raiz’s overheads were not taken into account. The fact that the Committee nevertheless found Dr Raiz’s fees to be excessively high was a matter for the Committee to decide. It is not the role of the Court to substitute any alternative view of Dr Raiz’s billing practices for those of the Committee. It is a matter Dr Raiz is entitled to contest, and indeed has done so, in his submissions in response to the Draft Report.
Ground 11: Various of the Committee’s findings in its Draft Report are unreasonable at law.
175 Dr Raiz contends the Committee’s finding that the absence of a notation in the clinical notes concerning his presence and the anaesthetics administered at a particular dental surgery on a particular day was sufficient for the Committee to conclude that he was not present and did not provide an anaesthetic service on those occasions, such that any fee charged must be fraudulent, was unreasonable at law.
176 This ground of review is misconceived. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135], the question that needs to be asked in determining whether a decision was legally unreasonable is whether:
[o]n the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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.
177 Before considering the various particulars said to rise to the level of legal unreasonableness, it is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1:
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
…
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(Emphasis added.)
178 The Chief Justice emphasised, at [8], that the role of this Court in conducting judicial review of an administrative decision-maker’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of the decision-maker, including in particular substituting its view of what is reasonable for that of the decision-maker: see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59].
179 The statutory source of the power in the present case has as its object, as already adverted to above under ss 79A(a)-(b), is to protect patients and the general community from the associated risks of inappropriate practice and protect the Commonwealth from having to meet the costs of services provided as a result of inappropriate practice. The HIA establishes a framework for the review of providers under the Medicare regime, which involves a referral to a committee for investigation, hearings, and ultimately a draft report. As is articulated in s 80(11), provision is made throughout the scheme for persons under review to make submissions before key decisions are made or final reports are given.
180 The decision of which Dr Raiz complains is one to which his right to make further submissions has not yet been exhausted. It is a decision contained in the Draft Report. The question as to its legal unreasonableness must therefore be evaluated against the purpose of the HIA and, in particular, the scope of the provisions relevant to the review framework. The issue therefore is whether the arguments advanced by Dr Raiz in support of the particulars of this ground of review go beyond a challenge to the merits of the evaluative exercise carried out by the Committee, in the context of the scope and purpose of the HIA, so as to substantiate a finding of legal unreasonableness: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [330].
181 For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60].
182 Dr Raiz points to the inference drawn in the “MC” case as the essence of Ground 11. In respect of the circumstances surrounding this patient, the Committee made a preliminary finding of inappropriate practice, recording:
Dr Raiz’s conduct would be unacceptable to the general body of anaesthetists for the following reasons:
Dr Raiz did not provide any services to the patient on the date of service. Neither the record produced by Dr Raiz nor the record produced by the dental clinic indicate that the patient received dental treatment requiring anaesthesia on that date. If Dr Raiz did provide anaesthetic services to the patient, his records are inadequate in failing to state what services were provided and to provide any detail explaining those services.
183 Dr Raiz did not contend that there was evidence of anaesthetic services having been provided to the patient on that day. Rather, he contended that the onus was on the Committee to check with the surgeon or the patient or, alternatively, that Committee inflexibly applied a policy that an absence of a notation means the service was not provided.
184 There is nothing unreasonable or illogical about the Committee’s conclusion that, in the absence of any evidence to the contrary, the service was not provided. Moreover, it cannot be legally unreasonable for the Committee to draw such a conclusion as a preliminary finding, before inviting Dr Raiz to respond in his submissions in response – which he did. This is the appropriate manner in which to challenge the merits of the Committee’s findings.
185 Ground 11 must be dismissed.
Disposition of claims against the Committee
186 None of the claims for review of the Committee’s decision to issue the Draft Report have merit.
DISPOSITION
187 For the reasons given, Dr Raiz has been unable to sustain any of the grounds of review pressed before this Court. The further amended originating application must be dismissed with costs.
I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. |
Associate:
