Federal Court of Australia

Raymon v Professional Services Review Committee No 1280 [2024] FCA 49

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the third respondent’s costs, as agreed or taxed.

3.    The Court’s reasons for judgment be published, in the first instance, on a confidential basis to the parties, to enable them to consider whether to seek confidentiality orders with respect to any part of the judgment. By 4.00 pm on 8 February 2024, the parties provide the Court with any submissions and evidence in support of any proposed confidentiality orders.

4.    Subject to further order, the Court’s reasons for judgment otherwise be and remain confidential until 11.00 am on 9 February 2024.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Dr Raymon, is a general practitioner. By this proceeding, he seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) of a final report of the first respondent, Professional Services Review Committee No 1280 (the Committee) dated 13 July 2022 (the Final Report). The report concerns Medicare Benefits Scheme (MBS) services provided by the applicant during the period 1 April 2017 to 31 March 2018 (the Review Period). The report was prepared under s 106L of the Health Insurance Act 1973 (Cth).

2    The second respondent to the proceeding is the Director of Professional Services Review (the Director). The third respondent is the Commonwealth. The Committee and the Director have not taken an active part in this proceeding.

3    The applicant relies on six grounds of review, which are set out in his amended originating application for judicial review dated 31 October 2022. In broad outline, the grounds are:

(a)    the Committee denied the applicant natural justice;

(b)    the Committee did not observe procedures required by law in the conduct of the hearing;

(c)    the Committee engaged in an improper exercise of power;

(d)    the Committee committed an error of law;

(e)    the Committee did not have evidence to justify its decision; and

(f)    the Committee did not observe the procedures required by law in respect of its decision.

4    The grounds are set out in full later in these reasons. Several of the grounds relate to the fact that, after four hearing days, the Committee proceeded to complete its investigation ‘on the papers’ rather than in person. This course was proposed in circumstances where the applicant was experiencing considerable difficulties during the four hearing days. The course was consented to by the applicant. However, in this proceeding, the applicant contends that the Committee was under a statutory obligation to continue holding in-person hearings, with the consequence that the Committee denied the applicant procedural fairness or failed to observe procedures required by law. The applicant also contends that the Committee denied him procedural fairness on other bases. The applicant also raises a number of other issues regarding the procedures and approach adopted by the Committee.

5    The applicant relies on three affidavits:

(a)    an affidavit of the applicant dated 10 August 2022 (with annexures YR-1 to YR-18);

(b)    an affidavit of the applicant dated 8 February 2023 (with annexures YR-19 to YR-53); and

(c)    an affidavit of the applicant dated 15 March 2023.

6    The Commonwealth relies on an affidavit of Benjamin Dube dated 3 March 2023 (with annexures BD-1 and BD-2).

7    The affidavits were admitted without objection, and there was no cross-examination of the deponents to the affidavits.

8    The parties provided an electronic Court Book (CB) that included the affidavits referred to above, some of which are very lengthy. In addition, during submissions, the parties referred to and relied on the documents that are in the CB and accessible by clicking on “YR-19” or “YR-20” that appear in the CB index. These documents are different from those that comprise annexures YR-19 and YR-20 to the applicant’s affidavit of 8 February 2023. In these reasons, I will refer to the documents accessible by clicking on “YR-19” and “YR-20” in the CB index as CB YR-19 and CB YR-20 respectively. The parties proceeded on the basis that these documents were in evidence for the purposes of this proceeding.

9    For the reasons that follow, I have concluded that the application should be dismissed.

Legislative framework

10    The relevant legislative provisions are contained in Pt VAA of the Health Insurance Act. That Part is titled “Professional Services Review Scheme”. I will set out the legislative provisions based on the compilation of the Act dated 14 December 2021, being the version provided by the parties in the joint bundle of authorities.

11    The object of Pt VAA (as set out in s 79A) is relevantly to protect the integrity of the Commonwealth Medicare benefits program and, in doing so:

(a)    protect patients and the community in general from the risks associated with inappropriate practice; and

(b)    protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.

12    As outlined in the Commonwealth’s submissions, the Professional Services Review Scheme provides for a four-tiered review process. The first three tiers are concerned with whether a practitioner has engaged in inappropriate practice in the provision of services under the MBS. The fourth tier is concerned with determining an appropriate sanction in the event a practitioner is found to have engaged in inappropriate practice. The four tiers are, in summary:

(a)    Tier 1 – the Chief Executive Medicare can request the Director to review the provision of services by a person (Div 3 of Pt VAA).

(b)    Tier 2 – the Director must decide whether to undertake a review; following a review, the Director must do one of the following: decide to take no further action in relation to the review; enter into an agreement with the person under review; or make a referral to a Committee established under s 93 (Div 3A of Pt VAA).

(c)    Tier 3 – a referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral (Div 4 of Pt VAA).

(d)    Tier 4 – 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 (Divs 5 and 5A of Pt VAA).

13    Section 81(1) contains definitions, which apply unless a contrary intention appears. It includes:

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

…

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

…

14    Section 82 provides in part:

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 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:

(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

…

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.

15    Section 93 provides in part:

93    Referral to a Committee

(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.

…

(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 the Director thinks 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.

16    The key relevant provisions for present purposes are contained in Div 4 of Pt VAA, which comprises ss 95-106N. Division 4 governs the constitution (Subdiv A), proceedings (Subdiv B) and actions (Subdiv C) of Committees established under s 93 of the Health Insurance Act.

17    Section 97 provides in part:

97    Meetings

(1)    The Chairperson of the Committee must convene the first meeting of the Committee within 14 days after the appointment of the Committee members.

…

(3)    The Chairperson must convene such other meetings of the Committee as are necessary for the efficient conduct of its affairs.

…

18    Section 98 provides:

98    Conduct of meetings

(1)    Subject to this Subdivision and the regulations, the Committee may regulate the proceedings of its meetings as it thinks fit.

(2)    The meetings must be held in private.

(3)    Subject to this Subdivision, the Committee may, for the purposes of its inquiry into the provision of the services specified in the referral, inform itself in any manner it thinks fit.

19    Sections 101-103 provide in part:

101    Hearings

(1)    The Committee may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced, to the Committee.

(2)    The Committee must 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.

102    Notice of hearings

(1)    If the Committee proposes to hold a hearing, it must give to the person under review written notice of the time and place proposed for the hearing.

(2)    The notice must be given at least 14 days before the day of the proposed hearing.

(3)    The notice must give particulars of the referred services to which the hearing relates.

(4)    The notice may require the person under review to appear at the hearing and give evidence to the Committee.

103    Rights of persons under review at hearings

(1)    The person under review is entitled, subject to any reasonable limitations or restrictions that the Committee may impose:

(a)    to attend the hearing; and

(b)    to be accompanied by a lawyer or another adviser; and

(c)    to call witnesses to give evidence (other than evidence as to his or her character); and

(d)    to produce written statements as to his or her character; and

(e)    to question a person giving evidence at the hearing; and

(f)    to address the Committee on questions of law arising during the hearing; and

(g)    after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates.

(2)    A lawyer accompanying the person under review is entitled, on behalf of the person under review, subject to any reasonable limitations or restrictions that the Committee may impose:

(a)    to give advice to the person under review; and

(b)    to address the Committee on questions of law arising during the hearing; and

(c)    subject to subsection (4), after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates.

…

20    Section 106 provides:

106    Conduct of hearings

(1)    Subject to this Subdivision and the regulations, the procedure for conducting the hearing is within the discretion of the Committee member presiding at the meeting in question.

(2)    The Committee is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.

(3)    If a document is produced at a hearing:

(a)    a Committee member may inspect the document; and

(b)    the Committee member presiding at the hearing may retain the document in his or her possession for such reasonable period as he or she thinks fit; and

(c)    a Committee member may make copies of, or take extracts from, that document.

(4)    The Committee member presiding at a hearing may adjourn the hearing from time to time as he or she thinks fit.

21    Sections 106G and 106GA provide in part:

106G    Application of Subdivision

(1)    This Subdivision applies for the purposes of the investigation by a Committee of the provision of services specified in the referral made to the Committee.

(2)    It is the duty of a Committee to carry out its functions so that its final report is given to the Determining Authority or, if section 106KE or subsection 106L(5) applies, the person under review:

(a)    unless paragraph (b) applies—within 6 months after the day on which the referral is received by the Committee; or

(b)    if, at the request of the Chairperson or, if the Chairperson is not available, at the request of another Committee member, the Director allows a further period not exceeding 3 months or further periods not exceeding 3 months in each case—before the end of the further period or the last of the further periods.

(3)    If a circumstance specified in column 1 of an item in the following table occurs, the Committee may determine, in writing, that the period of 6 months referred to in paragraph (2)(a) is extended for a period not exceeding the period specified in column 2 of that item.

(4)    A determination under subsection (3) extends the period of 6 months accordingly.

(4A)    The period of 6 months referred to in paragraph (2)(a) may be extended under subsection (3) more than once.

(5)    Failure to give the final report to the Determining Authority within the period of 6 months, or that period as extended, does not affect the validity of that report.

106GA    Notification by Director or Committee that proper investigation is impossible

…

(2)    The Committee may give the Director written notice that it is satisfied that circumstances exist that would make a proper investigation by the Committee impossible. The notice must set out the circumstances.

(3)    If the Director or the Committee gives a notice under this section:

(a)    this Division ceases to have effect in relation to the Committee; and

(b)    the Director must, within 7 days after giving or receiving the notice (as the case may be), give a copy of the notice to the Chief Executive Medicare and the person under review.

22    Section 106H provides:

106H    Committee findings, scope of investigation etc.

(1)    The Committee is to make findings only in respect of the referred services.

(2)    However, the Committee is not required to have regard to conduct in connection with rendering or initiating all of the referred services but may do so if the Committee considers it appropriate in the circumstances.

Note:    Under section 106K, a Committee can make findings about a sample of the referred services and apply those findings across the relevant class of referred services.

(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.

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.

23    Section 106K provides:

106K    Committee may have regard to samples of services

(1)    The Committee may, in investigating the provision of services included in a particular class of the referred services, have regard only to a sample of the services included in the class.

(2)    If the Committee finds that a person has engaged in inappropriate practice in providing all, or a proportion, of the services included in the sample, then, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in the provision of all, or that proportion, as the case may be, of the services included in the class from which the sample is chosen.

(3)    The Minister may, by legislative instrument, make determinations specifying the content and form of sampling methodologies that may be used by Committees for the purposes of subsection (1).

(4)    The Committee may use a sampling methodology that is not specified in such a determination if, and only if, the Committee has been advised by a statistician accredited by the Statistical Society of Australia Inc that the sampling methodology is statistically valid.

24    Section 106KD 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.

25    Sections 106L and 106M provide in part:

106L    Final report of Committee

(1A)    This section applies if the person under review has been given a notice under subsection 106KD(3) inviting submissions on changes to the draft report.

(1)    After the period of 1 month referred to in subsection 106KD(3), the Committee must, after taking into account any submissions made to the Committee by the person under review within that period, prepare a final report setting out:

(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 member or Committee members; or

(c)    if there are not a majority of the Committee members who are agreed on findings—the respective findings of the Committee members.

(1B)    The final report must not include a finding of inappropriate practice unless the finding and the reasons for the finding were included in the draft report under section 106KD.

(2)    If the person under review is a practitioner, the final report may, with the person’s written consent, include recommendations of the kind mentioned in subsection 106KD(2).

(3)    Unless subsection (5) applies, the Committee must:

(a)    give copies of the final report to the person under review and the Director; and

(b)    give the final report to the Determining Authority not earlier than 1 month after the day on which a copy of the report is given to the person under review.

(4)    The copy given to the person under review under paragraph (3)(a) must be accompanied by a written notice setting out the terms of paragraph (3)(b).

…

106M    Referral of matter to a regulatory body to be mentioned in Committee’s report

(1)    This section applies if, in the course of its investigation, the Committee:

(a)    formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any other person and sent a statement of its concerns to the Director under section 106XA; or

(b)    formed an opinion that the person under review failed to comply with professional standards and sent a statement of its concerns to the Director under section 106XB.

(2)    The Committee must mention that it has formed the opinion, and set out the terms of the statement, referred to in paragraph (1)(a) or (b):

(a)    if the statement was sent before the Committee prepared its draft report—in the draft report; and

(b)    in the final report.

(3)    The Committee must disregard any opinion formed as mentioned in subsection (1) when making findings for the purposes of its draft report or final report.

26    Also relevant for present purposes is s 106XB (located in Div 5A of Pt VAA):

106XB    Non-compliance by a practitioner with professional standards

(1)    If, in the course of the performance of functions or the exercise of powers under this Part, a Committee or the Determining Authority forms the opinion that a person who is a practitioner has failed to comply with professional standards, the Committee or the Authority must give to the Director a written statement of its concerns, together with the material, or copies of the material, on which its opinion was based.

(2)    If:

(a)    in the course of or in connection with the performance of functions or the exercise of powers (whether by the Director, the Director’s nominee, a Committee or the Determining Authority) under this Part in relation to a person who is a practitioner, the Director forms the opinion that the practitioner has failed to comply with professional standards; or

(b)    the Director receives from a Committee or from the Determining Authority a statement and material under subsection (1);

the Director must:

(c)    if paragraph (a) applies—prepare a statement of his or her concerns, attach to the statement the material, or copies of the material, on which his or her opinion was based and send the statement and attached documents to the appropriate body or bodies referred to in subsection (3); or

(d)    if paragraph (b) applies—send the statement and attached documents received from the Committee or Authority to the appropriate body or bodies referred to in subsection (3).

(3)    The appropriate body or bodies for the purposes of paragraphs (2)(c) and (d) are the body or bodies specified by the regulations.

Background facts

27    The following outline of the background facts is based on the affidavit material and documents in evidence. I have included some ‘source references’ to assist the parties’ consideration of these reasons.

14 January 2019 to 29 November 2019

28    On 14 January 2019, a delegate of the Chief Executive Medicare requested the Director to undertake a review of the applicant’s provision of services during the period 1 April 2017 to 31 March 2018 (referred to in these reasons as the “Review Period”) for the purpose of considering whether he may have engaged in inappropriate practice within the meaning of s 82 of the Health Insurance Act.

29    On 22 January 2019, the Director wrote to the applicant, informing him that she had decided to undertake a review of his provision of MBS services in accordance with s 88A of the Health Insurance Act.

30    On 18 June 2019, the Director issued a report under s 89C(1) of the Health Insurance Act (the Section 89C Report) (Annexure YR-4). The report focussed on MBS items 23, 36, 721, 723, 732 and 2713. For the reasons set out in the report, the Director did not make a decision under s 91 of the Health Insurance Act to take no further action in relation to the review. It may be helpful, at this stage, to outline the six MBS item numbers that are the subject of this proceeding. These are summarised in the Committee’s Final Report (discussed later in these reasons) as follows:

(a)    MBS items 23 and 36 are described as follows:

148.    MBS item 23 requires a “Level B” attendance. The MBS explanatory notes (see note AN0.9) indicate that a Level B attendance will be used for a consultation lasting less than 20 minutes for cases that are not obvious or straightforward in relation to one or more health-related issues (reflecting the descriptor for a Level A consultation). The item descriptor indicates that the attendance might require taking a patient history, performing a clinical examination, arranging any necessary investigation, implementing a management plan, providing appropriate preventive health care, as clinically indicated and with appropriate documentation.

149.    MBS item 36, by contrast, requires a “Level C” attendance. That is an attendance of at least 20 minutes and involves the taking of a ‘detailed’ patient history.

(b)    MBS items 721, 723 and 732 relate to Chronic Disease Management (CDM) services and are described as follows:

MBS item 721

167.    MBS item 721 is for the preparation of a comprehensive written plan for the management of a chronic disease. The item descriptor specifies that the plan should describe the patient’s condition(s) and healthcare needs, agreed management goals, actions to be taken by the patient, required treatment and services, and arrangements for the provision and review of those treatments and services. The preparation of the plan is to be explained to the patient and the patient’s agreement to the plan is to be recorded. The plan is to be recorded and kept by the preparing practitioner. A copy of the plan is to be offered to the patient.

MBS item 723

168.    MBS item 723 is for the preparation of a multidisciplinary plan prepared for a patient by a medical practitioner in consultation with at least two other collaborating providers, each of whom is to provide a different kind of ‘treatment or service’ to the patient. The plan, at a minimum, must describe the treatments and services to be provided to the patient by the collaborating providers. The requirement to consult and engage at least two other collaborating providers sits at the core of this item.

MBS item 732

169.    MBS item 732 is for a review of either a GPMP [General Practitioner Management Plan] or TCA [Team Care Arrangement]. A review of a GPMP requires, amongst other things, that the doctor review all the matters set out in the relevant plan and make any required amendments to the plan. A review of a TCA requires consultation with two other health providers and making any required amendments to the plan.

(Footnotes omitted.)

(c)    MBS item 2713 relates to mental health services and is described as follows:

254.    MBS item 2713 is for a professional attendance by a medical practitioner involving taking relevant history, identifying presenting problem(s), providing treatment, advice and/or referral for other services or treatments and documenting the outcomes of the consultation, on a patient in relation to a mental disorder and lasting at least 20 minutes.

31    On 13 August 2019, the applicant’s solicitors, Kennedys, provided a letter containing submissions in response to the Section 89C Report (Annexure YR-54).

32    On 22 August 2019, the Director attended a teleconference with the applicant, at which the Director offered the applicant the opportunity to enter into an agreement under s 92 of the Health Insurance Act (a Section 92 Agreement).

33    On 11 October 2019, a Case Manager at the Professional Services Review Agency (the PSRA) indicated that the Director was agreeable to the applicant having until 18 October 2019 to consider a proposed Section 92 Agreement. The applicant declined to enter into such an agreement.

34    On 29 November 2019, the Director, pursuant to s 93(1) of the Health Insurance Act, signed an instrument that: (a) set up the Committee; and (b) referred to the Committee (the Referral) the investigation of whether the applicant had engaged in inappropriate practice in providing the following services during the Review Period: MBS items 23, 36, 721, 723, 732 and 2713 (the Referred Services) (Annexure YR-10).

35    Attached to the instrument was a report prepared by the Director pursuant to s 93(6)(a) and dated 29 November 2019 (the Section 93 Report). The Section 93 Report (which comprises 42 paragraphs) included:

12    After considering Dr Raymon’s submissions, I am not satisfied that a PSR Committee could not make a finding of inappropriate practice in respect of [Dr] Raymon’s rendering of MBS items 23, 36, 721, 723, 732 and 2713 for the following reasons:

36    The report then set out reasons with respect to MBS items 23, 36, 721, 723, 732 and 2713. The report concluded:

41    Accordingly, I decided to make a referral to a PSR Committee in accordance with section 93 of the Act to consider whether the provision of MBS item 23, 36, 721, 723, 732 and 2713 services by Dr Raymon during the review period constituted engaging in inappropriate practice.

30 November 2019 to 10 March 2021

37    On 7 January 2020, the Committee issued a hearing notice in accordance with s 102 of the Health Insurance Act, setting the matter down for hearing over six days in March to May 2020. However, the hearing was delayed because of the COVID-19 pandemic.

38    The applicant gives evidence in his second affidavit (at paragraph 44-47) that he received a USB stick (said to contain patient records) with the first hearing notice, but neither he nor his then legal representative, Mr J Morgan of counsel, could open the documents on it. In March 2020, the applicant was provided with a second USB stick (USB 2 stick) that allowed him to access patient records. The applicant made a copy of that USB stick and provided it to Mr Morgan in March 2020.

39    On 4 January 2021, the Committee issued a further hearing notice, setting the matter down for hearing over six days between 11 March 2021 and 26 March 2021. This was emailed to Mr Morgan on 28 January 2021 (Annexure BD-2, pp 174-191). The covering letter enclosing the notice of hearing included:

Examination of Services

The Committee intends to examine your conduct in connection with rendering Medicare Benefits Schedule (MBS) item 23. 36. 721. 723. [732] and 2713 services during the period 1 April 2017 to 31 March 2018 inclusive (review period).

…

Clinical records

A USB with all records relating to the services to be examined by the Committee has already been provided to you and your legal advisor. Please ensure that you and your legal adviser bring a laptop and the records to the hearing.

40    The notice of hearing included the following particulars of the Referred Services:

The particulars of the matters to which the hearing relates are:

Whether you engaged in inappropriate practice as defined in the Act in respect of the services specified in the instrument of PSRC Referral No. 1280. Those services are:

•    Medicare Benefit Schedule (MBS) item 23

•    MBS item 36

•    MBS item 721

•    MBS item 723

•    MBS item 732

•    MBS item 2713

services provided by you at or from your practice locations within Australia during the period 1 April 2017 to 31 March 2018 (review period).

In deciding whether you engaged in conduct that would be unacceptable to the general body of general practitioners in connection with providing the services listed above, the Committee may pursue the following issues with you at the hearing:

•    whether in relation to the services listed above, you:

•    satisfied the MBS requirements of the item; and

•    provided an appropriate level of clinical input

•    whether in relation to these services you kept medical records that were deficient in essential clinical information.

41    The hearing notice did not identify as an issue whether patients had attended consultations (the Attendance Issue).

42    In the applicant’s second affidavit (at paragraph 53) he states that no USB stick came with the second hearing notice. The applicant states (in paragraph 55 of his second affidavit) that in February 2021 his car was stolen with the USB 2 stick in the car, together with hard copy notes he had printed in 2020 and upon which he had made handwritten notes.

43    On 18 February 2021, there was correspondence between Mr Morgan and Margaret Parker (Principal Legal Officer at the PSRA and the contact person on behalf of the Committee) dated 18 February 2021 (Annexure BD-2, p 196) about obtaining a copy of the patient records for the purposes of the hearing.

44    The applicant gives evidence in his second affidavit (at paragraphs 57-58) that he only received a new USB stick (the Green USB stick) shortly before the hearing commenced on 11 March 2021. He states that he could not open the Green USB stick and could not properly prepare for the hearing.

45    It appears that the process involved the Committee obtaining the medical records for a sample of 30 services provided by the applicant during the Review Period for each MBS item in issue (see the applicant’s first affidavit, paragraph 19; Annexure BD-2, p 139; and T110). Therefore, in this case, where there were six MBS item numbers in issue, the Committee obtained the medical records for 180 services. In this regard, the applicant states (at paragraph 19 of his first affidavit):

This comprises an enormous amount of material (I would say, in the order of 16,000 pages of Patient Notes). As if to underscore how much information would be traversed, the covering letter said (In Bold): ‘Please ensure that you and your legal adviser bring a laptop and the records to the hearing.’ At no stage did the Committee give notice of the particular ‘services’ where they had concerns, much less the nature of the concerns, and where, in the patient notes, there might be evidence of those concerns. Without notice of this type, there was no practical (or I would say ‘possible’) way in which I could have prepared for the questions that emerged, over these Hearings. I was ‘put on the spot’ and found it difficult to respond.

46    The applicant also gives evidence (in paragraph 60 of his second affidavit):

The record for each service is relatively compact, but the services sit in the context of the remainder of the patient notes, which ranged in size from 100 to 1,000 pages - rapidly making the preparation for the hearing extremely unwieldy and difficult. Each service is meaningless on its own as it needs to be viewed in the whole of the patient’s history which could range in size from 100 to 1000 pages. This made the preparation for the hearing extremely difficult and almost impossible.

11-19 March 2021 (the hearing)

47    On 11, 12, 18 and 19 March 2021, the hearing proceeded before the Committee. The applicant was represented by Mr Morgan during the hearing on those days and throughout the Committee’s subsequent consideration of the matter ‘on the papers’. The transcript of the four hearing days is at Annexure YR-13 to the applicant’s first affidavit. It is necessary to refer to the transcript in some detail. I will focus on aspects of the transcript that were highlighted by one party or the other during the hearing of this proceeding.

Day 1 (Thursday, 11 March 2021)

48    At pp 22-23 of the transcript, the applicant gave evidence about the demographic of his practice. He said that there were mostly immigrants and that many had extremely poor English. He said their cultural backgrounds were: Eastern Europe, Greece, Italy, African countries, Spanish, French, German, Chinese, Korean and Japanese.

49    At p 37 of the transcript, the applicant stated, in the course of an answer, “please forgive me, I’m so overwhelmed, at the moment, and I just – my memory sometimes lapses”. On the next page of the transcript, the applicant referred to being “stressed”.

50    At p 52 of the transcript, the applicant gave further evidence about his cohort of patients. He said: “A lot of my patients require – they come from like hot spots, refugees, survivors of atrocities, survivors of torture.” In that context, he said:

Having survived Soviet Union, I know exactly what atrocities are all about, I’ve seen people being killed on the street, in front of my own eyes. I do have, sometimes, my own flashbacks, I understand exactly what Post-Traumatic Stress Disorders and mental ordeal is all about.

51    At p 54 of the transcript, Mr Morgan addressed the Committee and stated that the applicant has “been a bit traumatised by all of this, as you might expect”. A short time later (as recorded at p 56), the Chair of the Committee said to the applicant: “I appreciate that this is a traumatic thing to come in front of your colleagues, and have to go through the journey that you’re going through”. The Chair gave an explanation of the process, describing it as a “very fair and transparent process”.

52    At p 58, the Committee commenced questioning the applicant about MBS item 23 services.

53    The applicant gives evidence in his second affidavit (at paragraph 62) that, as he was unable to access the patient notes on the Green USB stick, on the first day of the hearing he needed to use Mr Morgan’s computer while giving evidence, and this was frustrating and upsetting. He gives evidence that, on the evening of 11 March 2021, he transferred all files from Mr Morgan’s computer onto a new USB stick. The applicant states that, on the morning of 12 March 2021, he transferred the contents of the new USB stick onto his own computer. The applicant states that he used his own computer for the rest of the hearing. The applicant gives the following evidence (in paragraph 63 of his second affidavit):

The patient records were in a format unfamiliar to me. Whilst at the Carnegie Medical Clinic I had used the “Medical Director” clinical software, specifically designed to easily navigate through patients’ notes. The New USB stick consisted of thousands of pages of patient notes in pdf format. I found it extremely difficult to navigate while being questioned at the hearing. As a consequence, the giving of my evidence was compromised at the hearing.

54    At p 59 of the transcript, the applicant stated that he was “not very good with computers”.

55    At p 118, the applicant indicated he was having difficulty opening one of the documents on the computer. The Chair then said:

That’s all right, Dr Raymon, it is all right. I mean, I know we’ll do – tomorrow you’ll have your own laptop which will help things and it will be better. I appreciate the hearings are stressful but it is not an issue. It’ll be easier for you tomorrow. We will take our time. We don’t want you to be rushed, okay? Have a drink of water and just take a second and get the computer loaded up and then we’ll keep going, okay? So, have you got the record open now?

Day 2 (Friday, 12 March 2021)

56    At p 189 of the transcript, a member of the Committee raised with the applicant a concern that the patient may not have been present during the consultation being examined at that point. The applicant rejected that proposition.

57    At p 207, the Chair indicated that the questioning would now move to MBS item 36 services.

58    At pp 237-238, the Chair of the Committee recommended to the applicant that he undertake better preparation for the hearing, by looking through his consultation notes in advance of the hearing. The Chair noted that there seemed to be “quite some gap” between the Committee asking a question and the applicant being able to give a response as to whether he had a recollection of the consultation being discussed.

59    At p 254, the applicant said: “… I must tell you that I’m extremely anxious and I just struggle with all of these things at the moment”. On the next page of the transcript, the applicant is recorded as saying: “That’s all my terrible anxiety, and in fact I’m having flashbacks at the moment, I must tell you.” The Chair said that the applicant should make sure he was being looked after, and agreed to have a break (following a suggestion from Mr Morgan). The hearing was adjourned at 2.21 pm. Upon resuming at 2.45 pm, the Chair noted that Mr Morgan had informed the Committee that the applicant was distressed. Accordingly, the Committee did not continue with the hearing that day.

Day 3 (Thursday, 18 March 2021)

60    At the commencement of the hearing (at p 258 of the transcript), the applicant apologised to the Committee members for needing the adjournment, and referred to matters he had been suppressing for 35 years. The Chair responded that the Committee was aware “how distressing it is” and that “things can trigger past experiences”. The Chair explained the reason why the Committee was raising questions with the applicant. The Chair said (at p 259):

… the reason we put concerns, when we put concerns, is not because we’ve made a decision, it’s actually so that you have the opportunity, if we’ve got a niggling doubt, or a concern that we’ve put to you, that you have a chance to explain those to us.

61    At p 260, Mr Morgan explained the background to the applicant’s distress and flashbacks. At p 261, Mr Morgan outlined the types of questions that the applicant would “find difficult”, that is, were likely to cause emotional distress. Mr Morgan said that there were two types of questions that the applicant would consider to be a challenge to his integrity: the first was any suggestion that he was consciously defrauding Medicare; the second was any suggestion that the patient was not present. At pp 261-262, Mr Morgan provided the Committee with a copy of the Section 89C Report and the applicant’s response to that report, prepared by Kennedys, his then solicitors. The reason given for providing those documents was because the Director had raised a concern about non-attendance of patients, and Kennedys had responded to that concern.

62    At p 264, the Chair stated that the Committee was aware of the applicant’s distress. The Chair stated that, if the Committee needed to ask questions about non-attendance, it would do so in a way that sought to ameliorate the distress caused by raising those concerns.

63    At p 281, the applicant referred to the difficulty he had working with computerised notes.

64    At p 303, the Chair said to Mr Morgan that he (the Chair) was “not accusing [the applicant] of being dishonest … I’m just suggesting that I think he’s a bit muddled on this occasion”.

65    At p 304, the applicant said that he had looked through the notes in preparation for that day’s session.

66    At p 359, the Chair noted that the Committee had been reflecting on how best to manage the hearing and also reflecting on Mr Morgan’s submission that morning about how the Committee could manage, particularly, concerns which were likely to trigger a response. Mr Morgan raised the possibility of sitting for three-quarter days and whether the number of patients could be reduced to three-quarters.

67    At p 369, the Chair flagged that the Committee intended to question the applicant the next day about MBS items 721 and 723.

68    The hearing adjourned at 4.14 pm on that day.

Day 4 (Friday, 19 March 2021)

69    At the commencement of the hearing (p 372 of the transcript), the Chair stated that the Committee’s intention was to ask the applicant questions about the CDM services, as foreshadowed the previous day. The applicant apologised for his “meltdown” and expressed his gratitude to the Committee for allowing him time.

70    At p 410, in response to a question about the applicant’s billing of item 721, the applicant responded by describing the complexity of the problems of his patients.

71    Upon recommencement of the hearing after the lunch adjournment, the Chair stated (at pp 447-450):

Dr Raymon, the Committee has now discussed service 1 with you and has reviewed the records of all of the remaining MBS items 721, 723 and 732 services in the random sample. While with service 1 you advised that it was an aberration and you could not explain how the issues we identified occurred, the Committee after going through the rest of the services has seen similar issues across the remaining cases. Your counsel, Mr Morgan emphasised yesterday to the Committee that it would be particularly distressing for you if the Committee were to raise concerns that you feel question your integrity. Chief among these would be if the Committee were to raise concerns about patient attendance. Mindful of this issue, the Committee proposes to group its concerns for chronic disease management services. This is done both to provide efficient running of the Committee proceedings and to reduce the stress of raising these concerns with you for each service in turn.

However, the grouping of concerns is in no way meant to deny you the opportunity to address concerns in each individual service with the Committee. For the avoidance of doubt, the Committee wants to make it clear that it is willing to progress and question individual services. If you wish to answer the group concerns we are about to raise by visiting some or all of the services individually, we are willing to do so. After these group concerns are raised with you, we will take an adjournment to provide you with time to take legal advice, if needed and to consider whether you wish to respond to the group concerns and or have the Committee examine services individually.

Dr Raymon, the Committee has noted a pattern in the records received and will have the same general concerns in all of the 721, 723 and 732 services. The first general concerns are attendance concerns. Dr Raymon, for each of the randomly sampled MBS items 721, 723 and 732 services, the Committee has a concern that the patient was not in attendance on the date of service. The reasons for the Committee’s concerns are as follows.

Firstly, in no service is there evidence in the form of examination findings, measurements such as blood pressure or weight, pathology being ordered on the day, imaging being ordered on the day or prescriptions being provided. These are activities that would have disclosed that the patient was in attendance on the date of service. Dr Raymon, to be clear, the Committee has these concerns across all 721, 723 and 732 services. We find it difficult to accept that on no occasion when patients were present, were any of these things done. This is such a common part of usual general practice. It is difficult to accept 90 services occurring with a patient present without any of these activities being undertaken. Rather the more reasonable explanation is that patients were not present to be examined or be measured or to request and accept prescriptions or referrals for pathology or imaging.

Secondly, there are no sign can sense in the record that indicate the patient was present. Thirdly, an extremely high proportion of services occurred on the exact date of which recall which the Committee considers, in the context of its knowledge of arranges attendances in response to recalls, to be so unusual that it cannot be reasonably occurred, as having occurred. Patients are unlikely to [attend] so reliably in response to a request for a recall. For example, they will have other appointments and commitments, they will be away.

…

[Fourthly,] of the remaining services that were not billed on the exact day of the recall being due[,] [in] the majority of cases, this is where the recall fell during a period of leave or on a day when you were absent from work. Dr Raymon, the Committee bases this observation on table 16 of appendix 1 to exhibit 1, being the Director’s Referral to the Committee. This identifies that you have two significant periods of leave during the leave period.

…

Fifthly, there were services where there was no recall because they were the first GPMP and TCA. These services, there was no evidence of a patient attending on a date of service, and these first services had a pattern where the patient had attended, and a consultation item was billed. The next consulting day, the GPMP and Team Care Arrangement service was billed. … What happened – to be clear in this circumstance, we could see that there was a consultation that occurred where there is evidence from, in terms of prescriptions and observations indicating that a patient was present. Then, [the] next working day the GPMP and TCA is billed after the consultation the previous working day.

(Underline emphasis added.)

72    After detailing some further concerns, the Chair said that the Committee would take an adjournment to give the applicant an opportunity to consider how he would like to respond. The hearing was adjourned at 2.42 pm.

73    At 2.37 pm on 19 March 2021, Ms Parker (on behalf of the Committee) sent an email to Mr Morgan attaching a document that set out the Committee’s concerns about the provision of CDM services (CB YR-20, pp 46-50). This appears to be the notes from which the Chair read when outlining the Committee’s concerns during the hearing.

74    The hearing resumed at 3.33 pm. Upon resuming, Mr Morgan proposed that the Committee adjourn for the rest of the day and he would liaise with Ms Parker about whether the hearing resumed the following Thursday (as scheduled) or another date. The Chair adjourned the hearing to the following Thursday, or as otherwise arranged. However, as discussed below, the hearing did not resume.

The applicant’s evidence about the hearing

75    In his first affidavit, the applicant gives evidence about the hearing. This includes:

6.    I grew up in the then USSR communist state of Uzbekistan. At the age of 16, I was arrested by Police, and held for three days, where I was interrogated about entirely fictitious allegations, during which I was tortured both physically and emotionally – before a brave youth coming forward to show the allegations were entirely fictitious. I thought I had this controlled, but the interrogatory nature of proceedings, before a Professional Services Review Committee (under Part VAA of the Health Act) started to remind me of the torture I’d suffered as a 16-year-old and started to unsettle me. On Day 4 of the Committee Hearings (19 March 2021), the Committee expressed global concerns, for all Chronic Disease Management (CDM) services – that concern being, that the patients were not physically present, at the consultation, where I had recorded them as present (essentially an allegation of dishonesty and fraud). This caused me vivid ‘flashbacks’, to the interrogation and torture I’d suffered as a youth. I had to get out of the hearing room and proceeded to have a complete emotional collapse for the rest of the afternoon (about 4 hours). I was overcome by heaving, uncontrollable anxiety. I think I’ve had ‘posttraumatic stress disorder[’] (PTSD), which has been triggered by the Committee’s interrogation of me as confirmed by my psychiatrist Dr Mat Gelman. It has impacted significantly on my capacity to defend myself. The Committee showed some concern and made various allowances, which they set out in their Draft and Final Reports. But they have shown no understanding about the ongoing nature of the disability particularly in their refusal to allow me to make meaningful submissions – saying, effectively: ‘we’ve given you long enough – no more extensions’.

…

20.    During the Hearings, the committee asked questions about some of the 180 services, but not all. It was not clear, ahead of time, which were the services about which they had ‘concerns’ and what the nature of those concerns would be.

(a)    Not only could I be wasting time, on services, where the Committee had no concern, but the job of preparing, without knowing the nature of the concern, was impossible. Was it a clinical concern, what was the nature of the concern, how could [it] be rebutted? Was it a record keeping concern, was it a peer standard or a statutory standard, what were the terms of those standards, what where the particulars of records; they had concerns about, how might that be rebutted, and what the Committee needed me to explain concerning the patients’ condition and treatment?

(b)    In starting to prepare s106KD(3) submissions, on the way in which the Committee ought finalise its Draft Report, I worked my way down the List 1 Item 23 services, in respect of which the Committee had made ‘Preliminary Findings’ of ‘inappropriate practice’. On no occasion, in that List (which was the only one I had time to complete) did I concede that that the service was relevantly ‘inappropriate’. Sometimes the Committee made a clinically based preliminary finding of ‘inappropriate practice’, with which I disagreed (though my experience, in the Hearings, gave me no confidence that the Committee would be capable of surrendering their own views – despite me [being] senior, in medicine and having status as a trainer of doctors). Also, they frequently challenged whether the Item 23 (sub-20 minute) consultation, was of the required ‘Level B’ required by the MBS. They kept asserting that it was a Level A service, warranting only a six-minute consultation. In my opinion, however, they failed to appreciate the clinical input required, for the particular service, and failed to properly construe the ‘Level A’ MBS definition. Also, I often found that the material, with which to rebut the ‘preliminary finding’, lay in information, elsewhere, in the Patient Notes (which they rarely busied themselves in – usually being content to look only at the ‘entry’ for that service). It is this last point, that makes it so impossible to prepare for the Hearings, without adequately particularised notice. And, without such notice, it be a blind search, through this huge bulk of Patient Notes (perhaps 16,000 pages) with no idea what you were looking for.

(c)    I was working on this, in three-hour blocks, at night, with Mr Morgan, and it often took a whole night, to make a submission that adequately rebutted the ‘preliminary finding’ of ‘inappropriate practice’. This is how long it takes, when one has, at least some particulars, of where the Committee thinks the problems lie. It would be impossible to do this, with no particulars.

(d)    Viewed in this light, the one month, which s106KD(3) allows, for a practitioner to make submissions, on how the Committee ought finalise its 360 page Draft Report, is manifestly inadequate and unfair. The Committee allowed some extensions, of this period, but showed no commitment to ensuring that I could make clearly adequate submissions, for each service and the other matters addressed in the Draft Report (which would probably take submissions of a similar length to their 360 page Draft Report).

(e)    … It would be much fairer process requiring the Committee, to prepare and serve, a Draft Report, give the practitioner way more than one month, to make preliminary written submissions, then hold hearings, to discuss any remaining differences, before having a further Draft Report, and final submissions on how to finalise that Report.

21.    During the course of the hearing, I was often asked about my memory of particular patients and attendances. Given the passage of time involved, and the plethora of clinical records, I struggled with my recollection, and I tried as hard as I could to reconstruct, then and there, what had occurred. In the circumstances, I was very fearful about not being able to answer all the questions, or not being able to answer accurately. This was so, despite the fact that the Chairman … asked whether Mr Morgan or I had anything to add, after having given my explanations. I found this process unfair without having been given adequate and proper notice of the specific matters that I would be interrogated about. As such I believe I was denied natural justice and procedural fairness.

76    I accept that the above represents the applicant’s views of what transpired at the hearing. It is also necessary to have regard to the hearing transcript, which provides objective evidence of what occurred at the hearing.

20 March 2021 to 13 July 2022

77    On 22 March 2021, Mr Morgan sent an email to Ms Parker requesting that the hearing not resume that week (CB YR-20, p 53). Mr Morgan’s email included:

2.    My client (Dr Raymon) proposes the following, about the conduct of the hearing (particularly adjourning Days 5 & 6) -

(a)    He proposes that we have no hearings this week (adjourn for this week). He says he tried working on Sunday (yesterday) but couldn’t and has taken the day off, today. I don’t know that he knows how many days this week he’ll have to take off. Dr Raymon says he’s made a time to see his psychiatrist: [Dr Gelman]. It’s plain to me that my client’s in no state, this week, to face what he finds quite traumatic.

(b)    He also proposes that we adjourn Days 5 & 6 for the following week, for the Jewish festival of Passover, which is bounded by the weekends at either end of that week (Sat, Sun 27 & 28 March and Sat, Sun 3&4 April 2021). This will also allow time to see if he’s recovered mentally, and emotionally, enough to go on.

(c)    He proposes responding (through me) early in the following week (commencing Mon 5 April 2021) about whether he’s able to proceed (mentally and emotionally). I hope he is.

78    On 23 March 2021, Ms Parker sent an email to Mr Morgan stating that the Committee requested a medical certificate from the applicant and indicating that the Committee would reschedule the hearing for April 2021 if the applicant was well enough (CB YR-20, p 56).

79    On 25 March 2021, Mr Morgan provided a medical certificate for the applicant from the applicant’s treating psychiatrist (CB YR-20, pp 61-63).

80    On 7 April 2021, Mr Morgan sent an email to Ms Parker attaching a further letter from the applicant’s treating psychiatrist indicating that the applicant would not be well enough to continue the hearings until 4 May 2021 (CB YR-20, p 64).

81    On 8 April 2021, Ms Parker sent an email to Mr Morgan stating that the Committee required a report from the applicant’s treating psychiatrist setting out his prognosis (CB YR-20, p 66).

82    On 30 April 2021, Mr Morgan provided the Committee with a medical certificate from the applicant’s treating psychiatrist stating that the applicant was unfit to continue with the hearing (Annexure BD-1, pp 16-18). The psychiatrist’s certificate stated:

Dr Raymon is not able to be further interviewed by a medical panel.

He finds the experience of being questioned about his medical practice retraumatising

He has experience of childhood trauma in terms of being violently questioned and assaulted by authorities as an adolescent in the USSR and he has consequently found the interviewing by the medical panel to be distressing and associated with overwhelming anxiety and distress

Could any further interviewing please be done by written questions … as a means by which he would not be further distressed.

(Underline emphasis added.)

83    On 5 May 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, pp 14-16) that stated in part:

2.    You will have seen that Dr Gelman cannot see a time when the hearings can resume – or not in any fashion that is too inquisitorial, which he explains (if I interpolate) as PTSD triggering flash backs, [due] to the trauma he suffered, as an adolescent, in the USSR, from being ‘violently questioned and assaulted by authorities’ (in no small part, because he was/still is Jewish). I think I’ve conveyed some of this to the Committee, already, but this is now professionally assessed and confirmed.

3.    This presents some difficulties for the proper progress of the important work, of the Committee – as the hearings are inherently inquisitorial, which, in turn, is the last stage in the natural justice steps, in the Professional Services Review process. However, there as some ways forward that we have canvassed.

(a)    The Committee’s willingness to put its ‘concerns’ about the remaining services (which are all item 2713) seems to be a good one, which my client embraces.

(b)    My client also wants to make submissions to the Committee about the wholesale concerns they raised about the Chronic Disease Management (CDM) services, and do this before they write their report. He thinks the substance of their concerns are wrong, and given time to do so, he could address them satisfactorily.

…

5.    I have concerns, though, about my client’s capacity to do all the work involved in making the Mental Health and CDM submissions I’ve referred to, in para 3 above. He says he wants to, but my personal sense is that he’ll struggle. This is something that I need to work through, further, with him. Perhaps we can work out what happens, if my concerns prove right. Hopefully, I can help Yuri to do some of this work, and I’ll stage this to make the sample, that he completes, as representative as possible (for instance, by working, case by case, from the beginning, so there is no inherent skewing, in stopping wherever we get to).

…

7.    I’m giving consideration to bringing testimony to the Committee, from various persons, who’ve offered to do so. Some of them want to say how competent and caring Dr Raymon has been, as a doctor, to them or to the person for whom they have been the carer (usually for their aged parents, as they get towards the end of their life, with various complications).

(a)    How we do this, if there are no more hearings, I don’t know. Perhaps it could [be] by written (sworn?) statement, with the Committee reserving the right to call the witness for face-to-face examination.

(b)    The Committee might have reservations about the relevance of such testimony, given these are usually lay persons, though some might be medically qualified, as well. I know you’ve related the Committee’s concerns that this does not go to whether the correct item has been assigned/claimed, but that is unlikely to be the thrust of the evidence - which will go to competence and general suitability.

(Underline emphasis added.)

84    On 6 May 2021, Ms Parker sent an email to Mr Morgan stating that the Committee proposed to conduct the remainder of the hearing on the papers, based on the applicant’s psychiatrist’s report (Annexure BD-1, pp 13-14). Ms Parker’s email included:

Plan for proceeding with Committee investigation

The Committee has read [Dr Gelman’s] report and I have passed on the content of your email. Based on the report, the Committee proposes to proceed with conducting its investigation as follows:

•    The Committee will provide any concerns it has to Dr Raymon regarding his MBS item 2713 services in writing. Dr Raymon will then have an opportunity to provide a response to these concerns in writing.

•    The Committee is prepared to accept submissions from Dr Raymon in writing in response to the concerns raised by the Committee at the previous hearing days regarding his provision of CDM services.

•    The Committee is prepared to accept witness statements in writing.

•    The Committee is also prepared to accept a final address under sections 103(1)(g) and 103(2)(c) of the Health Insurance Act 1973 from Dr Raymon and yourself in writing.

The Committee intends to meet and discuss the remaining MBS item 2713 services in person, and following this it will provide Dr Raymon with its written concerns. It then proposes to provide Dr Raymon with a period of one month from receipt of the concerns to provide the Committee with a written response to these concerns, and to provide any further information regarding CDM services or witness evidence or statements from other persons.

The Committee will consider all the materials provided and at this time assess if it considers any further hearing days are required. If no hearing days are required, you will be advised and you will be invited to provide closing submissions in writing.

If after this process the Committee makes any preliminary findings of inappropriate practice, a Draft Report will be issued setting out these preliminary findings. Dr Raymon will then have an opportunity to provide submissions in relation to the Draft Report.

(Underline emphasis added.)

85    The evidence does not appear to include a direct reply to the above email.

86    On 15 June 2021, Ms Parker sent an email to Mr Morgan with a copy of the Committee’s written concerns about the applicant’s provision of MBS item 2713 services (Annexure BD-1, pp 12-13). Ms Parker’s email of 15 June 2021 included her previous email of 6 May 2021. The email of 15 June 2021 stated in part:

In accordance with the process set out in my previous email (included below for reference), the Committee has now met and reviewed Dr Raymon’s provision of MBS item 2713 services with reference to the records and has set out its concerns in writing. The concerns are in the attached document, which has been password protected due to the amount of patient information contained in the document. …

The Committee is now seeking that Dr Raymon provide any response to the concerns set out in this document, and any further information he wishes to submit to the Committee in relation to his CDM services and/or witnesses evidence or statements to the Committee by Thursday 15 July 2021.

(Underline emphasis added.)

87    On 7 July 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, pp 10-12) in reply to her email of 15 June 2021. Mr Morgan’s email stated in part:

1.    I’m responding to your 15 June 2021 email below. …

2.    Yuri’s progress continues to be plagued by ‘flashback’ and associated panic. …

3.    Notwithstanding this, he has reviewed the Committee’s written concerns, for the first three of the relevant Item 2713 Services. He’d handwritten notes he would make, on a printed version of the Committee’s concerns. I’d like to talk about this a bit.

4.    Today, I spent time with Yuri, on the first of the Item 2713 services, for which the Committee expressed concerns. My objective was to assess how best to set his responses out, to assist the Committee. I’d like to say a few things about this. …

7.    Plainly Yuri’s going to need more time, than the 15 July 2021 date you mention below. Can I suggest a possible way forward?

(a)    We try to get you a complete response, to the first Service (in respect of which the Committee has raised concerns) by the 15 July 2021 date referred to above.

(b)    That we set another date a fortnight on, by which we attempt to get you responses on the next two ‘concern’ services.

(c)    And that we do the same again, so that the Committee has responses to 5 ‘concern services’.

(d)    That the Committee tries to get us feedback on the appropriateness of our first response, as soon as is practicable – to give us the best chance of getting the Committee material that is useful to them, or perhaps changed format, that might expedite the responses.

8.    I’d like to commend the Committee, in this innovation of giving the doctor their concerns in writing.

(a)    It is allowing Yuri to give the Committee the real answer, by giving him a chance to consider the concern, and the material that will address it.

(b)    I’d venture, also, that it could be the way the Committee handles its task generally. It is much fairer to the doctor concerned. It avoids the risk of there being any element of [‘]trial by ambush’. However, that will be a matter for the Committee or the Legislature (or both).

(Underline emphasis added.)

88    Mr Morgan’s email did not object to, indeed commended, the Committee’s proposed approach to the further conduct of the matter. In my view, by the email set out above, the applicant implicitly consented to the Committee’s proposal for the further conduct of the matter (as set out in Ms Parker’s email dated 6 May 2021). The applicant did not subsequently request that the Committee resume in-person hearings.

89    On 8 July 2021, Ms Parker sent an email to Mr Morgan (Annexure BD-1, p 19) that stated in part:

Thanks for your email and your time on the phone today. As discussed, I have spoken with the Committee regarding the matters you have raised. Please see the response below.

…

2.     The Committee is prepared to grant Dr Raymon an extension of time until 15 August 2021 (given in particular the period of Jewish observance) to provide the following:

a.    any response to the concerns raised in relation to the 2713 services that was provided to Dr Raymon on 15 June 2021

b.    any response to the concerns raised in relation to the MBS item 721, 723 and 732 services at the hearing on 19 March 2021

c.    any expert or witness evidence Dr Raymon wishes to provide.

3.    Once the materials have been received the Committee will then consider the appropriate next steps in the matter. As discussed, there remains both an opportunity for you and Dr Raymon to make a final address to the Committee (which can occur in writing) and to provide a response to any Draft Report issued by the Committee.

(Underline emphasis added.)

90    On 11 July 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 20). Mr Morgan thanked Ms Parker for the email and extended deadline date.

91    On 13 August 2021, Ms Parker sent an email to Mr Morgan (Annexure BD-1, pp 26-27) that stated in part:

Thanks for providing the further response from Dr Raymon regarding the MBS item 2713 services. The Committee does not intend to provide any further comments on the 2713 services, noting its reasons for any preliminary findings of inappropriate practice will be set out in its Draft Report.

The Committee has given consideration to Dr Raymon’s request for it to express its concerns in writing for three individual services in each of the lists reviewed during the hearing. The Committee will not be providing written concerns for these services as requested. Its reasons are as follows:

•    The written concern process was adopted for MBS item 2713 only because Dr Raymon was unable to attend a hearing.

•    In relation to the MBS item 721, [723] and 732 services the Committee has provided Dr Raymon with its written concerns. These were provided on the day of the hearing and are clearly set out in the transcript. The Committee’s concerns regarding these services are based on the documentation present in the record and the concerns fall into a number of categories that are clearly identified in the transcript. Any preliminary findings of inappropriate practice set out in the Draft Report will be made on the basis of the concerns already provided in writing, which Dr Raymon has been given an extended period of time to respond to.

•    In relation to MBS items 23 and 36, Dr Raymon had the opportunity to hear and respond to the concerns of the Committee during the hearing process. During the hearing the concerns were understood and Dr Raymon provided his responses. Any preliminary findings set out in the Draft Report will be based on the same concerns that were raised with Dr Raymon during the hearing.

•    The Draft Report process provides Dr Raymon with the opportunity to see the Committee’s concerns in writing and to provide a response in writing. This is not the ‘end of the process’ as your email has described. Rather this is the step (set out in the Health Insurance Act that was implemented by Parliament) where Dr Raymon is provided an opportunity to respond in writing to the reasons on which the Committee intends to base any findings of inappropriate practice.

92    On 16 August 2021, Mr Morgan sent a number of emails to Ms Parker (BD-1, pp 29-31; CB YR-20, tabs 34-45). The email sent at 5.44 pm (BD-1, p 29-30) stated in part:

Raymon - PSRC 1280 - further material as at 16.8.2021 [Partly complete response to Committee’s CDM ‘group’ concerns ...]

1.    Thank you for the discussion this morning (after my email).

2.    I understand the need to show some ‘good faith progress’ and, happily, we’re able to show some (beyond the two submissions, you have from us, regarding the first GP mental health service – item 2713).

3.    Dr Raymon is making progress, and I’m now going to send you a series of emails, showing you where he’s up to.

4.    The first of these is a partly completed response to the Committee’s ‘group’ concerns – which were two fold: (1) Attendance Concerns and (2) Clinical Input concerns (though the bulk of the detail is devoted to the ‘Attendance Concerns’). I’ll make some comments about this partly completed response.

(a)    It uses, as a base, the [‘]script’ the Chairman used, to express these ‘grouped’ concerns, for the CDM items, as a whole. You gave this to Dr Raymon in a ‘Word’ document, and his response is [in] another Word document, using the Script as its base.

(b)    The format is similar to our Item 2713, Service 1 submission - namely: his replies under various of the relevant Script paragraphs, in a different colour (purple).

(c)    None of it is final, but the first half is fully expressed and Yuri has agreed its content.

…

(Underline emphasis added.)

As the emphasised parts of the above extract make clear, the submissions and material provided by Mr Morgan on 16 August 2021 were expressed to be only partly completed and not a final response to the Committee’s concerns regarding the CDM services. Subsequently, as set out below, the Committee requested the applicant to indicate whether or not he wanted the Committee to have regard to this material.

93    In his first affidavit, the applicant gives evidence (at paragraph 33) that, by email dated 28 August 2021, he requested the Committee to requisition the Carnegie Clinic to produce the Pracsoft data relevant to the services under review. The Committee requisitioned this data by a document dated 2 September 2021.

94    On 22 September 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 52) that stated in part:

3.    I hear what you say about requesting a further extension.

(a)    I’d like to finish off the response to List 6, Service 3 concerns, first – as it is so close to finished and it would continue to demonstrate progress. It will also demonstrate the level of detail, that we are putting into the concerns expressed about the first few services, in each item. If the Committee wanted to get started, looking at something, they could look at this.

(b)    Then I’d like to put together a request that addresses the time-frame/work scope we have in mind. It is, by no means, open ended. We aim to … complete this work and submit it to the Committee, whilst waiting for the Requisitioned PracSoft material (though we’re not sure what time frame that is, but I’m assuming between 1 to 2 months). We’ll then need time to analyse this material, and make relevant submissions. Following that, we’ll need to make closing submissions, though some of these might telescope into one another. We think it neither proper, nor productive, for the Committee to start its deliberations without full responses from Dr Raymon. If you think it helpful, I can elaborate, on why that might be so.

(Underline emphasis added.)

Paragraph 3(b) in the above extract indicates that, at that stage, the applicant was anticipating making closing submissions. (Ultimately, no closing submissions were made.)

95    In the applicant’s first affidavit (at paragraph 34) he states that on 12 October 2021 the Committee sent an email to the applicant with the Pracsoft data, which came as three spreadsheets: the first was the raw data from the Carnegie Clinic; the second was one that had been edited by PSR office staff, to remove patients that were not relevant to the review; and the last was a small table extracting the booking and billing data for six patients who all booked at about the same time, on 12 February 2018.

96    On 22 October 2021, Ms Parker sent an email to Mr Morgan (Annexure BD-1, pp 74-75) that stated in part:

I advise the Committee will not be amending the current timetable for responses and submissions, except to further extend the time for Dr Raymon to provide responses regarding his 2713 services until COB Tuesday 26 October 2021. The Committee is meeting on 29 October 2021 to consider the materials provided in relation to the 2713 services in response to its concerns. The Committee had requested Dr Raymon submit his response to the 2713 concerns (which were provided to him on 15 June 2021) by 15 October 2021 so the Committee would have sufficient time to review the materials prior to its meeting. The Committee has now agreed to adjust their schedules to receive materials at a later time, being by next Tuesday.

The Committee sees no reason to deviate from the timetable in any other regard. Dr Raymon’s responses to [the] Committee’s concerns regarding the CDM services, which he has had since March 2021, remain due on 12 November 2021.

Following this the Committee is prepared to provide a period of one month for yourself and Dr Raymon to make any closing submissions in writing under section 103(1)(g) of the Health Insurance Act 1973. The closing submissions will be due on 13 December 2021 and will be limited to 20 pages. Please note these submissions are to be on questions of law, the conduct of the hearing and merits of the matters to which the hearing relates.

(Underline emphasis added.)

97    The applicant did not provide any further response in relation to the CDM services by the deadline of 12 November 2021.

98    On 15 November 2021, Ms Parker sent an email to Mr Morgan (Annexure BD-1, p 78) that stated:

I am writing to confirm that no materials were provided to me to pass on to the Committee regarding Dr Raymon’s response to the CDM services by the due date of last Friday 12 November 2021. This deadline was set out in my emails of 22 October 2021, 14 October 2021 and 12 October 2021.

To assist the Committee going forward, given no further materials were provided by the due date can you please advise if Dr Raymon would now like the Committee to have regard to his draft comments on the CDM services which he had previously provided (but had advised were not for consideration)? These submissions were provided on 16 August 2021 and have been attached for reference. If you advise this document is to be considered, the Committee will proceed to consider this alongside the patient testimonials and signed CDM documents that you have provided on an ad-hoc basis over the previous months. If you do not want this document considered, please advise and the Committee will proceed without considering the material in this document.

I also confirm (as set out in my previous correspondence of 22 October 2021) that Dr Raymon’s closing submissions are due on 13 December 2021 and are limited to 20 pages in length. Please note these submissions are to be on questions of law, the conduct of the hearing and merits of the matters to which the hearing relates.

(Underline emphasis added.)

99    The applicant did not respond to the above request that he indicate whether or not he would like the Committee to have regard to his partly completed responses of 16 August 2021 in relation to the CDM services. The applicant did not provide closing submissions by the deadline of 13 December 2021 (or subsequently).

100    On 14 December 2021, Ms Parker sent an email to Mr Morgan (Annexure BD-1, p 84) that stated in part:

I am writing to confirm that no final submissions were received from yourself or Dr Raymon by the required date of 13 December 2021. This follows no materials being provided in relation to Dr Raymon’s CDM services by the required date of 12 November 2021. I note the deadline of 13 December 2021 for final submissions was set out in my emails of 22 October 2021, 15 November 2021 and 17 November 2021. No request for an extension of time or explanation for a delay in the provision of the final submissions has been provided to date.

The Committee will now proceed to prepare [its] Draft Report in accordance with section 106KD of the Health Insurance Act 1973 based on the materials before it.

(Underline emphasis added.)

101    On 15 December 2021, Mr Morgan sent an email to Mr Parker (Annexure BD-1, pp 85-86) in which he stated:

Re: PSRC 1280 - next steps [the next step is for the Committee to wait ... ]

1.    I am writing, on behalf of my client, to say that on no account should the Committee proceed, now, to write a ‘draft report’. It cannot do so based on ‘concerns’ that are fundamentally misconceived, and defy available evidence.

2.    Further, it only has to wait until Friday this week (17.12.21) to have a detailed ‘response’ to [the] Committee’s expressed patient ‘attendance’ concerns, based on a synthesis of the PracSoft evidence, with other evidence (relating List 5 services - with the remainder to follow). My client submits, that this ‘response’ will leave the Committee with no credible basis for maintaining those ‘concerns’ and justice would fundamentally miscarry, to proceed without considering that response.

3.    My client submits that his request (that the Committee wait) must be viewed in the light of the theoretical risk of the Committee’s task of detecting ‘inappropriate conduct’, miscarrying (because it is a secret inquisitorial process) and the statistical evidence that most Committees’ work does miscarry (exonerating only 1 of 139 doctors in the last 14 years). The gravity of the process miscarrying, must be considered too. Adverse Committee’s usually have shocking consequences for Doctors (huge liabilities, loss of future income and reputational damage). In these circumstances it would, my client submits, be unconscionable to proceed ahead of Friday’s response.

4.    And, for the same reasons, my client’s objective is that the Committee’s draft report, will be [its] final report (under s106KE of the HIA) because it “does not contain a finding by all, or a majority, of the Committee members that the person under review engaged in inappropriate practice in providing some or all of the referred services”

5.    In aid of that, and until the Committee signals it can prepare a s106KE report, Dr Raymon repeats his proposal to make a series of ‘responses’, to the various concerns the Committee has expressed. They are as follows.

(a)    Dr Raymon will complete, what I’ll call the ‘PracSoft Analysis’ for the balance of the CDM sampled services (Lists 3 &4). My client sees no reason for the results, of that analysis, being any less devastating, to the Committee’s ‘attendance’ concerns, than the List 5 Analysis.

(b)    Dr Raymon will then commission and submit an expert report on whether any of his sampled 2713 services, would be relevantly s82(1)(a) ‘inappropriate’, by virtue of being ‘unacceptable’ to ‘the general body of general practitioners’.

(c)    Dr Raymon will then commission and submit equivalent expert evidence about the clinical aspects of CDM services – addressing those ‘concerns’ the Committee expressed on a ‘grouped’ basis.

(d)    Dr Raymon will then commission another expert report on the sampled item 23 and 36 services. Dr Raymon will give the Committee an opportunity to express its concerns in writing (as it did with the item 2713 services).

6.    The Committee review process has been widely criticised, in medical journals (and more widely) in the way it goes about applying the ‘peer standards’ test. These expert reports ought be far more reliable and cogent, than leaving this central issue to the Committee members’ instincts. Dr Raymon gives the PSR Authority another opportunity fund these expert reports as a means of addressing the problems in its process (in the light of furore, its processes, are generating, in the medical profession).

7.    Dr Raymon does not wish to offend any of the members of this Committee, but protests that the system, and the entrenched expectations, are seriously flawed. An example is this lies in the ‘PracSoft’ material.

(a)    The Committee went so far as to express ‘patient attendance’ concerns, not only about some services, but about the entire sample of CDM services (64 in number). And did so, based only on inferences, from the Patient Notes (because there are no attendance records, other than those the subject of their suspicions).

(b)    There was, of course, direct evidence of patient attendance, which the Committee members didn’t even refer to, much less look at. Dr Raymon had to realise their relevance and then prompt them to requisition it from the Clinic.

(c)    This direct evidence was in a separate software platform (called ‘PracSoft’), which was operated by the front desk staff. This platform allows the staff to make the patient appointments, let doctors know when the patient has arrived (in the waiting room) and bill the patient after the service. Not only is it the best evidence, because it is direct evidence but its cogency is even greater, because it is operated by persons other than Dr Raymon.

(d)    It says much about way the Committee approaches its task, that it did not even think about this source of evidence, much less use it. All of the Committee members are practising GP’s so they must know this attendance related data exists. Yet they did not feel it necessary to think about corroborating mere suspicion, based merely on inference.

(e)    A near zero exoneration rate, over 14 years now, points to the PSR Committee system, being a broken system – just as much as finding Court system, where appellants never succeed.

8.    [In] the light of all of this, I recommend that the Committee suspend any thought of starting to prepare a Draft Report, unless it is one that can be a final report (under s106KE) with no relevant finding of ‘inappropriate practice’. This is to allow Dr Raymon to continue providing responses, of the types outlined above. The Committee can, and should, absorb the material that Dr Raymon submits. If the Committee gets to the point, where it feels it can finalise a s106KE (exonerating) Report, it should advise Dr Raymon. Otherwise, Dr Raymon will continue to make responses to the ‘concerns’ the Committee has expressed. Then, and not before, should the Committee commence preparing a draft report.

9.    This communication is to go to the Committee (if there was any doubt about that).

(Underline emphasis added.)

102    On Thursday, 16 December 2021 (at 3.01 pm), Ms Parker sent an email to Mr Morgan (Annexure BD-1, p 87) that stated:

Thank you for your email which has been provided to the Committee. You have advised that Dr Raymon will be in a position to provide some further material by 17 December 2021. The Committee confirms that should extra material be provided by this date it will be included in its consideration when preparing its Draft Report. The Committee also confirms it is proceeding to prepare a Draft Report under section 106KD of the Health Insurance Act 1973.

With regards to the balance of your email, no reasons have been provided as to why Dr Raymon has not provided any responses or materials within the required timeframes of 12 November 2021 for any response to CDM services or 13 December 2021 for closing submissions. Dr Raymon has had many months to prepare any response he considered appropriate and has elected not to do so, in circumstances where the Committee has offered repeated extensions of time. As the Committee has previously stated, the PSR hearing process cannot be open ended and it has now been nine months since the last in-person hearing day.

I repeat again the request that Dr Raymon confirm if he would like the Committee to consider the draft material he provided in response to the Committee’s CDM concerns (attached for reference). If the Committee does not receive a response to this request, it will assume this material is not to be included in its consideration as the last advice provided from you was that the information should be disregarded.

(Underline emphasis added.)

103    On 16 December 2021 (at 3.14 pm), Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 88) that stated:

Dr Raymon will deliver his material tomorrow, as indicated, and deal with the rest of your email, then.

104    The applicant did not provide a response to the Committee’s attendance concerns by Friday, 17 December 2021 (as foreshadowed in the 15 December 2021 email). The applicant did not respond to the request that he indicate whether or not he would like the Committee to have regard to his partly completed responses of 16 August 2021 in relation to the CDM services.

105    On Monday, 20 December 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 89) that stated:

We didn’t get you Dr Raymon’s Pracsoft Analysis by Friday [i.e. 17 December 2021], as we expected, but ought to have it to you by end of today.

106    On 22 December 2021 (at 8.57 am), Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 90) that stated:

Nearly there (it’s the covering letter that I’m writing – it’s 16 pages, so far, and quite detailed).

107    On 22 December 2021 (at 12.11 pm), Ms Parker sent an email to Mr Morgan (Annexure BD-1, p 92) that stated:

I confirm I received an email from you earlier today which reads ‘Nearly there (it’s the covering letter that I’m writing – it’s 16 pages, so far, and quite detailed).’

If you have sent anything else it has not been received. I also note that the extended date for receiving materials which the Committee agreed to was last Friday 17 December.

Given that date has elapsed, should you provide anything further it will be a matter for the Committee whether they take any further materials into consideration at this time given they have commenced preparation of their Draft Report and noting Dr Raymon will have an opportunity to provide a response to that report.

108    On 22 December 2021 (at 3.48 pm), Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 93) that stated:

1.    Thank you for confirming receipt of my email this morning.

2.    I would counsel the Committee (strongly) to wait until they have Dr Raymon’s Pracsoft Analysis and covering letter before proceeding further. They should then absorb its contents and thrust. It ought to dispel all their patient attendance concerns, in relation to the List 5 CDM attendance concerns. Dr Raymon contends that they must, then, be able to find NO ‘inappropriate practice’. That, in turn, is a step towards his intended destination, which is that the Committee can write a draft report, that is final, under s106KE, because there is no majority finding of ‘inappropriate practice’.

3.    Without spelling it all out here, the way the Committee have … handled these ‘attendance’ concerns, has serious implications for the way they ought proceed with any other ‘concerns’, they might think they have, and they ought wait for responses from Dr Raymon, of the type he’s foreshadowed.

109    On 23 December 2021, Mr Morgan sent an email to Ms Parker (Annexure BD-1, p 94) that stated:

Re: PSRC 1280 - List 5 Pracsoft Analysis and draft explanatory letter sent to Dr Raymon for his review

I’ve just sent the above draft material for Yuri’s review.

110    However, the applicant did not provide that letter or response to the Committee in the days or weeks after 23 December 2021. Further, the applicant did not provide any closing submissions to the Committee in the days or weeks after 23 December 2021 (or at all).

111    On 24 February 2022, the Committee issued a draft report to the applicant pursuant to s 106KD (the Draft Report) (Annexure BD-1, p 95; Annexure YR-55).

112    On or about 24 February 2022, the Committee formed the opinion that the applicant had failed to comply with professional standards. Accordingly, on 24 February 2022, pursuant to s 106XB of the Health Insurance Act, the Committee referred the applicant’s conduct to the Director for appropriate action. A copy of the Committee’s statement of concerns is set out in Annexure 7 to the Final Report (pp 364-369). The Committee concluded:

28.    The Committee is concerned that the systematic billing of MBS items that require patient attendance without a patient attendance, and in a pattern that avoids the preclusion on co-billing MBS item 721, 723 of 732 with professional attendances such as MBS items 23 or 36, represents a failure to comply with professional standards. That includes non-compliance with the requirements set out in Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code) in particular:

•    Part 2.1 of the Code concerning professional values, and

•    Part 7.2 of the Code concerning judicious use of healthcare resources.

113    On or about 24 February 2022, the Director referred the Committee’s opinion to the Australian Health Practitioner Regulation Agency (AHPRA) (Annexure YR-14). The letter of referral attached the Committee’s statement of concerns.

114    There was correspondence between the applicant’s representative (Mr Morgan) and the Committee regarding the time for the applicant’s submissions (Annexure BD-1, pp 95-128). Ultimately, the applicant was given until 24 June 2022 to provide his submissions.

115    On 24 June 2022, Mr Morgan sent an email to Ms Parker attaching the applicant’s “preliminary submissions” in response to the Draft Report (Annexure BD-1, pp 129-130; CB YR-20, pp 1199-1239). The attached submissions (37 pages in length) were prepared by Dr Michael Taylor of counsel. The submissions related to whether the applicable regulations were the Health Insurance (Professional Services Review) Regulations 1999 (the 1999 Regulations) or the Health Insurance (Professional Services Review Scheme) Regulations 2019 (the 2019 Regulations) (the Applicable Regulation Issue). Mr Morgan’s covering email stated:

1.    Thank the Committee for the extension of time to make the attached preliminary submissions, under s106KD(3) of the Health Insurance Act 1973 (the Act).

2.    The submissions are ‘preliminary’ in that the address the legal issues that, in our submission, mean that this proceeding cannot continue.

3.    The logic, by which these submissions progress, can be summarised as follows:

(a)    The Committee both, applied the wrong (2019) record keeping Regulations, and failed to apply the correct (1999) record keeping regulations, to Dr Raymon's pre-2019 Review Period. This is for the reasons set out, in detail, in the Submissions.

(b)    As a result, the Committee failed to relevantly assess, for each service, ‘whether or not [Dr Raymon] kept adequate and contemporaneous records of the rendering or initiation of the services [the subject of the review]’ for the purposes of s82(3) of the Act.

(c)    A valid s82(3) conclusion, about whether Dr Raymon’s services met the relevant (1999) record keeping standards, is a mandatory precondition to any finding of ‘inappropriate practice’.

(d)    As a result of this failure, to comply with the mandatory precondition, there were no valid ‘preliminary findings’, in respect of any service, in the Draft Report.

(e)    The Committee cannot do other than finalise its report under s 106L(5) on the basis that it cannot reach any valid finding, in respect of any service.

(f)    This is because s106L(1B) prevents the Committee making a “finding of inappropriate practice” unless “the finding and the reasons for the finding were included in the draft report under s106KD”. This provision prevents a committee making any new finding of ‘inappropriate practice’, and, in this case, any valid finding, would be a new ‘finding’ (whether of inappropriate practice, or not)

4.    The conclusion of these submissions speaks for itself: that the Committee must finalise this matter, under s106L(5), on the basis that it ‘does not contain a finding … that [Dr Raymon] engaged in inappropriate practice’ and they must give all of Dr Raymon, the PSR Director and Chief Executive Medicare, a notice that ‘no further action will be taken as a result of the report’.

5.    I commend these preliminary submissions to the Committee. Dr Raymon, however, reserves the right to make further s106KD(3) submissions, if need be.

6.    We acknowledge that the submissions are quite complicated and will take the Committee some time to consider. We would appreciate if you were able to give us some estimate as to how long you believe it will take, to work through the submissions.

7.    On receiving the Committee’s response to these submissions, Dr Raymon will then consider his resulting legal options (including further s106KD(3) submissions, if need be).

116    The applicant did not provide any further submissions in response to the Draft Report.

117    On 13 July 2022, the Committee completed the Final Report (Annexure YR-16). The report is discussed in more detail below.

118    In his second affidavit, the applicant gives the following evidence about the process adopted by the Committee after the four hearing days:

70.    I was deeply aggrieved when the [Committee] refused to grant the extensions of time sought on my behalf by John Morgan, as referred to in my previous affidavit. Apart from the literally thousands of pages of medical records I needed to review, I believe that my mental health issues justified either terminating the investigation or adjourning the hearing to wait and see if I were able to recover. In this regard , I confirm the matters deposed to in my previous affidavit in particular at paragraph 6.

71.    The abandonment of the hearing after the fourth day was followed by me needing to answer questions and make submissions in writing rather than by way of giving oral evidence at the hearing. As such, I was denied the opportunity to give evidence in the usual way at a hearing. In addition, I was unable to exercise my rights to make a final address to the [Committee] on questions of law, the conduct of the hearing and the merits of the matters to which the hearing related.

After 13 July 2022

119    On 11 August 2022, the applicant commenced this proceeding.

120    On 19 September 2022, the Court made an order that the Committee be restrained from providing the Final Report to the Determining Authority until the determination of the proceeding.

121    In relation to the referral to AHPRA, I was informed at the hearing that AHPRA has put the referral ‘on hold’ pending the outcome of this proceeding (T52).

The Final Report

122    In the Final Report (Annexure YR-16), the Committee concluded that applicant had engaged in inappropriate practice in connection with the provision of the Referred Services. Under the heading “Finding” on p 4, the Committee stated:

2.    In particular, the Committee finds that the conduct of Dr Raymon in connection with providing the services examined by the Committee and referred to below would be unacceptable to the general body of general practitioners as defined in s 82(1)(a) of the Health Insurance Act 1973 (Act):

•    25% of the MBS item 23 services

•    72% of the MBS item 36 services

•    100% of the MBS item 721 services

•    100% of the MBS item 723 services

•    100% of the MBS item 732 services

•    56% of the MBS item 2713 services

123    It was noted that Appendices 1 to 6 to the report set out the Committee’s reasons for finding that the applicant’s conduct in connection with rendering the services described would be unacceptable to the general body of general practitioners.

124    It was also noted that, in making the findings set out in paragraph 2 that refer to a percentage of services, the Committee had applied the Health Insurance (Professional Services Review – Sampling Methodology) Determination 2017 made under s 106K(3) of the Act to its findings in the relevant appendices.

125    The Final Report contains the following Executive Summary (at p 5):

During the Review Period Dr Raymon worked as a general practitioner in Carnegie, servicing a relatively small patient cohort. Many of Dr Raymon’s patients were from non-English speaking backgrounds and he consulted in multiple languages.

Across the reviewed services some of Dr Raymon’s records were not adequate to explain the service provided or to enable another practitioner to effectively assume patient care. In some records there was inadequate documentation of examinations, history and patient management plans. Dr Raymon’s patients were often well known to him and this appears to have resulted in information not appearing in the records, especially for patients who presented frequently.

In relation to the reviewed MBS item 36 and 2713 services the records did not always reflect attendances involving at least 20 minutes of clinical input as required by the MBS item descriptors.

In relation to the reviewed CDM services the Committee has made widespread preliminary findings of inappropriate practice on the basis the patients were not present for the service. The billing patterns seen in the PIRT reports [being Medicare reports that identify the applicant’s billing of rendered services during the review period for each patient whose records were available to the Committee], in conjunction with the absence of any correlating information in the medical records and information obtained from the PracSoft billing software is not consistent with patient attendance (except in one service).

Further, while CDM documents were created for GPMP and TCA services, these were not adequately individualised to each patient. In relation to the TCAs, there was often no two-way communication with at least two other healthcare providers, and no documentation of a discussion of planned treatments and services to be provided to the patient by the collaborating providers. The GPMP and TCA review services were evidenced by only a standard pro-forma entry in the progress notes, without individualisation to the patient. In such circumstances, even if patients were present the Committee considers the services involved inappropriate practice as the records were inadequate and the MBS requirements were not met.

This summary is not a substitute for the Committee’s reasons as set out in the remainder of the report and the Appendices.

126    Under the heading “Committee hearing” (paragraphs 7-30), the Committee described the hearing and the subsequent process in relation to written submissions. This section includes:

10.    On the fourth day of the hearing the Committee expressed its concerns to Dr Raymon regarding his provision of CDM services. Following the end of the fourth hearing day, prior to being able to provide evidence on the majority of the CDM or any of the 2713 services, Dr Raymon provided a medical certificate from his treating psychiatrist Dr Gelman to the Committee indicating that he was unfit to continue to attend the hearing.

11.    In accommodation of this the Committee proceeded to:

•    provide Dr Raymon with the Committee’s preliminary concerns regarding his CDM services in writing (this was done at the time of the hearing) and allow Dr Raymon to respond to the Committee’s concerns regarding his provision of CDM services in writing; and

•    provide Dr Raymon with its preliminary concerns in relation to his MBS item 2713 services in writing and allow him to respond to those in writing.

12.    There was a significant delay in Dr Raymon providing responses to the Committee’s concerns. At some points this was understandable given Dr Raymon’s difficulty in engaging with some of the subject matter and with his observing cultural holidays. In accommodation of Dr Raymon’s particular circumstances the Committee provided repeated extensions of time for Dr Raymon to present materials to the Committee. These are detailed below.

13.    Dr Raymon also submitted that his mental health issues delayed his ability to respond to the Committee’s concerns. The Committee has carefully considered Dr Raymon’s circumstances including his mental health condition (discussed below). The Committee did not have before it any information to suggest Dr Raymon was unable to provide responses to its concerns in writing or that a period of over nine months to do so since the hearing would be insufficient in the circumstances. On this basis the Committee proceeded to issue its Draft Report under section 106KD of the Act.

(Underline emphasis added.)

127    The Committee then detailed the process of submissions relating to CDM services, and the process regarding MBS item 2713 services. In relation to CDM services, the Committee noted that the applicant was provided with the Committee’s concerns on Day 4 of the hearing, which was 19 March 2021, and that the Committee gave him until 12 November 2021 to respond, but he did not provide any further materials by that date (he had earlier provided a draft response). In relation to MBS item 2713 services, the Committee noted that: it had provided its concerns on 15 June 2021; a number of extensions were granted for the applicant’s response; the Committee gave the applicant until 15 October 2021; but he did not provide comprehensive submissions by that date (having earlier provided submissions on services 1 and 3 in the MBS item 2713 service list).

128    In the same section, the Committee provided details of the process regarding closing submissions:

26.    In accordance with s 103 of the Act, Dr Raymon and his lawyer were invited to make closing submissions. As the hearing was proceeding in writing due to Dr Raymon’s health condition, Dr Raymon and Mr Morgan were invited to provide these submissions in writing. Dr Raymon was advised on 22 October 2021 that he would have a period of one month to make closing submissions following 12 November 2021, when his CDM submissions were due. As such, closing submissions were due on 13 December 2021. This date was confirmed via email on 15 November 2021 and 17 November 2021.

27.    No closing submissions were received by the due date. The Committee wrote to Dr Raymon advising it was to commence preparation of its Draft Report. On 15 December 2021 Mr Morgan wrote to the Committee outlining that further materials would be provided by 17 December 2021. The correspondence then set out a series of responses that Dr Raymon intended to make in relation to the concerns expressed by the Committee. There was no explanation as to why these responses had not been provided in the preceding months, no explanation for any delay and no indication of what timeframe may be required for the response to be provided.

28.    The correspondence from Mr Morgan states that until the Committee was prepared to issue a Draft Report with no findings of inappropriate practice (under section 106KE of the Act) Dr Raymon would make such responses. With respect the Committee considers this an extremely improper way to proceed. It is not the case that Dr Raymon is able to continue to make submissions until such time as the Committees concerns have been resolved, which appears to be what was proposed. No investigation could properly proceed in this manner.

29.    The Committee did agree to accept the further materials that Mr Morgan advised would be available on 17 December 2021. No further materials were provided by this date. Mr Morgan without requesting any further extension of time wrote to the Committee advising it ought to have the materials by 20 December 2021. No further materials were provided by this date.

30.    The most recent correspondence from Mr Morgan was received on 23 December [2021]. It advised that certain materials had been sent to Dr Raymon for review, presumably before they were to be submitted to the Committee. No expected date for the provision of any further materials to the Committee was identified and no extension of time was sought. It remains that no further materials were been provided to the Committee as at the time it issued its Draft Report. In these circumstances the Committee proceeded to issue its Draft Report in the absence of closing submissions being made.

129    The next section of the Final Report is headed “Applicable law” and discussed the Applicable Regulation Issue. In this section, the Committee stated:

31.    The Committee notes that on 23 February 2019 the Health Insurance (Professional Services Review) Regulations 1999 (1999 Regulations) that were in force during the Review Period were repealed and replaced with the Health Insurance (Professional Services Review Scheme) Regulations 2019 (PSR Regulations). The new PSR Regulations contain a clarification of the meaning of ‘adequate and contemporaneous records’ which is materially the same as the definition in the previous Regulations.

32.    The Committee considers that it is tasked with applying the law in force at the time of its decision-making, being the law as set out in the 2019 Regulations. The new PSR Regulations contained no application provision to indicate that the previous Regulations should continue to be applied and in the absence of a direction to apply the previous law, the Committee considers it should proceed to apply the law in force at the time its power is being exercised, while having appropriate regard to the fact that the 1999 Regulations would have been all that was available to guide Dr Raymon’s practice during the Review Period.

33.    The Committee does not consider there are any facts that displace the application of the new PSR Regulations. The Committee also does not consider that applying the law in force on the day it discharges its function would amount to retrospectively applying the law, as the law has not been applied until the time this Report is issued. It does however acknowledge that the law in force during the Review Period is a relevant consideration when considering Dr Raymon’s conduct during that time.

34.    While the Committee has applied the current law in making the findings set out in this Report, the Committee has also proceeded to consider Dr Raymon’s conduct in the context of the previous Regulations, and considers that even if the previous Regulations applied to Dr Raymon’s conduct, this would not cause it to change any of the findings expressed in this Report.

(Underline emphasis added.)

130    The next section of the report is headed “Submissions on the Draft Report” (paragraphs 35-87). This section commences:

35.    The Committee issued its Draft Report to Dr Raymon in accordance with section 106KD of the Act on 24 February 2022. In addition to the one month period to provide submissions prescribed in section 106KD(3) of the Act Dr Raymon requested further extensions of time to provide submissions as follows.

131    The section then describes that the applicant sought an extension of time to provide submissions in response to the Draft Report, and the correspondence between Mr Morgan and the Committee regarding the time for the applicant’s submissions. As noted above, the applicant was given until 24 June 2022 to provide his submissions. The balance of this section of the Final Report describes the applicant’s submissions, and the Committee’s response to those submissions (including in relation to the Applicable Regulation Issue).

132    The report then deals with the applicant’s training and experience (paragraphs 88-97).

133    The next section deals with the applicant’s practice during the review period (paragraphs 98-104).

134    The next section concerns the applicant’s billing of services and record keeping (paragraphs 105-113).

135    The next section is headed “General comments” (paragraphs 114-124). The Committee stated:

114.    Dr Raymon, as far as he was able in the circumstances, actively participated in the hearing process. The Committee would like to thank both him and Mr Morgan for their meaningful participation in the investigation.

115.    Dr Raymon clearly found the hearing process distressing. The Committee appreciates the position he was in and recognises that while Dr Raymon gave evidence freely, he may not have always recalled things accurately or been able to provide evidence with the degree of clarity and precision he might otherwise have been able to.

116.    The Committee also noted that English was Dr Raymon’s second language and at times during the hearing he indicated that as he was stressed he was not able to express himself as he would have liked. The Committee accepts that especially in a hearing context having English as a second language can be difficult and has had regard to this when considering Dr Raymon’s oral evidence in particular.

…

123.    Most significantly, this Report deals at length with the Committee’s consideration of whether patients were in attendance where Dr Raymon billed CDM services. In all cases except one the Committee is comfortably satisfied based on the evidence before it that patients were not in attendance for these services. The Committee has not made these findings lightly and has carefully weighed and considered Dr Raymon’s oral evidence, the patient letters (where available), the medical records, Pracsoft records and PIRT reports. The Committee considers there to be significant probative evidence that patients were not in attendance.

124.    Dr Raymon’s repeated insistence that patients were present in the face of credible and significant evidence to the contrary has impacted his credibility as a witness, especially in relation to his description of CDM services.

(Footnote omitted.)

136    The next section is headed “Submissions” (paragraphs 125-146). Under the sub-heading “Submissions regarding Dr Raymon’s conduct during the hearing”, the Committee stated:

126.    At the commencement of the third day of the hearing, Mr Morgan addressed the Committee on Dr Raymon’s behalf regarding Dr Raymon’s experience on the first two days of the hearing. He thanked the Committee for allowing an adjournment at the previous hearing which was provided as Dr Raymon was clearly distressed and could not continue.

127.    Mr Morgan explained Dr Raymon’s distress was caused by flashbacks he experienced resulting from a traumatic experience early in his life where he was subject to an interrogation and violence in Uzbekistan at the hands of the police which was partially motivated by ethnic prejudice. He explained at that time Dr Raymon had been trying to assert his innocence in the matter and was later exonerated by a witness.

128.    Mr Morgan made submissions that were seeking to facilitate the best way forward so that the hearing could continue and the Committee could proceed to discharge its functions, without causing Dr Raymon undue distress. Mr Morgan identified that it was understood the Committee must raise concerns in order to afford Dr Raymon procedural fairness. However, he advised that where concerns were raised that would go to Dr Raymon’s integrity, such as any concern he was intentionally defrauding Medicare or that patients were not present, this would likely elicit a profound and emphatic denial from Dr Raymon. To this end, Mr Morgan effectively submitted the Committee may wish to avoid putting such concerns unless it had sufficient evidence, which should be something higher than ‘non-conclusive indicators’.

129.    The Committee considered Dr Raymon’s specific circumstances and did not make the decision to express concerns about patient non-attendance lightly. The material before the Committee suggesting patients were not in attendance for CDM services provided by Dr Raymon was not speculative, or merely a single indicator of non-attendance, but multi-faceted and persuasive. As set out later in the Report the Committee considered the significant weight of evidence to reflect that patients were not in attendance in relation to the CDM services provided by Dr Raymon, so that the Committee was obligated to express this concern to Dr Raymon in order to ensure procedural fairness.

130.    Mr Morgan also asked the Committee to consider Dr Raymon’s particular circumstances when having regard to his conduct during the hearing and to note that his response style and demeanour which may otherwise seem unusual should be considered in the context of his particular history.

131.    The Committee has had regard to Dr Raymon’s particular circumstances when considering his responses to questions during the hearing. It was clear Dr Raymon was experiencing a significant degree of anxiety and at times distress, which the Committee sought to accommodate through the provision of adjournments and reassuring Dr Raymon regarding the process. The Committee has not made adverse credibility findings based on Dr Raymon’s particular conduct during the hearing. Where the Committee has not accepted Dr Raymon’s evidence, this is largely because it does not accord with the medical records or the Committee’s knowledge and experience of general practice rather than being due to the manner in which the evidence was provided.

(Footnotes omitted.)

137    The Committee also dealt with submissions regarding the applicant’s mental state at paragraphs 142-146.

138    The next section is “Professional attendance services MBS 23 and 36” (paragraphs 147-165). The Committee’s findings with respect to these MBS items are set out in Appendices 1 and 2 to the Final Report.

139    The next section is “Chronic disease management (CDM) services MBS items 721, 723 and 732” (paragraphs 166-253). The Committee’s findings are set out in Appendices 3, 4 and 5. Within this section, the Committee dealt with its concerns regarding patient non-attendance (paragraphs 197-237). The Committee concluded in relation to this issue:

236.    The findings for each of these services as set out in the appendices reflect the Committee’s detailed consideration of these materials. In each of these cases the Committee has made findings of inappropriate practice on the basis the patient was not in attendance. It has not done so lightly, but rather it has considered the evidence provided by Dr Raymon against the weight of evidence favouring non-attendance and its concern has not been alleviated. The Committee cannot resolve the total absence of examination, observation, prescription and investigations, the patient attendance patterns mirroring exact dates they were eligible for services (or dates Dr Raymon was available), the Pracsoft billing information and the almost total lack of signed documentation held by Dr Raymon, with a patient being in attendance, even with the materials provided.

237.    In the cases where patients have purported to describe or recall seeing Dr Raymon on the date of service the Committee has proceeded with particular caution. However, for the reasons set out in the appendices the Committee is comfortably satisfied the patients were not in attendance on the day that a CDM service was billed.

140    The Committee discussed other concerns regarding the CDM services at paragraphs 238-243.

141    The Committee addressed a submission that the Director had abandoned a concern regarding patient attendance at paragraphs 244-248. This was based on the Section 89C Report, the submissions in response prepared by Kennedys, and the fact that non-attendance did not form part of the Director’s reasons for making the Referral. The Committee did not accept this submission.

142    The next section is “Mental health services – MBS item 2713” (paragraphs 254-273). The Committees’ findings are set out in Appendix 6.

143    The next section is “Proportion of services found to be inappropriate”. This states:

274.    The Committee proceeded in accordance with the sampling methodology provided for in s 106K of the Act for all classes of services reviewed.

275.    For ease of reference the following tables indicate the outcome of the Committee’s examination of Dr Raymon’s conduct in connection with providing the MBS item 23, 36, 721, 723, 732 and 2713 services.

144    The last section of the report (apart from the appendices) is headed “Written statement to the Director (s.106XB)”. It states:

276.    As required by subsection 106M(2) of the Act, the Committee reports that during the course of the hearing, it formed the opinion that Dr Raymon failed to comply with professional standards. Accordingly, pursuant to s 106XB of the Act, on 24 February 2022, the Committee referred Dr Raymon’s conduct to the Director for appropriate action.

277.    In accordance with subsection 106M(3) of the Act, the Committee has disregarded its opinion as mentioned above when making its finding for the purposes of its Final Report.

The application for judicial review

145    In his amended originating application for judicial review, the applicant states he applies to the Court to review certain findings made by the Committee in its Final Report (defined as the “Decision”), namely that:

(a)    the applicant engaged in inappropriate practice in connection with providing the Referred Services;

(b)    the applicant’s conduct in connection with providing the services referred to in (a), and examined by the Committee, would be unacceptable to the general body of general practitioners as defined in s 82(1)(a) of the Health Insurance Act;

(c)    the applicant failed to comply with professional standards with respect to his Medicare billing practices, including by him engaging in systematic billing of MBS items that require patient attendance but without a patient in attendance; and

(d)    that (c) included the applicant’s non-compliance with the requirements set out in Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code); in particular, Part 2.1 of the Code (concerning professional values) and Part 7.2 of the Code (concerning judicious use of healthcare resources).

146    Under “Details of claim” in the amended originating application for judicial review, the applicant states:

The Applicant is aggrieved by the conduct engaged in by the [Committee] for the purpose of the making of the Decision, in breach of s 6 of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”), and the Decision itself in breach of s 5 of the ADJR Act.

The Applicant is aggrieved by the conduct of the [Committee], during the course of the hearing, in conveying an opinion that the Applicant had failed to comply with professional standards (“the Opinion”), to the [Director] pursuant to s 106XB of the [Health Insurance Act].

The Applicant is aggrieved that, on 24 February 2022, the [Director] referred the Opinion to the Australian Health Practitioner Regulation Agency pursuant to s 106XB of the [Health Insurance Act] (“the AHPRA Referral”).

147    The applicant relies on six grounds of review, as follows:

1.    The [Committee] acted in breach of ss 6(1)(a) and 5(1)(a) of the ADJR Act by denying the Applicant natural justice in the way in which the hearing was conducted and in the making of the Decision.

a)    The Applicant was not provided with sufficient notice by the [Committee] of the alleged evidence against him by the exceedingly late provision of the USB stick containing patient records. Further, the patient records were in a format unfamiliar to him.

Whilst at the Carnegie Medical Clinic the Applicant had used the “Medical Director” clinical software, specifically designed to easily navigate through patients’ notes. The USB stick provided to the Applicant by the [Committee], however, consisted of thousands of pages of patient notes in pdf format, which he found difficult to navigate.

b)    Prior to the hearing, the Applicant was not provided with any, or sufficient, notice by the [Committee] of its concerns relating to patients allegedly not attending appointments when these had been claimed for.

c)    Although the Applicant had suggested that he give his evidence in writing after day 4 of the hearing, due to his mental state, the [Committee] had a legislative requirement pursuant to s 101 of the [Health Insurance Act] to have the Applicant appear in person. No reasonable adjustments to effect the legislative requirement were sought by the [Committee]. This disadvantaged the Applicant by: (i) not allowing him to have sufficient time to produce the written evidence, and (ii) disabling the interactive nature of the hearing.

d)    As a consequence of (c), the [Committee] should have informed the [Director] that circumstances existed which would make a proper investigation impossible pursuant to s 106GA(2) of the [Health Insurance Act].

e)    The Applicant was unable to exercise his rights pursuant to s 103(1)(g) of the [Health Insurance Act] to make a final address to the [Committee] on questions of law, the conduct of the hearing and the merits of the matters to which the hearing related.

2.    The [Committee] did not observe the procedures that are required by law in the conduct of the hearing thereby breaching s 6(1)(b) of the ADJR Act.

a)    Although it was the Applicant who suggested that he give his evidence in writing after day 4 of the hearing, due to his mental state, the [Committee] had a legislative requirement pursuant to s 101 of the [Health Insurance Act] to have the Applicant appear in person. No reasonable adjustments to effect the legislative requirement were sought by the [Committee]. This disadvantaged the Applicant by: (i) not allowing him to have sufficient time to produce the written evidence, and (ii) disabling the interactive nature of the hearing.

b)    As a consequence of (a), the [Committee] should have informed the [Director] that circumstances existed which would make a proper investigation impossible pursuant to s 106GA(2) of the [Health Insurance Act]

c)    [not pressed]

d)    The [Committee] made findings in breach of s 106H(1) of the [Health Insurance Act] regarding allegations of non-attendance of patients which was not covered by the referral to the [Committee] by the [Director]. These allegations were in a report written by the [Director] which was not provided to the [Committee] as part of the referral.

3.    In the making of the proposed decision and the making of the Decision, the [Committee] engaged in an improper exercise of the powers conferred upon it by the [Health Insurance Act] in breach of ss 6(1)(e), 5(1)(e), 6(2)(a), (b), (f) and (h) and 5(2)(a), (b), (f) and (h) of the ADJR Act.

a)    The [Committee] made no allowance for the cohort of patients that the Applicant dealt with, thereby indulging in improper generalizations of what is expected of a general practitioner in the shoes of the Applicant. The cohort of patients included patients who were disadvantaged, of predominantly non-English speaking background, with complex medical conditions and who had been referred to the Applicant by other doctors at the Carnegie Medical Clinic as those doctors were unwilling to treat them.

b)    The [Committee] did not give sufficient weight to written evidence from a selection of the Applicant’s patients, nor did it make enquiries of the staff responsible for the billing of the Applicant’s patients.

c)    The [Committee] had been provided with the Applicant’s draft submissions in response to allegations concerning the Applicant’s CDM services but made a deliberate choice to ignore those submissions in its deliberations (see paragraphs 16 and 17 of the Decision).

d)    The [Committee] did not take into account the seriousness of the allegations against the Applicant, which are essentially allegations of fraud, nor the seriousness of the consequences for him. The [Committee] should have taken into account the Briginshaw Principles in its deliberations but it failed to do so.

4.    The [Committee] committed an error of law in breach of ss 6(1)(f) and (j) of the ADJR Act in the course of its conduct in the making of the proposed decision.

a)    The [Committee] did not take into account the seriousness of the allegations against the Applicant, which are essentially allegations of fraud, nor the seriousness of the consequences for him. The [Committee] should have taken into account the Briginshaw Principles in its deliberations but failed to do so.

5.    The [Committee] did not have evidence or other material to justify the making of the proposed decision (contained in its draft report dated 24 February 2022 under section 106KD of the [Health Insurance Act]) or the making of the Decision thereby breaching ss 6(1)(h), 5(1)(h), 6(3)(a) and (b) and 5(3)(a) and (b) of the ADJR Act.

a)    The [Committee] made incorrect assumptions regarding the attendance or non-attendance of the Applicant’s patients and the Medicare billing requirements based on assumptions of a different cohort of patients to that which the Applicant dealt with. The Applicant had presented his evidence but the [Committee] simply discounted the Applicant’s evidence without any opposing evidence before it.

b)    The [Committee] did not take into account the seriousness of the allegations against the Applicant, which are essentially allegations of fraud, nor the seriousness of the consequences for him. The [Committee] should have taken into account the Briginshaw Principles in its deliberations but failed to do so.

6.    The [Committee] breached ss 5(1)(b), (f) and (j) of the ADJR Act by not observing the correct procedures required by law, involving its Decision in an error of law and the Decision being contrary to law.

a)    The [Committee] incorrectly applied the Health Insurance (Professional Services Review Scheme) Regulations 2019 to the Applicant’s record keeping rather than the Health Insurance (Professional Services Review Scheme) Regulations 1999, even though the period being investigated by the [Committee], which was 1 April 2017 to 31 March 2018, fell prior to the making of the 2019 regulations.

b)    In its referral to the [Director] pursuant to s 106XB of the [Health Insurance Act], the [Committee] made a finding of “non-compliance with the requirements set out in Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code) in particular:

•    Part 2.1 of the Code concerning professional values, and

•    Part 7.2 of the Code concerning judicious use of the healthcare resources.”

However, neither the 2009 nor the 2014 Codes’ versions of parts 2.1 and 7.2 bear any relation to “professional values” or the “judicious use of the healthcare resources”. As the [Committee] did not refer to the date of the Code to which it was referring, it is impossible to make sense of the references.

c)    The [Committee] did not take into account the seriousness of the allegations against the Applicant, which are essentially allegations of fraud, nor the seriousness of the consequences for him. The [Committee] should have taken into account the Briginshaw Principles in its deliberations but failed to do so.

148    The applicant seeks the following substantive orders:

1.    A Declaration that the Decision was affected by legal error, is unlawful and improper and should be set aside.

2.    An order for a Writ of Certiorari that the Decision be quashed.

3.    A Writ of mandamus or similar order requiring the [Committee] to terminate the review and pursuant to s 106L(5)(b)(ii) of the [Health Insurance Act] provide the Applicant, the [Director] and the Chief Executive Medicare a written notice stating that no further action should be taken as a result of the Decision.

4.    An injunction restraining the [Committee] from providing the Decision to the Determining Authority.

5.    A Writ of mandamus or similar order requiring the [Director] to withdraw the AHPRA Referral.

Consideration

Ground 1(a)

149    By this ground, the applicant alleges that he was denied procedural fairness by the Committee because he was not provided with sufficient notice of the alleged evidence against him, by reason of the late provision of the USB stick containing patient records, and because the patient records were in a format unfamiliar to him. Although the applicant’s grounds of review (reflecting ss 5(1)(a) and 6(1)(a) of the ADJR Act) use the expression “natural justice”, I will use the expression “procedural fairness” in these reasons to express the same concept.

150    The applicant’s submissions in support of this ground can be summarised as follows:

(a)    The applicant has treated many hundreds of patients over the years. He has had numerous appointments with those patients in the course of their treatment. The Health Insurance Act and its subordinate legislation provide for sampling of patient records.

(b)    The applicant was required to respond to allegations regarding six different MBS item numbers. With 30 patients per item, this involved up to 180 patients (there being some overlap) and their complete medical history.

(c)    In preparation for the hearing, the applicant needed to know which patients, and which specific records of those patients he was to be interrogated about. Both the applicant and the Committee needed access to each patient’s full history so that the details of specific records could be seen in context.

(d)    The patient records were to be sent to the applicant and Mr Morgan on a USB stick. The applicant experienced technical difficulties attempting to access the patient records.

(e)    Other problems arose in connection with the delivery of a suitable USB drive to the applicant and the theft of his car containing the USB stick.

(f)    The hearing was due to start on 11 March 2021, but as late as 23 February 2021, the applicant was not able to access a USB stick with the patient records on his computer. As a result, the applicant was forced to access the patient records on Mr Morgan’s computer on the first day of the hearing.

(g)    To further complicate matters, the records that the applicant had to navigate, based on the contents of the USB stick, were presented in PDF format rather than the medical record software that he was used to using. The applicant was not familiar with this format and navigation was difficult. Further, there were literally thousands of pages that the applicant had to familiarise himself with for the hearing.

(h)    In an internal PSRA email dated 9 March 2021 (Annexure BD-2, p 210), it is claimed that Mr Morgan had stated that: “Dr Raymon had been through every record individually”. In his third affidavit, the applicant denies that he had been through every record individually. He had simply not had the time to do so in the two weeks leading up to this email / file note.

(i)    Not having had sufficient time to prepare left the applicant in an unfair situation procedurally, which was a denial of procedural fairness. There had been a gap of three to four years between the Review Period and the hearing, and the applicant had moved on from the Clinic.

151    In his reply submissions, the applicant relies on s 102(3), which provides that the notice of hearing “must give particulars of the referred services to which the hearing relates”. The applicant submits that he was not given sufficient particulars in advance of the hearing to be able to respond to the Committee’s concerns in a meaningful way; listing a series of six MBS item numbers falls short of what are generally referred to as “particulars”.

152    I accept that the applicant experienced a number of difficulties in relation to patient records, both before and during the hearing. In February 2021, the applicant’s car was stolen, with the previously provided USB stick in the car (see [42] above). Although the Committee provided him with a new USB stick (referred to above as the Green USB stick), the applicant could not open it in advance of the hearing (see [44] above). I also accept that the patient records were presented as PDF documents, which was not the way in which the applicant was used to seeing them.

153    However, in my view, the applicant has not established that he was denied procedural fairness by reason of the difficulties he experienced in relation to patient records. As the Full Court said in Traill v McRae [2002] FCAFC 235; 122 FCR 349 at [140]: “What the duty to afford procedural fairness requires on each occasion must depend on the facts of the case.” The applicant had received, and was able to access, a complete set of the patient records by the first day of the hearing (11 March 2021). The applicant’s difficulties need to be seen in the context of the overall course of the investigation and the further opportunities that the applicant had to consider the patient records and provide evidence and submissions about them. In short, the applicant was given ample time to review, and provide evidence and submissions about, the patient records. In relation to the CDM services, on Day 4 of the hearing, the Chair of the Committee read out a detailed statement of the Committee’s concerns (see [71] above). A copy of those concerns was emailed by Ms Parker (on behalf of the Committee) to Mr Morgan (the applicant’s legal representative) on the same day. The applicant was given a period of months to respond to those concerns. This gave him a considerable period of time to review, and provide evidence and submissions about, the patient records for the CDM services. In relation to MBS item 2713 services, the Committee provided its concerns in writing (on 15 June 2021) (see [86] above). The applicant was given a period of several months to respond to those concerns. Again, this gave him considerable time to review, and provide evidence and submissions about, the patient records. In relation to MBS items 23 and 36, which were the subject of questions during the hearing, while the applicant was unable to review these records in the days and weeks before the commencement of the hearing, I am not satisfied that this led to any denial of procedural fairness. The applicant, who was legally represented, could have requested the opportunity to provide further evidence and submissions about the relevant patient records after the hearing. It does not appear that any such request was made. Having regard to the evidence generally, there is every reason to think that the Committee would have acceded to any such request. Further and in any event, the applicant had the opportunity to make closing submissions and to provide submissions on the Draft Report. He had ample time to review the patient records before those submissions were due.

154    Insofar as the applicant submits that, in breach of s 102(3) of the Health Insurance Act, the notice of hearing did not give particulars of the referred services to which the hearing related, I do not accept that submission. Section 102(3) provides that a notice of hearing “must give particulars of the referred services to which the hearing relates”. The expression “referred services” is defined in s 81(1) as meaning “the services specified in the referral made to the Committee under section 93”. In the present case, the services specified in the Referral were identified by reference to the six MBS item numbers. These were the referred services. They were set out in the notice of hearing. This is sufficient to comply with s 102(3).

Ground 1(b)

155    By this ground, the applicant contends that he was denied procedural fairness by the Committee because he was not provided with any, or any sufficient, notice prior to the hearing of the Committee’s concerns relating to patients allegedly not attending appointments when these had been claimed for (that is, the Attendance Issue).

156    The applicant’s submissions can be summarised as follows:

(a)    Prior to the hearing, the Committee had made it known to the applicant that there were specific allegations that it had concerns about within the sample of patients that he had been presented with. The applicant had done what he could to prepare for these.

(b)    On the third day of the hearing, with the intention of ensuring that the Committee was fully informed of earlier correspondence with the Director, Mr Morgan tendered the Director’s Section 89C Report dated 18 June 2019 and the applicant’s response, prepared by Kennedys and dated 13 August 2019.

(c)    The Section 89C Report had included concerns about possible non-attendance of patients and this had been responded to in the Kennedys response. It can be assumed that the Director had been satisfied with the response. In her Referral to the Committee dated 29 November 2019, there is no mention of non-attendance.

(d)    However, what subsequently followed, in breach of s 106H(1) of the Health Insurance Act, were questions arising from allegations of non-attendance of patients for which the applicant had made Medicare claims. The applicant had not been properly prepared to respond to such allegations as they had not been included in the Referral. Further, these allegations were not mentioned in either of the notices of hearing. Further, the hearing transcript shows that the applicant was struggling emotionally.

(e)    This was a breach of procedural fairness as the applicant should have been advised in advance that he was required to respond to such serious allegations, which amounted to fraud. The applicant has consistently and strenuously denied these allegations, but he had no access to the computer billing and attendance systems at the Clinic in their original format. Subsequently, the Committee drew conclusions in its Final Report that could not be properly responded to by the applicant.

(f)    Further, this was an error of law as it was contrary to s 106H(1) of the Health Insurance Act.

157    In my view, the applicant has not established that there was a denial of procedural fairness in the way the Committee raised and dealt with the Attendance Issue. It may be accepted that the applicant did not have prior notice, before the hearing, that this issue would be raised during the hearing. However, once it emerged that the Committee did have concerns about the issue, the Chair outlined the Committee’s concerns in a detailed way, giving five reasons why the Committee held these concerns (see [71] above). This took place on Day 4 of the hearing (19 March 2021). This put the applicant on notice of the issue and the Committee’s reasons for holding the concerns that it did. The applicant was not required to respond on the spot. To the contrary, the hearing was adjourned to give the applicant time to prepare a response. The applicant was given several months (ultimately, until 12 November 2021) to provide his response to the Committee’s concerns regarding the CDM services, including in relation to the Attendance Issue. I consider that this was a sufficient opportunity for the applicant to respond to the Committee’s concerns.

158    Further, the applicant was provided with the Draft Report and given the opportunity to make submissions on the draft report. The Draft Report set out the Committee’s concerns in relation to the Attendance Issue in detail. This gave the applicant a further opportunity to respond to those concerns.

159    Insofar as the applicant submits that there was a breach of s 106H(1), I do not accept that submission. Section 106H(1) provides that “the Committee is to make findings only in respect of the referred services”. The Committee’s findings were in relation to the referred services (that is, the services specified in the Referral). The Committee’s findings in respect of the Attendance Issue related to the referred services (specifically, the CDM services). Putting this another way, the Attendance Issue was an aspect of whether the applicant had engaged in inappropriate conduct in providing the referred services. Accordingly, the Committee did not breach s 106H(1).

160    Further, I note that s 106H(3) provides that the Committee’s investigation of the referred services “is not limited by … the reasons given in the Director’s report to the Committee under paragraph 93(6)(a) or anything else in that report”. This makes it clear that the Committee could investigate the Attendance Issue even though it was not raised in the Section 93 Report.

161    If and to the extent that the applicant submits that the Attendance Issue needed to be raised in the notice of hearing, I do not accept any such submission. Section 102(3) provides that “[t]he notice must give particulars of the referred services to which the hearing relates”. This provision requires particulars to be given of the referred services (that is, the services specified in the Referral). It does not require particulars to be given of the Committee’s concerns in relation to those services.

Ground 1(c)

162    By this ground, the applicant alleges that he was denied procedural fairness by the Committee on the basis that the Committee had a legislative requirement, pursuant to s 101 of the Health Insurance Act, to have the applicant appear in person; no reasonable adjustments were made by the Committee to give effect to the legislative requirement; this disadvantaged the applicant by: not allowing him to have sufficient time to produce the written evidence, and disabling the interactive nature of the hearing.

163    The applicant submits, in summary:

(a)    Section 101(2) provides that “[t]he Committee must 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”. The Committee breached s 101 after Day 4 of the hearing, as the hearing was never completed in accordance with that section. These breaches were both a denial of procedural fairness and errors of law. (Insofar as the applicant’s written submissions refer to and rely on s 124G, this is misplaced, as that section concerns a different committee process than the one under present consideration.)

(b)    As the applicant found the hearing experience to be traumatising, the Committee agreed to Mr Morgan’s suggestion that the rest of the “hearing” occur via written questions and written responses. The Committee simply did not have the power to do this.

(c)    No reasonable adjustments to give effect to the legislative requirement were made by the Committee to allow the hearing to continue as was required by law. This disadvantaged the applicant by: not allowing him to have sufficient time to produce the written responses, and disabling the interactive nature of the hearing.

164    In the applicant’s reply submissions, he submits that the logical extension of the Commonwealth’s submissions is that the Committee could convene a hearing for five minutes that one would normally expect to run for six days; this is clearly not the intention of the legislature. The applicants submits that his submissions do not interfere with the Committee conducting its deliberations outside of the hearing.

165    The Commonwealth accepts that the Committee was required, by reason of s 101(2), to hold a hearing, given that it was considering whether the applicant had engaged in inappropriate practice in relation to the Referred Services. The Commonwealth submits that the Committee satisfied this requirement by holding a hearing of four days in March 2021.

166    In my view, the Committee satisfied the requirement in s 101(2) to hold a hearing. A hearing was held for four days.

167    Insofar as the applicant contends that the entire process of putting concerns to the applicant and receiving his evidence and submissions in response needed to take place at a hearing, I do not accept that submission. In my view, it was open to the Committee, in the circumstances of this case, to adopt a different procedure, namely one whereby it put concerns to the applicant in writing and gave him the opportunity to respond in writing. The statutory scheme envisages that the Committee will holding meetings (see s 97). Generally, the Committee has a discretion, at any meeting, to hold a hearing at which evidence is given and/or documents are produced (s 101(1)). A qualification on this is that the Committee must 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)). Where there is a hearing, the person under review is entitled, subject to any reasonable limitations or restrictions that the Committee may impose, to attend the hearing, to call witnesses to give evidence, etc (s 103(1)). Subject to certain exceptions, the procedure for conducting the hearing is within the discretion of the presiding Committee member (s 106(1)). The presiding member may adjourn the hearing from time to time as he or she thinks fit (s 106(2)). Sections 106A to 106F contain procedural provisions relating to hearings, including the power to summon a person to give evidence.

168    The effect of these provisions is that, where it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services, the Committee must hold a hearing, and the person is entitled (subject to reasonable limitations) to attend, call witnesses to give evidence, etc. However, the provisions do not require that all stages of putting concerns and receiving responses take place at a hearing. Clearly, there may be cases, of which the present is one, where it may be more sensible and practical for the process of putting concerns and receiving responses to continue in another way. Provided that the person under review consents to the process and is afforded procedural fairness, I do not consider that the legislation requires that all stages of putting concerns and responses occur at a hearing. Such a requirement could undermine the purpose of the provisions, which includes enabling the Committee to conduct its inquiry, while affording the person under review procedural fairness.

169    In the present case, the hearing did not resume in circumstances where Mr Morgan (on behalf of the applicant) provided Ms Parker (on behalf of the Committee) with a certificate from the applicant’s treating psychiatrist that expressed the opinion that the applicant was “not able to be further interviewed by a medical panel” (see [82] above). The psychiatrist requested or suggested: “Could any further interviewing please be done by written questions … as a means by which he would not be further distressed”. The Committee took up this request or suggestion by proposing a process whereby the Committee would put forward any concerns in writing and the applicant would have an opportunity to respond in writing (see [84] above). The applicant implicitly accepted this proposal (see [88] above). The applicant did not subsequently request that the hearing resume. In my opinion, the statutory provisions did not require the continuation of the hearing in these circumstances. Indeed, the process proposed by the Committee was a superior way of giving the applicant procedural fairness in the circumstances.

170    I therefore reject this ground.

Ground 1(d)

171    By this ground, the applicant contends that he was denied procedural fairness by the Committee in that, as a consequence of ground 1(c), the Committee should have informed the Director that circumstances existed which would make a proper investigation impossible pursuant to s 106GA(2) of the Health Insurance Act.

172    The applicant submits, in summary, that in circumstances where the applicant was unable to continue with the hearing, the Committee should have informed the Director that a proper investigation had become impossible; by not doing so the Committee denied the applicant procedural fairness, engaged in an error of law and acted contrary to law.

173    Section 106GA(2) provides that the Committee may give the Director written notice that it is satisfied that circumstances exist that would make a proper investigation by the Committee impossible.

174    It is not apparent from the applicant’s submissions how the alleged error is said to constitute a denial of procedural fairness.

175    If and to the extent that the applicant contends that the Committee erred by not forming the state of satisfaction set out in s 106GA(2) (i.e. not forming a state of satisfaction that circumstances existed that would make a proper investigation impossible), I do not accept this contention. The applicant did not put forward evidence to the Committee that he was unable to proceed in the way proposed by the Committee (i.e. in writing). Indeed, such a process was consistent with the request or suggestion of his treating psychiatrist (see [82] above). There was, therefore, no basis for the Committee to form a state of satisfaction that circumstances existed that would make a proper investigation impossible.

176    I therefore reject this ground.

Ground 1(e)

177    By this ground, the applicant contends that he was denied procedural fairness by the Committee because he was unable to exercise his rights under s 103(1)(g) of the Health Insurance Act to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing related.

178    The applicant submits that, as the Committee had breached ss 101, 106G(1) and 106GA(2), it was not possible for a final address to be made to it on questions of law, the conduct of the hearing and the merits of the matters to which the hearing related. The applicant submits that: had the hearing been completed in the anticipated two further days (or even a few days more) it can be assumed that the final address would have occurred; however, the circumstances that the Committee had allowed to occur, in breach of the Health Insurance Act, made it impossible.

179    The thrust of this ground is that the applicant was denied the opportunity to make a final address contrary to s 103(1)(g). In setting out its proposal for the further conduct of the investigation on 6 May 2021, the Committee said that it was prepared to accept a final address under s 103(1)(g) from the applicant and Mr Morgan in writing (see [84] above). The applicant implicitly accepted that proposal (see [88] above). The applicant did not subsequently request the opportunity to make a final address at a hearing. On 22 September 2021, Mr Morgan sent an email that anticipated the applicant providing closing submissions (see [94] above). In Ms Parker’s email of 22 October 2021, she said that the Committee would give the applicant until 13 December 2021 to make any closing submissions in writing under s 103(1)(g) (see [96] above). In the event, the applicant did not provide any closing submissions. In these circumstances, I consider that the applicant was given the opportunity to make a final address, albeit subject to a reasonable limitation (see the opening line of s 103(1)) that it be in writing. I do not consider there to be any breach of the requirements of s 103(1)(g).

180    Insofar as the applicant contends that the Committee breached ss 101 and 106GA(2), I have dealt with this under earlier grounds. Insofar as the applicant contends that the Committee breached s 106G(1), that provision does not in terms impose any obligation (see [21] above). It is unclear how this section assists the applicant’s submissions in support of this ground. If and to the extent that the applicant contends that the Committee did not complete its final report within the time prescribed in s 106G(2), I note that s 106G(5) provides that failure to give the final report to the Determining Authority within the period of 6 months, or that period as extended, does not affect the validity of that report.

Ground 2(a)

181    By this ground, the applicant alleges that the Committee did not observe procedures required by law in the conduct of the hearing in that the Committee did not observe the legislative requirement (in s 101 of the Health Insurance Act) to have the applicant appear in person.

182    For the reasons set out under ground 1(c) above, this ground is not made out.

Ground 2(b)

183    By this ground, the applicant alleges that the Committee did not observe procedures required by law in the conduct of the hearing in that the Committee should have informed the Director that circumstances existed which would make a proper investigation impossible pursuant to s 106GA(2) of the Health Insurance Act.

184    For the reasons set out under ground 1(d) above, this ground is not made out.

Ground 2(c)

185    The applicant does not press this ground.

Ground 2(d)

186    By this ground, the applicant alleges that the Committee did not observe procedures required by law in the conduct of the hearing in that the Committee made findings in breach of s 106H(1) of the Health Insurance Act regarding allegations of non-attendance of patients; these allegations were not covered by the Referral to the Committee by the Director.

187    For the reasons set out under ground 1(b) above, this ground is not made out.

Ground 3(a)

188    By this ground, the applicant contends that, in the making of the Decision, the Committee engaged in an improper exercise of the powers conferred upon it by the Health Insurance Act in that the Committee made no allowance for the cohort of patients that the applicant dealt with.

189    The applicant submits, in summary, that the Committee indulged in improper generalisations of what is expected of a general practitioner in the shoes of the applicant. The applicant submits that his cohort of patients included people who were disadvantaged, of predominantly non-English speaking background, with complex medical conditions and who had been referred to the applicant by other doctors at the Clinic as those doctors were unwilling to treat them.

190    The applicant does not identify the basis on which he says that this constituted an improper exercise of power.

191    In any event, it is plain from the Final Report that the Committee did allow for the cohort of patients that the applicant dealt with: see paragraphs 98-104, 137 and 157-158. For example, the Committee stated at paragraph 137 of the Final Report:

The Committee understands Dr Raymon’s practice and background and the nature of the practice in which he worked during the Review Period and in which he moved into during 2020 and 2021. It has taken this into account when considering his submissions regarding what conduct would be unacceptable to the general body of general practitioners.

192    Further, it is apparent from the Committee’s findings in relation to the particular patients discussed in the appendices to the Final Report that the Committee understood the nature of the cohort: see, eg, pp 73-74 (the final paragraph in the first box in the table and the reasoning in the second box), pp 77-78 (the first box in the table).

193    I therefore reject this ground.

Ground 3(b)

194    By this ground, the applicant contends that, in the making of the Decision, the Committee engaged in an improper exercise of the powers conferred upon it by the Health Insurance Act in that the Committee did not give sufficient weight to written evidence from a selection of the applicant’s patients, nor did it make enquiries of the staff responsible for the billing of the applicant’s patients.

195    The applicant does not identify the basis on which he says that either of these matters constitutes an improper exercise of power.

196    There is no requirement under Div 4 of Pt VAA for the Committee to give any particular weight to evidence provided to it by a person under review for the purpose of forming a view as to whether the person has engaged in inappropriate practice as defined in s 82(1). I therefore do not accept that the Committee erred by giving insufficient weight to the patient testimonials. I note that the Committee referred to the patient testimonials at p 8 of the Final Report (the third sub-bullet point) and stated that that it was not greatly assisted by one of the patient testimonials at paragraph 49.

197    Further, I do not accept that the Committee was legally required to make enquiries of the staff responsible for patient billing.

Ground 3(c)

198    By this ground, the applicant contends that, in the making of the Decision, the Committee engaged in an improper exercise of the powers conferred upon it by the Health Insurance Act in that the Committee had been provided with the applicant’s draft submissions in response to allegations concerning the applicant’s CDM services, but made a deliberate choice to ignore those submissions in its deliberations (see paragraphs 16 and 17 of the Final Report). It is apparent from the reference to paragraphs 16 and 17 of the Final Report that this ground relates to the emails provided by Mr Morgan (on behalf of the applicant) on 16 August 2021 (see [92] above).

199    The applicant does not provide any explanation of how this is said to constitute an improper exercise of power.

200    In any event, I do not accept that the Committee’s decision not to have regard to the emails of 16 August 2021 constituted an improper exercise of power. This material was described as a “partly complete response”. It was stated that “[n]one of it is final” (see [92] above). On two occasions, the Committee sought clarification from the applicant as to whether he wanted the Committee to have regard to these materials (see [98] and [102] above), but he did not respond.

Ground 3(d)

201    By this ground, the applicant contends that, in the making of the Decision, the Committee engaged in an improper exercise of the powers conferred upon it by the Health Insurance Act in that the Committee did not take into account the seriousness of the allegations against the applicant, which are essentially allegations of fraud, nor the seriousness of the consequences for him. The applicant contends that the Committee should have taken account of the Briginshaw principles in its deliberations, but it failed to do so.

202    The applicant submits that the allegations are in substance whether the applicant engaged in fraudulent behaviour, by obtaining a financial advantage from Medicare to which he was not entitled. The applicant refers to and relies on: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw) at 361-363 per Dixon J; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 (Neat Holdings) at 450; and G v H [1994] HCA 48; 181 CLR 387 at 399 per Deane, Dawson and Gaudron JJ.

203    In Briginshaw, Dixon J stated at 362:

… But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …

204    The question whether an administrative tribunal, such as the Committee, is bound to apply the principles set out in Briginshaw has been considered in a number of cases: see, for example, Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 (Sullivan) at [98]-[122] per Flick and Perry JJ; Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; 42 VR 176 at [29]-[40] per Osborn JA (Beach JA agreeing). In Sullivan, the appellant contended that the Administrative Appeals Tribunal was bound to apply the “principle of law” in Briginshaw when making findings that were critical to its reasoning process and “grave or serious”: see Sullivan at [101], [104]. Flick and Perry JJ rejected that submission: see [106], [122]. Their Honours stated at [108] that the general proposition advanced by the appellant suffered from at least two fundamental difficulties. The second of these was:

the difficulty that the proposition is inconsistent with the very charter entrusted to the Tribunal and the deliberate and detailed legislative scheme enacted by the Parliament for the discharge by the Tribunal of its statutory functions of review.

205    Flick and Perry JJ noted at [111] that some findings of fact have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to the evidence upon which the finding is made, citing O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 208, 230. Flick and Perry JJ reasoned at [114] that the general “principle of law” being advanced by the appellant would:

•    be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular;

and would be:

•    inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal; and

•    a potentially serious encroachment upon the statutory limitation on an appeal from decisions of the Tribunal to a “question of law”.

206    Flick and Perry JJ stated at [116]:

What procedure the Tribunal decides to follow in any particular case, and whether the Tribunal decides to either apply or inform itself by reference to the common law rules of evidence, is a matter which has been left by the legislature to the Tribunal itself to determine. The manner in which the Tribunal proceeds cannot, with respect, be pre-determined by any generally expressed “principle of law” which is to be applied to some indeterminate fact findings which may be characterised as “grave” or “serious”.

207    Their Honours acknowledged at [119] other bases for judicial review of administrative decisions that may be available: for example, the rejection of evidence may amount to a denial of procedural fairness; and a failure to provide adequate or any reasons for rejecting unchallenged evidence may constitute an error of law. Their Honours then stated at [120]:

Within these already accepted principles, the Tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.

208    The conclusion of Flick and Perry JJ – that there is no general principle of law to the effect that Briginshaw applies to the Administrative Appeals Tribunal – was applied by another Full Court of this Court: see Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 at [121] per Rares, Yates and Griffiths JJ.

209    In my view, the reasoning of Flick and Perry JJ in Sullivan in relation to the Administrative Appeals Tribunal is equally applicable to a Professional Services Review Committee established under Pt VAA of the Health Insurance Act. The statutory provisions relating to the functions and powers of Professional Services Review Committees are set out in Div 4 of Pt VAA of the Health Insurance Act and have been outlined earlier in these reasons. In particular, s 106(2) provides that the Committee is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.

210    In any event, it is apparent that the Committee understood the gravity of the findings it was considering making (particularly in relation to the Attendance Issue) and the gravity of the potential consequences for the applicant of a finding of inappropriate practice. At paragraph 50 of the Final Report, the Committee stated:

Thirdly, Dr Raymon provided a table which is described as an analysis of the preliminary findings of inappropriate practice in the Committee’s Draft Report which indicates the financial sanction that Dr Raymon may face should the Committee make findings of inappropriate practice and the Determining Authority decide to direct repayment of Medicare benefits. The Committee notes that matters of which possible directions will be applied to any findings it makes, including those relating to repayment of benefits, are outside its role and are a matter for the Determining Authority. To the extent the document was intended to inform the Committee of the possible consequences related to any findings of inappropriate practice it makes, the Committee is aware of the potential consequences for Dr Raymon and had not proceeded to make findings of inappropriate practice lightly.

(Underline emphasis added.)

211    The Committee’s awareness of these matters is also apparent from the Final Report at paragraph 123 (set out at [135] above), paragraph 129 (set out at [136] above) and paragraphs 236-237 (set out at [139] above). The approach taken by the Committee, in particular in considering whether it was “comfortably satisfied” that patients were not in attendance, was consistent with the approach discussed and accepted as proper in Karakatsanis at [37]-[40].

212    I note that Neat Holdings and G v H did not involve decision-making by an administrative tribunal that was not bound to apply the rules of evidence.

213    I therefore reject this ground.

Ground 4

214    By this ground the applicant contends that the Committee committed an error of law in the course of its conduct in the making of the proposed decision in that the Committee did not take into account the seriousness of the allegations against the applicant.

215    For the reasons set out above under ground 3(d), this ground is not made out.

Ground 5(a)

216    By this ground, the applicant contends that the Committee did not have evidence or other material to justify the making of the proposed decision (in the Draft Report) or the Decision (in the Final Report). The applicant contends that the Committee made incorrect assumptions regarding the attendance or non-attendance of the applicant’s patients and the MBS billing requirements based on assumptions of a different cohort of patients to that which the applicant dealt with. The applicant contends that he presented his evidence, but the Committee simply discounted it without any opposing evidence before it.

217    It appears that this ground relates only to the Attendance Issue. The applicant has not established that there was no evidence to support the Committee’s findings that patients did not attend the relevant appointments. To the contrary, the Final Report identified the evidence relied on by the Committee in making its findings on this issue. For example, at paragraph 123 (see [135] above), the Committee referred to the applicant’s oral evidence, the patient letters (where available), the medical records, Pracsoft records and PIRT reports. The Committee then stated: “The Committee considers there to be significant probative evidence that patients were not in attendance.” The Committee set out the evidence in detail at [200]-[211] and [214]-[228]. The Committee based its findings on evidence.

218    I therefore reject this ground.

Ground 5(b)

219    By this ground, the applicant contends that the Committee did not have evidence or other material to justify the making of the proposed decision (in the Draft Report) or the Decision (in the Final Report). The applicant contends that the Committee did not take into account the seriousness of the allegations against the applicant.

220    For the reasons set out under ground 3(d) above, this ground is not made out.

Ground 6(a)

221    By this ground, the applicant contends that the Committee failed to observe procedures required by law, or made a decision that involved an error of law, or made a decision that was otherwise contrary to law, in that the Committee incorrectly applied the 2019 Regulations to the applicant’s record-keeping rather than the 1999 Regulations, in circumstances where the Review Period (1 April 2017 to 31 March 2018) fell prior to the making of the 2019 Regulations.

222    The applicant submits that a detailed analysis of this error was provided by Dr Taylor in the submissions dated 24 June 2022, with a useful summary provided by Mr Morgan in an email of the same date (see [115] above).

223    Section 82(1)(a) of the Health Insurance Act (set out above) sets out the relevant definition of inappropriate practice. Section 82(3) provides that 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. The expression “adequate and contemporaneous records” is defined in s 81(1) as meaning records that meet the standards prescribed by the regulations for the purposes of the definition. The 1999 Regulations, which were in place during the Review Period, set out standards for the purposes of that provision in ss 4 to 6. Subsequently, the 2019 Regulations were made. These regulations were in place at the time the Committee made its decision (that is, completed the Final Report). The 2019 Regulations set out standards for the purposes of s 81(1) in s 6.

224    As the Committee recognised in both the Draft Report and the Final Report, an issue arose as to which regulations were applicable. The Committee first addressed this issue in the section headed “Applicable law” (comprising paragraphs 31-34) (set out at [129] above). The Committee considered that it was tasked with applying the law in force at the time of its decision. It therefore considered that the 2019 Regulations were applicable. However, it acknowledged that the 1999 Regulations were in force during the Review Period, and stated that this was a relevant consideration in considering the applicant’s conduct during that period. The Committee stated that, while it had applied the 2019 Regulations, it had also considered the applicant’s conduct in the context of the 1999 Regulations. The Committee stated that, even if the 1999 Regulations applied to the applicant’s conduct, the result would be the same.

225    The Committee gave further consideration to the issue in the section headed “Submissions on the Draft Report”. The Committee discussed and responded to the submission that had been provided by the applicant in response to the Draft Report; that is, the submissions prepared by Dr Taylor that had been provided to the Committee on 24 June 2022: see paragraphs 58-87 of the Final Report. The Committee did not accept the submission that the effect of s 7(2) of the Acts Interpretation Act 1901 (Cth) was that the 1999 Regulations were applicable: see paragraph 65. The Committee stated at paragraph 67:

In coming to the findings set out in the Draft Report the Committee recognised this was a complex legal issue. In assessing how to approach its task and make sure that it complied with section 82(3) of the Act the Committee proceeded to consider Dr Raymon’s standard of record-keeping both against the 2019 Regulations and the 1999 Regulations. It considered this the fairest approach in the circumstances. If in any service under review the Committee considered Dr Raymon’s records adequate and contemporaneous as against one set of Regulations but not the other, it would not have proceeded to make preliminary findings of inappropriate practice on the issue of record-keeping. In doing so the Committee considered that even if it is wrong on the issue of which Regulations are applicable, it has properly had regard to both tests and met the requirement in section 82(3) of the Act.

(Underline emphasis added.)

226    The Committee also stated, at paragraph 69:

The Committee considers it crucial to set out that where it has made findings of inappropriate practice on the basis of record-keeping, these have not been for minor or technical matters of non-compliance with the regulatory standard set in either the 2019 or 1999 Regulations. The statutory test the Committee is to apply is whether Dr Raymon’s conduct in connection with the service would be unacceptable to the general body of general practitioners. The Committee does not consider minor technical non-compliance with record-keeping requirements would necessarily lead to findings of inappropriate practice. Rather it has proceeded to only make such findings where the issues identified in the records were significant or a serious deviation from the peer standard.

227    The Committee gave further consideration to whether the 1999 Regulations and 2019 Regulations were materially similar at paragraphs 73-83. The Committee stated at paragraph 79:

The Committee does not quibble that there are in fact differences between the 1999 and 2019 Regulations, especially when analysed through a technical legal lens. It only wishes to identify that in its experience with medical records, the nature of the changes between the 1999 and 2019 Regulations are likely to be minimal when applied to real-practice. But again in fairness to Dr Raymon the Committee did turn its mind to whether in any case his record-keeping would be adequate for the service under review as against either the 2019 or 1999 standard. In assessing Dr Raymon’s records the Committee has not applied a tick-box or mechanical exercise, but has reviewed and analysed every service in the context in which it was provided, and it has reviewed each entry having regard to the medical-record as a whole.

(Underline emphasis added.)

228    It is unnecessary for present purposes to resolve whether the 1999 Regulations or the 2019 Regulations were applicable. This is because, as the passages set out above demonstrate, the Committee applied both the 1999 Regulations and the 2019 Regulations and stated that the result was the same under both regulations. Accordingly, the Tribunal did not err by applying the wrong regulations.

229    I therefore reject this ground.

Ground 6(b)

230    By this ground, the applicant contends that the Committee failed to observe procedures required by law, or made a decision that involved an error of law, or made a decision that was otherwise contrary to law, in that, in its referral to the Director pursuant to s 106XB of the Health Insurance Act (see [112] above), the Committee made a finding of non-compliance with the requirements set out in the Code (i.e. Good Medical Practice: A Code of Conduct for Doctors in Australia), in particular, Part 2.1 (concerning professional values) and Part 7.2 (concerning judicious use of the healthcare resources). The applicant contends that Part 2.1 and Part 7.2 do not bear any relation to “professional values” and the “judicious use of the healthcare resources” respectively.

231    It appears that, in formulating this ground, the applicant’s lawyers reviewed the 2009 and 2014 versions of the Code and those versions did not correspond to the Committee’s statements. In the Commonwealth’s submissions, it is stated that the Committee was referring to the October 2020 version of the Code. In the applicant’s reply submissions, the applicant submits that that version was not in place during the Review Period and is therefore inapplicable.

232    The Committee’s statement of concerns is set out in Annexure 7 to the Final Report (pp 364-369). The reference to the Code appears in paragraph 28 of the statement of concerns (which has been set out at [112] above).

233    In my view, in evaluating this ground, it is necessary to have regard to the Committee’s statement of concerns as a whole. Approaching the matter in this way, it is apparent that the reasons for the referral did not include any breach of the Code: see paragraphs 4-5 of the statement of concerns. Further, the reasons for the concerns did not include any breach of the Code: see paragraphs 6-27. The first time the Code is mentioned is in the last sentence of paragraph 28 (being the last paragraph of the statement). It is apparent, therefore, that the Code did not form part of the Committee’s reasons for making the referral. In light of these matters, any error in the Committee’s reference to the Code was immaterial to the referral.

234    For these reasons, this ground is not made out.

235    Insofar as the applicant seeks judicial review of the Committee’s referral to the Director pursuant to s 106XB, for the same reasons, I do not consider there to be a proper basis to grant relief in relation to the referral.

Ground 6(c)

236    By this ground, the applicant contends that the Committee failed to observe procedures required by law, or made a decision that involved an error of law, or made a decision that was otherwise contrary to law, in that the Committee did not take into account the seriousness of the allegations against the applicant.

237    For the reasons set out under ground 3(d), this ground is not made out.

Conclusion

238    For these reasons, I have concluded that the application should be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Commonwealth’s costs of the proceeding.

Associate:

Dated:    7 February 2024