Blair Athol Medical Clinic Service Trust and Minister for Health and Aged Care
[2024] AATA 776
•9 April 2024
Blair Athol Medical Clinic Service Trust and Minister for Health and Aged Care [2024] AATA 776 (9 April 2024)
Division: GENERAL DIVISION
File Number(s): 2022/10605
Re:Blair Athol Medical Clinic Service Trust
APPLICANT
AndMinister for Health and Aged Care
RESPONDENT
AndHarsha Sanjeeva Wickramanayake
OTHER PARTY
File Number(s): 2022/10683
Re: Blair Athol Medical Clinic Service Trust
APPLICANT
AndMinister for Health and Aged Care
RESPONDENT
AndWijayaratnam Kandasamy
OTHER PARTY
File Number(s): 2023/2015
Re:Blair Athol Medical Clinic Service Trust
APPLICANT
AndMinister for Health and Aged Care
RESPONDENT
AndMinoo Rafiee
OTHER PARTY
DECISION
Tribunal:Senior Member B J Illingworth
Date:9 April 2024
Place:Adelaide
For the reasons set out in the Tribunal’s Reasons for Decision, the Tribunal makes the following decisions:
Dr Harsha Sanjeeva Wickramanayake - 2022/10605
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
Dr Wijayaratnam Kandasamy – 2022/10683
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and in substitution decides that Dr Wijayaratnam Kandasamy be granted a general exemption to provide medical practitioner service each week at Blair Athol Medical Clinic from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of his 10-year moratorium rule period on or about 29 May 2025.
Dr Minoo Rafiee - 2023/2015
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and in substitution decides that Dr Minoo Rafiee be granted a general exemption to provide medical practitioner service each week at Blair Athol Medical Clinic from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of her 10-year moratorium rule period on or about 21 November 2029.
...............................[Sgnd].........................................
Senior Member B J Illingworth
CATCHWORDS
HEALTH AND AGED CARE – should the Applicants as overseas trained doctors be granted exemptions from s 19AB(1) of the Health Insurance Act 1973 (Cth) to access the Medicare Benefits Schedule, which were previously refused by the Respondent - Distribution Priority Area (DPA) - District of Workforce Shortage (DWS) – inner metropolitan – outer metropolitan – General Practice – application for review affirmed – applications for review set aside
LEGISLATION
Health Insurance Act 1973 (Cth)
CASES
Beadle v Director-General of Social Security [1984] AATA 176
Dranichnikov v Centrelink [2003] FCAFC 133
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73
SECONDARY MATERIALS
Explanatory Statement, Health Insurance Act 1973 (Cth), Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 (Cth)
Health Insurance (Section 19AB Exemptions Guidelines) Determinations 2019 (Cth)
REASONS FOR DECISION
Senior Member B J Illingworth
9 April 2024
INTRODUCTION
1.The Blair Athol Medical Clinic Service Trust (“the Applicant”) has, since 2014, operated the Blair Athol Medical Clinic (“BAMC”), located within the City of Port Adelaide Enfield area in South Australia. It is a low socio-economic area. BAMC provides medical services to the general population, which includes local nursing homes and disability care facilities. It has approximately 500 Aboriginal and Torres Strait Islander patients in addition to patients of Afghani and Middle Eastern backgrounds.[1]
[1] Applicant’s Statement of Facts, Facts and Contentions (undated), p 1-5 [3]-[6].
2.BAMC was originally open 7 days a week, except Christmas Day, from 8:00 am to 11:00 pm. Since October 2022, the hours have reduced to Monday to Saturday 8:00 am to 6:00 pm, and Sunday 10:00 am to 6:00 pm. This reduction was due to a lack of medical practitioners available to provide medical service at BMAC. BAMC was also a bulk-billing clinic, but since 2023 has, for some services, introduced a $15.00 fee payable by patients; but the majority of the services remain bulk-billed.
3.BAMC has 18 medical practitioner rooms. In 2020, there was the equivalent of 14 full-time medical practitioners providing medical services. As at the date of the filing of the Applicant’s Statement of Facts, Issues and Contentions (“SOFIC”) there was the equivalent of 6 full-time medical practitioners providing medical services.[2]
[2] Ibid [5].
4.BAMC has, from time to time, engaged medical practitioners whose qualifications were obtained overseas. Dr Harsha Sanjeeva Wickramanayake (“Dr Wickramanayake”), Dr Wijayaratnam Kandasamy (“Dr Kandasamy”) and Dr Minoo Rafiee (“Dr Rafiee”) (“the Other Parties”) are 3 such overseas trained doctors within the meaning of s 19AB(7) of the Health Insurance Act 1973 (Cth) (“the Act”) which governs the registration of overseas trained doctors to practise as medical practitioners in Australia.
5.The Other Parties are each permanent Australian residents, whose visas were approved after the time they first became registered medical practitioners in Australia.[3] By operation of s 19AB(1)(e)(ii) of the Act, each doctor is subject to a 10- year moratorium (“the 10-year moratorium rule”) from the date each first became a registered medical practitioner, from attracting Medicare benefits for the professional services each provides. It is agreed that an overseas trained medical practitioner can charge Medicare benefits for services provided after-hours, namely after 6:00 pm Monday to Friday, and anytime Saturday, Sunday and on public holidays.
[3] Health Insurance Act 1973 (Cth) s 19AB(1)(e).
6.BAMC, on behalf the Other Parties, applied for an exemption from s 19AB(1) of the Act. In so doing, the Minister for Health and Aged Care (“the Respondent”) was obliged to consider the Health Insurance (Section 19AB Exemptions Guidelines) Determinations 2019 (“the Guidelines”). Pursuant to s 19AB(3) of the Act, and s 9 of the Guidelines, the Respondent separately granted the Other Parties exemptions for 6 months to provide locum services at BAMC. Hence, each Other Party was entitled to bill Medicare for the service they provided at BAMC for the period of their individual exemptions.
7.Their periods of 6 month locum service exemptions were as follows:
a) Dr Kandasamy – exemption period ended 13 September 2022;
b) Dr Wickramanayake – exemption period ended 4 January 2023; and
c) Dr Rafiee – exemption period ended 18 February 2023.
8.BAMC, on behalf of the Other Parties, applied for a further period of exemption from s19AB(1) of the Act. It is accepted those applications were requests for general exemption and not for the provision of further locum services. Those applications were first considered and refused by a delegate of the Respondent. BAMC, on behalf of the Other Parties, applied for reconsideration of each of the delegates’ decisions and each decision was affirmed. Hence, BAMC and the Other Parties have brought applications to the Administrative Appeals Tribunal (“the Tribunal”) for review of their respective applications for exemptions.
9.Prior to the hearing, the Tribunal made a Direction that the 3 applications be heard together, and any materials filed, and evidence received in each matter were to be treated as filed and received in respect of the other matters. There was no factual dispute between the parties in either of the applications for review and the Tribunal received into evidence the Tribunal documents filed in respect of each application together with such other documents listed in the exhibit list, held on the Tribunal file. Included within that material was a statement and affidavit of Dr Kamal Chandra Wellalagodage (“Dr Kamal”), the sole director of the Applicant, to which I will refer later.
10.BAMC and the Other Parties were represented by Mr Charles Muscat, solicitor and the Respondent was represented by Ms Emily Hill from King & Wood Mallesons. The hearing proceeded by way of oral submissions and no further evidence other than the tendered documents were before he Tribunal, and again I will refer to those submissions later in this decision.
LEGISLATION AND POLICY
Legislation
11.Each Other Party is an overseas trained doctor and must meet the requirements of s 19AB of the Act and the Guidelines.
12.An overseas trained doctor is ineligible for payment of Medicare benefit under the Act unless that practitioner satisfies the exemption requirement contained in s19AB(1) or (2) of the Act, which are identical in their terms, save that s 19AB(1) relates to professional services rendered by a person, and s 19AB(2) relates to professional services rendered on behalf of a person.
13.Sections 19AB(1) and (2) of the Act relevantly provide, that Medicare benefits are not payable to an overseas trained doctor unless the person is a permanent Australian resident and he or she had completed 10 years’ service, after being first registered as a medical practitioner.
14.However, pursuant to s 19AB(3) of the Act the Respondent has the power to grant an exemption from the operation of ss 19AB(1) and (2). Pursuant to s 19AB(4) an exemption under subsection (3) may be the subject of such conditions the Respondent thinks fit.
15.Section 19AB(4A) informs the Respondent about the exercise of the powers conferred in ss 19AB(3) and (4) of the Act. Pursuant to s 19AB(4B) of the Act, the Respondent must determine Guidelines that determine the exercise of powers under subsection (3) and (4) (emphasis added).
16.Further, the grant of the exemption is to the doctor (or class of doctors) and not any employer or prospective employer of that doctor.[4]
[4] Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73 [6]-[7].
The Guidelines
17.Part 2 of the Guidelines is headed ‘Exemptions’. Section 6 of the Guidelines provides for the consideration of general exemptions to medical practitioners and relevantly reads:
…
(2) When making a decision under subsection 19AB(3) of the Act, the Minister must take into account as a primary consideration whether the service location is in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates.
(3) The Minister may also take into account:
(a) whether the applicant’s registration or licence as a medical practitioner is subject to any conditions;
(b) where the applicant is the holder of a visa, whether the visa entitles the applicant to work as a medical practitioner or undertake clinical training in medicine;
(c) whether the applicant has entered into, or has commenced negotiations to enter into, a contract of service or contract for services under which he or she will provide professional services at the service location;
(d) whether professional services were rendered at the service location within the last 12 months by another person:
(i)to whom an exemption in respect of that location applied; and
(ii)whose provider number in respect of that location has been cancelled by the Chief Executive Medicare;
(e) whether the applicant will render professional services after hours at the service location;
(f) where:
(i)the applicant has commenced negotiations to enter into a contract of service or contract for services under which he or she will provide professional services at the service location, and
(ii)the service location is not in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates,
whether the service location was in a Distribution Priority Area or District of Workforce Shortage in respect of that type of medical practitioner at the time negotiations commenced; and
(g) any other matters the Minister considers relevant.
(4) For the purposes of paragraph (3)(d) of this section, reference to another person to whom an exemption in respect of the service location applied includes reference to a person who is or was a person to whom an exemption made in respect of a class of persons applied.
18.Section 4 of the Guidelines defines Distribution Priority Area (“DPA”) and District of Workforce Shortage (“DWS”) as follows:
Distribution Priority Area means, in respect of general practitioners and other medical practitioners who are not specialists (non-specialists):
(a) the Northern Territory; or
(b) any area located in Modified Monash Model areas 5, 6 or 7; or
(c) a GP catchment area, which is a measure determined by the Department of Health (the Department), in which the number of non-specialist services provided in the GP catchment area is less than the benchmark, which is not classified as an inner metropolitan location by the Department.
…
District of Workforce Shortage means, in respect of medical practitioners who are specialists in a particular specialty (excluding general practice):
(a) the Northern Territory; or
(b) a geographical area, determined by the Department, in which the number of specialists multiplied by the average FSE for specialists in that specialty in that area, per person in the geographical area, is less than the current national average for that specialty; or
(c) any area located in Remoteness Areas 3, 4 or 5 as determined by the Department using ASGS data.
Note 1: District of Workforce Shortage status is determined annually for specialist medical practitioners for the purposes of paragraph (b) of the definition of District of Workforce Shortage by the Department using Medicare billing data and estimated resident population data from the Australian Bureau of Statistics.
Note 2: Maps of current District of Workforce Shortage areas are at 3: The Department uses the ASGS system published by the Australian Bureau of Statistics in 2016. The Department’s Remoteness Area classifications are at pursuant to s 4 of the Guidelines, a DWS relates to medical practitioners who are specialists in a particular speciality and excludes general practice. It is accepted the DWS primary consideration does not apply in this matter as each Other Parties is a medical practitioner requesting exemption to work at BAMC as general practitioner.20.In determining whether the discretion to grant the general exemption is enlivened, the Guidelines provide that the Tribunal must take into account whether BAMC is in a DPA and may also take into account those matters referred to in ss 6(3)(a)–(g) of the Guidelines. Hence, the former is a mandatory consideration, and the latter are discretionary considerations for the Respondent and in this matter, the Tribunal.
21.BAMC does not fall within a DPA because it operates in inner metropolitan Adelaide. An inner metropolitan area is automatically excluded from a DPA classification. The Tribunal must take into account as a primary consideration, that BAMC is not in a DPA. That fact is important because it reflects the policy considerations that underpin the classification of DPAs and the equitable distribution of medical practitioners performing general practice across Australia.
22.A primary consideration will generally weigh more heavily than those other matters which may be taken into account, in the operation of the discretion to grant the exemption under s 6(3) of the Guidelines. Nonetheless, matters in s 6(3) of the Guidelines may be given separate consideration to the primary considerations. The legislative scheme does not prohibit the discretion being enlivened even though the primary consideration weighs against operation of the discretion.
23.This weighing process can be understood when considering the operation of the discretion in permitting an overseas trained doctor’s application to undertake locum services.
24.Section 9 of The Guidelines provides ‘Consideration for exemption – provision of locum services’ for the operation of the exemption to an applicant to perform locum services. It reads:
(1)This section applies where:
(a)the applicant has entered into, or has commenced negotiations to enter into, a contract of service or contract for services to provide professional services at the service location under a locum arrangement; and
(b)the locum arrangement is or would be for a period of not more than six months; and
(c)the applicant has not provided locum services at the same service location under an exemption with the condition that the exemption is for the provision of locum services at that service location.
(2)When making a decision under subsection 19AB(3) of the Act the Minister:
(a)must not take into account whether the service location is in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates; and
(b)may take into account:
(i)those matters specified in paragraphs 6(3)(a) – (e) of this instrument; and
(ii)any other matters the Minister considers relevant.
25.Hence, s 9 provides an exemption for an applicant to perform one-off locum services for a period of no more than 6 months at a service location (which in these matters is BAMC). When considering the grant of an exemption to provide locum service, s9(2) of the Guidelines prohibits the Respondent (and subsequent decision makers) from taking into account s 6(2) (the primary consideration) and s 6(3)(f) and (g) of the Guidelines, but pursuant to s (9)(2)(b)(ii) permits the Respondent to take into account those matters referred to in ss 6(3)(a)–(e) and as referred to in s 9(2)(b)(ii) any other matters the Respondent considers relevant. The latter is a repeat of s6(3)(g) of the Guidelines.
26.Hence, the Respondent must not take into account for the purpose of an exemption for the provision of locum services the primary consideration. This means that the threshold test for the operation of the discretion to grant the exemption, is arguably lower when considering the provision of a locum service by an overseas trained doctor, but, if granted, places a limited one-off service period of 6 months at the service location.
27.An overseas trained doctor who is granted an exemption to provide professional service at a service location, may, if granted further exemptions move every 6 months from one service provider to another that is not in a DPA. But that overseas trained doctor will not be permitted to engage in a longer-term arrangement for the provision of locum services at the same service location of more than 6 months.
28.Having regard to the Guidelines, this can be easily understood. Were it to be otherwise, the overseas trained locum doctor could, for example, provide an ongoing locum service at an inner metropolitan service provider, despite that service provider not operating within a DPA, and thereby avoid the operation of s 6(2) of the Guidelines.
29.It is when the overseas trained doctor applies for an exemption that is not limited to the provision of a 6-month locum service at the same service location, and is a general exemption, that the primary consideration falls for consideration and assumes a level of importance in weighing the matters relevant to the operation of the discretion to grant the general exemption.
Policy
30.The Respondent correctly submits ‘the purpose of section 19AB of the Act is to support the equitable distribution of medical services across Australia, especially in rural and remote areas which might otherwise experience lack of access to healthcare.’[5]
[5] Respondent’s Statement of Facts, Issues and Contentions (21 July 2023) p 10 [47]; Exhibit E S4, p 106–107.
31.The DPA is determined annually, having regard to various statistical considerations. The Guidelines ‘Replacement Explanatory Statement’ explained the framework of the DPA namely:
… This requirement aims to alleviate medical workforce shortages in recognised DPA … areas, particularly in regional and remote communities that experience difficulties in accessing medical services due to their distance from the capital cities.
32.The ‘Modified Monash Model’ is a model developed by the Respondent to classify metropolitan, regional, rural, and remote areas of Australia having regard to geographical remoteness. MM1 is the classification for metropolitan areas for major cities in Australia. Classifications MM2 to MM7 provide classifications ranging from regional centres to very remote communities.[6]
[6] Exhibit E S1, p 3.
33.The ‘Review of the DPA Classification System’, dated 17 December 2021,[7] explains the reason for inner metropolitan areas being removed from automatic DPA eligibility as it would further align with the policy of identifying areas in regional, rural and remote Australia with unmet need and lacking access to general practitioner services while acknowledging outer metropolitan catchments in MM1 are eligible for DPA status.[8] The review observed:
[7] Ibid p 4–87.
[8] Ibid p 11.
MM1 catchment areas are likely to continue to attract and retain a sufficiently large GP workforce even without being eligible for DPA status.[9]
[9] Ibid.
ISSUES
34.The Tribunal is to determine whether, pursuant to s 19AB(3) of the Act, each of the Other Parties should be granted a general exemption from the operation of s19AB(1) of the Act.
BACKGROUND
35.Section 19AB of the Act prohibits the payment of Medicare benefits to overseas trained doctors for a minimum period of 10 years from the date the doctor is first registered to practise as a medical practitioner in Australia. However, an overseas trained doctor can access Medicare benefits if he or she practises in a DPA or DWS.[10]
[10] See Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 (Cth) s 6(2).
36.BAMC is located in a inner metropolitan area of Adelaide. Inner metropolitan areas do not fall within a DPA, but outer metropolitan areas may be a DPA. The Applicant submits, and it is not disputed, that the whole of South Australia is classified as a DPA, except for inner metropolitan Adelaide. However, there are outer metropolitan suburbs such as Craigmore, Carey Gully, Hahndorf, Belair and Seaford which fall within a DPA area.
37.There is no factual dispute between the parties. The sole Director of BAMC is Dr Kamal who provided a sworn statement, dated 28 August 2023, which was received into evidence without objection, and he was not required for cross-examination.[11] I will summarise that statement later.
[11] Exhibit G.
38.The SOFICs filed by each of the parties are not in dispute. The Tribunal will summarise the background and factual circumstances of each application by reference to the various SOFIC filed, together with the T-Documents in relation to each Other Party.
Dr Wickramanayake
39.Dr Wickramanayake was born in Sri Lanka in 1970.[12] He qualified as a medical practitioner at Colombo Medical School, University of Colombo, Sri Lanka in 1998.[13]
[12] Exhibit A T11, p 40.
[13] Other Party’s (2022/10605) Statement of Facts, Issues and Contentions (undated), p 1 [1].
40.Dr Wickramanayake completed his surgical and general practice training in the United Kingdom, and he practised as a general practitioner in Kent and London.[14]
[14] Ibid [2].
41.On 8 November 2013, Dr Wickramanayake was registered as a medical practitioner in Australia, and he moved to South Australia in 2013 where he worked for another medical clinic.[15] The 10-year moratorium rule may arguably end in November 2023.
[15] Ibid [3]–[4]; Respondent’s Statement of Facts, Issues Contentions (21 July 2023), p 4 [15]; Exhibit A T12, p 42–43.
42.On 24 January 2020, Dr Wickramanayake became an Australian citizen.[16]
[16] Exhibit A T12, p 41.
43.Dr Wickramanayake was granted a 6-month locum service exemption for BAMC which expired on 4 January 2023. On 5 October 2022, Dr Wickramanayake applied for a Medicare provider number to practise from BAMC.[17]
[17] Other Party’s (2022/10605) Statement of Facts, Issues and Contentions (undated), p 1 [7].
44.On 26 October 2022, while his exemption was still current, Dr Wickramanayake applied for an exemption under s 19AB of the Act.[18] The effect of this application would be to extend the exemption for a further period, after 4 January 2023. The Respondent treated the application as a request for a general exemption rather than an extension of the 6-month locum service.
[18] Exhibit A T28, p 74; T29, p 75.
45.The Respondent summarised the application for the exemption, the decision of the delegate, the application for reconsideration and application for review to the Tribunal.[19] The Applicant and the Other Parties agree with the summary, which is in following terms:
[19] Respondent’s Statement of Facts, Issues and Contentions (21 July 2023), p 4–5 [18]–[20].
…
18 On 7 November 2022, a delegate of the Minister refused the [Dr Wickramanayake] 19AB Application. This is because:
a.The [Dr Wickramanayake] 19AB Application did not meet the primary consideration of the Guidelines, as BAMC is not located within a DPA for general practice.
b.The exemption and related Medicare provider number were granted to Dr Wickramanayake for a period limited to six months.
c.The Guidelines do not include provisions to extend locum exemptions beyond six months. The provisions are intended to enable the locum doctor to provide short-term relief to the practice with the expectation they will source longer term employment in a recognised DPA or district of workplace shortage (DWS).
19 On 25 November 2022, the applicant applied on behalf of Dr Wickramanayake for reconsideration of the [Dr Wickramanayake] decision pursuant to s 19AC(1) of the Act ... With respect to Dr Wickramanayake’s specific circumstances, in support of the application, the applicant noted:
a.Dr Wickramanayake has only nine months left of his Moratorium.
b.Dr Wickramanayake is committed to remaining at BAMC.
c.Dr Wickramanayake has seen over 3000 patients during the past three months and is central in ensuring patients have access to appointments.
20 On 22 December 2022, a delegate of the Minister declined the reconsideration application referred to at [19] …This decision was made for the same reasons as the [Dr Kandasamy] 19AC Decision as outlined above at [11].[20]
[20] Ibid.
Dr Kandasamy
46.Dr Kandasamy was born in in Sri Lanka in 1959. He qualified as a medical practitioner at the University of Peradeniya, Sri Lanka in 1990. He has over 20 years’ experience in general practice and is fluent in English, Tamil and Malay.[21]
[21] Other Party’s (2022/10683) Statement of Facts, Issues and Contentions, p 1 [1]–[2]; Exhibit B T21, p 52.
47.On 29 May 2015, Dr Kandasamy was first registered as a medical practitioner in Australia.[22]
[22] Exhibit B T42, p 116.
48.On 30 September 2020, Dr Kandasamy became a permanent resident of Australia.[23]
[23] Ibid T21, p 51.
49.Dr Kandasamy was granted a 6-month locum service exemption for BAMC, from 15 March 2022 to 13 September 2022. On 5 October 2022, Dr Kandasamy applied for a Medicare provider number to practise from BAMC.
50.On 31 October 2022, BAMC again applied on behalf of Dr Kandasamy for an exemption under s19AB(1) of the Act and thereby access the Medicare Benefits Schedule for medical services provided at BAMC.[24]
[24] Ibid T33, p 84.
51.The Respondent’s SOFIC summarised the application for exemption, the decision of the delegate, the application for reconsideration and application for review to the Tribunal.[25] The Applicant agrees with the summary, which is in following terms:[26]
[25] Respondent’s Statement of Facts, Issues and Contentions (21 July 2023), p 2-4 [9]–[12].
[26] Ibid.
9 On 15 November 2022, a delegate of the Minister refused the [Dr Kandasamy] 19AB Application …This is because:
a. The application did not meet the primary consideration of the Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 (the Guidelines), as BAMC is not located within a [DPA] for general practice.
b. The documentation provided in support of the application did not seek an exemption under the available provisions of the Guidelines.
c. Dr Kandasamy did not hold an unrestricted provider number or exemption within the Port Adelaide – East catchment area.
10 On 25 November 2022, the Minister received an application from the applicant, on behalf of Dr Kandasamy, for reconsideration of the [Dr Kandasamy] 19AB Decision pursuant to subsection 19AC(1) of the Act ... The applicant sought reconsideration of the [Dr Kandasamy] 19AB Decision on the basis that:
a. Dr Kandasamy had seen nearly 2000 patients over the past three months and it is critical for patients to continue to access the appointments.
b. SA Health had identified BAMC as being in an Area of Need for medical services.
c. BAMC was experiencing difficulties retaining doctors, which was contributing to appointment availability issues for vulnerable patients.
d. BAMC Has over 15,000 patients, and the doctor to patient ratio is 1:2,140.
e. Granting a 19AB exemption for Dr Kandasamy would not affect any other clinic in the catchment area.
11 On 22 December 2022, a delegate of the Minister declined the reconsideration application of [Dr Kandasamy] 19AB Decision referred to at [10] … This decision was made for the following reasons:
a.The policy objective underpinning section 19AB is to affect a more equitable distribution of the private medical workforce across Australia.
b.The delegate must take into account as a primary consideration whether the service location is located with a DPA, and BAMC is not located in a DPA.
c.Section 9 of the Guidelines limit applications to a one-off locum exemption of up to six months in duration per service location. Dr Kandasamy already held such an exemption a BAMC, so the exemption cannot be extended.
d.The Area of Need determination does not confer any right or eligibility to access a Medicare Provider Number.
e.The Area of Need determination ceases to have effect when a medical practitioner progresses to full registration. Dr Kandasamy obtained Fellowship of the Royal Australian College of General Practitioners in 2021, and holds specialist medical registration.
f.The booking functionality on the BAMC website shows a small number of same or next day appointments advertised as available, and more than fifty appointments available daily for the remainder of the week.
g.The DPA indicator identifies GP catchments where patients experience poorer access to GP services, compared to the benchmark of GP services. Waiting times for services are not factored into DPA calculations, as they depend on decisions made at the independent practice level.
h.In response to the report commissioned by BAMC, the DPA is representative of the workforce availability across Australia, as a valid data source that uses national, comparable and consistent data, and considers actual patient flows for GP services.
12 The Applicant has now sought review of the [Dr Kandasamy] 19AC Decision by the Tribunal for the following reasons:
a.There is a significant shortage of medical services that BAMC is able to provide to the community.
b.BAMC struggles to retain doctors. Many doctors have left BAMC to work interstate and BAMC has lost 7 GPs within the past 36 months.
c.Blair Athol has been identified as a ‘black hole’ for medical services by community groups.
d.There is a high demand for medical services in the area and BAMC is struggling to provide enough appointments in a timely manner due to a lack of doctors.
e.Patients are delayed in accessing medical care, and in some instances have to resort to visiting the emergency department.
f.Locally trained graduates are not interested in working in disadvantaged areas of South Australia that bulk bill.
g.BAMC provides services to Indigenous Australians, migrants, refugees, persons with mental health or substance abuse conditions, four local nursing homes and local disability care facilities.
h.BAMC has had to reduce after-hour appointments as they do not have available doctors.
i.SA Health has identified the location of BAMC as an Area of Need for medical services.
Dr Rafiee
52.Dr Rafiee was born in Iran in 1988. She graduated from the Hamadan University of Medical Science in Iran in 2013.[27] She is fluent in Farsi and English.
[27] Exhibit C T16, p 38–42.
53.On 21 November 2019, Dr Rafiee was first registered with the Australian Health Practitioners Regulation Agency as a medical practitioner.[28] She worked at BAMC from January 2020 initially as an International Medical Graduate (“IMG”) under the supervision of various medical practitioners in accordance with the Medical Board of Australia Guidelines.[29]
[28] Applicant’s (2023/2015) Statement of Facts, Issues and Contentions (undated), p 1 [3]. NB The Respondent said this occurred on 22 November 2019 in the Statement of Facts, Issues and Contentions (21 July 2023) at paragraph 24.
[29] Exhibit C T29, p 74–82.
54.On 30 November 2022, Dr Rafiee was granted a Skilled – Nominated (subclass 190) visa.[30]
[30] Ibid T17, p 43-45.
55.Dr Rafiee was granted a 6-month locum service exemption under s 19AB of the Act to provide locum service at BAMC for the period 19 August 2022 to 18 February 2023.[31] She practised after-hours and serviced many patients particularly Muslim women including for cultural reasons.
[31] Applicant’s (2023/2015) Statement of Facts, Issues and Contentions (undated) p 1 [7].
56.On 21 December 2022, she applied for a Medicare provider number to practise at BAMC.
57.On 17 January 2023, BAMC applied for a further exemption for Dr Rafiee under s19AB of the Act to allow her to claim Medicare benefit scheduled rebates for medical practitioner services performed at BAMC.[32]
[32] Ibid p 2 [12].
58.The Respondent’s SOFIC summarised the application, the decision of the delegate, the application for reconsideration and application for review to the Tribunal. The Applicant agrees with the summary which is in the following terms:
27On 20 January 2023, a delegate of the Minister refused [Dr Rafiee] 19AB Application … This is because:
a. The application did not meet the primary consideration of the Guidelines, as BAMC is not located with a [DPA] for general practice.
b. The documentation provided in support of the application did not seek an exemption under the available provisions of the Guidelines.
c. [Dr Rafiee][33] did not hold an unrestricted provider number or exemption within the Port Adelaide – East catchment area.
[33] Note: Respondent’s Statement of Facts, Issues and Contentions (21 July 2023) states ‘Dr Kandasamy’, the Tribunal infers this is a typographical error.
d. The [Dr Rafiee] 19AB Application did not state what exemption the applicant was applying for and did not provide relevant information or documents supporting the exemption.
28On 27 February 2023, the applicant applied on behalf of Dr Rafiee for reconsideration of the [Dr Rafiee] 19AB Decision pursuant to subsection 19AC(1) of the Act … The applicant sought reconsideration of the [Dr Rafiee] 19AB Decision on the basis:
a. BAMC is unable to attract local graduate doctors due to patient demand, complex patient demand, complex patient health issues and the bulk billing nature of the clinic.
b. BAMC is in no way comparable to city practises in the same catchment area.
c. Two practitioners had previously been granted 19AB exemptions in response to the exact same issue BAMC is facing now.
d. Many doctors at BAMC are overworked and feeling burnt out.
e. It is hard to maintain the after-hours service without access to IMG (international medical graduates) due to the new rules for GPs holding visas.
f. Dr Rafiee is one of the only Farsi speaking doctors at the clinic. She is a necessity for BAMC due to the large patient base comprising Afghan and Iranian people.
g. It is not practical to determine shortage from BAMC’s internet booking system as most patients do not book, and ‘walk-in’ to receive treatment.
29On 14 March 2023, a delegate of the Minister declined the reconsideration application of the [Dr Rafiee] 19AB Decision referred to at [28] … This decision was made for the following reasons:
a. The policy objective underpinning section 19AB is to affect more equitable distribution of the private medical workforce across Australia.
b. The delegate must take into account as a primary consideration whether the service location is located within a DPA, and BAMC is not located in a DPA.
c. The Guidelines do not provide for any decisions about the granting of exemptions to be based on the race, national origin, age, gender or religion of an applicant, or the patient demographics of a practice area.
d. The Area of Need determination issued by SA Health does not confer any right to Medicare eligibility, nor does it override the non-DPA status applied to the BAMC or its catchment area. The Area of Need Program is administered by state and territory health departments to address needs identified at the state and territory level.
e. The Area of Need determination ceases to have effect when a medical practitioner progresses to full registration. Dr Rafiee obtained Fellowship of the Royal Australian College or General Practitioners in 2022 and holds specialist medical registration.
f. The fact several doctors have ceased practise at BAMC is a matter for practices as private businesses and may not necessarily represent a reduction in service availability for patients across the borderer GP catchment or area.
g. The DPA indicator identifies GP catchments where patients experience poorer access to GP services, compared to the benchmark of GP services. Waiting times for services are not factored into DPA calculations, as they depend on decisions made at the independent practise level.
h. In response to the report commissioned by BAMC, the DPA is representative of the workforce availability across Australia, as a valid data source that uses national, comparable and consistent data and considers actual patient flows for GP services.
30The applicant has now sought review of the [Dr Rafiee][34] 19AC Decision by the Tribunal for generally the same reasons as outlined above at [12]. In addition to the above reasons, the applicant provided the same reasons in support of the application:
[34] Note: Respondent’s Statement of Facts, Issues and Contention (21 July 2023) states ‘Kandasamy’, the Tribunal infers this is a typographical error.
a. With respect to [12b], BAMC has lost seven doctors in the past 24-36 months.
b. BAMC has been advertising for doctors on many platforms and have been unable to attract any doctors without restrictions.
c. BAMC cannot see any solution in the foreseeable future for BAMC to meet the daytime and after-hours demand.
d. Dr Rafiee is unable to move away from Adelaide due to her partner’s need for frequent medical treatment.
Affidavit of Dr Kamal Exhibit G – affidavit sworn 28 August 2023; Statement of Dr Kamal Exhibit D[35]
[35] Exhibit G; Exhibit D, p 19.
59.Dr Kamal provided a statement and affidavit which were received into evidence unchallenged. I will provide a general, non-exhaustive summary of their contents.
60.Dr Kamal was born in Sri Lanka. He graduated from the Krasnodor Medical School in Russia. He moved to Australia and commenced practice as a medical practitioner in South Australia in 2001. He obtained his FRAGP fellowship in 2004 and completed a Diploma in Child Health at the Adelaide Women’s and Children’s Hospital. He is an Australian citizen.
61.Dr Kamal identified the need for a medical clinic in the Blair Athol area. He determined this area had the most locum visits subsidised by Medicare with no follow up care accessible to a disadvantaged population. One in ten household income was less than $650 per week; one in five people in the area did not speak English well or at all; 6% of the people in the area were unemployed which was double the state average; and Blair Athol is a multicultural and disadvantaged area with members of the community suffering mental health problems.
62.Consequently, Dr Kamal set up BAMC in 2014. He was joined in BAMC by 2 other medical practitioners however the first left in 2015 and moved to another practice, and the second moved interstate in 2019 - 2020 in preparation for retirement. Dr Kamal is therefore the sole director of the Applicant which operates BAMC.
63.From inception, BAMC provided a bulk billing service open until late at night with $0.10 from each consultation donated to charity. The only day BAMC closed was Christmas Day. Dr Kamal explained because they provided a bulk billing service, medical practitioners earned less, compared to those who did not bulk bill. Many of the medical practitioners at the clinic were historically, and continue to be overseas trained, and provide multilingual service in languages such as Sinhalese, Russian, Malay, Farsi and Tamil.
64.Dr Kamal submitted a clinic with extended working hours, bulk billing and with multilingual doctors provided benefits to the community, government and taxpayers including reduction in emergency department attendances. Further, multicultural doctors provide service to non-English speaking patients including immigrants and refugees and minimise the need for locum visits at higher cost to the patient and government. BAMC had the benefit of pharmacy, psychological and allied health services and could train international medical graduates and others.
65.BAMC serves more than 15,600 patients and with numbers increasing daily. It is causing problems for BAMC due to lack of doctors and hence current doctors carry a significant workload. There are 500 active Aboriginal and Torres Strait Islander patients. He referred to a non-active population of about 1,500 in the area.
66.Since inception, BAMC has been unable to attract local graduate general medical practitioners, which Dr Kamal attributes to patient demands, complex health issues, extended hours of work and particularly bulk billing, which means medical practitioners must work harder and for longer hours to achieve similar incomes to others in general practice.
67.Between 2015 and 2016, the Applicant struggled to employ medical practitioners to meet patient demand at which time there were approximately 2,000 to 3,000 active patients. The Applicant resorted to sponsoring IMGs who required supervision by other medical practitioners which was time consuming. Dr Kandasamy was one such IMG. IMGs help with after-hours service to meet patient needs.
68.BAMC has never been located in a DPA or DWS. Dr Kamal opined that BAMC is not comparable to other city practices’ demographics. BAMC has lost more than 5 doctors for various reasons. Most patients in the area are walk-in patients and often the practice needs to manage emergency situations. This is not reflected in the online booking system to which the Respondent has referred in submissions.
69.Dr Kamal said that SA Health and local community leaders know the current issues facing BAMC and SA Health has declared it is an area of need, and referred to the T-Documents.[36] The Tribunal notes that Exhibit C (being the T-Documents received in respect of Dr Rafiee) contains a letter from Dr Michael Cusack, Chief Medical Officer SA Health, to the Director of Registrations, Australian Health Practitioner Regulation Agency (“AHPRA”) dated 1 November 2022 which said:
[36] Exhibit C T5, p 14.
I advise that in accordance with s.67(5) of the Health Practitioner Regulation National Law (South Australia) I have determined that the above mentioned site is declared as an area of need in South Australia up until and including 31 December 2025, Minoo Rafiee progresses to full registration or ceases employment in this position.
70.The Tribunal notes a letter of the same date, in identical terms but referring to Dr Kandasamy was also sent to the same recipient.[37]
71.Dr Kamal referred to the difficulty attracting medical practitioners and that since 2018, visas for the ‘visas for GPs program’ have been closed and BAMC can no longer engage IMGs. The reduction in medical practitioners means that current medical practitioners are either not taking annual leave or reducing their leave. Dr Kamal has not taken leave since 2019.
72.In support of the Applicant’s inability to recruit medical practitioners, copies of job advertisements were provided. Dr Kamal said, if BAMC was able to recruit medical practitioners there would be no need for s 19AB applications for exemptions or the within applications to the Tribunal. He says BAMC has done all it can to recruit medical practitioners and the Other Parties are the only ones who have said they will return if granted exemption. There is also an IMG working after-hours at the clinic awaiting permanent residency, who will be leaving when that is granted. Dr Kamal expressed concern that the current process deprives BAMC of medical practitioners.
73.Dr Kamal referred to the work of the Other Parties including as follows:
a)Dr Wickramanayake has limited time left on his 10-year moratorium restriction but has previously provided services for 6 months. He has seen approximately 3,000 – 3,500 patients per month including those in nursing home care but stopped seeing nursing home patients when he moved to an Adelaide clinic.
b)Dr Kandasamy was seeing approximately 2,000 – 2,500 patients per month when working during the day and is now limited to working on weekends. He is now a fellow of FRACGP and has previously worked as a locum at BAMC. After-hours patient consultation is an additional cost to government which he estimates at $56,394 per medical practitioner per year. Women and children have expressed their preference to seeing a medical practitioner during the day.
c)Dr Rafiee speaks fluent English and Farsi which avoids the cost of an interpreter. She is now a fellow of FRACGP and has previously worked as a locum for 6 months. She is consulted mostly by female Muslim non-English speaking and refugee patients. She also absorbed the 250 patients of a Persian speaking medical practitioner who resigned in November 2021.[38] She sees approximately 3,000 patients per month when working during the day. She can now only provide medical service after-hours which again adds to the cost to government in a similar amount.
[37] Exhibit D #37, p 97.
[38] Exhibit B T5, p 19.
The Other Parties are medical practitioners who were personally trained by Dr Kamal or other BAMC medical practitioners. Dr Kamal argues that having engaged the Other Parties as IMGs and locum doctors, their limited ability to continue to engage their services because Blair Athol is not a DPA, means BAMC loses the benefit of the training given to the medical practitioners and complains about the rigidity of the current system. The applications for review are made to ensure the continuity of their service to BAMC and the local community.
Dr Kamal explained the circumstances giving rise to the change from a wholly bulk billing clinic and the introduction of a $15.00 gap. He hopes if the Other Parties can be granted an exemption and continue to work at BAMC, the clinic can revert to extended hours and being a bulk billing service or minimise any future gap.
SUBMISSIONS
It was agreed by the parties that I should rely on the papers received into evidence and that Dr Kamal was not required for cross-examination on the contents of his affidavit. Further, that submissions would be made first by the Respondent.
The Tribunal acknowledges the submissions by both Counsel in this matter. They were both of great assistance.
The Respondent
The Respondent referred to the 10-year moratorium rule which commences on the date the medical practitioner fist becomes registered as a medical practitioner in Australia, namely the date the medical practitioner was first registered with AHPRA.
Each Other Party is an overseas trained doctor as defined by s 19AB(7) of the Act. The 10-year moratorium rule applies to each as follows:
(a)Dr Wickramanayake was first registered in Australia as a medical practitioner on 8 November 2013 and absent the grant of an exemption, is prevented from obtaining Medicare benefits for services provided until 8 November 2023.
(b)Dr Kandasamy was first registered in Australia as a medical practitioner on 29 May 2015 and absent the grant of an exemption, is prevented from obtaining Medicare benefits for services provided until 29 May 2025.
(c)Dr Rafiee was first registered in Australia as a medical practitioner on 22 November 2019 and absent the grant of an exemption, is prevented from obtaining Medicare benefits for services provided until 22 November 2029.
Counsel referred the Tribunal to ss 19AB(3)–(4A) of the Act, the Guidelines and the mandatory requirement imposed on the Respondent and the Tribunal to comply with the Guidelines in exercising the power to grant an exemption conferred in ss 19AB(3) and (4).
Section 6 of the Guidelines is the relevant section to be applied in respect of each Other Party and relates to general exemptions in regards to a clinic that is not within a DPA or DWS. Each Other Party had previously held a locum service exemption to provide services at BAMC, however, pursuant to s 9(1) of the Guidelines a locum arrangement can only be granted once in relation to that clinic and for a maximum period of 6 months. There is no prohibition from a medical practitioner applying for a locum service exemption at another clinic even within the same area as BAMC.
In this matter, the Applicant on behalf of each Other party originally applied for either an extension of the locum exemption or a second locum exemption, but because that subsequent exemption was no longer available to each Other Party, the Department of Health and Aged Care (“the Department”) then considered whether a grant of a general exemption should apply. It is the refusal to grant a general exemption that is the reviewable decision before the Tribunal in each application for review.
Counsel referred to s 6(2) of the Guidelines which provides that the Respondent must take into account as a ‘primary consideration’ whether the service location is in a DPA (or DWS) (emphasis added). The definition of DPA is found in section s 4 of the Guidelines and sub-sections (c) of the DPA definition excludes from a DPA an inner metropolitan area. In this matter, Blair Athol is located within the Port Adelaide catchment area which is an area classified by the Department as an inner-metropolitan area and hence is not a DPA.
Insofar as s 6 of the Guidelines refers to a DWS, that relates to medical practitioner in specialist practice, whereas DPA relates to medical practitioners in general practice. Hence DWS is not relevant to the current applications for review.
The Tribunal raised with Counsel how it was submitted the Tribunal should consider the weighing process in respect of s 6(2) which is a primary consideration with the other matters in ss 6(3)(a)–(g) in determining whether the general exemption should be granted.
Counsel submitted that the Department assesses an area using statistics from the Australian Bureau of Statistics (“ABS”). The Department forms areas of similar socio-economic class as well as population statistics to determine different catchment areas before looking at the DPA classification. The Department will also look at the ABS statistics and apply the Medicare billing data which identifies the full-time service equivalent which is used to calculate the DPA.
The Respondent accepts that because s 6 (3)(g) permits the Respondent and in this matter Tribunal, to have regard to any other matter the Tribunal considers relevant, the Tribunal can consider the service BAMC provides to the community and those who receive the service.
The Tribunal raised the application involving Dr Rafiee, that she speaks Farsi and can communicate with others who have limited or no English, and the service she particularly provides to women and children. Counsel did not dispute those matters may be considered by the Tribunal. The Tribunal also raised a similar consideration in regards Dr Kandasamy who also speaks English, Tamil and Malay. The Tribunal also notes that Dr Kandasamy provided service to aged care facilities in BAMC catchment area.
The Respondent referred to Exhibit I which detailed the various clinics within a 10 kilometre radius of BAMC, the distance each is from BAMC and languages spoken in those clinics. The Respondent submitted that it is a person’s personal choice as to the medical practitioner he or she may consult, and a person has the ability to travel to such other clinic to see their medical practitioner of choice such as Dr Rafiee including to a DPA where that doctor is permitted to practise.
Section 6(2) of the Guidelines obligate the Tribunal to take into account as a Primary Consideration whether BAMC is in a DPA, the definition of DPA, and that BAMC is not in a DPA. The DPA specifically excludes inner-metropolitan areas such as Blair Athol. It is submitted that there are strong policy reasons that underpin the DPA being the Primary Consideration. The DPA classifications are standardised across Australia and based on numerical and objective data as discussed including ABS statistics and Medicare billing data. This system was established by the Respondent to best ensure medical practitioners in general practice are evenly distributed across Australia and the purpose of s 19AB of the Act was to provide equitable distribution of general practitioners across Australia especially in rural and remote areas. It is not directed to the need of a particular area. It is to ensure that all people across Australia have the same opportunity to access general practitioners.
It is submitted that general practitioners are heavily based in metropolitan or inner-metropolitan areas and the system was established to ensure all Australians including those in rural and remote communities which are currently in under-serviced catchment areas, are provided with general practitioners. Section 19AB attempts to achieve this by providing that IMGs and overseas trained doctors work in those areas within the first 10 years of their medical practice in Australia.
The Tribunal asked whether there was provision to take into account a change in demographic of an inner-metropolitan area which would otherwise qualify that area to be a DPA or to provide an exemption in the unique circumstance of a change in service needs. Counsel advised that the Respondent reviews the classification of DPA annually. This, the Tribunal notes, is consistent with ‘Note1’ to the definition of DPA contained within s 4 of the Guidelines. Counsel submitted this procedure will often give rise to a consideration in outer metropolitan areas where there has been significant growth in population, and general practitioner services do not catch up with that population growth.
The classification of inner-metropolitan areas and therefore non DPAs, which is the case with BAMC, also furthers the purpose of s 19AB of the Act because they are generally located in major cities with public transport and sufficient access to health care. Hence, an area in which some members of the population have particular needs, such as members of a refugee community in inner-metropolitan areas, have available transport services to travel to another general practice clinic. This is to be compared to a DPA in which a rural town may have limited general practitioner service or perhaps one general practice clinic. A patient in that circumstance may have to travel significant distance to find another general practice clinic. Hence, the scheme is designed to improve service and a more equitable service across Australia.
Counsel referred to Exhibit I which identified 10 general practice clinics within a 10 kilometre distance from BAMC, advertising mixed and bulk billing appointments and 6 of which offer multilingual services.
In 2021, Nous Group undertook, on behalf of the then Minister for Regional Health, a review of the DPA system. The Report recommended MM1 areas which include both inner and outer metropolitan areas, should not be DPA areas, that MM1 areas have a growing number of general practitioners, are likely to attract and retain a sufficiently large general practice workforce even without DPA status. Nous Group reported that there was a 2.2% increase in the median general practitioner full-time equivalent per 1,000 residents since 2019.[39]
[39] Exhibit E S2, p 4-88, Nous Group that reported that ‘Removing DPA eligibility from MM1 areas would further align with the DPA’s policy intent of identifying areas in regional, rural and remote Australia with unmet need lacking access to GP services’ see page 79.
Each of the Other Parties have sought exemptions to work at BAMC which is in an inner-metropolitan area and automatically not a DPA classification. The Respondent submits that equitable access to health care is not promoted by granting any one Other Party exemption because they are each a medical practitioner who will not work in a DPA. It is submitted the primary consideration weighs very heavily against granting the exemption given the strong policy basis for s 19AB of the Act.
Counsel referred to the other considerations contained in ss 6(3)(a)–(g) of the Guidelines. The Respondent concedes that the primary consideration may be outweighed by other matters as is provided for example by migration caselaw, but in the circumstances of this matter that is not the case. [40]
[40] Counsel was here referring to the Direction (currently Direction 99 made under the Migration Act 1958 (Cth)) and the Primary and Other Considerations to be considered when dealing with visa cancellation or visa refusal and that the Primary Consideration will generally outweigh the Other Considerations.
Given the strong policy considerations underpinning s 19AB of the Act, and that the exemption is granted to a particular medical practitioner rather than a service location, the Respondent submits that the exemption should be granted only where the practitioner themselves demonstrates exceptional circumstances rather than the intended workplace, in this matter BAMC advocating for the exemption. It is submitted that in each application very little evidence has been provided by each Other Party to determine whether their circumstances are exceptional such that an exemption should be granted.
It was submitted that the Applicant has provided a number of factors that related to the service location. Counsel then referred to each in turn namely:
a)Blair Athol is said to be a disadvantaged area with many people from a low socio-economic background; including people who identify as Aboriginal and Torres Strait Islanders; have English as a second language; are affected by a mental health conditions or are victims of domestic violence. The Respondent submits that while the Respondent submits this may be a correct description of the area, the Applicant has not demonstrated how this demographic differs from any other practice in inner-metropolitan areas including disadvantaged areas in other cities. Because the DPA has a whole of Australia application it is not sufficient to consider this one area within inner-metropolitan Adelaide. It must be looked at nationally.
b)BAMC has over 6,000 active non-active Medicare card holders. This is not relevant to assessing the exemption because these people do not benefit from Medicare services as they do not have access to those benefits.
c)The Applicant has referred to the inability to hire and retain medical practitioners due to the demands working in the Blair Athol area, and the type of patients regularly seen. A small gap fee has been introduced since January 2023 but this has not assisted in the hiring of medical practitioners. The Respondent submits that there is insufficient evidence provided by the Applicant to enable the Tribunal to be satisfied about the reason for BAMC attracting and retaining staff. The Applicant has provided job advertisements but has only said that there have been no applicants. Further, staff retention rate is a commercial matter that should have been addressed by contingency planning and these are not matters for the Commonwealth Government.
d)The Applicant referred to each Other Party having built a client base at BAMC and each are well regarded by patients. In particular, Dr Wickramanayake has built a practice attending local retirement homes which is accepted by the Respondent. However, it is submitted that this is likely not an experience isolated to BAMC. It is something that would likely impact upon other medical clinics around Australia including those who engage overseas trained medical practitioners who have been granted exemption to provide a locum service. Those patients may travel to see the medical practitioner in new locations. It the case of Dr Wickramanayake who has serviced patients in a nursing home, there would be no impediment to him continuing to do so from another clinic.
e)The Applicant submits BAMC provides essential medical services to the Blair Athol area which would otherwise be without medical services. Counsel referred to the list of 10 medical clinics within a 10-kilometre radius of BAMC referred to in Exhibit I. In response to a question from the Tribunal, it was submitted that there was no evidence detailing the services provided by the other medical clinics, for example whether or not they provided or had the capacity to provide services to nursing homes. But that, it was submitted, was not a matter relevant to the medical practitioner. Counsel gave the example of that medical practitioner or a family member requiring ongoing medical treatment in the inner-metropolitan area preventing that practitioner moving to a DPA which it is submitted is a matter relevant to that medical practitioner which the Tribunal may consider, rather than the service that medical practitioner is providing.
f)In regard the submission that BAMC is unable to meet the demand for services, Counsel referred to the services record of available appointments recorded on 11 September 2023 at 1:48am for the period 11 September 20203 to 13 September 2023 with different practitioners which, it is submitted, is inconsistent with the submission of being unable to meet current patient demand. Insofar as the Applicant submits, most appointment positions are filled by walk-in patients, no documentary evidence or statistical data has been submitted to support that claim and accordingly little weight should be placed on that submission. It is submitted to the extent that BAMC has now introduced a gap payment, then over the passage of time it is reasonable to assume that the demand for bulk billing will be reduced.
g)Insofar as the Applicant submits that it has become a multilingual practice by hiring overseas graduated medical practitioners, the Respondent accepts this a benefit, but submits there are many Australian medical practitioner graduates who are bilingual and six out of the ten clinics referred to in Exhibit I provide multilingual services.
h)In regards to sponsoring and training IMGs and the Applicant’s submission that it is unfair BAMC bear the burden of sponsoring and training IMGs but is unable to have the ongoing benefit of those medical practitioners when they obtain Australian residency, the Respondent submits this is a business decision and a business model set up by BAMC and is not a matter for the Commonwealth as to how a business attract and retain its staff. It is submitted that this is not a factor to be considered as a ground for an exemption under the Act.
In summary, there are strong policy considerations in the grant of equitable distribution of general medical practitioners across Australia especially in rural and remote areas to ensure equitable access to healthcare across Australia; that equitable access is not met by granting exemption from working in a DPA, and particularly where there are DPA close by in non-metropolitan areas. The Respondent repeats the assertion that when considering the other factors to be taken into account they need to be personal factors in regards to the medical practitioner rather than the relevant clinic.
The Respondent submits that there is no, or insufficient, evidence that the circumstances relied on in regards to the other matters the Tribunal may take into account are exceptional. The submission of the Applicant is directed to the business services of BAMC as a private practice and its commercial decisions. Commercial decisions including decisions around hiring and retaining staff are not matters for the Commonwealth.
The Applicant
The Applicant accepts there is no factual dispute in the applications before the Tribunal, and the question for the Tribunal is directed to whether or not the Respondent’s delegate should have granted the exemption, particularly in regards the other matters referred to in s 6(3) of the Guidelines.
It is agreed that BAMC is not in a DPA. The Applicant did not dispute that consistent with migration caselaw the primary consideration would generally weigh more heavily than the other matters that may be taken into account. However, there are other matters which apply such as whether the person would be working after-hours, or the ‘catch all’ in s 6(3)(g) ‘any other matters the Minister considers relevant’. Hence, those other matters may still enliven the Tribunal’s discretion and outweigh the primary consideration.
Each Other Party will work after-hours, namely Monday to Friday before 8:00 am and after 6:00 pm, as well as weekends and public holidays. BAMC was a late-night medical service but had to cease that primarily due to the lack of medical practitioners. It is accepted that the Other Parties could work after 6:00 pm but this is difficult to achieve because at the moment the doctors have to work elsewhere and each would have to leave that place of work to then work after-hours at BAMC, for example from 6:00 pm to 10:00 pm.
Hence, the Other Parties are not seeking an absolute exemption. They each seek and exemption from 2:00 pm to 6:00 pm Monday to Friday and then continue to work after-hours and into the evening.
In regards to the nursing homes, Counsel referred to an email dated 18 February 2022 from the Executive Director of Nursing, Serene Residential Care Services, who said they had requested medical practitioners from BAMC to look after their frail elderly residents and were advised BAMC was unable to do so due to a shortage of medical practitioners.[41] A further email was before the Tribunal dated 18 February 2022 from the Director of Nursing, Oakden Green Aged Care, worded in identical terms.[42] It is submitted that a number of the Other Parties have undertaken residential care visits when working at BAMC.
[41] Exhibit C T25, p 65
[42] Ibid p 66.
In each of the 3 applications, BAMC commissioned reports in relation to the Blair Athol area. Counsel referred to the report from Simple Healthcare Solutions dated November 2022 titled ‘Blair Athol Case for Additional GP(S)’.[43] The report provided statistical information and tables for the Blair Athol, and City of Port Adelaide Enfield area which include unemployment or English as a second language expressed as a percentage of the population.
[43] Exhibit B T40, p 94-111.
Counsel also referred to a ‘Practice Wellbeing Report, Blair Athol Medical Clinic’ dated April 2022,[44] which contained similar data including ethnicity and identified the breakdown of the population in the geographical area serviced by BAMC. The Applicant submits the statistical information is relevant to the individual medical practitioner in respect of a particular clinic. This, it is submitted, is similar to the exemption granted to a medical practitioner to perform locum service. The medical practitioner applies for locum service exemption for a particular clinic. Hence, while the exemption is given to the particular medical practitioner, a relevant consideration is the clinic at which that medical practitioner intends to practise.
[44] Ibid T19, p 35-46.
As an example, Counsel referred to s 6(3)(e) of the Guidelines which provides that the Respondent, and here the Tribunal, may take into account whether the medical practitioner will render professional services after-hours at the service location. Hence, the nature of the service provided by the clinic, and in relation to which the medical practitioner seeks exemption to practise, is relevant to the question of the grant of the exemption to that medical practitioner. Counsel submits a further example is whether the particular clinic is offering bulk billing. The submissions and affidavit of Dr Kamal indicated BAMC generally bulk bills patients, and insofar as a gap may be charged, it is minimal.
Albeit the medical practitioner is granted the exemption, that ought not be divorced from the consideration of where he or she will perform that work and in this matter for example, that work may be performed, in part, after-hours, during which period the medical practitioner would be entitled to the Medicare benefits for the professional services each provided.
Counsel accepts that the Tribunal, when considering s 19AB of the Act and the exemption, is not to engage in considering the business operations of BAMC, but the Tribunal is entitled to take into account the nature of the service that BAMC provides and by extension, the medical service the relevant medical practitioner will provide to the demographic in BAMC’s catchment area.
Dr Rafiee speaks Fasi and as a service provider to the female population and the children in BAMC’s demographic, this it is submitted, is an important consideration.
The Applicant does not dispute the general policy considerations as outlined by the Respondent and whether the service location is in a DPA, however, this should not disadvantage a clinic in a non-DPA without fully examining the other matters to be taken into account in granting the exemption. Demographics in a particular locality should be given some weight rather than the broader intent of the DPA Policy.
It is submitted that the DPA is largely based on the Modified Monash Model. It is the inner metropolitan area that is not in the DPA, however, Blair Athol is not in the same demographic as other more affluent areas of the state. The fees charged at BAMC is a service issue rather than a business model. Attracting medical practitioners to bulk billing or low bulk billing clinics as referred to by Dr Kamal in his affidavit, is a relevant consideration.
Each Other Party is asking for an exemption that permits them a lead-in time to working after-hours. It is noted that the majority of the other clinics referred to in Exhibit I have reduced their after-hours service and are open until 5.00 pm. BAMC wants to reinstate its after-hours service to the Blair Athol community.
The Other Parties wish to assist BAMC to reinstate an after-hours clinic and to assist in achieving that outcome they seek the extension of the hours namely from 2:00 pm to 6:00 pm so that they can each commence in the afternoon and carry on into the evening.
It was noted the Respondent accepts the diverse demographics of BAMC patients including persons from disadvantaged and vulnerable backgrounds.[45] The Respondent also accepts that the Other Parties each built up a client base at BAMC, are well regarded by patients some of whom are vulnerable or disadvantaged but noted the Respondent also submits this is a matter of patient preference and the patient may see the doctor at another clinic.[46]
[45] Respondent’s Statement of Facts, Issues and Contentions (21 July 2023), p 12 [64].
[46] Ibid p 13 [70].
Counsel referred to the Respondent’s submission about booking availability at BAMC when checking the online booking system on 11 September 2023. In response, it was submitted that consistent with Dr Kamal’s affidavit and statement, many of the patients are walk-in patients who do not book online, albeit BAMC would prefer patients booked online so that service delivery could be planned. Counsel submitted that having checked BAMC’s records as at the date of the hearing, the clinic was fully booked and no appointments were available. This is because of the number of walk-in and pre-booked patients. Counsel explained that some patients will walk into the clinic in expectation of getting an appointment, and they are given a time to return when there is a vacancy that day, so BAMC is then fully booked. So, it is argued, the booking record produced by the Respondent is not a true indication of medical practitioner workload.
The Applicant cannot explain the failure in the use of the booking system by patients but does remind the Tribunal of the demographics and socio-economic demographics of the area, and includes those in financial difficulty, which may explain why the booking system was not fully booked.
In regards the other clinics within a 10-kilometre radius of BAMC, it is submitted that although the distance is relatively small, that does not mean public transport is available to take the patients directly to the other clinics. It is submitted that a patient may have to take public transport to the city and then take other public transport to get to the alternate clinic. It should not be assumed that travelling between clinics is easy and particularly if the patient has a health issue.
Dr Kamal has indicated they have tried to employ doctors but have been unsuccessful. They have advertised with the Royal Australian College of General Practitioners. BAMC’s website also refers to employment opportunities. If the clinic was able to employ doctors, this application would not be before the Tribunal. They have the 3 medical practitioners namely the Other Parties who have built up a patient base and are happy to return and work at the clinic.
Counsel referred to the numerous letters of support for BAMC and the Other Parties.[47] There were also newspaper articles and references to public protests in support of BAMC.
[47] Exhibit C T50, p 115-116. See also letters from psychologist Khodadad Mikhchi dated 26 October 2022; Mr Hussain Razaiat, Chairperson, Afghan United Association of South Australia Incorporated who referred to the need to provide a service to members of the Muslim religion particularly women who find it culturally inappropriate to see male medical practitioners and refers to the importance of the service provided by Dr Rafiee to female members of their community; Federal Member for Adelaide Steve Georganas dated 2 June 2022 with particular reference to Dr Rafiee; Mayor Claire Boan’s Office, City of Port Adelaide Enfield undated with particular reference to Drs Kandasamy and Rafiee; Adelaide Primary Health Network (PHN Adelaide) dated 3 May 2022 which refers to BAMC servicing 4 nursing homes (at a time that BAMC was providing after-hours service and bulk billing).
It is submitted that in circumstances where BAMC is not in a DPA location there should be some flexibility for a clinic that has different demographics to be taken into account in granting the s 19AB exemption, and the purpose of s 6(3) of the Guidelines was to enable the other matters to be considered and this, it is submitted includes the demographic considerations. It is also relevant that it is not appropriate to have one medical practitioner running an after-hours or night clinic.
The Respondent’s Submissions-in-Reply
In reply, the Respondent confirmed the DPA is reviewed regularly and advice is regularly provided to the Respondent. However, the current structure does not enable Dr Kamal to place a submission before the Respondent to review the classification of the area in which BAMC operated. A non-DPA area can make a request to be reclassified to a DPA area where there has been significant growth. General practitioner catchment is built on the flow of patients. A general practitioner catchment is a geographical boundary and there are 820 nationally and they change depending upon the relevant considerations.
The Respondent submits that in regard to multilingual medical practitioners, this is something commonly seen in applications for s 19AB exemptions and so in the case of Dr Rafiee this is not a unique or exceptional circumstance for patients who want to see her and travel to see her. In response to a question from the Tribunal referring to the unique circumstances of this matter, Counsel submitted that there was no evidence before the Tribunal about patient numbers of a particular demographic. The ABS statistics from 2016 is the most recent available data which said there were no Iranian people residing in that demographic area but Counsel was not instructed with regards to Afghani speaking people.
The Tribunal notes however the undated Afghan United Association of South Australia Incorporated letter provided in support of the within applications reads:[48]
This Clinic was established in Blair Athol as the community was struggling to find medical services to meet their needs.
Blair Athol Clinic has more than 14,000 active patients and more than 30% of these patients are either Persian or Afghani speaking.
[48] Exhibit C T52, p120.
The reports referred to, were limited to the Blair Athol area. In regard to providing a service to a retirement home, other clinics would be available to provide the service, but it was accepted that if a practitioner is already providing that service, it may be difficult for another practitioner to step into that role.
Counsel referred to the evidence that the practice was opened as a bulk billing clinic.[49] BAMC is a competitor in the market for general practitioner services in that catchment area, so any analysis of individual patient or population activity is not relevant for the purpose of assessing the s 19AB exemption.
[49] Exhibit G [3]-[7].
The Department views health care service as a unique market such that the more doctors you have, the more service is provided. The difficulty in attracting doctors may not be limited or related to Blair Athol or bulk billing, and there may be other reasons related to the business such as working at BAMC and the working conditions.
The Department also offers accredited medical deputising serviced programs and after-hours other medical practitioner’s program that supports after-hours general practice programs.
CONSIDERATION
The Respondent is granted a discretion pursuant to s 19AB(3) of the Act to exempt a person or class of persons from compliance with ss 19AB(1) or (2) of the Act which sections would otherwise prevent an overseas trained medical practitioner from receiving Medicare benefits unless, amongst other things, that medical practitioner satisfied the 10-year moratorium rule.
When considering whether to exercise the discretion to grant an exemption, s 19AB(4A) of the Act provides that the Respondent must comply with the Guidelines. Hence, it is the Guidelines that inform the Respondent in considering the exercise of the discretion to grant an exemption.
Part 2, s 6 of the Guidelines provide for the consideration of an exemption generally, and consideration of specific exemption requests are contained in ss 7-10. Specific exemption requests include for example, an overseas trained medical practitioner applying to provide a one-off locum service of up to 6 months in a service location which may include a service in a DPA.[50]
[50] Health Insurance (Section 19AB Exemptions Guidelines) Determinations 2019 (Cth) s 9.
The Guidelines s 6
Section 6(2) imposes on the Respondent the mandatory obligation to take into account, as a primary consideration, whether the service location of BAMC is in a DPA. There is no dispute that the service location of BAMC is not in a DPA, and accordingly this consideration weighs against the grant of an exemption in respect of each application before the Tribunal.
Section 6(3) provides for other considerations the Respondent may take into account in determining whether the discretion to grant an exemption is enlivened. Unlike s 6(2) there is no mandatory obligation imposed on the Respondent to take into account those considerations referred to in ss 6(3)(a)–(g).
The weighing of the considerations
Both parties agree that the approach to be taken when assessing and weighing the considerations in s 6 of the Guidelines, is the same as the weighing process that occurs in considering visa refusal or cancellation applications pursuant to s 501 of the Migration Act 1958 (Cth) and the weighing of the Primary and Other Considerations referred to in Direction 99.
In that context it is useful to remind oneself of the decision in HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 namely when considering the balancing of the Primary and Other Considerations in the Direction, it is wrong to regard the latter as secondary to the former. There is no hierarchy to the considerations. The Direction means that the Primary Considerations will generally be given more weight than the Other Considerations but there will be occasions when the Other Considerations will outweigh the Primary Considerations.
This is the approach both parties urge upon the Tribunal in weighing the primary consideration in s 6(2) of the Guidelines and the other matters to be considered in ss6(3)(a)–(g) of the Guidelines. Hence, when determining a general exemption in s 6(2) of the Guidelines the decision maker must consider, as a primary consideration, whether that the service location is in a DPA. That primary consideration will generally be given more weight than the other matters the Tribunal may consider as referred to in s 6(3) of the Guidelines.
I agree with that submission.
Further, the Respondent submitted on a number of occasions that none of the Other Parties identified a special circumstance that enlivened any of the considerations in s 6(3) of the Guidelines. The term special circumstance is generally well understood. In Beadle v Director-General of Social Security [1984] AATA 176 [12] Toohey J said ‘special circumstances’ ‘looks to circumstances that are unusual, uncommon or exceptional.’ In Dranichnikov v Centrelink [2003] FCAFC 133 the Full Court of the Federal Court said it was necessary to identify those ‘circumstances which distinguish the case in consideration from the usual case.’ However, nowhere in the Guidelines is there reference to a special circumstance consideration in deciding, in the operation of the discretion, whether the s 6(3) considerations are to be given weight. I respectfully disagree with that submission. There is no threshold test of special circumstance. It is for the decision maker to decide whether there is any fact or matter that falls within the meaning of ss 6(3)(a)–(g) of the Guidelines and if the answer to that question is yes, then determine what weight if any is to be given to the consideration.
Having determined the weight to be given to each consideration the Tribunal must then assess all of the relevant considerations in deciding whether the exemption discretion in s19AB(3) of the Act is enlivened.
Specific exemption requests – the Guidelines ss 7–10
When making a decision in regards to a specific exemption request in ss 7–10 of the Guidelines, the Respondent must not take into account s 6(2), namely whether the service location is in a DPA or ss 6(3)(f) or (g), but may take into account those matters specified in ss 6(3)(a)–(e) and ‘any other matters the Minister considers relevant’.
The section ‘any other matters the Minister considers relevant’ is identical to s 6(3)(g), and hence, it is not immediately apparent why s 6(3)(g) was also excluded from the Respondent’s consideration.
However, the section ‘any other matters the Minister considers relevant’ must have work to do, including in relation to the specific exemption under consideration. There may be matters that the Respondent considers relevant to the consideration of the specific exemption, that would not necessarily apply to the general exemption. One example is when deciding the discretion to grant a locum service exemption, in which the nature or duration of the locum service exemption may be a relevant consideration. That may involve for example the length of personal leave taken by a medical practitioner necessitating the engagement of a locum service, or the nature of the medical service provided by that medical practitioner requiring a locum medical practitioner who can provide the same service. Another example may be the patient demographic and the nationality and language requirements that need to be provided by the locum medical practitioner.
The general exemptions in the within applications
In the matters before the Tribunal, each Other Party had previously applied for and been granted an exemption permitting each to perform a 6-month locum service at BAMC pursuant to s 9 of the Guidelines.
Subsequent applications for exemptions completed by BAMC on behalf of each Other Party appeared to request an extension of, or further grant of, a 6-month locum service which was impermissible. However, I am advised that the Respondent treated each application to be a general application for an exemption to which the Guidelines s 6 applied, and decided in each case, to refuse the grant of an exemption. I am asked to decide the within applications for review on the basis that each was a refusal to grant a general exemption pursuant to s6, which I now do.
As I have said, the primary consideration referred to in s 6(2) applies in each application before the Tribunal and weighs against the discretion to grant the exemption.
The Guidelines ss 6(3)(a)–(g) provides other considerations the Respondent, and in these applications the Tribunal may, as opposed to must, take into account in considering the grant of an exemption.
The Respondent urges upon the Tribunal an interpretation of s 6(3)(g) namely ‘any other matters the Minister considers relevant’ that is informed by the sections that precede it in ss 6(3)(a)-(f). It is submitted ss 6(3)(a)-(f) are directed to matters the Respondent may take into account that relate to the particular applicant medical practitioner; for example, whether the applicant has registration or licence conditions, whether the applicant has entered into contract negotiations or whether the Applicant will provide after-hours service. Hence, it is submitted that by extension ‘any other matters the Minister considers relevant’ is similarly limited to matters that relate to the particular applicant, and hence the Other Party in respect of each application for exemption.
With respect, the Tribunal rejects that interpretation of s 6(3)(g). Had the Guidelines intended to limit ‘any other matters the Minister considers relevant’ to a consideration relevant to the particular applicant, the Guidelines would have said so.
The Guidelines intend that the Respondent may take into account both the listed considerations relevant to the applicant as referred to in ss 6(3)(a)–(f), but also take into account matters the Respondent considered relevant including matters adverse and favourable to the application for exemption, and not limited to the applicant.
If the Respondent’s argument were to be upheld it would, by extension, have similar meaning when dealing with the specific exemptions in Guidelines ss 7–10. As I have explained, there may be matters that the Respondent would then need to consider in granting the exemption such as the locum exemption which may not be medical practitioner specific and may be different to the general exemption considerations. For example, the Respondent would not be permitted to consider matters such as the demographics of the population in the service location, such other medical practitioner services generally available in the service location; whether there was a significant migrant population with specific needs in the service location; unusual service requirements due to an unexpected event such a pandemic or environmental disaster impacting upon the population in the service location and the clinic’s capacity to deal with that need. None of those matters are necessarily relevant to a medical practitioner but each is very relevant to the community need and underpinning the exemption request.
Further it would not permit the Respondent or the Tribunal to consider the service provided by BAMC and the medical practitioner working in the clinic, to the population of the service location and patient needs.
The Respondent’s narrow interpretation is inconsistent with the purpose and intent of the legislative scheme including the Guidelines.
The Respondent has a broad discretion to take into account those considerations relevant to the application for exemption contained within s 6 of the Guidelines, together with such other considerations that the Respondent or Tribunal determines relevant to the request for the exemption and unfettered by the wording in the section.
Consideration of the discretion
The Applicant’s submission that if BAMC was able to attract medical practitioners to the clinic the applications for exemption would not be required, suggests, that the applications are not motivated or underpinned by the needs of any of the Other Parties. However, the consequence of being unable to attract medical practitioners has the potential to impact significantly upon the population in the service location and the burden placed on those other medical practitioners working at BAMC. Importantly, in these applications, each Other Party has worked in the service location, each has skills relevant to the provision of service to the demographic of the service location and each wish to continue to provide service to that service location and its varied demographic.
It may be arguable that BAMC may need to reconsider its business model and thereby attract medical practitioners to the clinic, but the change in business model may also affect the provision of medical service to a population that is less affluent, some of whom may be non-English speaking or with limited English, or have specific religious, cultural or other personal needs.
The ability of BAMC to service the demographic and the Other Party’s interest in providing medical services to that demographic are matters the Respondent or Tribunal may take into account as ‘other matters the Minister considers relevant’.
It is to the credit of Dr Kamal that he was instrumental in setting up BAMC in an inner metropolitan Adelaide area that he and others saw as an area in need of medical services, with a diverse population and with 4 nursing homes in need of medical services. I am satisfied that those factors still impact of the provision of medical service at the time of this decision.
I accept that BAMC operated with extended working hours, bulk billed patients, had multicultural medical practitioners to service a multicultural community which in turn provided savings to the government by reducing emergency department attendances or attendances at hospitals, the cost of interpreters, and provided pharmacy, psychological and allied health services.
I also accept that the loss of medical services has placed a burden on other medical practitioners in the clinic with greater patient workloads, increased working hours and less holiday opportunity which in turn will likely impact upon the work health and safety of those medical practitioners working in BAMC.
I accept that despite advertising for medical practitioners to work in general practice at BAMC the Applicant has been unsuccessful in receiving any applications and recruiting additional medical practitioners.
These factors have had an impact on the community generally and those members of the population serviced by BAMC, in addition to impacting upon the medical practitioners operating in BAMC and their wellbeing.
Dr Kamal also expressed his frustration that BAMC had set up a bulk billing clinic providing after-hours service; engaged IMGs including the Other Parties; supported and supervised them; have employed overseas trained medical practitioners following the grant of a locum exemption with those medical practitioners having provided service to the community, who have developed relationships and gained the trust of patients or nursing homes and their patients; but then BAMC has lost the benefit of having trained and supported those medical practitioners when, after the end of the locum exemption, the clinic is unable to engage them further to perform a very important and necessary community service, and particularly when the clinic is unable to engage other medical practitioners to perform that work.
Those frustrations relate to the business model decision made by the Applicant through BAMC and the business model directed to service a particular demographic with diverse cultures and unique needs, to provide an after-hours bulk billing service, now made more difficult by the loss of several GPs, the inability to attract replacements, and the resultant increase in workplace pressures imposed upon those who remain at BAMC.
However, the fact BAMC has previously engaged overseas trained doctors who were medical practitioners practising as general practitioners providing medical services pursuant to a locum service exemption, who then must leave the clinic, is a decision made by BAMC knowing the legislative scheme in which BAMC and the medical profession operate across Australia, and the policy considerations to ensure equitable distribution of medical practitioners across Australia. Those frustrations do not enliven the considerations in the Guidelines s 6(3). Nonetheless, the gradual reduction in medical practitioners at BAMC for various reasons, and the service delivery to the population in the catchment area of BAMC may now enliven considerations whether to grant the general exemption.
This is not in any way a criticism of BAMC and the business model. The work of Dr Kamal and BAMC, is commendable, but the clinic now faces a crisis. That crisis is overcome at least in part, by employing one or more of the Other Parties each of whom want to contribute to the work of the clinic and may bring specific skill and expertise to provide medical services to a culturally diverse community including those in the aged care community or with special needs.
I am also satisfied that the declaration by SA Health that the service location of BAMC is an area of need is indicative of the unique population including financial and cultural demographic impacting upon BAMC and the service delivery to the population in its service location. These are matters that I consider relevant and fall within the matters to be considered in s 6(3)(g) of the Guidelines.
The weighing process
Dr Wickramanayake
Shortly after the conclusion of the hearing before the Tribunal, Dr Wickramanayake was to complete the 10-year moratorium rule. At the time of publishing this decision that moratorium was arguably at an end. Nonetheless, I have still considered the circumstances surrounding the service provided by Dr Wickramanayake, the significant number of patients to whom he had provided medical service, matters personal to him, the needs of the service location and the considerations in the Guidelines s 6 that enliven any matters which the Respondent, and here the Tribunal, may consider relevant in the operation of the discretion.
The delegate’s decision the subject of this application for review was dated 22 December 2022 and the application for review No 2022/10605 was filed in the Tribunal on 23 December 2022. Dr Wickramanayake’s locum service exemption expired on 4 January 2023.
The period of time during which the further general exemption was to have effect was for approximately 9 months until the 10-year moratorium rule ceased. That fact may be a relevant matter operating both for and against the grant of the exemption and will turn on the facts of the application.
The Tribunal accepts that Dr Wickramanayake was committed to working at BAMC at the time of applying for the exemption, but that commitment is not a matter that, in my view, enlivens a consideration to be weighed in the operation of the Tribunal’s exemption. Nor am I satisfied that Dr Wickramanayake had commenced negotiations to enter into a contract of service with BAMC to provide medical practitioner services in the service location. BAMC is not in a DPA and the service provided by Dr Wickramanayake was of the general nature of service of a general practitioner.
Dr Wickramanayake did provide services to nursing home patients which ceased when he moved to an Adelaide clinic. I have taken into account that BAMC has been unable to provide the necessary nursing home service due to the downturn in medical practitioner numbers. But apart from the nursing home service the evidence did not establish anything about the nature of the service provided by Dr Wickramanayake in the service location that was unique.
I accept there is a pressing need for medical practitioners in the service area of BAMC. That need is evidenced in the various testimonials provided to the Tribunal to which I have referred, the evidence of Dr Kamal and the declaration letter provided by the Chief Medical Officer SA Health. It is a diverse population with unique needs including service to elderly people living in nursing homes. These are relevant matters for the Tribunal to have regard in the weighing process and weigh in the Applicant’s favour.
However, the fact that Dr Wickramanayake had ceased working at BAMC, that he was at the time of the hearing employed at another clinic, had limited time until the 10-year moratorium rule ceased were also relevant matters which in the circumstances of this matter weigh against the Applicant and Dr Wickramanayake.
The matter is finely balanced, but when balancing the matters to be considered in respect of Dr Wickramanayake and the operation of the discretion, I am satisfied that the primary consideration and those matters weighing against the Applicant and Dr Wickramanayake outweigh the matters in their favour.
Accordingly, the decision of the Tribunal is that the delegate’s decision dated 22 December 2022 is affirmed.
Dr Kandasamy
The delegate’s decision the subject of this application for review was dated 22 December 2022 and the application for review No 2022/10683 was filed in the Tribunal on 23 December 2022. Dr Kandasamy’s locum service at BAMC ended on 13 September 2023. His 10-year moratorium rule period ends on or about 29 May 2025.
Those matters that operated in favour of the Applicant and Dr Wickramanayake and the grant of the exemption, including the circumstance of the service provided, patient numbers, the demographic and needs of the service. also weigh in favour of Dr Kandasamy. However, there are additional matters relevant to this application for exemption.
Dr Kandasamy saw a significant number of patients at BAMC including at nursing homes. He continues to work at BAMC on weekends. Dr Kamal said in his affidavit when referring to Dr Kandasamy that women and children have expressed their preference to see a medical practitioner during the day and I infer from that evidence that the preference extends to seeing Dr Kandasamy other than after-hours and on weekends when necessary.
It is relevant that Dr Kandasamy is multilingual which arguably may assist in the service delivery to the diverse population in the service location. Further, the requested exemption will enable him to provide medical service to the 4 nursing homes serviced by BAMC in addition to the general population in the service location. It will also reduce the burden imposed on other medical practitioners working at BAMC
The exemption period sought is limited to 2:00 pm to 6:00 pm Monday to Friday and he will continue to work after-hours which arrangement I am satisfied is reasonable. It would enable the service delivery to the frail and elderly, and nursing home residents other than after-hours. It would also permit Dr Kandasamy to service others in the service location who have expressed the preference not to have a consultation after-hours. I accept this arrangement would also assist Dr Kandasamy in managing his work for such other workplaces where he may work from time to time be engaged.
When balancing the matters to be considered in respect of Dr Kandasamy and the operation of the discretion, I am satisfied that the primary consideration and those matters weighing against the Applicant and Dr Kandasamy are outweighed by the matters in favour of the grant of the general exemption.
I also note that Dr Kandasamy’s 10-year moratorium rule period ends on or about 29 May 2025. Hence, he has already performed medical practitioner services for a significant part of his 10-year moratorium rule period. I have given these factors consideration in deciding the appropriate period of time for the grant of the exemption.
Accordingly, the decision of the Tribunal is that the delegate’s decision dated 22 December 2022 be set aside and that Dr Kandasamy be granted a general exemption to provide medical practitioner service each week at BAMC from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of his 10-year moratorium rule period on or about 29 May 2025.
Dr Rafiee
The delegate’s decision the subject of this application for review was dated 10 March 2023 and the application for review No 2023/2015 was filed in the Tribunal on 28 March 2023. Dr Rafiee’s locum service at BAMC ended on 18 February 2023. Her 10-year moratorium rule period ends on or about 21 November 2029.
Unlike Dr Kandasamy, she still has a significant period of her 10-year moratorium rule period to pass before she completes her 10 years.
Those matters that operated in favour of Dr Wickramanayake and the grant of the exemption to which I have referred, also weigh in favour of Dr Rafiee. However, there are additional matters relevant to this application for exemption and which are different to those of Dr Kandasamy.
Dr Rafiee is fluent in Farsi and English. She is the only Farsi speaking medical practitioner in BAMC and the clinic provides medical service to a large patient base including Afghani and Iranian immigrants.
Further, Dr Rafiee is unable to move away from Adelaide due to her partner’s need for medical treatment.
Dr Rafiee saw a significant number of patients when performing locum service at BAMC. She is now limited to providing medical services after-hours. She previously absorbed the patients of a Persian speaking medical practitioner.
Importantly, Dr Rafiee’s is consulted mostly by female Muslim, non-English speaking and refugee patients, including adults and children. There are important cultural needs in servicing members of the Muslim faith and particularly female members of that community.
Albeit, the Tribunal has been referred to another medical practice where Farsi is spoken there is no further detail provided including whether it is spoken by a female medical practitioner and the service to the female Muslim or Persian speaking community generally.
The relationship of trust between Dr Rafiee and her patients is important and I am not persuaded that there is another medical practice where that language is spoken and thereby renders otiose the unique service that Dr Rafiee provides at BAMC at the service location. Further, I accept that transport to and from a medical clinic may also be difficult as detailed by counsel for the Applicant’s in closing submissions which may be further compounded by language and cultural issues.
I am satisfied that the service location is an area of need and particularly an area of need to the Afghani and Iranian community and the women and children of that community in relation to whom Dr Rafiee provides an important service.
As with Dr Kandasamy, the exemption period sought is limited to 2:00 pm to 6:00 pm Monday to Friday and Dr Rafiee will continue to work after-hours which arrangement I am satisfied is reasonable. It would enable the service delivery to the general community in the service location including members of the Muslim and Iranian communities and those who prefer to see a medical practitioner other than after-hours. I accept this arrangement would also assist Dr Rafiee in managing her work for such other workplaces where she may work from time to time be engaged. It will also reduce the burden on other medical practitioners working at BAMC.
When balancing the matters to be considered in respect of Dr Rafiee and the operation of the discretion, I am satisfied that the primary consideration and those matters weighing against the Applicant and Dr Rafiee are outweighed by those matters in favour of the grant of the general exemption. I am also satisfied that because Dr Rafiee is unable to move away from Adelaide, which is unchallenged, that the exemption is appropriate until the end of her 10-year moratorium rule period. Were it not for that fact, I would have reduced the length of time of the exemption given the balance of the 10-year moratorium rule period impacting upon her medical practitioner service.
Accordingly, the decision of the Tribunal is that the delegate’s decision dated 10 March 2023 is set aside and that Dr Rafiee be granted a general exemption to provide medical practitioner service each week at BAMC from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of her 10-year moratorium rule period on or about 21 November 2029.
DECISION
Dr Harsha Sanjeeva Wickramanayake - 2022/10605
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
Dr Wijayaratnam Kandasamy – 2022/10683
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and in substitution decides that Dr Wijayaratnam Kandasamy be granted a general exemption to provide medical practitioner service each week at Blair Athol Medical Clinic from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of his 10-year moratorium rule period on or about 29 May 2025.
Dr Minoo Rafiee - 2023/2015
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and in substitution decides that Dr Minoo Rafiee be granted a general exemption to provide medical practitioner service each week at Blair Athol Medical Clinic from 2:00 pm to 6:00 pm Monday to Friday commencing from the date of this decision until the conclusion of her 10-year moratorium rule period on or about 21 November 2029.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
.......................[Sgnd]..........................
Associate
Dated: 9 April 2024
Date of hearing: 13 September 2023 Counsel for the Applicant and the Other Parties:
Charles Muscat Counsel for the Respondent: Emily Hill (King & Wood Mallesons)
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