Crowley v Holmes

Case [2002] FCA 1585

FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2002] FCA 1585

PAUL DAVID CROWLEY v ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review) and GEOFFREY HIRST and STEPHEN PHILLIPS and DAVID ROSENTHAL and HEALTH INSURANCE COMMISSION

V 259 OF 2002

NORTH J
18 DECEMBER 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 259 OF 2002

BETWEEN:

PAUL DAVID CROWLEY
APPLICANT

AND:

ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

18 DECEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondents’ costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 259 OF 2002

BETWEEN:

PAUL DAVID CROWLEY
APPLICANT

AND:

ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGE:

NORTH J

DATE:

18 DECEMBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Doctor Crowley, the applicant, is a general practitioner who conducts a practice in Lowood in Queensland.  In this application to the Court he seeks to prevent a Professional Services Review Committee (the Committee) constituted under the Health Insurance Act 1973 (Cth) (the Act) from proceeding to consider whether he has engaged in inappropriate practice. The Committee was established by the Acting Director of Professional Services Review, acting on behalf of the first respondent (the Director), and was constituted by Doctors Hirst, Phillips and Rosenthal, the second, third and fourth respondents respectively.

  2. It is first useful to explain the factual circumstances and the legislative setting of the proceeding.  Whilst it will be necessary to refer to certain legislative provisions in detail, a convenient starting point is to sketch by way of broad overview the legislative scheme applicable so far as it is relevant to this proceeding.

  3. Part VAA of the Act establishes a professional services review scheme whereby the conduct of doctors and other providers of like services can be examined to ascertain whether any inappropriate practices have been undertaken. The scheme provides for the Health Insurance Commission (the Commission), the fifth respondent, to refer matters to the Director of Professional Services Review (s 86). Such a referral is called an investigative referral. The Director must then conduct an investigation into the referred services (s 89). The Director may set up a Professional Services Review Committee (s 93) under Division 4 of the Act and make an adjudicative referral to the Committee. In such a case the Committee must consider whether the rendering of the referred services constituted engaging in inappropriate practice. The Committee must give a final report to, inter alia, the Determining Authority (s 106L(4)), which…

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AGLC
Crowley v Holmes [2002] FCA 1585
Case
[2002] FCA 1585
Decision Date

CaseChat Overview and Summary

In the case of Crowley v Holmes, Dr Paul David Crowley, a general practitioner, was referred to a Professional Services Review Committee under section 93 of the Health Insurance Act 1973. The referral arose from concerns that Dr Crowley had engaged in inappropriate practice, specifically by rendering a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations. The Health Insurance Commission's investigative referral, dated 13 December 2001, alleged that Dr Crowley had provided 80 or more professional attendances per day on 129 occasions within the referral period, potentially constituting inappropriate practice. Dr Crowley submitted to the Director of Professional Services Review that his high patient load was due to rapid population growth in the area, a severe shortage of doctors, and limited assistance during the period in question. The Director concluded that the referral should proceed to adjudication as Dr Crowley's submission did not persuade that a committee could not find inappropriate practice.

The legal issues before the court included whether the Director correctly exercised his discretion under section 93(1) of the Act to refer Dr Crowley's conduct to a committee, and if the referral was based on credible evidence and sufficient grounds. The court needed to determine if the Director's decision to refer the matter was reasonable and whether the referral was justified under the provisions of the Act and Regulations. The court also had to consider Dr Crowley's submission and whether it was sufficient to prevent the referral.

The court found that the Director's decision to refer Dr Crowley's conduct to a committee was reasonable and appropriately exercised. The court held that the referral was based on credible evidence, as the investigative referral presented substantial evidence that Dr Crowley had rendered an excessive number of professional attendances over a specified period. The court also noted that Dr Crowley's submission did not sufficiently rebut the evidence of inappropriate practice, thereby supporting the Director's decision. Consequently, the court dismissed Dr Crowley's application and ordered him to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondents’ costs of the application.

Background

Background to the litigation

The first four paragraphs of the report were as follows:“Background1.Dr Paul David Crowley is a general practitioner who practised at Shop 2, Walters Street, Lowood Qld 4311 during the referral period. During the referral period Dr Crowley apparently rendered 80 or more professional attendances per day on 129 occasions.2.Investigative Referral No.296 was made as the Commission was concerned Dr Crowley may have engaged in inappropriate practice because there was evidence that the circumstances in which some of Dr Crowley’s professional attendances were rendered constituted a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations.3.Given the nature of this referral, as a referral under section 106KA of the Act, the investigation was limited to consideration of material in the investigative referral and the submission from Dr Crowley (see paragraph 11 below).Material considered4.The material on which the decision to refer this matter to a PSR Committee is based comprises:·The Health Insurance Commission’s Investigative Referral No.296 dated 13 December 2001.· The results of the above-mentioned investigation.· The submission from Dr Crowley dated 24 December 2001.”[footnotes omitted] Paragraphs 5 and 6 of the report set out s 106KA of the Act and Part 3 of the Regulations respectively. Attachment A then continued as follows:“7.The specified services were all rendered within the two year period immediately preceding the date of the investigative referral, in accordance with subsection 86(2) of the Act. Further, the specified services were all rendered on or after 1 January 2000, being the first date on which section 106KA of the Act and Part 3 of the Regulations were both in force.8.Regarding regulation 9(a), the investigative referral states at page 3 that Dr Crowley was a general practitioner at the time the referred services were rendered.9.Regarding regulation 10, the material at pages 14-273 of the investigative referral indicates Dr Crowley rendered 80 or more professional attendances (principally Medicare Benefits Schedule item 23 services) a day on each of 129 occasions during the referral period.10.On 17 December 2001 the Director wrote to Dr Crowley drawing his attention to subsection 88(3) of the Act which provides that, within 14 days from receipt of the referral, he may make written submissions to the Director as to reasons the Director should dismiss the referral without setting up a Committee. The Director also provided him with a copy of the Regulations. The Director did receive a submission from Dr Crowley dated 24 December 2001.11.In this submission he said he worked in a rural community with rapid population growth due to its proximity to Ipswich and Brisbane. He saw patients from the surrounding areas as well as Lowood itself. There was a severe shortage of doctors in the area. His practice could accommodate four fulltime doctors; however he had had only intermittent assistance during the referral period. This included one doctor who worked only three days, one who worked only four hours a week, one who worked from the end of January to the end of April and then became ill and one who worked in September and October. More recently he had been able to get a husband wife team to work with him. Twenty five of the referred days were in the winter months when the practice was very busy. He said he normally worked 15 hours a day and 16.5 hours on the days he visited nursing homes. His practice was partially computerised and had been since October 1999. He used the RACGP records system. He noted the other doctors apparently working in the Lowood area and indicated that they comprised a doctor who was over 80 years old and worked very reduced hours and his own locums and assistants. I did not consider the evidence so strong that a committee would be bound to find that there were exceptional circumstances on each of the 129 days in question.Reasons for making adjudicative referral12.Following the investigation and having considered the submission from Dr Crowley, I concluded that the circumstances in which Dr Crowley rendered some or all of the specified services during the referral period may have constituted a prescribed pattern of services, as defined in section 106KA of the Act and Part 3 of the Regulations because·The investigative referral presented credible evidence that Dr Crowley rendered 80 or more professional attendances per day on each 129 days during the referral period; and·Dr Crowley made a submission which did not persuade me that a committee could not conclude that Dr Crowley had engaged in inappropriate practice.13.Accordingly, I decided to make an adjudicative referral to a Committee in accordance with section 93 for the Committee to consider whether the conduct of Dr Crowley in connection with rendering the specified services constituted engaging in inappropriate practice because the circumstances in which some or all of the specified services were rendered constituted a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH J
Section 93(1) and (6) provide:“93 Decisions to set up Committees(1)The Director may, by writing, set up a Committee in accordance with Division 4, and make an adjudicative referral to the Committee, to consider whether conduct by the person under review in connection with rendering or initiating services specified in the adjudicative referral in accordance with subsection (7) constituted engaging in inappropriate practice.…(6) If the Director makes an adjudicative referral, the Director must:(a)prepare a written report to the Committee, in respect of the services to which the referral relates, giving the reasons why the Director thinks that conduct by the person under review in connection with rendering or initiating the services may have constituted engaging in inappropriate practice; and(b)attach the report to the adjudicative referral.” On 14 February 2002, the Committee was established by an instrument made under s 93(1) to “consider whether conduct by Dr Paul David Crowley of Shop 2, Walters Street, Lowood Qld 4311, the person under review in connection with rendering services specified in Adjudicative Referral No. 296, constituted engaging in inappropriate practice.” On the same date an adjudicative referral was made in the following terms:“ADJUDICATIVE REFERRAL No. 296 UNDER SECTION 93(1)CONCERNING Dr Paul David Crowleyof Shop 2 Walters Street Lowood Qld 4311BACKGROUND1.On 13 December 2001, pursuant to subsection 86(1) of the Health Insurance Act 1973 (‘the Act’), a delegate of the Health Insurance Commission (‘the Commission’) made Investigative Referral No.296 (‘the investigative referral’) the Director of Professional Services Review (‘the Director’).2.The investigative referral concerned the conduct of Dr Paul David Crowley (‘Dr Crowley’), a general practitioner of the above address, relating to whether he had engaged in inappropriate practice in connection with the rendering of services constituting a prescribed pattern of services within the meaning of subsection 106KA(1) of the Act and Part 3 of the Health Insurance (Professional Services Review) Regulations 1999 (‘the Regulations’). The investigative referral related to all services (‘the referred services’) rendered by Dr Crowley which were rendered:· within specified locations, namely:Shop 2 Walters Street Lowood Qld 4311·within a specified period, namely on and from 1 January 2000 to and including 31 October 2000 (‘the referral period’).3.Pursuant to subsection 89(1), I conducted an investigation into the referred services. I did not dismiss the referral under section 91 of the Act as I was not satisfied that there were insufficient grounds on which a Committee established under section 93 of the Act could reasonably find that Dr Crowley had engaged in inappropriate practice in connection with rendering the referred services.4.Pursuant to subsection 93(1) and in accordance with Division 4, on 14 February 2002 I set up a Committee (‘PSRC No.296’) to consider whether the conduct of Dr Crowley in connection with rendering the services specified in paragraph 5 below constituted engaging in inappropriate practice.ADJUDICATIVE REFERRAL5.Pursuant to subsection 93(1), I hereby make this adjudicative referral to PSRC No.296 to consider whether the conduct of Dr Crowley in connection with rendering the following services (‘the specified services’) constituted engaging in inappropriate practice because the circumstances in which some or all of the specified services were rendered constituted a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations:·all professional attendances (as defined in Regulation 7) rendered by Dr Crowley within the referral period within specified locations, namely:Shop 2 Walters Street Lowood Qld 43116.The following material is attached, as part of this referral, for the information of PSRC No.296:Attachment A: My report pursuant to subsection 93(6); andAttachment B: Relevant extracts from Investigative Referral No.296”

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

Full text does not contain this section.