HEALTH LAW – medical practitioner – review of conduct in rendering services to patients over period of time – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) – investigative referral made by Health Insurance Commission to Director of Professional Services Review – adjudicative referral made by Director of Professional Services Review to Professional Services Review Committee – final report provided by Committee to Determining Authority – directions made by Determining Authority – whether there were matters which the Commission was obliged to take into account in considering whether to refer the matter for investigation – meaning of “exceptional circumstances” in s 106KA(2) – whether Committee erred in its opinion that “exceptional circumstances” in s 106KA(2) generally refers to intermittent or episodic situations and not ongoing situations or those of long-standing – whether Committee erred in its opinion that “exceptional circumstances” does not refer to matters which are within a practitioner’s control – failure by Committee to identify the correct question about the nature of the medical shortages put forward by the applicant as constituting exceptional circumstances – failure by Committee to apply reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 in its own terms – whether Determining Authority had jurisdiction to make direction for repayment under s 106U(1)
Statutes
Administrative Decisions (Judicial Review) Act 1977 (Cth) Health Insurance Act1973 (Cth) Part VAA, s 106KA, s 80(1), s 86(1), s 81, s 86(2), s 86, s 88, s 89, s 91, s 93(1), s 93(6), s 101(2), s 106KD, s 106L, s 106U, s 106T, s 106TA, s 106U(1), s 82(1), s 106KA(5), s 106KA(2), s 106KA(1), s 106U(1)(ca) Judiciary Act 1903 (Cth) s 39B(1A)
DONALD FRANK HATCHER vMARY COHN, ROBERT BROWN AND DAVID ROSENTHAL CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 297, THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY IN HIS CAPACITY AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW, ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW
Q 81 OF 2003
KIEFEL J 30 NOVEMBER 2004 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q81 OF 2003
BETWEEN:
DONALD FRANK HATCHER APPLICANT
AND:
MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 297 FIRST RESPONDENT
THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hatcher v Cohn [2004] FCA 1548
Case
[2004] FCA 1548
Decision Date
CaseChat Overview and Summary
In the case of Hatcher v Cohn, the applicant, a medical practitioner, sought judicial review of decisions made under Part VAA of the Health Insurance Act 1973. The Health Insurance Commission had found that the applicant's conduct in rendering services to patients constituted inappropriate practice, resulting in penalties including a reprimand, repayment of Medicare benefits, and a temporary disqualification from the Medicare system. The applicant contested these findings and sought to have them overturned.
The central legal issues in this case revolved around the interpretation and application of the Health Insurance Act 1973 and the regulations under it, specifically concerning what constitutes "inappropriate practice" in the context of professional medical services. The court had to determine whether the Commission's findings were legally sound and whether the process leading to these findings was fair and complied with the statutory requirements.
The court found that the Health Insurance Commission's decision was flawed due to procedural irregularities and misinterpretation of the relevant statutory provisions. The court emphasised the importance of ensuring that the process of professional services review under the Act was conducted in a manner that was both procedurally fair and substantively just. Specifically, the court noted that the Commission had not adequately considered the exceptional circumstances that the applicant had presented, which could have justified his high volume of services rendered. The court concluded that the decision-making process did not properly account for the applicant's submissions regarding the exceptional circumstances of his practice in a rural area with a shortage of medical practitioners.
As a result, the court set aside the Commission's directions and findings, and remitted the matter back to the Director of Professional Services for reconsideration, potentially by a differently constituted committee. This decision underscores the need for thorough and fair consideration of all relevant circumstances in professional services reviews under the Health Insurance Act.
Orders
Orders of the court
1. The directions of 15 May 2003 by the second respondent be set aside.
2. The finding of the first respondent of inappropriate practice made on 15 November 2002 be set aside.
3. The matter be remitted to the Director of Professional Services for determination as to whether to make a referral to another, differently constituted, Committee.
4.
Background
Background to the litigation
The applicant is a medical practitioner whose conduct in rendering services to patients over a period of time was subject to review under Part VAA of the Health Insurance Act 1973 (Cth) (‘the Act’). On 15 May 2003 the second respondent made directions that the applicant be reprimanded and counselled, that he repay $67,796.75 in Medicare benefits received and that he be fully disqualified from participation in the Medicare system for four weeks. The applicant seeks review of that decision and of the decisions of the third respondent and first respondent which preceded it. The applications are brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth). FACTUAL BACKGROUND On 20 December 2000 the applicant was advised by the third respondent, the Health Insurance Commission (‘the Commission’), that it appeared that his servicing pattern had reached the level prescribed by s 106KA of the Act. On 13 December 2001 a delegate of the Commission made an investigative referral to the Director, Professional Services Review. There had been an earlier referral to the Director which had been discontinued. In the referral of 13 December 2001 it was said that Dr Hatcher had rendered eighty or more services, namely professional attendances, on thirty-seven days between 1 January and 6 November 2000. The reason for the Commission making its referral was said to be: ‘… the HIC considers Dr Hatcher may have engaged in inappropriate practice because there is evidence that some of Dr Hatcher’s professional attendances constitute a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations.’ On the same day the Commission notified the applicant of his right to make submissions to the Director in support of dismissal of the referral, as it was obliged to do. The applicant had previously made representations during the earlier referral, in a letter dated 18 June 2001. He relied upon them in connexion with the second referral. One of the matters he there referred to was the shortage of doctors in Roma, a rural area in Queensland. He pointed out that some of the other doctors worked only part-time and that none of them bulk-billed. He said that he had tried three times to get locums to stay permanently but they were unwilling to work the long hours necessary and live in a rural area. By letter dated 21 February 2002 the Director advised the applicant that he had determined to establish a Committee, and make an adjudicative referral to it, to enquire into whether the applicant’s conduct in connexion with rendering services between 1 January and 6 November 2000 constituted inappropriate practice. The Committee later corresponded with the applicant concerning the hearing on 17 May 2002, which he attended. The Committee provided its draft report to the applicant on 18 September 2002 after receiving further submissions from him. The applicant sent further submissions in response to the draft report. On 15 November 2002 the Committee provided its final report to the applicant. That report was sent to the Determining Authority, as is required by the Act. On 6 March 2003 the Authority sent its draft determination to the applicant, inviting him to make submissions upon it, which he did. On 15 May 2003 the Determining Authority made its final determination containing the directions referred to above. STATUTORY PROVISIONS
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL J
In the Explanatory Memorandum it was said that a person may satisfy a Committee that services rendered on a particular day or days were rendered in exceptional circumstances and that: ‘This approach recognises that while the exceptional circumstances may relate only to specified services on a particular day they nevertheless impact on the whole day. This gives the person under review the benefit of any doubt, and also avoids the need to examine individual services on the day in question.’ THE COMMISSION’S DECISION Investigative referral number 297 from the delegate of the Commission to the Director of Professional Services Review provided the ‘Reasons for Investigative Referral’ as follows: ‘Part VAA of the Act provides a scheme (the Professional Services Review Scheme) under which a practitioner’s conduct can be examined to ascertain whether they have engaged in inappropriate practice as defined in section 82 of the Act. Section 106KA of the Act (which section commenced on 1 August 1999) also provides that, if, during a particular period, the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the conduct of the person under review in connection with rendering of initiating services during that period in those circumstances is taken to have constituted engaging in inappropriate practice. Dr Hatcher is a general practitioner (as defined in the Act) and, for present purposes, Part 3 of the Regulations (which part commenced on 1 January 2000) applies. Part 3 provides that, in relation to general practitioners, the circumstance in which services that are professional attendances constitute a prescribed pattern of services is that 80 or more such services are rendered on each of 20 or more days in a 12 month period, where ‘professional attendance’ means a service of a kind mentioned in group A1, A2, A5, A6, A7, A13, A14 or A15 of Part 2 of the general medical services table (as defined in the Act).’ The particulars of services and the conduct the subject of the referral was then described in these terms: ‘In accordance with subsection 86(4)(b) of the Act, the HIC considers Dr Hatcher may have engaged in inappropriate practice because there is evidence that some of Dr Hatcher’s professional attendances constitute a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations. Specifically, the HIC’s records for professional attendances rendered by Dr Hatcher during the referral period show that Dr Hatcher: ·rendered 80 or more professional attendances per day on 37 occasions on and from 1 January 2000 to and including 6 November 2000. Further material in relation to the referred conduct and particulars of services is attached as part of this Investigative Referral.’ THE COMMITTEE DECISION A Committee (Professional Services Review Committee No. 297), was established by the Director of Professional Services Review. It comprised three doctors, the system of review under the Act being one of peer review and assessment. The Committee was unanimous in its finding which was summarised as follows: ‘In accordance with s.106L of the Health Insurance Act 1973, Professional Services Review (PSR) Committee No. 297(the Committee) finds that the conduct of Dr Donald Frank Hatcher in relation to the rendering of professional attendances on the days identified as constituting a prescribed pattern of services within the referral period constitutes engaging in inappropriate practice.’