Lee v Grigor - [2005] FCA 25

FEDERAL COURT OF AUSTRALIA
Lee v Grigor [2005] FCA 25

ADMINISTRATIVE LAW - Professional Services Review Scheme - whether a medical practitioner has engaged in “inappropriate practice” in connection with the rendering or initiation of services for which Medicare benefits are payable – investigative referral – adjudicative referral – referral period - “prescribed pattern of services” – breach of the 80/20 rule – exceptional circumstances – s 92 Agreement

Health Insurance Act 1973 (Cth) - Part VAA – ss 92, 106KA
Administrative Decisions (Judicial Review) Act 1977 (Cth) – ss 11(1)(c) and 11(3)
Judiciary Act 1903 (Cth) - s 39B(1A)
Health Insurance (Professional Services Review) Regulations 1999 (Cth) – Regs 11(b)

Lee v Kelly [2004] FCA 26 applied
Oreb v Willcock [2004] FCA 1520 referred to
Dimian v Health Insurance Commission [2004] FCA 1615 referred to

Daniel v Kelly (2003) 200 ALR 379 referred to
Hatcher v Cohn [2004] FCA 1548 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

IL SONG LEE v WAL GRIGOR, PATRICK TAN AND DAVID RIVETT AND THE DETERMINING AUTHORITY AND HEALTH INSURANCE COMMISSION AND ALAN JOHN HOLMES AND BERNARD RAYMOND KELLY

N 1430 of 2003

JACOBSON J
SYDNEY
7 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1430 of 2003

BETWEEN:

IL SONG LEE
APPLICANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292
FIRST RESPONDENTS

THE DETERMINING AUTHORITY
established by s 106Q of the Health Insurance Act 1973 (Cth)
SECOND RESPONDENT

HEALTH INSURANCE COMMISSION
THIRD RESPONDENT

ALAN JOHN HOLMES in his capacity
as Director of Professional Services Review
FOURTH RESPONDENT

BERNARD RAYMOND KELLY in his capacity
as Acting Director of Professional Services Review
FIFTH RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

7 FEBRUARY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The finding by the first respondents that the applicant engaged in inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside.

2. The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Professional Services Review Committee should be made.

3. The first respondent is to pay the applicant’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1430 of 2003

BETWEEN:

IL SONG LEE
APPLICANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292
FIRST RESPONDENTS

THE DETERMINING AUTHORITY
established by s 106Q of the Health Insurance Act 1973 (Cth)
SECOND RESPONDENT

HEALTH INSURANCE COMMISSION
THIRD RESPONDENT

ALAN JOHN HOLMES in his capacity
as Director of Professional Services Review
FOURTH RESPONDENT

BERNARD RAYMOND KELLY in his capacity
as Acting Director of Professional Services Review
FIFTH RESPONDENT

JUDGE:

JACOBSON J

DATE:

7 FEBRUARY 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

This is an application for review of…

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.

Continue reading Lee v Grigor

Details

AGLC: Lee v Grigor [2005] FCA 25
Case: [2005] FCA 25
Decision Date: 7 FEBRUARY 2005

CaseChat Overview and Summary

The case of Lee v Grigor involves Dr. Lee, who was referred to the Director by the Health Insurance Commission for an investigation into his conduct under the Health Insurance Act 1973. Dr. Lee contends that the Committee 292 asked the wrong question by considering whether his Korean patients should integrate into the Australian community instead of examining whether exceptional circumstances existed under Regulation 11(b) due to the characteristics of his patients. The dispute centres around the interpretation and application of the Act and its regulations, particularly the "80/20 rule" and the notion of exceptional circumstances.

The central legal issues before the court were whether the Committee 292 erred in its consideration of Dr. Lee's conduct and whether the referral to the Director was appropriate. Specifically, the court had to determine if the Committee asked the correct question regarding the integration of Dr. Lee’s Korean patients and whether there were exceptional circumstances warranting a different approach. Additionally, the court considered whether the referral to the Director was justified and whether the findings of inappropriate practice were correct.

The court found that Committee 292 did indeed ask itself the wrong question by focusing on patient integration rather than considering the exceptional circumstances as stipulated under Regulation 11(b). The court ruled that the findings by the first respondents must be set aside, and the matter should be remitted to the Director to determine if a referral to a differently constituted Professional Services Review Committee is necessary. Furthermore, the court ordered that the first respondent pay Dr. Lee’s costs of the proceedings.

Orders

Orders of the court

1. The finding by the first respondents that the applicant engaged in inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside.

2. The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Professional Services Review Committee should be made.

3. The first respondent is to pay the applicant’s costs of the proceedings.

Background

Background to the litigation

Dr Lee also contends that Committee 292 asked itself the wrong question by considering whether his Korean patients should integrate into the Australian community instead of asking whether exceptional circumstances existed under Regulation 11(b) by reason of the characteristics of Dr Lee’s patients.The Factual Background On 13 December 2001, the third respondent (“the Commission”) referred Dr Lee’s conduct to the fourth respondent (“the Director”), under Investigative Referral no 292. The referral period was 1 January 2000 to 25 September 2000. The Commissioner considered that Dr Lee had engaged in inappropriate practice by reason of a prescribed pattern of services under s 106KA of the Act and Regulation 11. The prescribed pattern of services to which the Commission referred was that Dr Lee had rendered 80 or more attendances per day on 37 occasions during the referral period. This was a breach of the “80/20 rule” to which Ryan J referred in Daniel v Kelly (2003) 200 ALR 379 at [8]. The Further Amended Application in these proceedings seeks review of the investigative referral but this was pursued only in a formal way in the written submissions. It was not addressed at the hearing. On 17 December 2001, the Director wrote to Dr Lee informing him of the investigative referral. The letter was in the same form as the letters to which I referred in Oreb at [92] and [107], in Dimian at [22] and in Lee v Kelly at [15]. However, for completeness, I will set it out in full as follows:-“On 14 December 2001, I received Investigative Referral No 292 from the Health Insurance Commission (the HIC) regarding your conduct in relation to the Medicate program.I understand that the HIC has delivered to you a copy of the referral documentation and the relevant sections of the Health Insurance Act 1973 (the Act). In accordance with subsection 89(1) of the Act, I must carry out an investigation of this referral. Following the investigation, I have the option to:· dismiss the referral for the reasons set out in section 91 of the Act,· enter into an agreement with you as set out in section 92 of the Act, or· refer the matter to a Professional Services Review Committee as set out in section 93 of the Act.Subsection 88(3) of the Act provides that you may make written submissions to the Director, within 14 days of the day when you were sent the referral, as to reasons why the Director should dismiss the referral without setting up a Professional Services Review Committee. I would be pleased to receive a submission from you and would give it careful consideration along with any other relevant documents or materials I may decide to obtain.Should you wish to communicate with this office, the address and telephone numbers are detailed below. If you would prefer any further communications from this office to be directed to you at another address, I would appreciate your written advice.If you have any questions, please contact the Administrative Officer, Mrs Belinda Steward, during business hours on 02-62819155.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1430 of 2003

BETWEEN:	IL SONG LEE APPLICANT
AND:	WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by s 106Q of the *Health Insurance Act 1973* (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director of Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director of Professional Services Review FIFTH RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	7 FEBRUARY 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1430 of 2003

JUDGE:	JACOBSON J
DATE:	7 FEBRUARY 2005
PLACE:	SYDNEY