Nithianantha v Commonwealth of Australia
[2018] FCA 2063
•18 December 2018
FEDERAL COURT OF AUSTRALIA
Nithianantha v Commonwealth of Australia [2018] FCA 2063
File number(s): NSD 752 of 2017 Judge(s): FARRELL J Date of judgment: 18 December 2018 Catchwords: ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) – where Professional Services Review Committee found applicant doctor engaged in “inappropriate practice” as defined in s 82(1)(a) – where Committee found that applicant engaged in a prescribed pattern of services by rendering more than 80 services on each of 20 or more days in the review period – where Committee found that there were no exceptional circumstances under reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) because there was not an absence of other medical services for the applicant’s patients – whether the Committee erred by finding an alternative medical centre provided a readily and reasonably available alternative for the applicant’s patients – whether applicant bears the burden of proving the existence of exceptional circumstances – whether reg 11(b) required the Committee to consider whether alternative medical services were available on each and every day in the review period – whether the Committee impermissibly considered practice management considerations
ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act – procedural fairness – where Committee called a witness to give evidence which contradicted the applicant’s evidence a week before the last day of hearing – where notice did not encompass all evidence given by the witness at the hearing – where Committee relied on the witness’ evidence to find that exceptional circumstances did not exist – whether the Committee was required to give the applicant a further opportunity to respond to witness’ evidence – whether the finding was an adverse conclusion which was not obviously open on the known material
HEALTH LAW – Health Insurance (General Medical Services Table) Regulations 2012 (Cth) – construction of reg 2.15.1 and MBS item 597 – whether urgency is assessed when a practitioner determines to make an attendance or whether it is assessed at the time of an examination of the patient
Conclusion: application dismissed
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Health Insurance Amendment (Professional Services Review) Act 2012 (Cth) Sch 2 cl 3, s 3
Health Insurance Act 1973 (Cth) Pt VAA, ss 3, 4, 10, 79A, 80, 81, 82, 82A, 93, 95, 97, 101, 102, 103, 106, 106A, 106B, 106G, 106H, 106KA (repealed), 106KD, 106KL, 106TA, 106U, 160U
Judiciary Act 1903 (Cth) s 39B
Health Insurance (General Medical Services Table) Regulations 2012 (Cth) Sch 1 Pt 2 item 597, reg 2.15.1
Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Australasian Meat Employees’ Union v Fair Work Australia (2012) 203 FCR 389; [2012] FCAFC 85
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154; [2008] FCA 1457 Luxton v Vines (1952) 85 CLR 352
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Hatcher v Fry (2009) 183 FCR 1; [2009] FCA 1573
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
Minister for Integration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Oreb v Willcock (2005) 146 FCR 237; [2005] FCAFC 196
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Sagar v O’Sullivan (2011) 193 FCR 311; [2011] FCA 182
Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433
Sevdalis v Director of Professional Services Review [2017] FCAFC 9
SZNKV v Minister for Immigration and Citizenship [2010] FCA 56
Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76
Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108
Date of hearing: 26 September 2017 Date of last submissions: 29 September 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 194 Counsel for the Applicant: Dr J Lucy Solicitor for the Applicant: Unsworth Legal Pty Ltd Counsel for the First Respondent: Ms K Stern SC with Mr D Hume Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 752 of 2017 BETWEEN: MANUKHARAN NITHIANANTHA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
PROFESSIONAL SERVICES REVIEW COMMITTEE NO 936
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
18 DECEMBER 2018
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
INTRODUCTION
The applicant is a general practitioner who has practised in Blackwater, Queensland since 2008. Blackwater is a coal mining community about three hours’ drive from Rockhampton. His practice was the North Blackwood General Practice (or NBGP). There was one other medical practice in Blackwater, the Blackwater Health Care Centre (or Centre) the principal of which was a Dr Mehrul Huda (sometimes spelled “Hudda”).
In the period 1 May 2013 to 30 April 2014 (review period or relevant period), the applicant provided 80 or more professional services on each of 20 or more days.
On 14 October 2015, the Director of Professional Services Review established a professional services review committee PSRC No 936 (Committee) comprising three general practitioners under s 93 of the Health Insurance Act 1973 (Cth) and made a referral to the Committee to investigate whether the applicant had engaged in “inappropriate practice”.
The Committee held hearings on 3-4 and 17-18 March and 7 April 2016. The applicant appeared on each day with his solicitor, Mr Davey.
The Committee received written submissions from the applicant on 23 March 2016, 22 April 2016 and 17 June 2016 in relation to its draft report on 30 November 2016 (see below).
The applicant’s oral evidence to the Committee is recorded in its interim and final reports. His evidence about his practice includes the following:
(1)The opening hours for the North Blackwood General Practice (sometimes referred to as the “NBGP”) during the review period were 8 am to 12 pm (with a lunch break between 12 noon and 1.30 pm); 1.30 pm to 4.30 pm (with a tea break between 4.30 pm and 5.30 pm) and 5.30 pm to 7.30 pm or 8 pm on Tuesday, Wednesday and Thursday and occasionally on Monday. There were three practice nurses who worked between 8.30 am and 4.30 pm. There was also a practice manager and between two and four administrative staff. There were no allied health professionals employed by the practice, but three firms of allied health visited the practice and used its consulting rooms to deliver services. It had the standard array of GP consulting room equipment, between two and three consulting rooms. One room was equipped with a resuscitation trolley and there was a procedure room with equipment suitable for trauma such as fracture, bleeding and would management and basic procedures such as removal of foreign bodies.
(2)The applicant was generally the only doctor practising at the clinic during the review period. Two other doctors practised: one who functioned as his supervisor and mentor visited once a month for a practising period and a teaching period. Another acted as a locum at the hospital and had private practice sessions at the practice part time; he would be there for up to two weeks for a month.
(3)After hours care at the practice was advertised by signage, through local hospitals and on a web site and social media; patients contacted him by mobile phone. He lived within two kilometres from his practice and it would take him less than five minutes to get from his home to the practice during the after-hours period and the Hospital was two or three minutes away from his practice. He would see patients from all of the local mines. The mines were between 30 and 45 minutes away and injured workers would generally be transported to his practice by private vehicle.
In the final and draft reports, the Committee found that the applicant engaged in inappropriate practices in that:
(1)He rendered services on each of 28 days during the review period identified in Appendix 6 of the report in circumstances that constituted a prescribed pattern of services;
(2)He provided services in respect of five Medicare Benefits Schedule (MBS) items: 23, 36, 160, 597 and 707 which “would be unacceptable to the general body of general practitioners”.
APPLICATION
The applicant has applied to the Court under s 5 and s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review findings in the Committee’s draft and final reports that he engaged in inappropriate practice:
(1)In that he rendered services on each of 28 days during the review period identified in Appendix 6 of the reports in circumstances that constituted a “prescribed pattern of services”; and
(2)In connection with providing 84% of the MBS item 597 services the subject of referral No 936.
MBS item 597 relates to urgent attendances after hours and its full text is set out at [167] below.
The applicant says that he is aggrieved because those findings were adverse to him and expose him to the risk of directions being made against him by the Determining Authority in a final determination pursuant to s 106TA and s 106U of the Health Insurance Act.
The applicant does not challenge the Committee’s findings in relation to MBS items 23, 36, 160 and 707 which encompass findings of inadequate clinical input, failures of record-keeping, double-billing and failure to meet the MBS item descriptor. The applicant also does not challenge the Committee’s finding that he had inadequate clinical input and record keeping in relation to claimed MBS item 597.
BACKGROUND
Part VAA of the Health Insurance Act contains a scheme for reviewing and investigating the provision of services by, among others, general practitioners to determine whether the practitioner has engaged in “inappropriate practice”. If a professional services review committee finds that a practitioner has engaged in “inappropriate practice”, the Determining Authority decides what actions to take; that may include reprimands, orders for repayment of Medicare benefits or disqualification: s 160U(1) of the Health Insurance Act.
Under s 82(1)(a) of the Health Insurance Act, a general practitioner engages in “inappropriate practice” if his or her conduct “would be unacceptable to the general body of general practitioners”. Under s 82(1A) of the Health Insurance Act, a practitioner engages in “inappropriate practice” if some or all of the services rendered or initiated constitute a “prescribed pattern of services”.
Sections 81 and 82A of the Health Insurance Act provide that the circumstances which constitute a “prescribed pattern of service” are prescribed by the regulations. Under reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth), the provision of 80 or more medical services on each of 20 or more days in a 12 months period constitutes a “prescribed pattern of services”. This will not be inappropriate practice if 80 or more services are rendered on a particular day in the relevant period and if a professional services review committee could reasonably conclude that, on that day, exceptional circumstances existed that affected the rendering or initiating of the services: s 82(1B) of the Health Insurance Act.
Section 82(1D) of the Health Insurance Act provides that “exceptional circumstances” include but are not limited to circumstances that are prescribed by the regulations. Regulation 11 Health Insurance (Professional Services Review) Regulations 1999 defines “exceptional circumstances” as (a) an unusual occurrence causing an unusual level of need for professional attendances; or (b) an absence of other medical services for patients of the person under review during the relevant period, having regard to the location of the person’s practice and characteristics of the person’s patients.
Section 4(1) of the Health Insurance Act provides that regulations may prescribe a table of medical services that sets out, relevantly, items of medical services and rules for interpretation of the table. From the beginning of the review period until 27 November 2013, MBS item 597 was described in Part 2 of Sch 1 to the Health Insurance (General Medical Services Table) Regulations 2012 (Cth). The regulations which replaced them were relevantly the same for the rest of the review period. I will refer to both sets of regulations as the GMST Regulations. MBS Item 597 and reg 2.15.1 of the GMST Regulations are set out at [167] and [168] below.
On 9 December 2015, the Committee wrote to the applicant attaching a notice of hearing which advised that a hearing would be held on 3-4 March, 17-18 March and 7-8 April 2016 and on “any other subsequent hearing dates which may be necessary to fully consider the matter” and of the MBS items in relation to which there would be investigation. The letter advised of the process which would be followed.
25 February 2016 invitation to provide submissions
On 25 February 2016, the Committee wrote to the applicant in the following terms:
… I write to invite you to provide any written submission or other information upon which you wish to rely in relation to the Committee’s investigation of PSRC Referral No 936 relevant to the issue of whether you engaged in inappropriate practice as defined by subsection 82(1A) - (1D) of the Health Insurance Act 1973.
…
The Committee would be assisted by your response to the following:
1.Do you accept that you rendered the number of professional attendances on each of the 39 dates listed in Table 12A? If not, please explain why.
2.Do you claim that exceptional circumstances existed on one or more of the dates listed in Table 12A? If so, what are the exceptional circumstances and when did the exceptional circumstances exist?
The Chair of the Committee, … , has instructed me to invite you to provide any written submission or other information in relation to the matters outlined above on or before 4:00 pm on 11 March 2016.
Once your submissions are received, the Committee will consider these prior to the hearing. During the hearing the committee will receive any oral evidence and further submissions you may wish to make.
The 23 March 2016 submissions
The applicant provided written submissions on 23 March 2016 following the grant of an extension of time to do so.
The applicant acknowledged to the Committee that he had provided more than 80 services on each of more than 20 days in the review period and had therefore engaged in a “prescribed pattern of services” within reg 10. The applicant submitted that “exceptional circumstances” existed on each of those days so that he had not engaged in “inappropriate practice”. He said that this was because there was “an absence of other medical services” for his patients on each of these days within reg 11(b), having regard primarily to the location of his practice and the characteristics of his patients. He acknowledged that he bore the onus of establishing that.
He said that “Table 12A – Summary of days when 80 or more verified professional attendances were rendered by [the applicant]” was not accurate about the dates on which services were provided because many of those services were claimed by the practice on dates which were different (sometimes by many months) after the dates on which the services were rendered so that some of the services fell outside the review period.
He submitted that during the review period:
(1)It was the height of the mining boom. There was a permanent population of approximately 6,000 to 7,000 and approximately 2,000 fly-in people. There were eight open cut coal mines in the area which operated 24 hours a day seven days a week. Blackwater was a designated Area of Need and District of Workforce Shortage, that is, a geographic area that had less than the national average of general or other non-specialist medical practitioners. His patients were remote mining and farming people who resided in Blackwater.
(2)His practice was the North Blackwater General Practice. He was the only general practitioner who practised and resided in Blackwater on a full-time basis.
(3)There were three other general practitioners who practised on a limited basis in Blackwater.
(4)Dr Hudda primarily performed mining medical examinations. He saw a limited number of routine general practice patients during limited hours. He closed the practice at midday on Wednesday and Friday so that he could return to his home in Rockhampton. He did not practice on weekends or public holidays. He did not provide after-hours cover and he was not on call when he was in Rockhampton. He did not take new patients unless they were associated with industrial medicine.
(5)Dr Timothy Smith did not reside in Blackwater but performed a fly-in/fly-out locum tenens role at the Blackwater Public Hospital for one week per month. In that time he would also attend to supervision commitments to the applicant. He practiced from the North Blackwater General Practice two days per month.
(6)The third practitioner was Dr Vinay Timothy who commenced in Blackwater in late 2013. He was then conditionally registered because he was an overseas trained medical practitioner and therefore had a limited practice.
(7)The next closest medical practices were in Emerald (an hour away) and Rockhampton (three hours away).
(8)The Blackwater Public Hospital operated on the basis that there was one medical practitioner available to see patients. Not infrequently, it was “absent medical cover”. Patients would be admitted and reviewed by a nurse, and if necessary, electronically by a medical practitioner physically located in Emerald. The applicant ceased to provide services there in November 2013 although his contract expired in January 2014. Other medical practitioners who provided services there did so on a locum tenens basis.
(9)He did not practise in a group practice with multiple partners or associates assisting him and he did not have the ability to refer patients to a large tertiary hospital.
(10)He was not able to divert his telephone to a deputising medical practitioner during the hours of 6 pm and 8 am on each of Monday to Thursday or 6 pm Friday to 8 am Monday.
(11)He could not advise his patients to call an ambulance because Blackwater only has one with one paramedic, and it services an area with a radius of 100 km.
(12)There was an objective absence of other medical services having regard primarily to the location of the applicant’s practice and to the characteristics of his patients.
(13)Exceptional circumstances existed and they affected the rendering of MBS services on each and every day in question. In the circumstances in which his clients required attention there was no real alternative.
By reference to the Full Court’s decision in Oreb v Willcock (2005) 146 FCR 237; [2005] FCAFC 196, the applicant submitted that (among other things):
(1)Most significantly, the factors identified in reg 11(b) are deemed to be exceptional circumstances by operation of the legislation; it is not a matter for the Committee to consider whether or not in its view those matters might be considered exceptional.
(2)It falls to Dr Nithianantha to establish that there was an absence of medical services for his patients having regard to the location of his practice and the characteristics of his patients.
(3)In relation to whether or not the exceptional circumstances impacted upon the provision of services, Lander J found at [203] that it is possible that the circumstances could operate over the whole of the period and still be exceptional. The applicant claimed that that was the case in this matter.
(4)The position contemplated by Black CJ and Wilcox J at [12] – “The absence of other medical services may conceivably be solely a function of location, for example, the practitioner may be the only practitioner in a remote location. The patients in such a place may have no particular ‘characteristics’ at all, other than that they live in that location” – was the case in Dr Nithianantha’s matter.
(5)He also relied on Black CJ and Wilcox J at [14] and [16] for the propositions that concepts of foreseeability and avoidance are immaterial, so is practice management. The focus of reg 11 is the need of the patients, not the management skills of the practitioner.
By reference to the Full Court’s decision in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 (Tisdall v Webber), the applicant:
(1)Noted that in Tisdall v Webber, the Committee identified by reference to data from Medicare Australia that on each of the 66 days on which Dr Tisdall rendered more than 80 professional services there were between three and seven other medical practitioners who worked in the local postcode area and rendered medical services and during the review period there were 10 medical practitioners who rendered medical services. On that basis, the committee inferred that there was no absence of medical services and Dr Tisdall had not demonstrated that exceptional circumstances existed.
(2)Noted that the Full Court found that the committee was in error in making that inference in relation to whether the other practitioners would have had capacity to see Dr Tisdall’s patients on the 66 days, on the basis that that was the important practical question.
(3)Noted that the Full Court found at [86] that “Committee members are not entitled to make findings of fact informing its state of non-satisfaction of those statutory factors based upon assumptions of likely capacity and likely disposition to see patients, unsupported by actual evidence, or simply based upon inferences from known statistics which did not reveal facts about the reasons for statistical rates of attendance.” (Emphasis in submission).
(4)Submitted that (as written):
Unlike the case of Tisdall, Dr Nithianantha did not have 10 medical practitioners practising in his one local postcode area.
There were objectively no alternate medical practitioners available to see his patients. Moreover, as the Full Court made clear, it was as much a question for patients as to whether they were prepared to see another medical practitioner as it was as to whether or not other medical practitioners had an actual capacity and the inclination of those patients.
In our submission, PSRC No. 936 would find there was an absence of other medical services available to the patients of Dr Nithianantha. In the event PSRC No. 936 was to determine otherwise, we submit it would fall into appealable error.
In terms of the requirements of placita (i) of Regulation 11(b) namely, the location of the practice, we submit it is clear from the foregoing that the NBGP is located in a remote rural location which the Commonwealth had prior to the relevant time designated as an Area of Need and also a District of Workforce Shortage and therefore, having regard to those facts alone, there was an absence of medical services for the patients of Dr Nithianantha.
Having regard to placita (ii) of Regulation 11(b) we submit the characteristics of Dr Nithianantha’s patients are self-evident. That is, they were at the relevant time, largely remote rural mining and farming persons. Moreover, they were all residents of Blackwater.
…
Did those exceptional circumstances affect the rendering of services by Dr Nithianantha?
In short, for all of the reasons identified herein the answer is yes because in circumstances where patients required attention there was no real alternative and as the Full Court has made abundantly clear, the question relates to the need of the patients and not whether Dr Nithianantha may have been better able to arrange his Practice or to better limit his availability to those patients.
In our submission, PSRC No. 936 would fall into error if it found there was no absence of alternate medical services and that the absence of medical services did not affect the rendering of services by Dr Nithianantha during the entire Review Period.
[Emphasis added]
Provided with the 23 March 2016 submissions was a document dated 9 March 2016 containing answers to questions put to Kevin John Cracknell, a Central Highlands Regional Councillor. Mr Cracknell said that during the review period:
(1)Apart from the applicant, there was one other general practitioner in Blackwater, Dr Hudda, who had employed a new overseas doctor as well. He understood that Dr Hudda worked Mondays-Fridays, primarily in industrial medicine and he travelled to his home in Rockhampton regularly.
(2)The height of the mining boom “put a great strain on not only the community services but also the medical practitioners. It was often very difficult to get a Doctor’s appointment when you required it unless it was an emergency”.
(3)If the applicant restricted his patient numbers or took time off, Mr Cracknell was not aware there were other doctors to see these patients. The local hospital had severely restricted staff numbers so that their services were limited strictly to severe emergencies only. “Dr Hudda’s surgery had its own patients and was also hard to get an appointment with and only worked standard hours”.
(4)Thanks to the applicant, there were additional GP services, after-hours GP services, trauma management for the community and the mines, a full range of allied health services, skin screening and skin cancer procedures and pregnancy management which alleviated the burden of driving long distances for antenatal clinics.
Notice on 1 April 2016 that a witness would give evidence
On 1 April 2016, the Committee gave the applicant notice by email to Mr Davey that it proposed to call a witness to give evidence by telephone. Relevantly, the email provided (as written):
One of the submissions you made was that exceptional circumstances applied in the context of the rendering of services by Dr Nithianantha because there were no alternative medical practitioners available to see his patients.
In researching this issue, I have spoken to the person who was the practice manager for the Blackwater Health Care Centre. She advised that, during the period of from 1 May 2013 to 30 April 2014:
Ÿthe Blackwater Health Care Centre was accepting new patients and had not closed its books;
Ÿthere were two fulltime doctors practicing at the Centre;
Ÿthe Centres standard opening hours were from 8:30 am to 5:30 pm; and
Ÿanyone requiring GP assistance out of hours would have been referred to the local hospital, where there was a doctor available.
Given this information, the Committee proposes to obtain evidence from this person to this effect via telephone call at the hearing next Thursday. We are flagging this issue for you so that you can consider whether you would like to pose questions to this person or make submissions to the Committee on this issue.
The applicant contends that the Committee did not alert him to the conclusions it proposed to draw from the witness’ evidence nor did it invite him to lead any evidence in response.
Hearing on 7 April 2016
The witness was Ms Martin. She gave evidence by telephone on the last day of the hearing, on 7 April 2016. While she was giving evidence, Ms Martin made reference to the records of the Blackwater Health Care Centre. Mr Davey took the opportunity to ask Ms Martin some questions.
Her evidence was that during the review period:
·She was the full time practice manager at the Blackwater Health Care Centre and she had worked there for approximately 30 years.
·The practice at the Blackwater Health Care Centre was open from 8.30 am to 5.30 pm Monday to Friday.
·The practice accepted new patients.
·The practice would accept patients who were the regular patients of “the other general practice in Blackwater”.
·The practice accepted urgent patients.
·There were two doctors working at the practice during the review period (Dr Vinay Timothy and Dr Shahoy Jenn). Dr Hudda had left Blackwater by then but she did not know the date on which he left. In this context the following interchange occurred:
Mr Davey:On the basis that they were both conditionally registered, who was supervising them?
Ms Martin:It would have been Dr Hudda.
Mr Davey:From Rockhampton.
Ms Martin:Yes.
Mr Davey:So did he come to the practice for the purpose of supervising them at all?
Ms Martin:Well he wouldn’t have left them until they had levels – you know, the right level of supervision.
Mr Davey: Okay.
Ms Martin:I really need to check that one ---
Mr Davey:I’m not being critical but I had understood that the purpose of this was for you to give evidence in respect of the review period.
Ms Martin:Yes. Well, I had the review period wrong. I had it from 2014 to 15 and I did have no idea what questions were going to be asked of me.
·After house coverage utilised an answering machine which directed patients to the hospital or an after-hours mobile phone which was directed to one of the doctors of the practice.
·The doctors randomly worked on Saturdays but it was not constant during 2013.
·There was no personal relationship between applicant’s practice and the Blackwater Health Care Centre.
·She did not know that an identified person who was a patient of the Blackwater Health Care Centre and well known to her had attended the North Blackwater General Practice as a patient.
After Ms Martin withdrew, the applicant said:
… We are in a small – this evidence caught us and I said caught me by surprise, but my concern is – how do I put it. We’re in a small town. There’s no other way of putting it, we’re in a small town. I have always been brought up to think you don’t – how do you say, apply tension within the functionality of a town. I guess I just wanted to state my concern as to (a) whether this sort of – my concerns are one of confidentiality which I understand there’s jurisdiction to protect, but (b) also – let’s just say I don’t want Glenda to feel terrible if that even makes sense as to being dragged into this.
Near the end of the hearing on 7 April 2016, the Committee Chair advised that there would not be a further hearing day and that, in preparing the report “the committee will take into consideration all the material before it, both oral and written” and that the Committee understood that “you [the applicant] intend to make written submissions, and we will give you until 22 April to make those written submissions”. The applicant was given the opportunity to address the Committee in final submissions before the hearing was closed and took that opportunity. Mr Davey indicated that he saw no need for him to do so and that he would address issues in written submissions.
The applicant’s submissions of 22 April 2016
On 22 April 2016, Mr Davey sent a written submission to the Committee addressing (among other things) aspects of Ms Martin’s evidence. The submissions in this regard were:
(1)At no time before or during the hearing was a statement of Ms Martin’s evidence provided to the applicant, albeit that the 1 April 2016 email was sent;
(2)Ms Martin did not turn her mind to the actual review period. Rather, she prepared her evidence on the basis that she was looking at the period from 1 May 2014-30 April 2015. “On that basis, she was required to seek to revisit her position whilst on the telephone and in doing so, to seek to ensure no doubt that she was being accurate”.
(3)The fact that Dr Huda had left Blackwater and was supervising two conditionally registered doctors from Rockhampton is further evidence of the absence of other medical services for the applicant’s patients and he relied on that in support of his submissions in relation to exceptional circumstances.
(4)Ms Martin gave evidence that the Blackwater Health Care Centre operated between 8.30 am and 5.30 pm Monday to Friday and the after-hours arrangements referred patients to the Hospital. The Committee acknowledged (through those assisting it) that the Hospital had a policy of not seeing general practice patients. That is unsurprising when the Hospital is staffed only with one locum tenens medical practitioner at any point in time and that practitioner is often on “fatigue” and not able to see patients.
(5)Ms Martin’s evidence was that the Blackwater Health Care Centre regularly saw patients from the North Blackwater General Practice but refused to accept the opposite. That evidence defies belief and should not be afforded weight. Having regard to the Blackwater Health Care Centre’s opening hours and the Hospital’s policy towards seeing general practice patients, the only other option for residents of Blackwater was to seek treatment from the applicant.
(6)Despite that evidence, the applicant submitted a selection of requests from patients from the Blackwater Health Care Centre for the transfer of medical records to the North Blackwater General Practice. Indeed, Ms Martin had attended the North Blackwater General Practice with an identified person who she knew to be a patient of the Blackwater Health Care Centre and the applicant was forced to put that to her in questioning.
(7)Ms Martin’s evidence that Dr Huda had left Blackwater by the start of the review period and was residing permanently in Rockhampton did not accord with the applicant’s unchallenged evidence based on his conversations with Dr Huda during the review period. Ms Martin was either confused or Dr Huda misled the applicant at the time.
(8)Before Ms Martin gave her evidence, the applicant had established objectively that exceptional circumstances existed.
Invitation concerning clinical records
By letter dated 8 June 2016, the Committee invited the applicant to provide “information or submissions” in relation to his clinical records for identified patients for whom he rendered an MBS item 597 service. The letter noted that a feature of the “Best Practice” system for record keeping used by the applicant indicates the time and date a record was open and the period for which it was open in relation to individual patients. Mr Davey responded by letter dated 17 June 2016.
Draft report
By letter dated 12 October 2016, the Senior Case manager for the Committee sent a draft report to Mr Davey.
Paragraphs [48]-[54], which are relevant to MBS item 597 are set out at [169] below:
The Committee summarised Ms Martin’s evidence at [80] as follows:
Ms Martin advised that she was the practice manager for the Blackwater Health Care Centre for the Review Period and had worked at this practice for approximately 30 years. She advised:
ŸDuring the Review Period the practice was open from 8:30 pm to 5:30 pm, Monday to Friday;
ŸThe practice accepted new patients and undertook urgent consultations during the Review Period;
ŸAfter-hours coverage utilised an answering machine which directed patients to the hospital or an after-hours mobile phone which was directed to one of the doctors of the practice;
ŸThere were two doctors working at the practice during the Review Period; Dr Vinay Timothy and Dr Shahoy Jenn; and
ŸThe two doctors were conditionally registered and were supervised by Dr Huda.
At [81], the Committee noted that Dr Nithianantha addressed Ms Martin’s evidence in the April submissions. The Committee then said:
82.Dr Nithianantha noted that Ms Martin had originally considered that she was questioned about the period 1 May 2014 to 30 April 2015, rather than the specified Review Period (ie 1 May 2013 to 30 April 2014). Dr Nithianantha noted ‘On that basis, she was required to seek to revisit her position whilst on the telephone and in doing so, to seek to ensure no doubt that she was being accurate’. The Committee agrees with this point but notes that Ms Martin was able to access computer systems to verify her evidence while she was asked questions by the Committee and by Dr Nithianantha’s legal representative, Mr Andrew Davey. Therefore, the Committee considers that her former misunderstanding did not affect her evidence concerning the Review Period.
83.Dr Nithianantha also made submissions concerning the fact that the doctors at the Blackwater Health Care Centre were conditionally registered and that they were supervised by Dr Huda, who had left Blackwater. Dr Nithianantha contended that this somehow established ‘further evidence of the absence of other medical services’. The Committee does not accept that the fact of a doctor being conditionally registered meant that there was an absence of medical services in the area. Further, the supervision of conditionally registered practitioners does not require the physical presence of the supervising practitioner. Accordingly, the Committee rejects this argument.
84.Dr Nithianantha also notes Ms Martin’s evidence of the opening hours for the Blackwater Health Care Centre and contends that the Hospital had a policy of not seeing general practice patients and that the practitioner at the hospital was often on “fatigue”. The Committee notes that Dr Nithianantha’s evidence about the capacity of the Blackwater Health Care Centre was contradicted by Ms Martin. The Committee notes Ms Martin’s evidence that, in addition to directing the patient to the hospital, the practice utilised an after-hours phone manned by a doctor of the Blackwater Health Care Centre. The Committee considers that this evidence does not support Dr Nithianantha’s assertion that there was an absence of medical services in the area.
85.Dr Nithianantha also made submissions that the practice also regularly saw patients in the Blackwater Health Care Centre. Dr Nithianantha also stated that Ms Martin ‘categorically disavowed any knowledge’ of this. The Committee does not find it surprising that Ms Martin would be unaware of the practices of patients who decided to see Dr Nithianantha, as it would also conclude that Dr Nithianantha is unlikely to have a definitive understanding of the patients that choose to consult doctors at the Blackwater Health Care Centre. The Committee also considers this issue to be irrelevant and does nothing to establish whether or not there was an absence of medical services in the area.
86.In his submissions, Dr Nithianantha also contended that ‘many of the patients of the Blackwater Health Care Centre formally requested the transfer of their medical record and therefore care’ to Dr Nithianantha’s practice. Dr Nithianantha contended that Ms Martin would have been the person to transfer the records, she should have known about transfer and ‘chose not to indicate (at all or in answer to specific questions … ’. The Committee notes, however, that this question was not put to Ms Martin either by the Committee nor by Dr Nithianantha’s legal representative, Mr Davey. Insofar as this issue was canvassed, the Committee notes the following exchange recorded in the official transcript:
Mr Davey: Can I ask you this, during the Review Period, doing the best you can, you're aware Dr Timothy would refer patients to Dr Nithianantha, weren’t you?
Ms Martin: Dr who?
Mr Davey: Dr Timothy - - -
Ms Martin: Yes.
Mr Davey: - - - would refer patients of his or of the practice where you practised (indistinct) - - -
Ms Martin: Yes.
Mr Davey: - - - to the other general practice in town.
Ms Martin: At that - was that - which doctor are we talking about?
Mr Davey:Dr Nithianantha. You were aware that happened, weren’t you?
Ms Martin:No.
Mr Davey: Would you accept from me it did?
Ms Martin: Was he working at the hospital or the other - - -
Mr Davey:He was working at the hospital and in general practice in - - -
Ms Martin:We would have referred - if we couldn’t deal with anything at that time, you know, like medically, we would have referred them straight to the hospital, yes.
Mr Davey:So you’re telling the committee that on no occasion did Dr Timothy ever contact Dr Nithianantha in his capacity as a general practitioner and refer a patient to him. Is that your evidence?
Ms Martin:No, I don’t know that.
Mr Davey:Right, thank you.
Ms Martin: I’d have to look at the file.
Mr Davey:Thank you. You gave some evidence in answer to a question from the chairperson a moment ago about the fact that your practice was prepared to accept patients from the other general practice in town.
Ms Martin:Yes, we do.
Mr Davey:And you would accept that that position worked the opposite way as well, wouldn't you?
Ms Martin:Well, I’m not sure what the other practice would do. Sometimes they’d fit it in, a patient, sometimes they didn't. I have no idea what the other practice did, but I know that we saw patients who phoned us and asked for an appointment from the other practice.
87.As is evident from the above, Ms Martin indicated that she was unaware that Dr Timothy had referred patients to Dr Nithianantha’s practice or that he had had communications with Dr Nithianantha. Ms Martin also indicated that she was unaware as to whether Dr Nithianantha’s practice would accept patients from the Blackwater Health Care Centre. More importantly, Ms Martin was not asked, nor did she make any statements about, the extent to which files were transferred to Dr Nithianantha’s practice. The Committee also advises that a transfer of a medical record does not necessarily mean a transfer of care. The original records stays with the practice and a copy is sent.
88.Dr Nithianantha included in the April Submissions six ‘Medical Record Release Forms’ requesting the transfer of records from the Blackwater Health Care Centre to Dr Nithianantha’s practice. The Committee considers that it would not be unusual for patients to transfer from one practice to another and this may occur for any number of reasons. To this extent, the Committee does not consider that forms indicating that 6 patients had transferred to Dr Nithianantha’s practice during the Review Period lends much weight to Dr Nithianantha’s argument that there was an absence of medical services in the district.
89.The Committee also notes Dr Nithianantha’s comments in the April Submissions as to whether Dr Huda resided in the Blackwater area during the Review Period. In short, Dr Nithianantha highlighted the inconsistency between his own evidence and Ms Martin’s evidence about this fact. The Committee does not consider this fact to be particularly relevant to the issues at hand and has formed the opinion that Dr Nithianantha may not necessarily have known the residential status of Dr Huda.
90.The Committee, in its analysis of whether Dr Nithianantha’s provision of a prescribed pattern of services was affected by exceptional circumstances must make factual determinations regarding subsection 82(18) and regulation 11(a) and 11(b).
91.The Committee has carefully considered Dr Nithianantha’s submissions regarding the availability of medical services in Blackwater during the Review Period, including the testimonial provided by Mr Cracknell. The Committee has also carefully reviewed the evidence provided by Ms Martin regarding the capacity and willingness of the Blackwater Health Care Centre to provide medical services during the Review Period. The Committee notes that the evidence of Ms Martin is at odds with much of the evidence provided in support of Dr Nithianantha, at least with respect to the key issues at hand. The Committee does not consider that Dr Nithianantha or Mr Cracknell attempted to misrepresent the situation in Blackwater but the Committee is of the opinion that Ms Martin is better placed to provide advice as to whether the Blackwater Health Care Centre was in a position to provide medical services to the Blackwater community during the Review Period. The Committee also notes that Ms Martin was able to (and actually did) check the records for Dr Huda’s practice to confirm her evidence while she was being questioned by the Committee and Mr Davey.
92.For this reason, the Committee is of the view that the Blackwater Health Care Centre was available to provide medical services to patients of Dr Nithianantha during the Review Period. That being the case, the Committee concludes there was not an absence of other medical services for patients of Dr Nithianantha during the Review Period and, consequently, exceptional circumstances did not exist within the meaning of section 82 of the Act.
The applicant’s 30 November 2016 submissions
Mr Davey provided the Committee with written submissions in response on 30 November 2016. In that submission, the applicant noted (among other things):
(1)His uncontradicted evidence concerning the unavailability of the Blackwater Hospital to provide services to general practice patients. That is, that there was a locum doctor “on rotation” from Emerald and he was on fatigue for 12 hours in every 24 hour period.
(2)The option offered by the Blackwater Health Care Centre was not, on any sensible view, an option at all because:
·None of Ms Martin’s evidence is capable of permitting a factual finding that there was not an absence of medical services available for the applicant’s patients.
·Perhaps more significantly, there is no evidence that indicates the number of services each of the two conditionally registered medical practitioners practising from the Blackwater Health Care Centre actually provided during the review period or their capacity to provide services on the days on which the applicant rendered more than 80 professional attendances. There is no evidence that they were even in Blackwater on those days.
·Even if the conditionally registered medical practitioners were available and willing to provide services on those days within a reasonable time, it begs the question of whether the applicant’s patients would have been willing to see one of them.
(3)In respect of 11 of the 28 days on which the applicant purportedly provided more than 80 professional attendances, the services which pushed his daily total up to or over 80 were all after-hours items. That was significant because:
… First, if Dr Nithianantha refused to see those patients to whom he rendered an after-hours service (on the days when he rendered in excess of 80 professional attendances) and instead told them to go to the hospital, the reality is, the hospital would have been unable to deal with that number of in effect, general practice consultations especially in circumstances where the locum was most likely on fatigue.
Secondly, the effect of the preliminary finding of PSRC No. 936 in respect of the breach of the 80/20 Rule is to suggest that it is unacceptable to the general body of general practitioners to assess a patient during the after-hours period regardless of whether or not it is urgent (or even to determine the urgency), if the practitioner may have already rendered 79 professional attendances that day and notwithstanding the fact that there may be no other medical services available and that the practitioner is familiar with the patient and their specific medical conditions. With respect, those two factors demonstrate an absence of other medical services for Dr Nithianantha’s patients.
On that basis, the only possible other medical services which may have theoretically been available to see Dr Nithianantha’s patients were the Conditionally Registered medical practitioners from the Blackwater Health Care Centre who would have themselves been required to attend upon the patient during that after-hours period if they were in fact minded to do so. With respect, there is absolutely no objective evidence before PSRC No. 936 which permits a factual finding that those practitioners would have been available to see the patient at the time in question.
In our submission, there was clearly an objective absence of other medical services for Dr Nithianantha’s patients during the Review Period and more-specifically and clearly, on the actual days in question.
(4)The Committee impermissibly had regard to issues which amount to practice (or patient number) management strategies. It is inappropriate to suggest that, in order to avoid a possible breach of the 80/20 rule that there was a genuine option for the applicant’s patients to:
·“Go without” medical services; or
·Attempt to obtain medical services on the following day or next business day; or
·Hope that during the after-hours period one of the two conditionally registered medical practitioners from the Blackwater Health Care Centre may have been available and prepared to see them; or
·Hope that during the after-hours period an ambulance would actually be available to respond to a “000” call within a reasonable period of time and that it would not have to by-pass the Blackwater hospital and proceed to Emerald, an hour’s drive away.
(5)The words of the descriptor for MBS item 597 services are met at the time the service is requested and not after the service has been provided. The relevant time is when the telephone contact (at which the service is requested by the patient and it is determined by the practitioner that it is either urgent requiring attendance or it is not) is made, at least during the after-hours period. There is great debate and clear confusion about this issue within the profession and the Government. Having regard to that factor, the applicant’s interpretation of the item descriptor would not amount to conduct which the general body of his peers would find unacceptable so that “inappropriate practice” is not made out.
(6)The applicant relied on advice from the Provider Services Branch of the Department of Human Services on 16 May 2016 that the requirement in point (b) of items 597-600 was a follows:
Our understanding of this requirement is that the medical practitioner makes a prospective assessment of a patient’s condition before deciding whether to return and re-open the consulting rooms or to advise the patient to wait until the start of the next in-hours period for a consultation.
It would not relate to a retrospective decision as to the urgency of treatment after examination of the patient’s condition.
Final report
The Committee’s findings are set out in its final report dated 13 April 2017 and they are relevantly the same as those set out in the draft report. Having said that, at [15], the Committee noted that it had regard to the submissions on the draft report provided on 30 November 2016 and there was new material addressing those submissions after [96]. The new material recommenced after [96] at [1] and I will refer to these paragraph numbers as “new”.
At new [3], the Committee summarised the issues raised by the applicant in relation to a prescribed pattern of services as follows:
·Whether there was sufficient evidence that alternative medical services were available during the review period;
·The weight that could be given to Ms Martin’s evidence;
·Whether there is a need to address specifically each of the days where a prescribed pattern of services existed during the review period;
·The availability of the locum at the hospital;
·Whether patients would agree to be treated by the conditionally registered medical practitioners;
·The effect of after-hours services on the prescribed pattern of services;
·Whether the Committee adopted the practical approach to the test referred to by the Full Court in Tisdall v Webber at [28];
·Whether the Committee focused on issues pertaining to practice management.
The Committee addressed the question of whether there was sufficient evidence of alternative medical services at new [5]-[13]. The Committee noted the applicant’s claims that: “At best there was only a theoretical possibility” that medical practitioners from the Blackwater Health Care Centre were available on the 28 days in question during the review period. The evidence of actual availability was “at best equivocal”, given the competing evidence of Ms Martin on one hand and the applicant and Mr Cracknell on the other. The actual position was not resolved when the Committee “made a factual finding that all three witnesses were attempting to be helpful and honest in evidence” so that it was equally open to the Committee to find an absence of medical services: new [5]-[6].
The Committee found that that argument did not stand up to scrutiny. Ms Martin was in “a far better position” to give evidence about the circumstances at the Blackwater Health Care Centre than the applicant and “certainly Mr Cracknell”. In this respect, the Committee found that Ms Martin’s evidence was unequivocal and to the effect that that practice had not closed its books, it was available to take new patients and it had after-hours arrangements in place: new [7]. In these proceedings, the applicant maintains that this finding does not address the limits of Ms Martin’s evidence because it did not go to the ready and reasonable availability of medical services for the applicant’s patients, particularly in the after-hours period.
The Committee noted the applicant’s reliance on Tisdall v Webber and his assertion that the Committee had made assumptions about likely capacity and likely disposition of doctors at the Blackwater Health Care Centre to see patients and that its conclusion was “unsupported by actual evidence” and based on “speculation, guesswork or mere assumption”: new [8]. The Committee:
(1)Noted the applicant’s submission that no evidence was presented about the number of services actually provided by the two conditionally registered practitioners on the days that there was a prescribed pattern of services or whether they were even in Blackwater on those days: new [9].
(2)The Committee found that the applicant misconstrued the test for determining whether exceptional circumstances exist. At new [11], the Committee said:
Most notably, the test outlined in paragraph 11(b) of the PSR Regs revolves around determining whether there was an absence of other medical services with regard to the location of the practice and the characteristics of the patients. Ms Martin’s evidence, which was given in circumstances where she was able to view the records of the Blackwater Health Care Centre, was that the practice was available to patients during the period in question and consequently, the Committee is of the view that there was no absence of medical services.
While admitting of the possibility that the Committee may have been employing shorthand, the applicant maintains the contention that the Committee applied the wrong test by looking to see if the Blackwater Health Care Centre was available to patients generally and that the Committee failed to consider whether the services of the Blackwater Heath Care Centre were available to deal with the applicant’s patients.
In relation to the applicant’s argument that the conditionally registered practitioners were the only theoretically available services and that they would have been required to attend after-hours but there was “no objective evidence” that permits a factual finding that they would have been available to do so, the Committee disagreed with that claim and went on to say at new [13]:
Ms Martin gave evidence to the Committee that the medical practitioners were available during the period in question and that the practice had not closed its books. Moreover, Ms Martin advised that the Blackwater Health Care Centre provided after hours cover via an answering machine which directed patients to the hospital or an after-hours mobile phone, which was manned by one of the doctors in the practice.
The applicant maintains that this evidence does not justify the conclusion reached by the Committee.
The Committee dealt with the issue of the weight to be given to Ms Martin’s evidence at new [14]-[15] and found as follows at new [15]:
The Committee notes that while there is no legal onus of proof in Committee proceedings, once a prescribed pattern of services has been found to exist there is a practical or evidentiary onus on Dr Nithianantha to establish that there was an absence of alternative medical services for his patients [relying on Oreb v Willcock [2005] FCAFC 196]. In light of the evidence presented by Dr Nithianantha and the evidence of Ms Martin, the Committee cannot be reasonably satisfied that exceptional circumstances existed. In fact, the Committee does not consider that the evidence before the Committee established that there was an absence of alterative medical services available to his patients. While the evidence of Dr Nithianantha and Mr Cracknell contradicts that of Ms Martin, the Committee considers that Ms Martin was in a better position to establish whether or not Blackwater Health Care Centre was in a position to provide medical services to Dr Nithianantha’s patients.
The Committee dealt with the question raised by the applicant of whether the Committee was required to direct its review at each of the relevant days when the applicant rendered the prescribed pattern of services at new [16]-[18]. The Committee noted that that approach may have logic but referred to the comments of Lander J in Oreb v Willcock at [198]-[200] as follows:
Section 106KA(2) requires an inquiry into whether, on a particular day or particular days during the relevant period, exceptional circumstances existed. That again is directed to the particular day or days.
Regulation 11(b), however, directs the inquiry into the absence of other medical services for the general practitioner’s patients “during the relevant period”.
The relevant period is the period referred to in s 106KA(1), which is the whole of the period being the period of 12 months over which the prescribed pattern of services is said to have occurred.
The Committee found, at new [18], that the approach suggested by the applicant misconstrues the test in reg 11(b).
The Committee dealt with the applicant’s contentions concerning the availability of a locum at Blackwater Hospital at new [19]-[21] as follows:
(1)The Committee found that there was no evidence presented as to the hours on which the locum would be “on fatigue” so that in focusing on the after-hours period, the applicant’s submissions were “somewhat misleading”. The applicant acknowledged that there was an ambulance available to residents at Blackwater or alternative medical services if the call was triaged as category 1 or 2.
(2)The locum at the hospital was not the only option available to patients having regard to Ms Martin’s evidence that the Blackwater Health Care Centre had an answering machine which directed enquiries to the hospital or to an after-house mobile phone manned by a medical practitioner.
The Committee addressed the question of whether the applicant’s patients would agree to be treated by conditionally registered medical practitioners at new [22]-[26]. It first noted the applicant’s reliance on the finding in Tisdall v Webber that many factors impact on resolving the question of whether there was an alternate medical practitioner available. The Committee noted that there was no evidence introduced that “this might be the case”. Having regard to the applicant’s actual submission, I take this finding to mean that there was no evidence that the applicant’s patients would not agree to be treated by a conditionally registered medical practitioner. The Committee then went on to note comments made by Dowsett J in Hatcher v Fry (2009) 183 FCR 1; [2009] FCA 1573 at [19] and [21] as follows:
To treat preference as a characteristic for the purposes of reg 11 would seriously undermine the underlying purpose of the regulation and the Act.
To avail oneself of the benefit of the provision a practitioner would have to show that a group of his or her patients consulted him because they share a particular characteristic. A characteristic is not merely a preference. If a practitioner regularly attracts Chinese-speaking patients, for whatever reason, then that may be a characteristic of his or her patients. If he or she regularly attracts patients whose primary concern is about skin complaints, then that may be a characteristic of his or her patients.
On that basis, at new [26], the Committee considered that a reluctance to consult conditionally registered medical practitioners reflects a preference, rather than a characteristic for the purposes of reg 11(b)(i).
The Committee addressed the applicant’s submissions in relation to the effect of after-hours services on the prescribed pattern of services and the applicant’s claim that in 11 of the 28 days that formed the pattern the number of services was pushed over the “applicable threshold” by after-hours items at new [27]-[30]. The Committee noted that:
(1)On each day on which the applicant engaged in a prescribed pattern of services, he rendered a number of health assessment or chronic disease management items, and on most of those days he rendered both; and
(2)There was no requirement that those items be completed on a particular day so that the applicant’s claim that he rendered more than 80 services on the days in question simply because he rendered after-hours consultations on certain days was not correct.
The Committee referred to submissions in relation to the Tisdall v Webber “practical approach” to determining whether there was an absence of alternative medical services at new [31] and set out a summary of Greenwood J’s reasons in Tisdall v Webber at [28]:
‘whether a patient of Dr Tisdall would have been able, reasonably, to see another medical practitioner rather than Dr Tisdall’ and ‘(m)any considerations may be relevant to that question but they include questions of access to alternative practitioners, the location of the practice of an alternative medical practitioner, the hours during which such a practitioner might be available and the patient numbers or patient cohort seeking access to the alternative medical practitioner.’
The Committee stated that it was aware that the applicant’s practice was more remote than Dr Tisdall’s practice, a matter which the applicant had raised. It found (at new [33]) that the evidence presented by Ms Martin supports a conclusion that there were alternate medical services available to the applicant’s patients during the review period.
The Committee addressed the applicant’s submission that it had had improper regard to practice and patient management strategies in considering whether exceptional circumstances existed, at new [34]-[35]. The Committee rejected the applicant’s submissions. It found that, as acknowledged by the applicant, to the extent any comments of this kind were made during the hearing and in the draft report, they related to the rendering of urgent after-hours services and in those instances it was directly relevant to consider whether the patient had an urgent need for treatment. Consequently it would be appropriate to consider whether treatment could be deferred until the after-hours period had expired.
The Committee dealt with submissions made by the applicant in relation to the test laid down in the MBS descriptor for item 597 at new [58]-[62] of the final report. It noted the applicant’s submission that the test in the descriptor is prospective in nature and would be met at the time of the initial telephone contact with the patient. The Committee again rejected that interpretation at new [59].
The Committee rejected the applicant’s interpretation on the basis that the general body of practitioners would determine whether the item descriptor was satisfied at the time the item was billed, that is, after the service was rendered. It found that a medical practitioner would not be in a position to know what the patient’s condition was at the time of initial contact. The patient’s condition would only become evident upon examination. It would not be possible to know whether the patient required urgent treatment until an examination had been undertaken. The Committee noted that the item does not say “urgent assessment for treatment”, as would be required if the applicant’s interpretation were to be applied. The Committee noted that the email on which the applicant relied in support of his view was dated 16 May 2016 (see [38(6)] above), after the review period had expired, so that it would have been impossible for him to have relied on that advice. It also noted that the identity of the recipient of the advice had been removed from the copy provided to the Committee so that there was nothing to indicate that the advice had been provided to the applicant. In any event, the Committee considered the advice to be incorrect.
GROUNDS OF APPLICATION
By an email to chambers, the solicitors for the second respondent confirmed that it had no objection to an amendment to the applicant’s pleaded grounds which was attached to the reply submissions and that position was reconfirmed at the hearing. The solicitors also advised that the parties had been in discussions and there was no dispute as to the admissibility of evidence filed in the proceedings or as to factual matters disclosed in those affidavits.
The applicant describes the pleaded grounds as being the “exceptional circumstances ground”, the “procedural fairness ground” and the “wrong question ground”.
LEGISLATION
It is useful at this point to set out some relevant provisions of the Health Insurance Act and regs 10 and 11 of the Health Insurance (Professional Services Review) Regulations in full.
Section 3 of the Health Insurance Act relevantly contains the following definitions:
clinically relevant service means a service rendered by a medical … practitioner that is generally accepted in the medical … profession … as being necessary for the appropriate treatment of the patient to whom it is rendered.
…
professional service means:
(a)a service … to which an item relates, being a clinically relevant service that is rendered by or on behalf of a medical practitioner;
…
Section 10 of the Health Insurance Act relevantly provides as follows:
Entitlement to Medicare benefit
(1)Where, on or after 1 February 1984, medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, any medicare benefit calculated in accordance with subsection (2) is payable, subject to and in accordance with this Act in respect of that professional service.
…
(2A)Without limiting the generality of regulations for the purposes of paragraph (2)(aa), the regulations may prescribe services for the purposes of that paragraph by identifying, in the table, the services concerned.
…
Relevantly to that definition, item 597 is set out at [167] below and reg 1.15.1167 of the General Medical Services Table is set out at [168] below.
Sections 79A and 80 of the Health Insurance Act set out the object of Part VAA and the main features of the professional services review scheme as follows:
79A Object of this Part
The object of this Part is to protect the integrity of the Commonwealth medicare benefits and pharmaceutical benefits programs and, in doing so:
(a)protect patients and the community in general from the risks associated with inappropriate practice; and
(b)protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
80 Main features of the Professional Services Review Scheme
(1)This section summarises the main features of the Professional Services Review Scheme established by this Part.
(2)The Professional Services Review Scheme is a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice.
(3)The Chief Executive Medicare can request the Director to review the provision of services by a person and the Director must decide whether to undertake a review.
(4)Following a review, the Director must:
(a) decide to take no further action in relation to the review; or
(b) enter into an agreement with the person under review; or
(c) make a referral to a Committee.
(5)If the Director enters into an agreement with the person under review, the agreement must be ratified by the Determining Authority before it takes effect. Having an agreement ratified avoids a Committee investigation.
(6)A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review.
(7)Committee members must belong to professions or specialities relevant to the investigation.
(8)Committees can hold hearings and require the person under review to attend and give evidence. Committees also have the power to require the production of documents (including clinical records).
(9)Committees can base findings on investigations of samples of services.
(10)If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take.
(11)Provision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given.
(12)A Committee cannot make a finding of inappropriate practice unless it has given the person under review:
(a) notice of its intention to do so; and
(b) the reasons for the finding; and
(c) an opportunity to respond.
Section 81(1) of the Health Insurance Act contains the following definitions:
Committee means a Professional Services Review Committee set up under section 93.
Committee investigation means an investigation by a Committee under Division 4.
Determining Authority means the Determining Authority established by section 106Q.
…
Director means the Director of Professional Services Review appointed under section 83.
…
findings, in relation to a draft report or final report of a Committee, means the Committee’s findings as to whether the person under review engaged in inappropriate practice in the provision of some or all of the services specified in the referral made to the Committee.
…
service means:
(a)a service that has been rendered if, at the time it was rendered, Medicare benefit was payable in respect of the service; or
(ab)a service that has been initiated (whether or not it has been or will be rendered) if, at the time it was initiated, medicare benefit would have been payable in respect of the service had it been rendered at that time; or
(b)a service rendered by way of a prescribing or dispensing of a pharmaceutical benefit …
…
Section 81(2) of the Health Insurance Act provides as follows:
Meaning of provides services
For the purposes of this Part, a person provides services if the services are rendered or initiated by:
(a)the person; or
(b)...
(c)a practitioner employed or otherwise engaged by a body corporate of which the person is an officer.
Section 82 of the Health Insurance Act provides as follows:
82 Definitions of inappropriate practice
Unacceptable conduct
(1)A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:
(a)if the practitioner rendered or initiated the services as a general practitioner—the conduct would be unacceptable to the general body of general practitioners; or
…
Prescribed pattern of services
(1A)Subject to subsections (1B) and (1C), a practitioner engages in inappropriate practice in rendering or initiating services during a particular period (the relevant period) if the circumstances in which some or all of the services were rendered or initiated constitute a prescribed pattern of services.
(1B)A practitioner does not, under subsection (1A), engage in inappropriate practice in rendering or initiating services on a particular day during the relevant period if a Committee could reasonably conclude that, on that day, exceptional circumstances existed that affected the rendering or initiating of the services.
(1C)Subsection (1B) does not affect the operation of subsection (1A) in respect of the remaining day or days during the relevant period on which the practitioner rendered or initiated services even if the circumstances in which the services were rendered or initiated on that day or those days would not, if considered alone, have constituted a prescribed pattern of services.
(1D)The circumstances that constitute exceptional circumstances for the purposes of subsection (1B) include, but are not limited to, circumstances that are prescribed by the regulations to be exceptional circumstances.
Section 82A of the Health Insurance Act defines a “prescribed pattern of services” as follows:
82A Meaning of prescribed pattern of services
(1)The circumstances in which services are rendered or initiated by a practitioner constitute a prescribed pattern of services if they are circumstances prescribed by the regulations for the purposes of this section.
(2)The circumstances prescribed may relate to services of a particular kind or description that are rendered or initiated by:
(a) practitioners in a particular profession; or
(b) an identified group or groups of practitioners in a particular profession.
(3)The circumstances prescribed may include the rendering or initiation of more than a specified number of services, or more than a specified number of services of a particular kind, on each of more than a specified number of days during a period of a specified duration.
Regulations 10 and 11 of the Health Insurance (Professional Services Review) Regulations provide as follows:
10 Circumstances constituting a prescribed pattern
For section 82A of the Act, the circumstances in which services that are professional attendances constitute a prescribed pattern of services are that 80 or more such services are rendered on each of 20 or more days in a 12 month period.
11 Exceptional circumstances
For subsection 82(1D) of the Act, the following circumstances are declared as constituting exceptional circumstances:
(a)an unusual occurrence causing an unusual level of need for professional attendances;
(b)an absence of other medical services, for patients of the person under review during the relevant period, having regard to:
(i)the location of the practice of the person under review; and
(ii)characteristics of the patients of the person under review.
In relation to the conduct of the referral, the following provisions of the Health Insurance Act were drawn to the Court’s attention:
(1)If the Director makes a referral to a Committee, the Director must prepare a written report in respect of the services to which the referral relates, giving reasons why the Director thinks the person under review may have engaged in inappropriate practice in providing services. A copy of the report must be attached to the referral and given to the Chief Executive Medicare and the person under review: s 93(6) and (7).
(2)The Chairperson of the Committee must convene the first meeting of the Committee within 14 days after the appointment of the Committee members (although failure to do so does not render anything done by the Committee invalid). The Chairperson must also convene such other meetings of the Committee as necessary for the efficient conduct of its affairs: s 97.
(3)The Committee may hold hearings and it must do so if it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services: s 101.
(4)If the Committee proposes to hold a hearing, it must give the person under review written notice of the time and place proposed, at least 14 days before the proposed hearing. The notice must give details of the referred services and it may require the person to appear at the hearing and give evidence: s 102.
(5)In relation to the hearing, the person under review has the right to attend the hearing, to be accompanied by a lawyer or another adviser, to call witnesses to give evidence (other than as to his or her character), to produce written statements as to character, to question a person giving evidence at the hearing, to address the Committee on questions of law arising during the hearing and after the conclusion of evidence, and to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of matters to which the hearing relates. The lawyer may give advice to the person under review, address the Committee on questions of law and after the conclusion of the hearing, make a final address to the Committee on questions of law, the conduct of the hearing and the merit of the matters to which the hearing relates: s 103.
(6)The procedures for the conduct of hearings is within the discretion of the presiding member of the Committee. The Committee is not bound by the rules of evidence but may inform itself of any matter in any way it thinks appropriate. The presiding member may adjourn the hearing from time to time as he or she thinks fit: s 106.
(7)Evidence may be taken on oath or affirmation: s 106A.
(8)The Committee may, for the purposes of Subdiv 4B of Part VAA, summon a person (other than the person under review) to appear at a hearing to give evidence and produce documents referred to in the summons: s 106B.
(9)It is the duty of a Committee to carry out its functions so that its final report is given to the Determining Authority within 6 months of the day on which the referral was given to the Committee or (if the Chairperson or in the Chairperson’s absence another Committee member so requests) a further period of up to 3 months allowed by the Director. There are other circumstances in which a request for extension might be made which are not here relevant: s 106G.
(10)Before the Committee makes a finding of inappropriate practice, it must: notify the person under review of its intention to do so, provide the person with the reasons on which the Committee intends to base its finding; and give the person under review an opportunity to respond: s 106H(4). The Committee complies with these requirements if it provides a draft report to the person under review in accordance with s 106KD: s 106H(5).
(11)The Committee must prepare a written draft report of preliminary findings setting out those findings and its reasons for them. Unless there is no finding of inappropriate practice, the Committee must give a copy of the draft report to the person under review together with a notice inviting the person to make written submissions suggesting changes within one month: s 106KD.
(12)After the month, after taking into account any submission made to the Committee by the person under review, the Committee must prepare a final report setting out (where the Committee is unanimous, as here), the Committee’s findings. It must not include a finding of inappropriate practice unless the finding and the reasons for it were included in the draft report. The Committee must give copies of the final report to the person under review and the Director and give a copy of the final report to the Determining Authority not earlier than one month after it was given to the person under review: s 106KL.
EXCEPTIONAL CIRCUMSTANCES GROUND
The applicant says that the Committee erred in coming to the conclusion that the Blackwater Health Care Centre was available to provide medical services to the applicant’s patients in the review period on three bases.
The first basis for this claim is that the Committee failed to consider and determine according to law whether medical services at the Blackwater Health Care Centre were a readily and reasonably available alternative for the applicant’s patients. This formulation relies on Tisdallv Webber at [28] per Greenwood J and [111]-[112] per Buchanan J, Tracey J agreeing.
The second basis for this claim is that the inference that the doctors at the Blackwater Health Care Centre had capacity and were reasonably available to the applicant’s patients within a reasonable time either during opening hours or after-hours was not open to the Committee to make from Ms Martin’s evidence.
The third basis for this claim is that the Committee failed to consider whether another medical practitioner was available to see the applicant’s patients on each of the days on which the applicant claimed that “exceptional circumstances” existed.
Submissions on first and second bases
Applicant’s submissions
There is considerable cross-over in the applicant’s submissions between the first and second bases. Accordingly, I will summarise the applicant’s submissions on these bases together.
The applicant says that the Committee applied the wrong test in reaching its conclusion at [92] of the draft and final reports that there was “no absence of medical services” for the applicant’s patients in the review period and consequently exceptional circumstances did not exist within the meaning of s 82 of the Health Insurance Act.
The applicant submitted that even though the Committee identified the correct test at new [31], being that set out in Tisdall v Webber at [28] (see [51] above), it failed to apply it. The applicant does not dispute that the Committee referred to his submissions in relation to the correct test to be applied (at new [22]-[26] and new [31]-[33] of the final report). The applicant says that the Committee did not focus on the issue of the availability of medical services from the perspective of the applicant’s patients at any point in its reasoning. Despite the reference to the applicant’s patients at new [15], there is no reference to those patients in the “cut and paste” material from the draft report at [80]-[92] (which is the same in the final report) and there is nothing in the material that preceded [92] which supports the conclusion reached in it. (See [37] above for [92] and new [15] of the final report at [45] above.)
The applicant says that the reference to the applicant’s patients at new [15] does not indicate that the Committee applied the test in Tisdallv Webber at [28]. Rather, it demonstrates that it did not because it does not address whether the services of the Blackwater Health Care Centre were reasonably and readily available to the applicant’s patients. This was particularly so in the face of uncontradicted evidence that:
(a)The Review Period was at the height of the mining boom and the community was very busy with mining and construction workers, permanent residents and transient workers.
(b)Dr Nithianantha saw patients from all the mines, including injured workers transported to his practice. There were eight open-cut mines in the vicinity, which operates 24 hours per day, seven days per week.
(c)Dr Nithianantha’s practice was growing rapidly at the start of the Review Period.
(d)There were very limited medical services available at Blackwater Hospital which had extended periods with no doctor present. It had one locum who practised there who was on “fatigue” (i.e. not working) for more than 12 hours per day. It was “dwindling into a very minimalistic emergency, critical emergency only service.”
(e)Blackwater had one ambulance and one paramedic servicing an area with a radius of 100 km.
(f)There were only two medical practices in Blackwater during the Review Period, Dr Nithianantha’s practice and Blackwater Health Care Centre.
(g)It was often difficult to get a doctor’s appointment during the Review Period, unless it was an emergency.
(h)The Blackwater Health Care Centre closed at 5.30pm each day, whereas Dr Nithianantha’s practice was open until 7.30pm or 8pm on three to four days per week.
(i)Blackwater is a remote location. It was designated, by the Department of Health, as a District of Workforce Shortage and an Area of Need.
(j)Blackwater has a population of about 5,500 permanent residents and 2,000 to 3,000 workers who fly in and fly out. There were also five to six towns within an hour’s drive of Blackwater and there were mines, 30 to 45 minutes away.
(k)The Blackwater Health Care Centre had two doctors working at the practice (although sometimes only one) and, generally, Dr Nithianantha was the only doctor working in his practice. That is, there were generally three general practitioners to service between 5,500 and 8,500 people and sometimes only two.
It would undoubtedly have been a better and preferable process if the Committee had obtained a thorough proof of evidence from Ms Martin by reference to the Blackwater Health Care Centre’s records and provided it to the applicant before the hearing on 7 April 2016 and, if necessary, also deferred the hearing for a time to enable it to do so.
Nonetheless, having regard to all of the matters identified above, in my view there was not a want of procedural fairness to the applicant in the Committee’s failure to give him express notice that it might make the finding it did in the draft report, in its failure to invite him on 7 April 2016 to call further witnesses or the fact that Ms Martin’s evidence was more extensive than the 1 April 2016 email suggested in relation to the availability after hours of a mobile telephone contact manned by a doctor.
Having regard to the foregoing, it is not necessary for me to make a finding as to whether the applicant could have adduced evidence or for the Committee to have convened a hearing after it issued the draft report. The fact that 106KD(3) makes express provision for the practitioner to be given an opportunity to provide written submissions would indicate that that is the approach contemplated by Parliament to be adopted in the interest of the efficient conduct of an investigation. However, there are potentially serious disciplinary consequences from an adverse finding and there is no express limitation on the Committee’s powers to hold a hearing under s 106 so it may be that it is not necessary to infer from the existence of s 106KD(3) that the Committee could not receive more evidence had it been asked to do so. It is relevant that it was not asked to do so.
WRONG QUESTION GROUND
This ground revolves around the correct interpretation of MBS item 597 and reg 2.15.1 which are set out in Part 2 of Sch 1 to the GMST Regulations. MBS item 597 appears under the heading “Group A11 – Urgent attendances after hours” and provides as follows:
Professional attendance by a general practitioner on not more than one patient on one occasion – each attendance (other than an attendance in unsociable hours) in an after-hours period if:
(a)the attendance is requested by the patient or a responsible person in, or not more than 2 hours before the start of, the same unbroken after-hours period, and the patient’s medical condition requires urgent treatment; and
(b)if the attendance is performed at consulting rooms-it must be necessary for the practitioner to return to, and specifically open, the consulting rooms for the attendance.
Regulation 2.15.1 of the GMST Regulations provides as follows:
2.15.1 Meaning of patient’s medical condition requires urgent treatment
(1)For items 597 to 600, a patient’s medical condition requires urgent treatment if:
(a)medical opinion is to the effect that the patient’s medical condition requires treatment within the unbroken after‑hours period in, or before, which the attendance mentioned in the item was requested; and
(b)treatment could not be delayed until the start of the next in‑hours period.
(2) For subclause (1), medical opinion is to a particular effect if:
(a)the attending practitioner is of that opinion; and
(b)in the circumstances that existed and on the information available when the opinion was formed, that opinion would be acceptable to the general body of medical practitioners.
In its draft and final reports, the Committee found as follows:
MBS item 597
…
48Dr Nithianantha contended that, in considering the 'urgency' requirement, the Committee has misunderstood the operation of the item descriptor for MBS item 597 by working backwards from the clinical records, knowing what the outcome of the consultation was to demonstrate whether there was an urgent need for medical treatment. [The Committee does not consider this argument to have merit and considers that Dr Nithianantha has misconstrued this aspect of the MBS item descriptor.*] In particular, the Committee notes that Dr Nithianantha is not required, nor is he able, to bill an MBS item 597 in advance of rendering the consultation. The Committee also notes that a practitioner has the option of rendering an after-hours consultation and claiming the appropriate MBS item in accordance with Group A22 in Division 2.23 of Schedule 1 of the Regulations if it subsequently transpires that the consultation does not meet the requirements of MBS item 597.
49.In his submissions, Dr Nithianantha refers to the case of a patient presenting with a rash (randomly sampled service number 3). The Committee's reasoning with respect to this argument is set down in Table 4.3.3 of Part 4.3 of Appendix 3. In short, however, the Committee applied the test set out in the statutory scheme for MBS item 597, that is, the Committee considered whether the patient required urgent treatment. The Committee made a finding of fact that the patient did not, in this instance, require urgent treatment (despite the anxiety of the parent).
50.On this basis, the Committee rejects Dr Nithianantha's submissions that the Committee misunderstood the operation of the item descriptor.
51.Dr Nithianantha also contended in the April Submissions that there were many circumstances where he declined to render an MBS item 597 service to patients. The Committee does not find this contention particularly relevant to the issues at hand, other than it possibly indicates that he knew that the item to be billed was a matter to determine after the service was rendered.
52.Dr Nithianantha also argues that he was not in a position to refer patients elsewhere and there was limited after-hours services available in Blackwater during the Review Period. Dr Nithianantha made a similar point in his submissions to the Committee of 17 June 2016 (the June Submissions), noting that he 'determined to accede to patient requests for urgent after-hours consultations if he formed the view, based on the telephonic history provided at the time the requires was made, that to do so was appropriate'.
53.The Committee reiterates its comments above that it does not consider that Dr Nithianantha should necessarily have declined to see the patient in the after-hours period. Rather, the Committee has made findings that the consultation did not meet the requirements of MBS item 597. It would have been open for Dr Nithianantha to render after-hours consultations using the other MBS items outlined in Group A11 if he considered it appropriate to do so in the circumstances.
54.In respect of each of the services referred to in Table 3 of Appendix 1, the Committee’s [preliminary**] finding is that Dr Nithianantha engaged in inappropriate practice for one or more of the following reasons:
Ÿfailure to meet the requirements of the MBS item descriptor;
Ÿfailure to provide adequate clinical input in relation to the presenting complaint; and
Ÿfailure to keep an adequate and contemporaneous record.
The sentence marked * was including in [54] of the final report but not the draft report.
The word marked ** was deleted from [54] in the final report
With reference to the example given at [49] of the draft and final reports, the material in Table 4.3.3 of Part 4.3 of Appendix 4 relevantly provides:
The Committee is of the opinion that the general body of general practitioners would find that Dr Nithianantha's conduct in connection with the rendering of this service would be unacceptable for each of the following reasons:
Ÿfailure to meet the requirements of the MBS item descriptor; and
Ÿfailure to keep an adequate and contemporaneous record.
MBS Item Descriptor
On consideration of the clinical record for this service, as well as the relevant Medicare data for the date of service, the Committee is of the opinion that Dr Nithianantha did not meet the requirements of the item descriptor for MBS item 597.
A requirement of MBS item 597 is that the patient's medical condition requires urgent treatment.* This means that there are two requirements to be met:
(a)medical opinion is to the effect that the patient's medical condition requires treatment within the unbroken after-hours period; and
(b)treatment could not be delayed until the start of the next in-hours period.*
Having regard to the clinical record and Dr Nithianantha's oral evidence, the Committee is of the view that the patient's condition did not require urgent medical treatment. In this particular instance, the clinical records indicate that the patient was suffering from a 'rash with mild fever'. The diagnosis was 'measles possibility' and treatment appeared to only require 'homestay'.
The Committee notes that Dr Nithianantha indicated in the April Submissions that the patient's mother was in 'a very anxious state' and requested an urgent consultation. The parent's anxiety, however, is not of itself determinative of the patient's need for urgent treatment. The Committee considers that Dr Nithianantha could have chosen to render an after-hours service (such as an MBS item 5020) to the patient in the circumstances.
In light of this, the Committee is of the view that the information in the clinical record does not indicate that the patient required urgent treatment and, consequently, this consultation does not meet the requirements of MBS item 597.
[* indicates that a footnote was deleted which referred to MBS Item 597 and reg 2.15.1 of the GMST Regulations]
The applicant’s claim is, in summary, that the Committee misdirected itself when making its finding at [48]. The applicant says that:
(1)The scheme of the Health Insurance Act does not require MBS item 597 to be interpreted so that the practitioner’s opinion that treatment is required must be formed after a consultation. A consideration of the text of reg 2.15.1 of the GMST Regulations indicates that the time of forming the opinion may be before the consultation.
(2)In the alternative, a Committee could not “reasonably conclude” that claiming for item 597 as the applicant did would be unacceptable to the general body of the members of the profession on the basis that there was general debate about the interpretation of that item and the applicant’s position was strongly arguable.
The applicant says that the Committee asked itself the wrong question: whether having regard to the circumstances known after the consultation, the treatment was required urgently and it thereby misconceived its jurisdiction.
The respondents accept that the Committee acted on the basis that the time at which urgency is to be assessed was at the conclusion of the attendance the subject of the MBS item 597 claim. The respondents say that the ground must fail because that is the correct position.
Before taking the analysis further, I do not accept that the Committee failed to take into account Dr Nithianantha’s opinion. By claiming under MBS item 597 and having regard to the cited oral evidence, he had made the content of his opinion and the time at which he formed it clear. I find that the shorthand use of “medical opinion” in the example given above at [170] did not overlook this element but rather referenced the “rolled up” concept of “medical opinion” which is contained in reg 2.15.1(2). It is plain that the Committee formed its opinion by reference to MBS item 597 and reg 2.15.1(2).
The applicant accepts that, by operation of s 10 of the Health Insurance Act, a “professional service” must have been rendered before a claim may be made and that this must be a “clinically relevant service” (see [59] and [60] above). The applicant therefore accepts that the service must be generally accepted in the profession as being necessary for the appropriate treatment of the patient.
However, the applicant says that that is not determinative of, or relevant to, the time at which urgency has to be assessed for the purposes of item 597. He identifies the point of departure between him and the respondent as being that he says that treatment actually provided when claiming under MBS item 597 need not be the “urgent treatment” which the practitioner initially thought was required. He says it is enough if, when he formed his opinion that urgent treatment was required, that opinion would have been acceptable to his peers “in the circumstances that existed and on the information available when the opinion was formed”, even if it turns out that the patient requires treatment for a different, non-urgent condition which is diagnosed during the consultation.
The respondents did not make extensive oral submissions in relation to this ground, but they did make extensive written submissions. As noted above, the respondents’ position is that it is not possible to determine prospectively whether a service rendered by a practitioner is a “clinically relevant service”. They say that the focus of MBS item 597 and reg 2.15.1 is the need for treatment and the timing of that need, not on the need for assessment, which logically suggests that the opinion should be formed at the conclusion of the attendance. The respondents point out that MBS item 597 forms part of a group (Group A11) that relates to urgent attendances after hours and that the fees of those services are generally high, ranging between $104.75 for item 598 and $150 for item 599.
Further, Group A11 is not the only group of MBS items which deal with after-hours attendances; Group A22 specifies a range of after-hours attendances (that is, on public holidays or Sunday, before 8 am and after 1 pm on Saturday and before 8 am and after 8 pm on any other day – reg 2.23.1(1)). Those fees are higher than applicable “in hours” attendances ranging from $28.45 for a basic attendance through $48.05 for an attendance of less than 20 minutes involving at least one basic step (eg a patient history) and $115.45 for an attendance lasting at least 40 minutes and involving at least one basic step.
The respondents submit that Groups A11 and A22 pursue a common policy of compensating practitioners for the additional burden of providing services out of hours. They have a common basic component: a professional attendance which is relevantly defined in reg 1.2.3(2) as follows:
A professional attendance includes the provision, for a patient, of any of the following services:
(a)evaluating the patient’s condition or conditions including, if applicable, evaluation using a health screening service mentioned in subsection 19(5) of the Act;
(b)formulating a plan for the management and, if applicable, for the treatment of the patient’s condition or conditions;
(c)giving advice to the patient about the patient’s condition or conditions and, if applicable, about treatment;
(d)if authorised by the patient - giving advice to another person, or other persons, about the patient’s condition or conditions and, if applicable, about treatment;
(e)providing appropriate preventive health care;
(f)recording the clinical details of the service or services provided to the patient.
The respondents submitted that it can be seen from this that treatment is something which characteristically may follow from an attendance, but treatment is not itself within the definition of an attendance. The result of an evaluation which forms the attendance may be the formulation of a plan for treatment and giving advice about treatment. The further result may be that the patient seeks and is given treatment for his or her condition. They say that that treatment would not be claimed as part of a Group A11 or Group A22 attendance. This demonstrates the difference between Group A11 items and Group A22 items. Group A11 items are concerned with cases where, during an after-hours attendance (which may include an examination) the practitioner forms the opinion that the patient’s medical condition requires urgent treatment possibly resulting in giving advice to facilitate that urgent treatment. Group A22 items are concerned with cases where there is no need for urgent treatment. Either way, the respondents say that the time at which the opinion is to be formed is at the conclusion of the attendance.
The respondents say that the policy rationale for the higher fee in Group A11 items can be seen as the Government’s assessment that an attendance which yields an acceptable opinion that urgent treatment is required is likely to be more labour-intensive and complex than an attendance (such as a Group A22 attendance) which does not yield that opinion.
The respondents observe that this construction of reg 2.15.1 and MBS item 597 “serves the salutary purpose of helping avoid abuse of the medicare claims scheme”, and it would be a cogent indicator of whether a Group A11 item has been properly claimed if urgent treatment followed the attendance, but if it does not, it cuts the other way.
The applicant submitted in reply that the definition of “clinically relevant service” has nothing to say about the time at which the necessity for treatment is to be assessed because in most cases a practitioner would need to make a judgment about whether the service is necessary for appropriately treating the patient before providing the treatment.
As to the respondents’ argument that the focus of MBS item 597 and reg 2.15.1 is treatment, not assessment, the applicant says that the focus is on “medical opinion” not treatment – that is, the medical opinion must be that the patient’s medical condition requires treatment. If the legislature wanted to convey that the opinion was to be formed at the end of the consultation, it would have said so by using the past tense – required, not requires, treatment. The applicant says that that makes sense because it would only be if the practitioner formed that opinion that they would go to the consulting rooms to open them (as envisaged by MBS item 597(b)). He says it is also consistent with the language of reg 2.15.1(2)(b) “in the circumstances that existed and on the information available when the opinion was formed” – that phrase would be redundant if the opinion was to be formed in retrospect. A determination having regard to “circumstances that existed” at the time the opinion was formed does not require that the opinion be formed only with hindsight.
He says that the submissions concerning the various fees which might be claimed for different MBS items and the object of Part VAA (being the object of protecting the integrity of the Commonwealth medicare benefits program) are not relevant to the appropriate interpretation of MBS item 597. The applicant submits that the “policy rationale” suggested by the respondents for the difference between Group A11 items and Group A22 items is speculative. The difference need not relate to complexity or the labour intensity of the service. It makes sense that a practitioner who operates on a Saturday afternoon can expect to receive a higher fee than “in hours”, and Group A22 items cater to that. Group A11 items reward both the “after hours” feature and the unscheduled and urgent nature of the requirement to open consulting rooms. The applicant also says that serving the “salutary purpose” of helping to avoid abuse is not a good reason to displace legislative intention evinced in reg 2.15.1. Abuse is avoided by the requirement that the practitioner’s opinion be one which would be acceptable to the general body of medical practitioners.
The applicant submitted that, even if the interpretation of MBS item 597 is found to be wrong, his interpretation is strongly arguable. The interpretation is not straightforward, even for lawyers. The applicant is a busy practitioner and could reasonably have interpreted the provision incorrectly. Having regard to “much debate” about the whether the requirements of the descriptor are satisfied when a service is requested or after it is provided, the applicant’s conduct in making a claim is not such that a Committee could reasonably conclude that it was “unacceptable to the general body of the members of the profession” within s 82(1)(a) of the Health Insurance Act.
In my view, the Committee did not ask itself the wrong question. While there is some initial attraction to the applicant’s argument, in my view it is not correct.
In what follows, I note the interaction of s 10 and the definitions of “clinically relevant service” and “professional service” described at [175] above. This is common ground between the parties that the entitlement to a medicare benefit hinges on the rendering of a service which is generally accepted as being necessary for the appropriate treatment of a patient. However, I do not accept that the interpretation contended for by the applicant at [176] is correct or supported by the decision of the Full Court in Sevdalis v Director of Professional Services Review [2017] FCAFC 9 (Sevdalis FCAFC). I note that the Full Court dismissed with costs an appeal from the decision of Mortimer J in Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 (Sevdalis first instance). The applicant relied on Sevdalis first instance at [123] and [125]. Paragraph [123] is to the same effect as the common position of the parties. Paragraph [125] is addressing a different item, albeit by reference to the definitions of “clinically relevant service” and “professional service”.
I accept the applicant’s submission that the focus of MBS item 597and reg 2.15.1 is on the “medical opinion” as to whether the patient’s condition requires treatment. However, I do not accept the argument referred to at [184] above. In my view the term “requires” where used in MSB item 597(a) and in reg 2.15.1(1)(a) is not susceptible of the meaning “might require”, which would be necessary to adopt the interpretation contended for by the applicant.
It might be that there are many occasions on which a practitioner could, at the time of receiving a request for services in the unbroken after hours period, form an opinion with a high degree of certainty that the patient’s condition requires urgent treatment. However, that cannot be determined definitively – as the term “requires” implies – until a consultation has taken place. I do not accept the applicant’s argument that the language of reg 2.15.1(2)(b) “in the circumstances that existed and on the information available when the opinion was formed” would be redundant if the opinion was to be formed after consultation. The circumstances in which an urgent after hours consultation takes place may well be far from ideal and the practitioner may well only have limited information available to him or her (for example, because the patient has limited capacity to communicate effectively). Accordingly the language referring to circumstances in reg 2.15.1(2)(b) is required on both interpretations proposed by the parties. Before the consultation, the practitioner can only form a view, having regard to the circumstances which have been conveyed to him or her by someone who may not be the patient. The best the practitioner can do at that point is form a view of what might be required at that time, not what is required. What is required can only be determined following consultation which can, if necessary, include examination.
It is true that the doctor must, at the time he or she receives a call requesting an attendance, make the decision whether to provide the attendance. While there would be plain unfairness if the practitioner were not to be remunerated at all for after-hours effort, that is not the effect of the scheme of the regulations. I am persuaded by the respondents’ arguments for the application of the different after-hours period rates reflected in Group A11 and Group A22 and that that scheme tends towards an interpretation of MBS item 597 and reg 2.15.1 for which the respondents contend.
Further, although the objects set out in s 79A apply to Part VAA, in my view they are objects which inform much of the regime; to avoid risk to patients and the community which may result from inappropriate practice and to protect the Commonwealth from costs associated with that. Those objects support the rationale suggested by the respondents for the interpretation of MBS item 597 and reg 2.15.1 in a way that promotes payment at the higher rates only where the medical opinion (that is the practitioner’s opinion supported by the opinion of the general body of medical practitioners) is that the patient’s medical condition requires treatment in the unbroken after hours period. The interpretation contended for by the applicant does not promote those objects.
I also reject the applicant’s argument that, having regard to the existence of debate about the time at which entitlement to MBS item 597 arises, it was not open to the Committee to make the finding it did concerning the applicant’s conduct in making the claims he did under MBS item 597. While Dr Nithianantha put into evidence an opinion that had been obtained by someone (it is not clear that it was the applicant) from the Provider Services Branch of the Department of Human Services which supported his reading of MBS item 597 (see [38(6)] above), the Committee rejected that advice on the basis that it was not correct. Dr Nithianantha could not have relied on that advice because it was obtained after the review period (at [60]-[62] of the final report). There was no other evidence of the debate. In any event, as noted in Sevdalis FCAFC at [21], the Committee is a peer review body. Under s 95(5) of the Health Insurance Act, where the person under review is a general practitioner, the members of the Committee must also be general practitioners. The Committee was in a position to form a view of whether the claims made by the applicant under MBS item 597 would be unacceptable to the general body of members of that profession having regard to their (in my view correct) interpretation of that item and reg 2.15.1, notwithstanding that some practitioners may have had a different view.
CONCLUSION
For the reasons given above, the applicant has not made out any of the grounds on which he relied. Accordingly, the application should be dismissed. I will hear the parties on the issue of costs.
I certify that the preceding one hundred and ninety-four (194) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate
Dated: 18 December 2018
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