Reece v Webber

Case [2010] FCA 1025

FEDERAL COURT OF AUSTRALIA

Reece v Webber [2010] FCA 1025

Citation: Reece v Webber [2010] FCA 1025
Parties: ALBERT STUART REECE v TONY WEBBER and BERNARD KELLY, KATHLEEN KEATING AND AILSA LAIDLAW CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 507 and THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)
File number: NSD 1365 of 2009
Judge: EDMONDS J
Date of judgment: 20 September 2010
Catchwords:

ADMINISTRATIVE LAW—medical practitioner—Professional Services Review Scheme—statutory scheme for examination of conduct to ascertain whether inappropriate practice involved—whether the Director of Professional Services Review (‘the Director’) erred or exceeded his power by referring for review all services provided by the applicant during the review period—whether the Professional Services Review Committee (‘the Committee’) erred by investigating all services provided by the applicant during the review period—whether the Committee denied the applicant procedural fairness, contrary to s 106l(1B) of the Health Insurance Act 1973 (Cth), through the inclusion of further reasons in its final report—whether the Committee failed to have regard to the applicant’s written submissions on its draft report—whether the Committee’s draft and final report gives rise to a reasonable apprehension of bias.

Held: The Director is authorised by the Health Insurance Act 1973 (Cth) to refer for review all services provided during the review period; The authority of the Committee to investigate services is not limited by the Director’s reasons or report; The Committee’s final report did not introduce new reasons, it merely particularised the generality of the draft report; The Committee took the applicant’s submissions into account; The Committee’s failure to adopt the applicant’s submissions does not give rise to a reasonable apprehension of bias.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Health Insurance Act 1973 (Cth) Pt VAA
Judiciary Act 1903 (Cth) 39B
Health Insurance (General Medical Services Table) Regulations 2006 (Cth) Sch 1
Cases cited: Dimian v Health Insurance Commission [2004] FCA 1615 referred to
Health Insurance Commission v Grey (2002) 120 FCR 470 cited
Mathews v Health Insurance Commission (2006) 90 ALD 49 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred to
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 referred to
Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 referred to
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 cited
Roads Corporation v Dacakis [1995] 2 VR 508 cited
Thoo v Kelly (2008) 169 FCR 470 applied
Date of hearing: 28 April 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 49
Counsel for the Applicant: Mr C Jackson
Solicitor for the Applicant: TressCox
Counsel for the Respondents: Miss RM Henderson
Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1365 of 2009
BETWEEN:

ALBERT STUART REECE
Applicant
AND:

TONY WEBBER
First Respondent

BERNARD…

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AGLC
Reece v Webber [2010] FCA 1025
Case
[2010] FCA 1025
Decision Date

CaseChat Overview and Summary

Dr Albert Reece, a vocationally registered general practitioner, sought judicial review of a decision by the Professional Services Review Committee to refer his conduct during a specified period to the Health Services Commissioner. The Committee had been established by the Director of Professional Services Review to investigate whether Dr Reece engaged in inappropriate practice in providing services during the review period. The Committee found that Dr Reece had engaged in inappropriate practice in five services and referred these findings to the Health Services Commissioner. Dr Reece argued that the Director did not have the power to refer all the services he provided during the review period for investigation, that the Committee did not have the power to investigate all the services he provided during the review period, and that the Committee's investigation of his conduct was unfair because it did not take his submissions into account and because its draft and final reasons gave rise to a reasonable apprehension of bias.

The court held that the Director was authorised to refer all services provided by Dr Reece during the review period for investigation. The court also held that the Committee was authorised to investigate all services provided by Dr Reece during the review period. The court found that the Committee did not introduce new reasons in its final report; it merely particularised the generality of the draft report. The court held that the Committee had considered Dr Reece's submissions. The court found that the Committee's failure to adopt Dr Reece's submissions did not give rise to a reasonable apprehension of bias. The application was dismissed with costs.

The court made no orders.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs, as taxed or agreed.

Note:

Background

Background to the litigation

The Minister has power to determine the sampling methodologies that a Committee may use (s 106K(3)), and a Determination has been made under that provision.FACTUAL BACKGROUND On 22 November 2007 Medicare Australia made a request to the Director to review the provision of services by the applicant during the review period. The applicant is a vocationally registered general practitioner. The Director undertook the review, and on 7 April 2008 set up the Committee and made Referral No. 507 to the Committee. The Director’s instrument of establishment of and referral to the Committee relevantly provided:‘I, Anthony David Webber, Director of Professional Services Review, make the following instrument in accordance with sections 93 and 95 of the Health Insurance Act 1973, setting up Professional Services Review Committee No. 507 and making a referral to the Committee as follows:Interpretation and Citation1.1.In this instrument:“Act” means the Health Insurance Act 1973;“person under review” means Dr Albert Reece of Southcity 7-Day Family Medical Centre, 39 Gladstone Road, Highgate Hill, QLD, 4101;“review period” means the period from 1 April 2006 to 31 March 2007 inclusive;“Regulations” means the Health Insurance (Professional Services Review) Regulations 1999;“specified services” means the services specified in paragraph 3 below;“professional services” has the same meaning as in section 3 of the Act.1.2This instrument may be cited as PSRC Referral No. 507.Committee set up2.Professional Services Review Committee No. 507 is set up having the members appointed by paragraph 4 of this instrument.Referral to the Committee3.I hereby make a referral to Professional Services Review Committee No. 507 to investigate whether the person under review engaged in inappropriate practice in providing the following specified services:•all services provided by Dr Reece at or from his practice locations within Australia during the review period.…Terms of Sections of the Act5.A notice setting out the terms of sections 102, 106H and 106K of the Act is at Attachment A.Director’s Report6.My report for the purposes of subsection 93(6) of the Act in respect of the specified services, which gives reasons why I think the person under review may have engaged in inappropriate practice in providing those services, is at Attachment B.’ Attachment B (the Director’s s 93(6) report) to the instrument of establishment and referral relevantly provided:‘Material considered5.My decision to refer this matter to a PSRC is based on consideration of the following material:•Request to Review No. 507 dated 22 November 2007;•A random selection of medical records of patients to whom Dr Reece provided MBS item 23, 36, 44 and 721 services during the specified period;•A random selection of medical records of patients to whom Dr Reece initiated pathology items 66515, 69481 and 69478 during the specified period;•A random selection of medical records of patients to whom Dr Reece prescribed diazepam during the specified period;•Calendar charts (PIRT reports) provided by Medicare Australia of all services provided by Dr Reece to the patients in the above selection during the specified period;•the results of my Review;•correspondence from Avant Mutual Group Limited dated 26 March 2008.Discussion and findings6.The services provided during the review period were within the two year period immediately preceding the date of Medicare Australia’s Request, in accordance with subsection 86(2) of the Act.7.The examination of the medical records in relation to MBS item 23, 721, 66515, 69481 and 69478 services and Dr Reece’s prescribing of diazepam did not, overall, raise major concerns.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, grounds 4 and 5 cannot be sustained.CONCLUSION The application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

The reasons given in the draft report for finding inappropriate practice in each of the five services (at pages 15, 17, 18, 19 and 23) included the following sentence, which reproduced part of the MBS item 36 descriptor:‘[T]he Committee does not accept .... that Dr Reece provided sufficient clinical input to support a professional attendance of less than 40 minutes duration which involved components of a service to which MBS item 44, 47, 48, 50 or 51 applied.’(Emphasis added.) In the final report another sentence (set out below in bold type) was added to the reasons for each of the five services (at pages 15, 17, 18, 19 and 23):‘[T]he Committee does not accept ... that Dr Reece provided sufficient clinical input to support a professional attendance of less than 40 minutes duration which involved components of a service to which MBS item 44, 47, 48, 50 or 51 applied. Dr Reece did not take an exhaustive history, a comprehensive examination of multiple systems, arrange any necessary investigations or implement a management plan in relation to one or more complex problems.’(Emphasis added.) The ‘descriptor’ for MBS item 44 is:‘Professional attendance involving taking an exhaustive history, a comprehensive examination of multiple systems, arranging any necessary investigations and implementing a management plan in relation to 1 or more complex problems, and lasting at least 40 minutes, OR a professional attendance of at least 40 minutes duration for implementation of a management plan.’(Emphasis added.) In its final report, the Committee did not add a new reason for finding inappropriate practice in the five services. It had referred to MBS item 44 in the reasons it gave in the draft report. The only change the Committee made in the final report was to reproduce part of the descriptor for MBS item 44 in the reasons. In my view, no reason for the finding in the five services has been included in the final report that was not included in the draft report; the final report merely particularises the generality of the draft report.GROUNDS 4 AND 5 The applicant alleges in ground 4 that the Committee did not take his submissions suggesting changes to the draft report into account. That allegation is unsustainable, because the Committee explicitly addressed the submissions in its final report at [26] and [27]. The applicant also alleges in ground 5 that the Committee’s ‘draft and final reasons, considered together, give rise to a reasonable apprehension of bias’. The test for apprehended bias formulated in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [28] refers to ‘a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue, and the conduct which is said to give rise to an apprehension of bias’ and involves the ‘objective test of possibility, as distinct from probability.’ Apprehended bias must be ‘firmly established’: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 – 554, affirmed in Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14. See also Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [90]: ‘Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.’