Serageldin Abbas Abdelrahman and Minister for Health and Aged Care

[2024] AATA 555

Serageldin Abbas Abdelrahman and Minister for Health and Aged Care [2024] AATA 555 (2 April 2024)

Division:General Division

File Number:           2022/6416

Re:Heba Serageldin Abbas Abdelrahman

APPLICANT

AndMinister for Health and Aged Care

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:2 April 2024

Place:Sydney

The summons issued on 8 November 2023 is set aside.

...........[SGD].............................................................

Emeritus Professor P A Fairall, Senior Member

Catchwords

PRACTICE AND PROCEDURE – summons to produce documents – application to have summons set aside – whether summonsed documents relevant to substantive issues – nature of discretion to grant exemption under Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 – summons set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Health Insurance Act 1973 (Cth)
Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

2 April 2024

INTRODUCTION

1. This is an application by the Department of Health and Aged Care (the Department) to set aside a summons to produce documents issued by the Tribunal on 8 November 2023. The summons, issued at the request of the applicant, sought the following:

   1.The name and/or provider number of each radiologist working as a Full-Service Equivalent (FSE) radiologist within SA3 Rouse Hill/McGrath Hill (the catchment area) for the following weekly periods (inclusive):

   a.    14-18 March 2022

   b.    15-19 August 2022

   c.     14-18 November 2022

   d.    12-16 December 2022

   e.    13-17 February 2023

   2.The number of studies completed by an FSE radiologist in the catchment area during the above weekly periods.

   3.The level of activity determined by the respondent for each FSE radiologist:

   a.    For a period of:

   i. one day,

   ii. one week (37.5 hours) and

   iii. one year.

   b.    The Average Study Value for one day for an FSE Radiologist.

   c.     The study mix for each radiologist (ie. studies per modality).

   d.    The Average Study Value for each of the modalities identified.

   4.A list of modalities completed by a radiologist used to determine the capacity of an FSE radiologist nationally.

   5.The number of FSE radiologists calculated by the Respondent nationally.

   BACKGROUND

2. The applicant was first registered as a medical practitioner in Australia on 24 September 2019, having previously obtained tertiary qualifications in medicine and radiology in Egypt. The applicant provides diagnostic radiology services at Rouse Hill Radiology.

3. Due to the operation of subsection 19AB(1) of the Health Insurance Act 1973 (Cth) (the HIA), Medicare benefits are not payable in respect of the professional services rendered by overseas trained doctors (such as the applicant) until 10 years have elapsed from the date he or she was first registered as a medical practitioner.

4. Pursuant to subsection 19AB(3) of the HIA, the Minister may grant an exemption to the operation of subsection 19AB(1). In considering whether to exercise this discretion, the Minister must comply with guidelines determined by the Minister under subsection 19AB(4B). The Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 (the Guidelines) relevantly provides:

   6  Considerations for exemptions - general

   (1)  This section applies subject to sections 7 to 10.

   (2) When making a decision under subsection 19AB(3) of the Act, the Minister must take into account as a primary consideration whether the service location is in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates.

   (3)  The Minister may also take into account:

   (a)    whether the applicant’s registration or licence as a medical practitioner is subject to any conditions;

   (b)    where the applicant is the holder of a visa, whether the visa entitles the applicant to work as a medical practitioner or undertake clinical training in medicine;

   (c)    whether the applicant has entered into, or has commenced negotiations to enter into, a contract of service or contract for services under which he or she will provide professional services at the service location;

   (d)    whether professional services were rendered at the service location within the last 12 months by another person:

   (i)     to whom an exemption in respect of that location applied; and

   (ii)    whose provider number in respect of that location has been cancelled by the Chief Executive Medicare; 

   (e)    whether the applicant will render professional services after hours at the service location;

   (f)    where:

   (i)     the applicant has commenced negotiations to enter into a contract of service or contract for services under which he or she will provide professional services at the service location, and

   (ii)    the service location is not in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates,

   whether the service location was in a Distribution Priority Area or District of Workforce Shortage in respect of that type of medical practitioner at the time negotiations commenced; and

   (g)    any other matters the Minister considers relevant.

   (4)  For the purposes of paragraph (3)(d) of this section, reference to another person to whom an exemption in respect of the service location applied includes reference to a person who is or was a person to whom an exemption made in respect of a class of persons applied.

   (Emphasis added)

5. The definition of ‘District of Workforce Shortage’ (DWS) appears in section 4 of the Guidelines:

   District of Workforce Shortage means, in respect of medical practitioners who are specialists in a particular specialty (excluding general practice):

   …

   (b)    a geographical area, determined by the Department, in which the number of specialists multiplied by the average FSE for specialists in that specialty in that area, per person in the geographical area, is less than the current national average for that specialty; or

   …

   Note 1: District of Workforce Shortage status is determined annually for specialist medical practitioners for the purposes of paragraph (b) of the definition of District of Workforce Shortage by the Department using Medicare billing data and estimated resident population data from the Australian Bureau of Statistics.

   …

6. On 31 May 2022, the applicant applied to the Department for an exemption under subsection 19AB(3), such that Medicare benefits would be payable in respect of the professional services rendered at Rouse Hill Radiology.

7. On 7 June 2022, a delegate of the Minister refused to grant the exemption. First, the application did not meet the primary consideration in subsection 6(2) of the Guidelines, as Rouse Hill Radiology is not located within a DWS for diagnostic radiology. Second, the documentation provided in support of the application did not seek an exemption under the other available provisions of the Guidelines relevant to non-DWS locations.

8. On 17 June 2022, the applicant applied for a reconsideration of the delegate’s decision. Another delegate of the Minister affirmed the earlier decision on 11 July 2022. The reconsideration decision was again based on the applicant’s failure to meet the DWS primary consideration. The delegate did not afford any special consideration to the fact that Rouse Hill Radiology is 110 metres from a neighbouring catchment area that is a DWS for diagnostic radiology. The application did not otherwise satisfy the alternative grounds for granting an exemption under the Guidelines.

9. On 5 August 2022, the applicant applied for review of the delegate’s reconsideration decision. By order of the Tribunal dated 2 December 2022 pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the application was remitted to the Respondent for reconsideration by consent.

10. On 26 February 2023, a delegate decided to set aside the earlier decision of 11 July 2022 and made a new decision refusing to grant an exemption under subsection 19AB(3). This decision was based on:

    (a)The fact the Rouse Hill Radiology is located within the Rouse Hill – McGrath’s Hill catchment area, which is not currently located within a DWS for diagnostic radiology;

    (b)The fact the Rouse Hill – McGrath’s Hill catchment area continues to have above-average diagnostic radiology services when compared to the rest of Australia;

    (c)The applicant’s spouse holds a subclass 186 visa, which is not defined within the Migration Regulations 1994 (Cth) as a General Skilled Migration Visa, and as such, the applicant is not able to be considered against the criteria for granting an exemption under the spousal provisions contained at section 8 of the Guidelines; and

    (d)Comments provided by the District Working Group which noted that the Rouse Hill – McGrath’s Hill catchment area had equitable access to diagnostic radiology services when compared to the national average of radiologists across Australia, and that population growth in the Rouse Hill – McGrath’s Hill catchment area has been matched by growth in the number of diagnostic radiologist services provided in the catchment area.

11. The Tribunal heard the Department’s application on 7 February and 15 March 2024. The applicant was represented by Mr Leerdam of Keypoint Law, the Department by Dr Hilly of counsel, instructed by King & Wood Mallesons, and the Respondent by Ms Pattison, of King & Wood Mallesons.

    THE SUBMISSIONS OF THE DEPARTMENT

12. The Department advanced four grounds on which the summons ought to be set aside, summarised as follows:

    (a)The information is not relevant to the proceedings;

    (b)The Department is prevented from producing documents under Items 1 to 3 of the summons pursuant to section 130 of the HIA;

    (c)It is unduly burdensome for the Department to produce the documents; and

    (d)The summons is not capable of response and requires clarification of the scope and meaning of the request.

13. On the point of relevance, the Department submits that the determination of the DWS by the Department is not amenable to merits review. The definition of DWS (as extracted above) evinces an intention of the Guidelines to grant the Department a discretion to determine the relevant geographical area for the purposes of delineating a DWS. Neither the Minister nor the Tribunal can go behind this determination.

14. The Department relied on two witness statements of Mr Stuart Riley, the delegate of the Respondent that made the reconsideration decision. In his statement dated 20 December 2023, Mr Riley explains his understanding of the procedure for determining a DWS and expresses his view that in exercising his functions under the HIA, he does not need to review the operating procedure and statistical analysis undertaken by the Department.

15. The Department’s submissions summarise the DWS determination procedure as follows:

    22.The Department relies on the Second Riley Statement to respond to the assertion by the Applicants that the “SA3 maps and the DWS maps do not match or coincide” which suggests that Departmental discretion is engaged when the “District of Workforce Shortage” (DWS) boundary is applied to the Rouse Hill-McGrath Hill catchment area.

    23.The DWS is the primary consideration for the Minister (or delegate) when assessing application for an exemption under section 19AB of the HI Act. This is a binary determination; a service location will either be in or not be in a DWS area.

    24. DWS status is determined annually for specialist medical practitioners by the Department, using Medicare billing data and estimated resident population data from the Australian Bureau of Statistics (ABS). The Department uses the Australian Statistical Geography Standards (ASGS) as published by the ABS.

    25.The geographical areas that are used for determining DWS are Statistical Area Level 3 (SA3) geographical areas. For the purpose of determining which areas are DWS, the Department could choose between SA1, SA2, SA3 and SA4. The Department choses to apply SA3 and does so consistently across all DWS areas in Australia. There is no other discretion exercised by the Department when determining the SA3 boundary. It simply applies the SA3 boundary set by the ASGS system as published by the ABS.

    26. The boundary of the Rouse Hill-McGraths Hill area used for the calculation of DWS is the same as the SA3 Rouse Hill-McGraths Hill area.

    27. The Second Jones Statement seeks to draw discrepancies between maps published online by the Department’s Health Workforce Locator and maps published by the ABS.

    28. The Department’s Health Workforce Locator and the ABS Maps are not determinative of the boundaries of SA3 areas. These maps are illustrations that visually represent the approximate location of the boundaries in a manner intended to be accessible and user friendly to the members of the public. The true boundary of SA3 areas is contained in digital boundary shapefiles which are available to download in the ASGS system published by the ABS.

    29. In any event, the purported discrepancies relied upon by the Applicants are attributable to the zoom level used in the screenshots presented in the Second Jones Statement, rather than any perceived discrepancy appearing between the Department’s Health Workforce Locator and the ABS Maps.

    (Emphasis added)

16. The Department also relies upon section 130 of the HIA as a basis for objecting to the summons. Section 130 relevantly provides:

    130    Officers to observe secrecy

    (1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Medicare Guarantee Act 2017, the Dental Benefits Act 2008, the My Health Records Act 2012 (whether as a delegate or otherwise) or the indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act.

    Penalty: 5 penalty units.

    (2)  A person who is, or has been, an officer shall not, except for the purposes of this Act, be required:

    (a)    produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or

    (b)    to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions.

17. The Department submits that subsection 130(1) prohibits the Department from providing the documents sought under Items 1, 2 and 3 of the summons. The Department submits that the Tribunal, and Tribunal staff, constitute a ‘person’ within the meaning of the subsection, and disclosure of the information is only permitted if done in the exercise of powers or functions under the HIA. While responding to a summons is one such function, the Department submits this exception is ‘limited to purposes directly arising out of the provisions’ of the HIA, including facilitating the Tribunal performing merits review pursuant to the enabling provisions of the HIA. The Department submits that disclosure of the information sought by the applicant goes to issues beyond the scope of the Tribunal’s jurisdiction. In this respect, the Department’s submissions fall back on the points articulated above regarding the DWS determination being insusceptible to review.

18. The Department initially relied upon the prohibition in subsection 130(2), however, withdrew that submission on the basis that the definition of ‘court’ in section 124W does not include the Tribunal.

19. The Department otherwise relies on Mr Riley’s evidence that the documents sought under Items 1, 2 and 3 fall within the subsection 130(1) exemption; that production of the documents would be unduly burdensome and divert the Department from its usual duties; and that the summons is illogical as it is predicated on a misunderstanding of the meaning of FSE.

20. The Respondent adopted the Department’s submissions in support of its application.

    THE SUBMISSIONS OF THE APPLICANT

21. The applicant submits that the Tribunal has jurisdiction to determine whether the Rouse Hill catchment is a DWS. The word ‘whether’, as it appears in subsection 6(2) of the Guidelines, reposes power in the Minister to determine that a catchment is, or is not, a DWS. The applicant cavils with the Department’s contention that it is not for the Minister, or the Tribunal on merits review, to go behind the Department’s DWS determination.

22. On the applicant’s construction of subsection 6(2) of the Guidelines, the Tribunal is required to consider whether a catchment is a DWS by applying the defined formulae in the Guidelines. The applicant submits that simply because the Department uses a standard operating procedure in making the DWS determination, it does not follow that the Tribunal is bound by that procedure. Making that determination is critical to the substantive issues in this application.

23. Flowing from that submission, the applicant submits that an anterior step to the issuing of the summons is for the Tribunal to order the Respondent to produce documents relevant to the Department’s calculations pursuant to section 37 of the AAT Act.

    CONSIDERATION

    Is the information sought relevant to the issues in dispute?

24. It must be common ground that the question whether the Rouse Hill – McGraths Hill catchment is a DWS is a primary consideration and that the area has not been so classified. In essence, the applicant seeks in the summons information relevant to challenging the classification of the area as not a DWS.

25. A key reason for the applicant being refused a subsection 19AB(3) exemption is that Rouse Hill Radiology is not located in a DWS for diagnostic radiology, which is a primary consideration for the grant of an exemption as provided by the Guidelines.

26. The applicant submits that the documents are relevant to the proceedings as they relate to whether the Rouse Hill Radiology site is located within a DWS. The applicant submits that the Tribunal has jurisdiction to consider whether the Rouse Hill catchment, in which Rouse Hill Radiology is located, is a DWS. The Department submits that this question is not reviewable by the Tribunal.

27. The Tribunal is satisfied, based on the evidence provided by Mr Riley, that the process of identifying a particular geographical region as within a DWS depends on a two-step process. First, a region is identified based on ABS descriptors. Then, the Department determines whether the region so identified is a DWS, based on information held by the Department.

28. I emphasise Mr Riley’s statement that:

    The Department choses [sic] to apply SA3 and does so consistently across all DWS areas in Australia. There is no other discretion exercised by the Department when determining the SA3 boundary. It simply applies the SA3 boundary set by the ASGS system as published by the ABS.

29. The Tribunal is not engaged to dispute the choice made by the Department in selecting SA3 as opposed to other standards.

30. To the extent that the summons relates to the Department’s decision to select the SA3 boundary as the relevant geographic area to which to apply the DWS standard, it falls outside the proper scope of the proceedings.

31. Note 1 in the definition of DWS in the Guidelines makes clear that the geographical area is determined by the Department. That determination is not a decision reviewable by the Tribunal in these proceedings.

32. Given the view that I take with regard to the relevance of the information sought, I do not need to consider the applicability of section 130 of the HIA and section 37 of the AAT Act. However, it is appropriate to make further comment on the nature of the discretion to be ultimately exercised by the Tribunal in deciding the substantive issues in this application.

    The relevance of DWS input data

1. At the hearing on 15 March, the Tribunal expressed a view that the raw data may be relevant to the extent that it assists the Tribunal in according the appropriate weight to the primary consideration in subsection 6(2) of the Guidelines. For example, there may be a scenario where a catchment area is determined not to be a DWS, however, the calculations show that it falls short of that determination by a slim margin. The Tribunal may consider that relevant in weighing the primary consideration under the Guidelines.

2. Dr Hilly submitted that the proper construction of the Guidelines is that the subsection 19AB(3) exemption is only granted where the service location is not in a DWS in exceptional circumstances. The primary consideration of whether the services are rendered in a DWS does not lend itself to a weighing exercise. Dr Hilly submitted that, as a practical matter, the task of the Tribunal is not to consider how close a catchment area is to a DWS determination. Dr Hilly fairly points to difficulties for the Tribunal in determining where the line is in considering how close a catchment area is to a DWS determination.

3. However, I do not accept the construction of the primary consideration advanced on behalf of the Department. It is arguable that the weight to be given to the primary consideration (that a geographic region is not a DWS) may be affected by a finding that although it is properly not classified as a DWS, it falls close to the line based on the raw input data. The evident purpose of the Guidelines more broadly is to enable the Minister grant a subsection 19AB(3) exemption in circumstances where a service is provided in an area of need, geographic or otherwise.

4. The relevance argument, at its highest, is that in these proceedings seeking merits review of a discretionary decision made in applying the Guidelines, the information relied upon by the Department in determining that an identified region is a DWS, is relevant to the review.

5. The determination involves:

   The number of specialists multiplied by the average FSE for specialists in that specialty in that area, per person in the geographical area, is less than the current national average for that specialty.

6. The input factors are:

   (a)The number of specialist radiologists

   (b)The average FSE for such specialists

   (c)The number of persons in the geographical area

   (d)The current national average for that specialty

7. Although the summons in its present form is too wide in scope, a summons directed to obtaining the raw input data (e.g., number of specialist radiologists, average FSE, number of persons in the region, and current national average) would I think fall within scope. Such information may be relevant to the weight that the Tribunal ought to attach to the primary consideration.

8. A finding that the service location is not in a DWS, but that the area falls just short when applying the raw input data, would seem to me, arguably, to fall within scope. On this view, the prohibition in subsection 130(1) of the HIA would not apply to the disclosure of the input data mentioned above.

   CONCLUSION

9. The summons issued on 8 November 2023 is set aside.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of

.............[SGD]...........................................................

Associate

Dated: 2 April 2024

Dates of hearing:	7 February and 15 March 2024
Solicitors for the Applicant:	Mr L. Leerdam, Keypoint Law
Solicitors for the Respondent:	Ms R. Pattison, King & Wood Mallesons
Counsel for the Summonsed Party:	Dr L. Hilly
Solicitors for the Summonsed Party:	King & Wood Mallesons