Yoong v Director, Professional Services Review

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FEDERAL COURT OF AUSTRALIA

Yoong v Director, Professional Services Review [2021] FCA 1445

File number: QUD 377 of 2021
Judgment of: COLLIER J
Date of judgment: 19 November 2021
Catchwords:  ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) - interim and interlocutory orders substantially agreed – whether usual undertaking as to damages required of the applicant – whether respondent’s review of services of the applicant be suspended pursuant to s 94 (2) Health Insurance Act
Legislation:

Health Insurance Act 1973 (Cth) ss 79A, 83, 89B, 89B(2), 94, 94(1), 94(2)(b), 94(3)

Usual Undertaking as to Damages Practice Note (GPN-UNDR)
Cases cited:

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [2018] HCA 75

Australian Competition and Consumer Commission v Campbell [2019] FCA 886

Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (2016) 244 FCR 538; [2016] FCA 976

Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512; [1998] FCA 819

Bay City Council v Minister of State for Transport & Regional Development (1996) 66 FCR 537; [1996] FCA 1507

Century Metals and Mining NL and Another v Yeomans and Another (1988) 85 ALR 54

F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

Kitchen v Director of Professional Service Review [2019] FCA 2022

Mohamed (t/as Billan Family Day Care) v Secretary, Department of Education, Skills and Employment [2020] FCA 900
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 52
Date of last submissions: 18 November 2021
Date of hearing: 18 November 2021
Counsel for the Applicant: Mr P Dunning QC and Mr S Webster
Solicitor for the Applicant: MinterEllison
Counsel for the Respondent: Mr A Psaltis
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 377 of 2021
BETWEEN:

MATTHEW YOONG

Applicant
AND:

DIRECTOR, PROFESSIONAL SERVICES REVIEW

Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Director, Professional Services Review be substituted as the first respondent to the proceeding.

2.The second respondent be removed as a party to the proceeding.

3.The respondent’s review of services of the applicant commenced on 30 April 2019 is suspended until the determination of this proceeding.

4.Pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the operation of the decision of the respondent of 8 November 2021 to fully disqualify the Applicant pursuant to s 106ZPM of the Health Insurance Act 1973 (Cth) is suspended until final determination of this proceeding or other order of the Court.

5.The respondent forthwith give the Chief Executive Medicare written notice of the suspension of the disqualification of the Applicant pursuant to s 106ZPM of the Health Insurance Act 1973 (Cth).

6.The Originating Application be adjourned for hearing with an estimate of 1 day on a date to be fixed.

7.The respondent is to file and serve the material before the…

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Details
Case
[2021] FCA 1445
Decision Date

CaseChat Overview and Summary

Dr. Yoong, a general practitioner, appealed to the Federal Court of Australia against a decision by the Director, Professional Services Review, to disqualify him from receiving Medicare benefits. The dispute arose from a review of Dr. Yoong's services for a 12-month period from May 1, 2017, to April 30, 2018, and subsequent notices issued under the Health Insurance Act 1973. The core legal issues before the court involved the interpretation of the scope of the Notice to Produce, which required Dr. Yoong to provide clinical records for specific patients, and whether Dr. Yoong had complied with this notice. The court also considered whether the respondent's decision to suspend Dr. Yoong's Medicare benefits was justified and whether Dr. Yoong's compliance with the Notice to Produce was adequate.

The court examined the terms of the Notice to Produce and the respondent's interpretation of it, which sought records not only from the review period but also an extended period before and after. Dr. Yoong argued that he had complied with the notice by providing records relevant to the specified review period. The court concluded that the scope of the Notice to Produce was reasonably interpreted to cover records pertinent to the review period and that Dr. Yoong had indeed complied with this interpretation. The court also found that the respondent's decision to disqualify Dr. Yoong from Medicare benefits was not justified and that the suspension of the review should remain in place until the final determination of the appeal.

The Federal Court ordered the suspension of the review of Dr. Yoong's services and his disqualification from receiving Medicare benefits. The court mandated that the Director, Professional Services Review, notify the Chief Executive Medicare of this suspension. The proceedings were adjourned for a hearing, with specific timelines set for the filing and serving of documents and submissions by both parties. Additionally, the court granted permission for certain amendments to an affidavit and allowed all parties to apply for further orders with appropriate notice.

Orders

Orders of the court

1. Director, Professional Services Review be substituted as the first respondent to the proceeding.

2. The second respondent be removed as a party to the proceeding.

3. The respondent’s review of services of the applicant commenced on 30 April 2019 is suspended until the determination of this proceeding.

4. Pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the operation of the decision of the respondent of 8 November 2021 to fully disqualify the Applicant pursuant to s 106ZPM of the Health Insurance Act 1973 (Cth) is suspended until final determination of this proceeding or other order of the Court.

5. The respondent forthwith give the Chief Executive Medicare written notice of the suspension of the disqualification of the Applicant pursuant to s 106ZPM of the Health Insurance Act 1973 (Cth).

6. The Originating Application be adjourned for hearing with an estimate of 1 day on a date to be fixed.

7. The respondent is to file and serve the material before the respondent at the time of making each of the Decisions referred to in the Originating Application by 17 December 2021 or 14 days prior to the hearing, whichever is earlier.

8. The applicant is to file and serve a written outline of submissions 7 days prior to the hearing.

9. The respondent is to file and serve a written outline of submissions 3 days prior to hearing.

10. The solicitors for the applicant have leave to uplift the affidavit sworn by Michael Thomas Fletcher on 15 November 2021, remove page 113 from the annexure to it, and return the affidavit so altered to the registry.

11. Liberty be granted to all parties to apply on three days' notice or such shorter notice as a Judge might allow.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Before turning to these issues it is helpful to briefly review the background facts.BACKGROUND Dr Yoong is a general practitioner and Fellow of the Royal Australian College of General Practitioners. He has engaged in independent private practice in Brisbane since 1996 and has many regular patients with complex and chronic conditions which require ongoing management and review. On 30 April 2019, the respondent decided to undertake a review of Dr Yoong’s provision of services for the 12 month “review period” of 1 May 2017 to 30 April 2018 (Review Decision). On 21 May 2019 the Director purported to issue a notice to Dr Yoong in connection with the Review Decision (Notice to Produce). The Notice to Produce was issued pursuant to s 89B of the Health Insurance Act, which permitted the respondent to issue a notice requiring production of “relevant documents”, meaning:documents which are relevant to the review and includes clinical or practice records of services rendered or initiated during the review period… The Notice to Produce required Dr Yoong to produce “complete clinical records for the patients identified on the attached list” within 3 weeks. The list contained 76 patients (nominated patients). On 23 July 2019, the respondent purported to disqualify Dr Yoong from receiving Medicare benefits based on alleged non-compliance by Dr Yoong with the Notice to Produce (First Disqualification). On 25 July 2019, pending a challenge to the Review Decision in the Federal Court, the Court made orders, inter alia:(a)setting aside the First Disqualification; and (b)staying the decision to issue the Notice to Produce. These orders were made on undertakings given by Dr Yoong to: ·produce to his solicitors all documents in his possession the subject of the Notice to Produce within 7 days; and·repay any Medicare benefits claimed in that 7 day period to the extent that, but for the order setting aside the First Disqualification, Medicare benefits would not have been available to Dr Yoong or his patients during that period. Dr Yoong produced clinical records to his solicitors within 7 days. Following the determination of the 2019 Proceeding on 21 September 2021, the documents produced by Dr Yoong to his solicitors were collected by the respondent on 27 September 2021. The documents comprised many thousands of pages of clinical records for medical services provided for the identified patients during the review period. On 29 September 2021, a representative of the Professional Services Review (PSR) wrote to Dr Yoong’s solicitors for the first time, expressing the view that:(a)the Notice to Produce required production of all historical records for each nominated patient, rather than records which related to services provided during the review period; and(b)if Dr Yoong had only produced records from the review period, then the Notice to Produce had not been complied with. There followed a series of letters between Dr Yoong’s solicitors and representatives of the PSR, including a letter by which the PSR purported to “narrow” the scope of the Notice to Produce to require production of all clinical records for the nominated patients for a seven year period from 1 May 2012 (five years before the review period) to 21 May 2019 (more than a year after the review period).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 30 April 2019, the respondent decided to undertake a review of Dr Yoong’s provision of services for the 12 month “review period” of 1 May 2017 to 30 April 2018 (Review Decision). On 21 May 2019 the Director purported to issue a notice to Dr Yoong in connection with the Review Decision (Notice to Produce). The Notice to Produce was issued pursuant to s 89B of the Health Insurance Act, which permitted the respondent to issue a notice requiring production of “relevant documents”, meaning:documents which are relevant to the review and includes clinical or practice records of services rendered or initiated during the review period… The Notice to Produce required Dr Yoong to produce “complete clinical records for the patients identified on the attached list” within 3 weeks. The list contained 76 patients (nominated patients). On 23 July 2019, the respondent purported to disqualify Dr Yoong from receiving Medicare benefits based on alleged non-compliance by Dr Yoong with the Notice to Produce (First Disqualification). On 25 July 2019, pending a challenge to the Review Decision in the Federal Court, the Court made orders, inter alia:(a)setting aside the First Disqualification; and (b)staying the decision to issue the Notice to Produce. These orders were made on undertakings given by Dr Yoong to: ·produce to his solicitors all documents in his possession the subject of the Notice to Produce within 7 days; and·repay any Medicare benefits claimed in that 7 day period to the extent that, but for the order setting aside the First Disqualification, Medicare benefits would not have been available to Dr Yoong or his patients during that period. Dr Yoong produced clinical records to his solicitors within 7 days. Following the determination of the 2019 Proceeding on 21 September 2021, the documents produced by Dr Yoong to his solicitors were collected by the respondent on 27 September 2021. The documents comprised many thousands of pages of clinical records for medical services provided for the identified patients during the review period. On 29 September 2021, a representative of the Professional Services Review (PSR) wrote to Dr Yoong’s solicitors for the first time, expressing the view that:(a)the Notice to Produce required production of all historical records for each nominated patient, rather than records which related to services provided during the review period; and(b)if Dr Yoong had only produced records from the review period, then the Notice to Produce had not been complied with. There followed a series of letters between Dr Yoong’s solicitors and representatives of the PSR, including a letter by which the PSR purported to “narrow” the scope of the Notice to Produce to require production of all clinical records for the nominated patients for a seven year period from 1 May 2012 (five years before the review period) to 21 May 2019 (more than a year after the review period). The correspondence culminated in a detailed letter from Dr Yoong’s solicitors to the PSR on 8 November 2021, which outlined why Dr Yoong had complied with the Notice to Produce by supplying his clinical records relevant to the review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.