Report on performance
Decisions of the Federal Court and Full Federal Court
Full copies of Federal and Full Federal Court decisions are available on the PSR website at <www.psr.gov.au>.
Dr Anthony Joseph Medical Practitioner, Lithgow NSW
Medicare Australia referred Dr Joseph to the Director of PSR on 7 August 2000 because it was concerned about his rendered services and daily servicing, services per patient, home visits, family servicing, initiation of pathology and diagnostic imaging, and prescribing under the PBS. During 1999 he provided 17 660 services to 1846 patients at a total Medicare benefit of $417 777. This included 5221 standard surgery consultations (MBS item 53) and 11 808 standard home visits (MBS item 59). He rendered 60 or more services on 131 days.
A committee was established on 21 March 2001. Following investigations using sampling methodology, the committee reported that 70 per cent of Dr Joseph's MBS item 53 services and 86 per cent of the item 59 services involved conduct which would be unacceptable to the general body of medical practitioners.
On 23 July 2001 the committee informed the Director pursuant to section 106XA of the Act that it had become evident during the hearing that Dr Joseph had provided medication to at least two patients without seeing them. On 25 July 2001 the Director referred this information to the Medical Practitioners Board of New South Wales. In July 2004, Dr Joseph removed his name from the New South Wales register of medical practitioners.
For the MBS item 53 services, the reasons for finding inappropriate practice included failure to take an adequate history and make an adequate examination of his patients; inadequate clinical input; lacking knowledge of the proper management of a range of medical conditions; prescribing drugs (including antibiotics, benzodiazepines, narcotics and codeine containing analgesics) where they were not clinically indicated and despite evidence of undesirable side effects or interactions; and keeping medical records that were deficient in essential clinical information.
For the MBS item 59 services, the reasons included rendering home visits that were not medically necessary; keeping medical records deficient in essential clinical information; inadequate clinical input; prescribing drugs (including antibiotics, benzodiazepines, narcotics and codeine containing analgesics) where they were not clinically indicated; facilitating drug dependence in a patient; lacking knowledge of the circumstances in which benzodiazepines can be safely prescribed; failing to appreciate the side effects and interactions between drugs; and lacking knowledge of the natural history and proper management of influenza. The committee report was sent to the Determining Authority.
The Determining Authority directed that Dr Joseph be reprimanded, be counselled, repay Medicare benefits totalling $267 999.47, and be fully disqualified from Medicare arrangements for three years. On 3 September 2004, Dr Joseph applied to the Federal Court for a review of the determination.
On 29 July 2005 the Federal Court dismissed Dr Joseph's appeal. It held that the committee had correctly identified him as a medical practitioner and had correctly tested whether his conduct would be unacceptable to the general body of medical practitioners; the committee had not incorrectly relied on its own expertise as against that of the general body of medical practitioners in relation to the adequacy of medical records; the committee had noted Dr Joseph's inability to recall certain services not as itself evidence of unacceptable conduct but because of the lack of evidence direct from him as to what had occurred; and it was open to the committee to infer, on the evidence, that Dr Joseph undertook (some) home visits as a matter of routine rather than medical necessity.
No evidence was called to support a submission that certain committee conclusions concerning the prescribing of particular drugs were irrational. There was no reason to believe that the sampling did not accord with the requirements of the Act. The Determining Authority appeared to have taken (only) the relevant important considerations into account and, indeed, had reduced the repayment on account of Dr Joseph's circumstances.
The final determination took effect on 2 September 2005.
Dr John William Mathews General Practitioner, Campbelltown NSW
On 14 December 2000, Medicare Australia referred Dr Mathews because it was concerned about his volume of rendered services, daily servicing, level B home visits and prescribing under the PBS. During 1999 he provided 14 277 services to 2457 patients at a total Medicare benefit of $364 893. His total services were above the 98th percentile of all general practitioners in Australia and included 8947 level B surgery consultations (item 23), 467 level C surgery consultations (item 36), 2406 level B home visits (item 24)-which was above the 99th percentile, 1366 acupunctures with professional attendances (item 193), and he issued 2264 prescriptions for drugs with a high risk of dependency. He rendered 60 or more services on 130 days.
On 14 September 2001, a Committee was established. Following investigations using sampling methodology, it found that all of Dr Mathews' item 23, item 24, and item 193 services that it examined involved conduct that would be unacceptable to the general body of general practitioners. The reported proportions were, however, reduced to 90 per cent in each case as required by the sampling methodology.
For items 23 and 24, the reasons for finding inappropriate practice were, in general, that Dr Mathews failed to provide adequate clinical input into the services by not taking an adequate history, not making an adequate physical examination and not formulating an adequate management plan. He was also found to have prescribed drugs without sufficient clinical indications (for example, antibiotics for viral infections) and to have kept records that were deficient in essential clinical information.
For item 193 (acupuncture), the committee's reasons for finding inappropriate practice were, in general, that Dr Mathews' failed to conform to the item descriptor in the MBS and that he kept records that were deficient in essential clinical information. In particular, there was often no evidence of a selective history, examination of the patient or a management plan. The nature of the condition being treated was usually not documented and in all cases there was no record of the planned duration of the course of treatment, the acupuncture points used and the patients' responses to treatment. About 50 per cent of the services should have been itemised as only item 173 (acupuncture without a professional attendance).
Dr Mathews has made three applications to the Federal Court in relation to these investigations. Because of this litigation, the Determining Authority has not yet considered the committee's final report.
First, Dr Mathews sought discovery (that is, production to him) of committee documents and of Medicare Australia and PSR Director files. Edmonds J refused this request on 2 August 2005 on the grounds of prior production, irrelevance and statutory immunity for the committee.
Second, Dr Mathews challenged aspects of the statistical sampling procedure the committee used. The procedure required that an 'exploratory sample' of 30 services be 'randomly drawn from the preliminary random sample'. The committee had simply taken the first 30 of the services in the preliminary random sample. Both the applicant and the respondents had agreed that, in these circumstances, the exploratory sample was also a random sample from the class of services.
However, Edmonds J held on 10 March 2006 that the committee had not complied with the clear procedural requirement and its finding was therefore invalid. All other aspects of Dr Mathews' challenge were dismissed or did not need to be decided. His Honour ordered that a differently constituted committee reconsider the referral.
Dr Mathews' third application to the Court resulted, on 28 April 2006, in clarification of the wording of that order.
Dr Peter Thomas Tisdall General Practitioner, Kyabram Vic.
Medicare Australia referred Dr Tisdall on 2 September 1997 because it was concerned about his high total services, services per patient, and prescribing during 1996. During 1996 he provided a total of 27 686 services (well above the 99th percentile for all active general practitioners in Australia) for a total Medicare benefit of $625 303. He provided 81-100 services on 116 days, 101-120 services on 81 days, and 120-140 services on 11 days. He prescribed 35 065 PBS items at a total cost of $470 561, including high numbers of codeine compounds and other sensitive drugs. He averaged 6.35 services per patient (above the 97th percentile for all active general practitioners in Australia).
After committee hearings punctuated by earlier Federal Court proceedings, a Determination by the Determining Officer was reviewed and slightly varied by the PSR Tribunal. Further details are on pages 50-51 of the PSR Annual Report 2004-05.
On 7 September 2005 the Full Federal Court dismissed Dr Tisdall's appeal against the Tribunal's direction that he be reprimanded, counselled, repay Medicare benefits totalling $138 594.15, be fully disqualified from Medicare arrangements for one year and be partially disqualified for two years. The Court held that the committee had not denied Dr Tisdall procedural fairness in its consideration of certain specialist affidavits, that it made no error of law in taking account of the insufficiency of many of Dr Tisdall's clinical notes, and that it made no error of law in considering his evidence of his 'usual practice'.
In an addendum dated 29 September 2005, the Full Court ordered that Dr Tisdall indemnify the respondent Determining Officer and PSR Tribunal for all their reasonable legal costs. This was because the grounds he pursued were of so little merit that he should have appreciated they had no chance of success.
On 5 October 2005 Dr Tisdall applied to the High Court of Australia for special leave to appeal the Full Federal Court decision. On 13 December 2005 he voluntarily withdrew that application and the Tribunal's determination came into effect on 15 December 2005-almost 10 years after the services under review were actually rendered.
Costs have been awarded against Dr Tisdall in the order of $180 000. This case illustrates how long the PSR process may be delayed by resort to repeated appeals on very weak grounds. The award of indemnity costs may have some deterrence effect on similar actions.
Dr Zelco Oreb Medical Practitioner, Newtown NSW
Medicare Australia referred Dr Oreb on 13 December 2001 because he had rendered 80 or more professional attendances per day on 33 occasions between 24 January and 8 August 2000. A committee was appointed and reported on 8 November 2002 that Dr Oreb had engaged in inappropriate practice in rendering a prescribed pattern of services where no exceptional circumstances existed. The committee did not accept Dr Oreb's claim of 'exceptional circumstances' based on high patient demand, ethnicity and language issues, lack of alternative medical services, and his work patterns.
Dr Oreb appealed to the Federal Court on 10 December 2002 on whether exceptional circumstances existed, on the validity of the investigative and adjudicative referrals, and on constitutional grounds. Jacobson J decided that the constitutional grounds should be considered separately. This issue remains unresolved pending its consideration by the High Court and the Federal Court in two other cases (Dimian and Wong in the High Court and Selim in the Full Court of the Federal Court).
On 30 November 2004 Jacobson J found against Dr Oreb on all his non-constitutional grounds except the proper interpretation of 'exceptional circumstances'. Regarding the latter, his Honour considered that the committee had wrongly concluded that it would be difficult to justify exceptional circumstances on an ongoing basis. The Director was ordered to consider whether a fresh referral should be made to a differently constituted committee. Further details are on pages 51-52 of the PSR Annual Report 2004-05.
Dr Oreb appealed to the Full Federal Court on the Director's alleged failure to consider a section 92 agreement with him (to concede inappropriate practice, accept sanctions and conclude the matter) and on constitutional grounds. PSR cross-appealed on the exceptional circumstances issue. On 16 September 2005 the Full Court dismissed the appeal re section 92. The cross-appeal was dismissed on different grounds.
Lander J held that the investigative referral was valid. The appearance of a prescribed pattern of services was alone sufficient reason for a referral, though other relevant facts, if any, should also be considered. Here, there was no evidence that a relevant matter had been overlooked: prior counselling could be a reason for making a referral; and improved subsequent practice could be relevant to a determination, but not relevant to whether to inquire into a practitioner's conduct.
His Honour also held that the adjudicative referral was valid. There was no evidence that the Director erroneously treated the referral procedure for a prescribed pattern of services as different from other bases for referral. Nor was the Director obliged to consider whether there was any other kind of inappropriate practice by Dr Oreb. Further, prior counselling and practice improvement did not preclude making an adjudicative referral.
Finally, the Director had brought the option of a section 92 agreement to Dr Oreb's attention. In the circumstances he was not obliged to do more.
Lander J then addressed the issue of exceptional circumstances in some detail. He held that the committee had wrongly concluded that 'exceptional circumstances' required 'episodic events' and that it was irrelevant whether the circumstances were foreseeable. Further, it was only necessary that those circumstances affected the provision of services-they need not be the sole or dominant affect. Importantly, his Honour held that practice management was irrelevant once it was established that exceptional circumstances affected the provision of services on the relevant days. It was also irrelevant whether the circumstances were foreseeable.
Lander J distinguished the operation of PSR regulation 11, which deemed certain circumstances to be exceptional, namely (a) an unusual occurrence causing an unusual level of need for services or (b) an absence of other services for the practitioner's patients during the period of the prescribed pattern of services having regard both to the location of the practice and to characteristics of the patients.
As Dr Oreb was clearly relying on regulation 11(b) he did not need to establish that the circumstances were exceptional, but only that they fell within the terms of that regulation. Foreseeability and practice management were irrelevant. The referral should be returned to the committee to reconsider accordingly.
Black CJ and Wilcox J considered that the committee's interpretation of 'exceptional circumstances' was acceptable. However, regulation 11(b) was also relevant and in that situation practice management issues would be irrelevant (though a causal connection with provision of the relevant services would still be necessary). Whilst Dr Oreb had not explicitly raised this regulation, some evidence might have supported its application. It was not clear whether the committee had considered the regulation, but if so it had wrongly also taken practice management issues into account. Either way, the matter needed to be reconsidered by the committee according to law.
All three judges agreed that the referral could go back to the original committee as there was no evidence of bias-it had merely misconstrued the legislation. The committee began reconsidering the matter in January 2006.
Dr Ashraf Selim General Practitioner, Punchbowl NSW
Medicare Australia referred Dr Selim on 18 December 2001 because it was concerned about his rendered services and daily servicing during 2000. That year he rendered 17 051 services to 4964 patients at a total Medicare benefit of $393 315. His total services were above the 99th percentile of all active general practitioners in Australia.
A committee was established and produced a final report in which it stated that Dr Selim had engaged in inappropriate practice. Dr Selim appealed to the Federal Court before any determination had been made. On 7 February 2005 Jacobson J dismissed that appeal in relation to all grounds except a constitutional issue (which was to be separately adjudicated). Further details are on page 55 of the PSR Annual Report 2004-05.
Dr Selim's constitutional claim was that the PSR scheme contravened the ban on civil conscription in provision of medical services. On 23 February 2006, Stone J dismissed the constitutional challenge. Her Honour accepted that the disadvantages of operating outside the Medicare scheme imposed a practical, if not legal, compulsion to participate. But the possibility of hardship to a particular practitioner could not affect the constitutional validity of the PSR scheme.
After considering the only two High Court decisions regarding civil conscription in the medical area, her Honour concluded that the PSR scheme was valid because it did not compel provision of medical services (either legally or practically)-rather, its purpose was to prevent inappropriate practice, and this was incidental to the power to provide medical services.
It was true that the concept of inappropriate practice was capable of going to the heart of medical services rather than merely ancillary aspects. Nevertheless, her Honour did not accept that a constitutional provision that empowered the Commonwealth to provide medical services at the same time prohibited it from imposing standards integral to the responsible provision of medical services.
Dr Selim has appealed this decision to the Full Federal Court. Any hearing on this appeal has been adjourned pending the outcome of the application to the High Court in the Dimian and Wong cases.
Dr Rifaat Dimian Medical Practitioner, Merrylands NSW
Medicare Australia referred Dr Dimian on 17 May 2000 because it was concerned that he may have engaged in inappropriate practice through high daily servicing and a high volume of rendered services between 1 July 1998 and 30 June 1999 inclusive (19 870 services, above the 99th percentile, for Medicare benefits of $379 838). The Director conducted a review and decided a committee should further investigate Dr Dimian's conduct. A committee was established and reported that Dr Dimian had engaged in inappropriate practice, largely because of lack of clinical input into, and poor clinical records of, services.
Dr Dimian appealed to the Federal Court on constitutional grounds, alleging failure to offer a section 92 agreement, and lack of procedural fairness in preparation of the committee report through failure to warn him that his credibility was an issue. The constitutional issue is yet to be decided. On 8 December 2004, Jacobson J dismissed the appeal on the other grounds. Further details are on page 54 of the PSR Annual Report 2004-05.
On 5 February 2004 Dr Dimian appealed to the Full Federal Court on the section 92 issue only. On 16 September 2005, the Full Court dismissed this appeal-essentially confirming the basis of Jacobson J's decision. Section 92 permitted, but did not oblige, the Director to offer a section 92 agreement. The Director had informed Dr Dimian of the section 92 possibility in a letter dated 19 May 2000, which also included a relevant brochure. Dr Dimian's reply had made no suggestion that he was interested in such an agreement.
On 3 May 2006 Dr Dimian (along with Dr Kenneth Wong) filed a Writ of Summons in the High Court in which they claim that various provisions of the Act:
- as a practical matter, compel general practitioners to participate in the Medicare scheme in order to carry on practice as a general practitioner
- amount to 'civil conscription' within the meaning of section 51(xxiiiA) of the Constitution, and
- are outside the legislative powers of the Commonwealth and are invalid.
The plaintiffs also claimed that, contrary to section 71 of the Constitution, section 106U of the Act (content of draft and final determinations) purports to confer part of the judicial power of the Commonwealth on people who have not been appointed pursuant to section 72 of the Constitution and is invalid.
The High Court is yet to decide this matter.
Dr Kenneth Wong General Practitioner, Merrylands NSW
Medicare Australia referred Dr Wong on 10 May 2001 because it was concerned about his rendered services and daily servicing. During 1 July 2000 to 30 June 2001 he provided 20 438 services to 6073 patients at a total Medicare benefit of $479 006. His total services were above the 99th percentile for all active general practitioners in Australia and included 18 021 level B surgery consultations (item 23), 455 level C surgery consultations (item 36) and 986 acupuncture consultations (item 173). He rendered 80 or more services per day on 63 occasions.
A committee was established on 6 September 2002. Following investigations using sampling methodology, it reported on 13 January 2004 that 45 per cent of Dr Wong's MBS item 23 services involved conduct which would be unacceptable to the general body of general practitioners because he failed to provide adequate clinical input and/or provided services that were not clinically necessary.
The Determining Authority has not yet made a determination because, on 11 February 2004, Dr Wong applied to the Federal Court. He argued that the Director's adjudicative referral, and therefore the committee report, was invalid because the Director had failed to properly consider and offer an agreement with Dr Wong under section 92. On 3 December 2004, Jacobson J made a consent order that the outcome turn solely on the result of the appeal in Oreb v Willcock, which was decided on 16 September 2005.
That same day, Dr Wong asked the Court to vacate the consent order so he could add a new ground of appeal, namely that the committee had erroneously applied the sampling methodology-an issue first raised in Mathews v HIC (see the discussion in Mathews earlier in this chapter). Jacobson J refused this order, as Dr Wong knew all the relevant facts before he commenced his proceedings and when the consent orders were made. There was a public interest in the finality of proceedings. These proceedings could not be allowed to continue on indefinitely, a decision having been taken on 3 December 2004 that the outcome turned solely upon the result of the appeal in Oreb.
As indicated in the previous case, Dr Wong has, along with Dr Dimian, filed a Writ of Summons in the High Court claiming that various provisions of the Health Insurance Act 1973 are not within the Commonwealth's powers under the Constitution. Details of the claims made in that Writ of Summons are set out in the narrative of Dr Dimian's case.
Dr Il Song Lee General Practitioner, Eastwood NSW
Medicare Australia referred Dr Lee on 13 December 2001 because he had rendered 80 or more professional attendances per day on 37 occasions between 1 January and 25 September 2000, inclusive. A committee was appointed and reported on 18 August 2003 that Dr Lee had engaged in inappropriate practice in rendering a prescribed pattern of services. Dr Lee appealed to the Federal Court and on 7 February 2005 Jacobson J held that, whilst the Director had not made procedural errors, the committee had wrongly applied the 'exceptional circumstances' test. Constitutional issues were severed for separate hearing and are as yet not settled. Any hearing on this part of the appeal has been adjourned pending the outcome of the application to the High Court in the Dimian and Wong cases. Further details are on pages 56-57 of the PSR Annual Report 2004-05.
Dr Lee appealed to the Full Federal Court on the issue of a section 92 agreement and PSR cross-appealed on the 'exceptional circumstances' issue. The Court heard these appeals on 2 August 2005. On 16 September 2005 Dr Lee discontinued his section 92 appeal on the basis that each party bear its own costs. Regarding the cross-appeal by PSR, on 16 September 2005 the Court upheld Jacobson J's decision that the committee had wrongly focused only on whether exceptional circumstances existed in a general sense without considering the relevance of regulation 11(b). In particular, practice management issues were not relevant.
The committee should have considered:
- whether there was an absence of medical services for the medical practitioner's patients
- if so, whether this was as a result of the location of the medical practitioner's practice and the characteristics of the practitioner's patients
- whether that absence of medical services for those reasons occurred over the relevant period
- whether the absence of those medical services affected the rendering or initiating of services by the practitioner
- and finally, whether that occurred on a particular day or particular days which have been taken into account in determining the prescribed pattern of services in section 106KA(1).
The Full Court, agreed, however, that the referral should be reconsidered by the original committee according to the above principles.
Dr Il Song Lee General Practitioner, Eastwood NSW
Medicare Australia referred Dr Lee on 3 June 2002 because he had rendered 80 or more professional attendances per day on 37 occasions between 8 January and 12 October 2001, inclusive. A committee was appointed and reported on 10 April 2003 that Dr Lee had engaged in inappropriate practice in rendering a prescribed pattern of services. Dr Lee appealed to the Federal Court and on 7 February 2005 Jacobson J held that, whilst the Director had not made procedural errors, the committee had wrongly applied the 'exceptional circumstances' test. Constitutional issues were severed for separate hearing and are as yet not settled. Any hearing on this part of the appeal has been adjourned pending the outcome of the application to the High Court in the Dimian and Wong cases. Further details are on pages 55-56 of the PSR Annual Report 2004-05.
Dr Lee appealed to the Full Federal Court on the issue of a section 92 agreement and PSR cross-appealed on the 'exceptional circumstances' issue. The Court heard these appeals on 2 August 2005. On 16 September 2005 Dr Lee discontinued his section 92 appeal on the basis that each party bear its own costs. Regarding the cross-appeal by PSR, on 16 September 2005 the Court upheld Jacobson J's decision that the committee had wrongly focused only on whether exceptional circumstances existed in a general sense without considering the relevance of regulation 11(b). In particular, practice management issues were not relevant.
The committee should have considered:
- whether Dr Lee had, during the relevant period, rendered 80 or more professional services on 20 or more days
- whether Dr Lee relied on exceptional circumstances to reduce the number of days taken to have constituted engaging in a pattern of services which thereby constituted inappropriate practice
- whether Dr Lee was relying upon regulation 11(a) or 11(b) in relation to exceptional circumstances
- if relying upon regulation 11(b), whether there was an absence of medical services for the medical practitioner's patients
- if so, whether this was as a result of the location of the medical practitioner's practice and the characteristics of the practitioner's patients
- whether that absence of medical services for those reasons occurred over the relevant period
- whether the absence of those medical services affected the rendering or initiating of services by the practitioner
- and finally, whether that occurred on a particular day or particular days which have been taken into account in determining the prescribed pattern of services in section 106KA(1).
The Full Court, agreed, however, that the original committee should reconsider the referral according to the above principles.
Dr Donald Hatcher General Practitioner, Roma Qld
Medicare Australia referred Dr Hatcher on 13 December 2001 because he had rendered 80 or more professional attendances per day on 37 occasions between 1 January and 6 November 2000. A committee was appointed. It reported on 15 November 2002 that Dr Hatcher had engaged in inappropriate practice in rendering a prescribed pattern of services where no exceptional circumstances existed. On 15 May 2002 the Determining Authority determined that Dr Hatcher be reprimanded, counselled, repay $67 797, and be fully disqualified for four weeks. Dr Hatcher appealed to the Federal Court. On 30 November 2004, Kiefel J allowed the appeal in relation to the committee finding and directed that the Director consider whether a new committee should consider the referral. It followed that the determination also had to be set aside. Further details are on pages 53-54 of the PSR Annual Report 2004-05.
PSR appealed to the Full Federal Court. On 16 September 2005 the Full Court confirmed the earlier decision but agreed that the referral should be sent back to the original committee for reconsideration. Although one judge stated that the committee had correctly applied the general concept of 'exceptional circumstances' in this case, all three agreed that the committee had failed to consider the additional effect of regulation 11(b) and disallowed the appeal. The committee had, in that context, wrongly had regard to legally irrelevant practice management issues and to whether Dr Hatcher's workload was ongoing or intermittent. Wilcox J said, 'Under regulation 11(b), it is necessary for the Committee to focus on the patients' position, not the practitioner's method of working.'
On 16 December 2005 PSR was ordered to pay 90 per cent of Dr Hatcher's costs flowing from the Full Court action.
Dr Warren John Saint General Practitioner, Kwinana WA
Medicare Australia referred Dr Saint on 21 August 2000 because it was concerned about his rendered services and daily servicing. During 1999 he provided 18 675 services (above the 99th percentile for all active general practitioners in Australia) to 4 110 patients at a total Medicare benefit of $460 923. This included 13 833 level B surgery consultations (MBS item 23), 932 level C surgery consultations (item 36), and 1 208 level B nursing home consultations (item 35). He rendered 60 or more services per day on 176 occasions and 80 or more services per day on 44 occasions.
A committee was established on 18 May 2001. Following investigations using sampling methodology, it reported on 7 June 2004 that 20 per cent of Dr Saint's item 36 services involved conduct which would be unacceptable to the general body of general practitioners.
A determination has not been made by the Determining Authority pending resolution of an appeal by Dr Saint to the Federal Court on 5 July 2004. In those proceedings, Dr Saint sought discovery (that is, production to him) of a large number of documents of the Health Insurance Commission, the PSR Director and the committee. On 22 August 2005, French J ordered discovery of documents of an evidentiary character that were before the committee or considered by it in coming to its decision about Dr Saint. This included documents constituting submissions made to the committee on his behalf or by any other person, but not drafts of the committee's report prepared by officers for its assistance. Discovery of all other documents was refused, mainly on grounds of irrelevance. His Honour noted, in particular, that working documents of the committee would not be discoverable as its members had, under section 106F of the Act, the same protection and immunity as a Justice of the High Court.
Meanwhile, commencing on 13 March 2005, Dr Saint made a number of requests under the Freedom of Information Act 1982 for a wide range of documents relating to the committee and its investigation of his referral-including relevant correspondence with the Director and Medicare Australia and relevant policies and guidelines. PSR provided copies of most documents, but exemptions were claimed for some under section 36 (internal working documents), section 40(1)(d) (adverse effect on the proper and efficient conduct of the operations of an agency) and section 42 (legal professional privilege) of the Freedom of Information Act 1982. The protection of committee deliberations under section 106ZR of the Health Insurance Act 1973 was relied upon to support the public interest argument in relation to the claim for exemption under section 36 of the Freedom of Information Act 1982. Dr Saint applied to the Administrative Appeals Tribunal seeking review of PSR's decision not to release certain documents. The matter was heard on 12 May 2006 and a decision is awaited.
Dr Ameen Ahmed Bham Medical Practitioner, Morley, Balga, Yokine and Beechboro WA
Medicare Australia referred Dr Bham on 28 June 2000 because it was concerned about his rendered services and daily servicing. During 1999 he provided 17 103 services (above the 99th percentile for all active general practitioners in Australia) to 11 349 patients at a total Medicare benefit of $332 218. This included 14 993 standard surgery consultations (MBS item 53) and 1280 long surgery consultations (item 54). He rendered 60 or more services per day on 138 occasions and 80 or more services per day on 33 occasions.
A committee was established on 21 March 2001 and commenced investigations using sampling methodology.
On 10 September 2002 the committee informed the Director, pursuant to section 106XA of the Act, that during the hearing it had concluded that Dr Bham's conduct during 1999 caused a significant threat to the life or health of his patients. The committee's reasons reflected its final findings, mentioned below. On 17 September 2002 the Director referred this information to the Medical Board of Western Australia.
The committee reported, on 27 May 2004, that:
- 66 per cent of Dr Bham's item 54 services at Morely Medical Centre
- 77 per cent of Dr Bham's item 54 services at Beechboro Family Practice
- 90 per cent of Dr Bham's item 11506 services (bronchospirometry with recorded trace before and after bronchodilation), and
- 45 per cent of Dr Bham's item 11700 services (12-lead electrocardiography, tracing and report)
involved conduct that would be unacceptable to the general body of general practitioners.
Item 54 services were unacceptable because of insufficient clinical content to warrant the claimed time, poor management of some common conditions including chest pain and asthma, and some included time was not spent with the patient, was for procedural items, or was for aftercare.
Item 11506 services (bronchospirometry) were unacceptable because Dr Bham failed to test both before and after bronchodilation, failed to keep the tracing, used the test instead of taking histories, and/or used the test to assess asthma and other illnesses despite lacking the knowledge to interpret the reports.
Item 11700 services (12-lead electrocardiography, tracing and report) were unacceptable because Dr Bham used the test when it was not clinically indicated and/or instead of history taking and physical examination.
On 13 January 2005, the Determining Authority directed that Dr Bham be reprimanded, counselled, repay Medicare benefits totalling $28 428, and be fully disqualified for two months and partially disqualified for 12 months.
On 10 February 2005, Dr Bham applied to the Federal Court for review of the determination. On 27 May 2005, in the context of those proceedings, solicitors for Dr Bham made a Freedom of Information request for copies of internal memoranda between the PSR committee and the then Director. Access to all documents was provided on 27 June 2005.
On 30 September 2005 Dr Bham sought to amend his application to also challenge the committee's findings and to add the committee and the Director as respondents.
On 18 May 2006, Siopis J refused Dr Bham permission to amend because the amending application was well out of time. His Honour also noted that Dr Bham had had access to legal advice at relevant times, had not taken all earlier opportunities to challenge the final committee report, and had accepted some of the draft determination.
Siopis J concluded that, on the evidence, Dr Bham's chances of eventual success were not strong, there did not seem to be a failure to accord natural justice, retrospective legislation had removed a possible argument that the referral was invalid (in contrast to the Pradhan decision), the 14-month delay was much greater than the 28-day period allowed by section 106L of the Act before the final committee report could be sent to the Determining Authority, and there was a public interest in finalising proceedings.
Final orders dismissing the Court proceedings by consent were made on 6 June 2006. The final determination took effect on 11 July 2006.
Dr John Warren Piesse General Practitioner, Kew Vic.
Medicare Australia referred Dr Piesse on 18 December 2001 because it was concerned about his level of long and prolonged consultations and of pathology requests during 2000. That year he rendered 2 137 services to 707 patients at a total Medicare benefit of $87 570. His 1127 level C and long consultations (items 36 and 54) were 53 per cent of his total consultations, compared with 9.94 per cent for all active general practitioners in Australia. His 530 level D and prolonged consultations (items 44 and 57) were 25 per cent of his total consultations, compared with 0.95 per cent for all active general practitioners in Australia. His 134 pathology requests for leucocyte antigens (item 71139) and his 42 requests for quantitation of metals (item 66668) were both above the 99th percentile (seven and eight such requests, respectively) for all active general practitioners in Australia.
A committee was established on 4 June 2002 and held hearings on 4-5 December 2002 and 9-10 and 21-22 January 2003, during which Dr Piesse initiated (ultimately unsuccessfully) interlocutory proceedings in the Federal Court seeking free transcript of the hearings. The committee's final report on 23 March 2004 was that Dr Piesse had engaged in inappropriate practice in connection with item 44, 71139 and 66668 services. Further details are on page 58 of the PSR Annual Report 2003-04.
Meanwhile, on 4 July 2003, the committee informed the Director, pursuant to section 106XA of the Act, that during the hearing it had concluded that Dr Piesse's conduct during 2000 caused a significant threat to the life or health of his patients. It was concerned that Dr Piesse failed to make appropriate investigations of patient symptoms of possibly serious conditions (such as cancer, meningitis, depression, anaemia) and that he used multiple 'Bforte' doses from one vial. On 4 July 2003 the Director referred this information to the Medical Practitioners Board of Victoria.
The final determination on 6 August 2004 directed that Dr Piesse be reprimanded, counselled, repay Medicare benefits totalling $18 179, and be disqualified for 18 months from all group A1 services (items 1-51).
On 22 September 2004, one day before the determination took effect, Dr Piesse initiated further (second) proceedings in the Court seeking (again) the transcript and review of the committee and Determining Authority findings. Dr Piesse raised the new issues of procedural fairness and constitutional validity of the legislation. After various directions hearings, amendments by Dr Piesse of his application, changes of his lawyers, and periods of self-representation, both applications were heard together by Gray J.
At that hearing, on 6 February 2006, Dr Piesse sought a further adjournment saying he had only received some documents very recently and, having spent about $100 000 on legal assistance during the committee hearings, wanted to get free legal advice from friends as he could no longer afford a solicitor. His Honour observed that the documents were simply responses to Dr Piesse's submissions and had been served in accordance with his timetable, there had already been many delays, and it was Dr Piesse's responsibility to be ready to run his case.
Dr Piesse expressed concern about a lack of nutritional and environmental medical expertise on the committee. When Dr Piesse said he wanted to obtain affidavits to demonstrate that the committee had made errors, his Honour pointed out that he could not retry the facts-only errors of law. He had to consider whether the committee performed its statutory function according to law. Professional medical judgements were for the committee. Further, the fact that the bulk of the medical profession, including the committee, apparently did not agree with the smaller group practicing complimentary medicine was not of itself evidence of bias.
Dr Piesse ultimately decided that he could not proceed without an adjournment to further prepare his case. His Honour was not prepared to adjourn again and offered Dr Piesse the option of having the matter determined on the existing papers. Dr Piesse decided to withdraw his applications. Both were then dismissed with costs awarded to the respondents.
The final determination took effect on 13 March 2006.