PSR Annual Report 2007-08

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Legal cases

Cases

Dr Ashraf Thabit Selim
General practitioner
Punchbowl, NSW

The (then) Health Insurance Commission referred Dr Selim in 2001 because of his high number of rendered services and high daily servicing during 2000. A Committee found that he had engaged in inappropriate practice.55 Dr Selim appealed to the Federal Court on both judicial review and constitutional grounds.

On 28 October 2004, Jacobson J ordered that the constitutional issues be severed for separate hearing. Some judicial review grounds were subsequently dropped and on 7 February 2005 Jacobson J dismissed the appeal on the remaining judicial review grounds.56

Dr Selim appealed that decision to the Full Federal Court. It was agreed that no further action would be taken pending decisions in Oreb and Dimian.

Stone J heard Dr Selim’s constitutional claim that the PSR Scheme contravened section 51(xxiiiA) of the Australian Constitution, which provides that the Commonwealth parliament may make laws with respect to, among other things, provision of medical and dental services (but not so as to authorise any form of civil conscription).

On 23 February 2006, her Honour dismissed that challenge.57

Dr Selim appealed to the Full Federal Court. The hearing was initially adjourned pending the outcome of applications to the High Court in the Dimian and Wong cases, and also on constitutional grounds.58 However, the High Court remitted those cases to the Full Federal Court and all three were ultimately considered together. An additional argument was also raised, namely that the PSR legislation impermissibly conferred the Commonwealth’s judicial power on the Determining Authority.

Because of the potential impact of an adverse constitutional finding on the whole Medicare scheme, the Australian Government intervened; the Solicitor-General and the Australian Government Solicitor managed the Commonwealth case.

Only two High Court cases have been about civil conscription in relation to provision of medical and dental services. The BMA Case59 concerned a provision of the Pharmaceutical Benefits Act 1944 requiring any doctor prescribing any medicine listed in the Commonwealth Pharmaceutical Formulary60 to use a prescribed form regardless of whether the medicine was to be obtained free. There was a practical requirement for doctors to prescribe from the Formulary, but the requirement to use the form was not related to receiving any benefit. The provision was held to be invalid because it imposed a form of civil conscription.

However, in the General Practitioners Society Case,61 the High Court upheld provisions of the Health Insurance Act 1973 and regulations which provided that a medical benefit would be payable with respect to certain pathology services only if the service was performed by or on behalf of an approved pathology practitioner. Approval required doctors to provide an undertaking and agree to adhere to a code of conduct. Certain conditions, such as that a pathology service be requested in writing and the request be retained for 18 months, also applied. These were to ensure the Commonwealth did not pay for unnecessary or excessive pathology services.

In Selim, the Full Federal Court analysed both the above cases as well as relevant official explanatory materials published before the 1946 referendum that resulted in the addition of section 51 (xxiiiA) to the Constitution. It accepted evidence that the Health Insurance Act 1973 imposed a practical compulsion on doctors who wished to be general practitioners in private practice to participate in the Medicare scheme. They therefore should not do anything unacceptable to the general body of general practitioners in providing Medicare services.

Nevertheless, sections 10, 20 and 20A of the Health Insurance Act 1973 do not require a practitioner to provide a professional service or render an account. Rather, if an eligible person incurs expense in receiving a professional service, a Medicare benefit would be payable to the person (or, if unpaid, the practitioner). According to Black CJ, Finn and Lander JJ:

The purpose of Part VAA is to preserve the integrity of the Medicare Benefits Scheme not to require medical practitioners to perform professional services. It does no more than regulate the way in which medical practitioners should render their medical services where they have first chosen to render those services.62

Thus, even given a practical compulsion to participate in Medicare, sections 10, 20 and 20A of the Health Insurance Act 1973 only regulated the manner of providing services and this did not amount to civil conscription.

The Full Court also considered submissions that the Determining Authority was unconstitutionally exercising the judicial power of the Commonwealth.

It was argued that previous decisions63 that PSR Committees, the former Determining Officer and the former PSR Tribunal were not unconstitutional should be reconsidered in the light of a High Court observation64 that a distinction between so-called ‘protective’ and ‘punitive’ powers might not be valid. It is generally accepted that disciplinary sanctions of the kind in the PSR Scheme exist to protect its beneficiaries, whereas powers under the criminal law are to punish criminal behaviour. Only courts may do the latter. However, the Full Court considered that the protective/punitive distinction was only one minor factor in considering the powers of the Determining Authority and it held that, like the other PSR authorities, it was not exercising judicial power.

On 27 February 2008 the Full Court dismissed the appeals.65 On 28 March 2008 Dr Selim sought special leave to appeal to the High Court.66

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