Legal cases
Cases
Dr Hien Thahn Do and
Dr Hugo Huu Hiep Ho
General practitioners
Merrylands, NSW
Dr Do and Dr Ho practiced in partnership. On 13 December 2001 the (then) Health Insurance Commission referred each to PSR because some of their professional attendances during 2000 may have constituted a prescribed pattern of services. Independent PSR Committees considered each referral and each ultimately reported that their subject had engaged in inappropriate practice.
Neither Committee found that exceptional circumstances affected the rendering of the services in question. Doctors Do and Ho appealed to the Federal Court on constitutional grounds (still awaiting resolution in Dr Selim’s litigation) and on application of the ‘exceptional circumstances’ tests in section 106KA(2) of the Health Insurance Act 1973 and regulations 11(a) and 11(b) of the Health Insurance (Professional Services) Regulations 1999. After a number of legal proceedings, Rares J held that both Committees had misconstrued or failed to apply the tests for exceptional circumstances. It was left to the Director of PSR to decide whether to reconstitute the Committees with new members.85
Appeals against both decisions were lodged with the Full Federal Court that on 29 February 2008 allowed the appeals.86
The Full Court held that ‘standard’ material in the two reports did not assert an unbending rule, but sought to explain what circumstances would most likely be regarded as exceptional, and only expressed a qualified view that they were likely to be intermittent or episodic. This did not indicate an erroneous approach by the Committees.
Doctors Do and Ho contended the Committees had failed to expressly consider regulation 11(a) that required an unusual level of need for professional attendances caused by an unusual occurrence. But the circumstances the doctors relied on did not meet these criteria. Public holidays were not unusual and were known well in advance. Absences due to illness, while not predictable, were not unusual.
There was no contrary evidence, nor was there evidence that the level of attendances following such illness or holidays was unusual. The departure of a partner was not an exceptional circumstance. There was no evidence it led to an unusual level of need for attendances – rather, that was a consequence of their decision to keep all the patients previously serviced by three doctors. The court concluded that the evidence did not support application of regulation 11(a). One judge also noted indirect evidence that the regulation had been considered.
In focusing on practice management the Committees were only expressing views that the consequences of public holidays, illness and practice changes were not unusual and could be managed.
Given the Full Court’s decision, new Committees were not required.
- 85 See PSR Annual Report 2006–07 pp. 27–29 for details of the decisions
- 86 Willcock v Do [2008] FCAFC 15, incorporating Willcock v Ho