Legal cases
Cases
Dr James Chee Min Thoo
General practitioner
Sanctuary Point, NSW
The (then) Health Insurance Commission referred Dr Thoo on 23 December 2004 because some of his professional attendances during 2003 may have constituted a prescribed pattern of services. A Committee investigated and on 29 June 2007 reported that Dr Thoo had engaged in inappropriate practice in provision of item 23 and 36 services.
On 6 August 2007, Dr Thoo appealed to the Federal Court on grounds that the Committee:
- was not legally authorised to inquire into and report concerning the services it did
- had denied him procedural fairness by refusing his request for adjournment of a hearing.
On 4 June 2008, Justice Lindgren dismissed the appeal on both grounds.87
Dr Thoo had submitted that the Committee was only authorised to investigate and report on the question of a prescribed pattern of services, evidence for which had been the reason given in the Director’s report for his referral to the Committee. The Court noted that the Director had nevertheless referred to the Committee all services provided by Dr Thoo during 2003. While section 103H(1) of the Health Insurance Act 1973 provided that the Committee should only make findings in respect of the referred services, section 103H(3) made clear that its investigation was not limited by anything in the Director’s report to the Committee, nor by anything in the Commission’s request under section 86 that the Director investigate provision of services. Further, section 106K permits a Committee to rely on a sample of services.88 Finally, section 106KA(7) makes it clear that section 106KA did not prevent a Committee making findings without considering a prescribed pattern of circumstances.
Dr Thoo also submitted that the Committee was wrong to proceed with its third hearing on 3 February 2006 when Dr Thoo had withdrawn after being refused an adjournment to obtain legal advice. The Court noted evidence that Dr Thoo had only sought legal advice two days earlier and had not brought a lawyer with him. The Committee Secretary had advised him by letter dated 30 March 2005 of the scope of the investigation, and by letter dated 15 November 2005 that the Committee would not give him legal advice but he was entitled to bring a lawyer to hearings. The first hearing had been on 31 August 2005 but Dr Thoo did not challenge the Committee’s validity until 10 November 2005, just eight days before attending the second hearing. Furthermore, section 106(4) empowered the Chair to adjourn a hearing, but did not require that any requested adjournment be granted, and section 106(1) gave the Chair discretion in conducting proceedings. Finally, the Committee had been entitled to adjourn to get legal advice and was not obliged to disclose that to Dr Thoo. In all the circumstances, Dr Thoo had not been denied procedural fairness.
- 87 Thoo v Professional Services Committee No 446 [2008] FCA 830
- 88 Although apparently not argued, section 93(7B) permits the Director to refer any or all services provided during the review period, and section 93(7C) protects this from any limitation by material in his report under section 89C(1)(b)(i)