Legal cases
Cases
Dr Mark Leslie Mitchelson
General practitioner
Cairns, Qld
On 6 December 2004, the (then) Health Insurance Commission asked the Director to review the provision of services by Dr Mitchelson. On 22 July 2006 a Committee was established and ultimately reported that Dr Mitchelson had engaged in inappropriate practice in connection with 73 per cent of MBS item 2379 services and 83 per cent of item 3680 services examined using sampling methodology. On 5 April 2007 the Determining Authority made a final determination that Dr Mitchelson be reprimanded and counselled, repay to the Commonwealth $137,660.95 and $50,595.84 in respect of item 23 and 36 services, be suspended from PBS prescribing for six months and be fully disqualified from Medicare for six months.
Dr Mitchelson sought to have the Federal Court review this determination, but a number of procedural or legal errors were made which resulted in three hearings. He first lodged a Notice of Appeal on 8 May 2007 and was ordered, at a Directions hearing on 12 July 2007, to file an amended Notice by 30 July 2007, but failed to follow up until the respondents filed a Notice of Motion on 3 August 2007 seeking dismissal of the Appeal as incompetent. Dr Mitchelson then filed an Amended Application for Order of Review on 24 August 2007 and sought to amend the original Notice of Appeal.
The grounds in these documents were, broadly, denial of natural justice as the Committee comprised only metropolitan practitioners, but should have included a regional practitioner; the sample of only 30 out of 7499 cases was too small; the Committee did not consult with any patients; and the nature of his regional client base should have been considered.
On 4 September 2007, Justice Greenwood explained81 that the original Notice of Appeal entirely failed, as the court had no jurisdiction under section 19 of the Federal Court of Australia Act 1976 to hear an appeal from a determination of the Determining Authority. Although misdescribed and misconceived, it seemed the doctor was attempting to obtain review of the Determining Authority’s decision under the Administrative Decisions (Judicial Review) Act 1977, at least on the ground of improper exercise of power.
Federal Court Rules empowered the court to amend, or have amended, any document ‘for the purpose of determining the real questions raised by ... or of correcting any defect or error in ... or of avoiding multiplicity of proceedings’. The power was remedial. Clearly the doctor wanted an Order of Review based on the grounds in section 5 of the Administrative Decisions (Judicial Review) Act 1977. His Honour directed that an appropriate application with identified grounds and particulars, and an identified decision, for Administrative Decisions (Judicial Review) Act 1977 purposes, be filed for hearing on 18 September 2007.
Later the same day, having regard to the inadequate formulation of the Notice of Appeal and the delays, his Honour ordered that Dr Mitchelson pay the respondent’s indemnity costs for their ‘quite proper’ Notice of Motion on 3 August.82
On 25 September 2007, Justice Greenwood delivered his substantive decision.83 He held there was no denial of natural justice where (under section 95 of the Health Insurance Act 1973) the Director appointed the Committee of a Deputy Director and two panel members (sections 85 and 84 of the Health Insurance Act 1973). There was no want of power in so doing, nor any statutory obligation to appoint a regional practitioner.84
There was no contention that the Committee acted beyond power in adopting a sampling methodology advised to be valid by an accredited statistician. Section 106K of the Health Insurance Act 1973 expressly provides for reliance on sampling, which could lead to a serious order under section 106U. Prima facie the Committee acted reasonably and Dr Mitchelson had not sought to demonstrate any failure, such as incorrect inferences, indefinite testimony or inexactness. Nor did he plead any facts demonstrating that the methodology adopted was unreasonable or invalid, or seek to demonstrate that Committee findings were unsupported by evidence.
Having regard to the deficiencies in the pleadings and the extensive delays by the applicant, His Honour refused leave to amend the original Notice of Appeal and dismissed it, with indemnity costs.
- 79 MBS item 23 is a level B GP consultation
- 80 MBS item 36 is a level C GP consultation
- 81 Mitchelson v HIC [2007] FCA 1372
- 83 Mitchelson v HIC (No.3) [2007] FCA 1491
- 82 Mitchelson v HIC (No.2) [2007] FCA 1396
- 84 Note also McFarlane v Batman [2000] FCA 1663 where a similar claim was dismissed