Legal cases
Cases
Dr Warren John Saint
General practitioner
Kwinana, WA
The (then) Health Insurance Commission referred Dr Saint on 21 August 2000 because it was concerned about his rendered services and daily servicing.
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.
The Determining Authority has delayed making a determination pending resolution of a judicial review application by Dr Saint to the Federal Court on 5 July 2004. Resolution of that matter was delayed by a number of other proceedings, namely:
- In the Federal Court, Dr Saint sought discovery of many Health Insurance Commission, PSR Director and Committee documents. On 22 August 2005, French J ordered discovery of documents of an evidentiary character that were before or considered by the Committee. Discovery of other documents was refused on grounds of irrelevance and/or because of Committee protection and immunity under section 106F.89
- From 13 March 2005, Dr Saint made freedom of information requests for a wide range of documents relating to the Committee and its investigation of his referral, including relevant correspondence with the Director and the Health Insurance Commission and relevant policies and guidelines. PSR provided copies of most documents, but some exemptions were claimed.90
- Dr Saint sought Administrative Appeals Tribunal review of PSR’s exemption decisions. On 30 October 2006, the Tribunal affirmed the PSR decisions.91
Justice Siopsis dismissed Dr Saint’s review application92 regarding the Health Insurance Commission’s investigative referral:
- The Full Court had dismissed a claim of constitutional invalidity in Dr Selim’s case93 and the present parties had no further submissions to make.
- Dr Saint sought to introduce a large amount of documentary evidence, such as Committee correspondence, largely obtained through freedom of information. Most was refused because, for judicial review, new evidence is generally not permitted unless it relates to making good a legal contention. Much was irrelevant. Some was protected by Committee immunity under section 106F. His Honour did admit affidavits by three expert witnesses.
- Dr Saint claimed the Commission had denied him procedural fairness as he had not been counselled and given an opportunity to adjust his practice to meet the Commission’s concerns before referral to PSR. The Commission had undertaken to do so in a 1995 newsletter about PSR. Further, statements by two Commission officers had led him to believe he was not being asked to cut back services and a referral decision would only be made after reviewing his statistics for the first quarter of 2000. Siopsis J considered that Dr Saint had been counselled on 18 January 2000 and given to the end of March 2000 to meet the concerns, and that the Commission had complied with its advised procedure.
- Even if this was incorrect, Dr Saint had not suffered any practical unfairness. His submission that the Commission should have reviewed his servicing in the second quarter of 2000 was not supported by claims or evidence of improvement. Assertions he had received multiple or repeated counselling when in fact it was only twice did not matter as the 1995 newsletter had only referred to having one counselling before referral. The evidence did not support Dr Saint’s claim he had not known the referral was based on first, not second, quarter servicing statistics.
- Dr Saint alleged that, when making the investigative referral to PSR, the Commission failed to take into account his explanation of servicing levels. His Honour noted that the delegate’s reasons referred to an explanation having been sought and that Dr Saint’s explanation was set out in attachments to the reasons. He was satisfied that the delegate was aware of the explanation and took it into account. In addition, it was clear from section 86(4)(b) that the Commission only had to explain why there may have been inappropriate practice (to identify matters for the Director) rather than reasons for making the referral. The Commission’s reasons were appropriate for this purpose.
- Dr Saint said the Commission needed to be ‘comfortably satisfied’ by sufficiently cogent evidence before referral but had taken into account disputed statistics and counselling. His Honour noted that the legal authority cited related to determining a serious charge, whereas the Commission was only posing a question for investigation.
- Dr Saint said the conduct referred was ‘unspecified and unlimited’ like that held invalid in Pradhan.94 Siopsis J followed the Full Court decisions in Grey95 and Freeman96 in rejecting this argument.
Justice Siopsis also dismissed Dr Saint’s submissions about the Director’s adjudicative referral:
- Dr Saint argued that, because he wrongly believed the Commission delegate had considered his service statistics for the second quarter of 2000, he was denied procedural fairness in making submissions that the Director should dismiss the referral under section 91. His Honour found that there was no contemporary evidence to support this claim and in fact Table 5 in the referral made no reference to second quarter statistics.
- Dr Saint contended there was no evidence to support the Director’s finding about clinically inappropriate use of drugs. In fact the Director had examined Dr Saint’s clinical notes and his report referred to the range of drugs and level of prescribing, and expressed concern about apparent clinically inappropriate use. For the purposes of referral the Director’s professional opinion was sufficient evidence.
- And Justice Siopsis dismissed Dr Saint’s submissions about the Committee report:
- Dr Saint claimed that, although compliance with MBS descriptors had not been referred, the Committee had wrongly considered the duration of his patient consultations and this had infected its report. His Honour rejected this as there was no mention of consultation times in the final report and any evidence of the Committee’s decision processes was inadmissible.
- Dr Saint contended that the Committee should have met to perform certain functions (discussing services, considering draft report and his submissions, considering the final report). Siopsis J noted that section 97(1) required a first meeting of the Committee but there was no other express requirement for meeting, which indicated it did not have to meet to perform other functions. Furthermore, any evidence of how it went about its task was inadmissible.
- Dr Saint said the Committee had failed to apply the statutory test for keeping adequate and contemporaneous patient records applicable from 1 November 1999 because it wrongly believed they did not apply to records made before that date. His Honour noted that the Committee said the statutory test codified preexisting standards and it had in fact applied those. Accordingly, even if it had made an error of law, this made no difference to the outcome and he would exercise his discretion to withhold relief.
- Dr Saint said the Committee had failed to distinguish failing to provide adequate clinical input from failing to record what input there was. Siopsis J said he had examined the services found inappropriate solely based on inadequate records and was satisfied that the Committee appreciated the distinction.
- It was submitted that adverse findings could not be based solely on inadequate record keeping. His Honour noted that section 82(3) emphasised the importance of clinical records.
- The Committee did not sample Dr Saint’s services in accordance with the methodology determined by the minister. Dr Saint submitted that advice given by Professor Nicholls, a statistician accredited by the Statistical Society of Australia, did not certify the Committee’s sampling methodology as a whole, but addressed only its conclusion. His Honour noted that section 106K(4) contemplated use of alternative methodologies and that Professor Nicholls had said the Committee’s ‘approach’ was valid. He noted Phan97 where the words ‘statistically valid to adopt the conclusion’ were considered sufficient compliance with section 106K(4) and approved the procedure in this case.
- Finally, Dr Saint submitted that, as in Mathews,98 the ‘exploratory sample’ had not been randomly drawn from the ‘preliminary random sample’ as required by the sampling determination. His Honour accepted evidence that examination of the Commission’s computer file showed that the ‘exploratory sample’ had in fact been correctly drawn.
- 89 Saint v Holmes (No 1) [2005] FCA 1057; PSR Annual Report 2005–06 p. 56
- 90 PSR Annual Report 2005–06 p. 56
- 91 Saint v Director of Professional Services Review [2006] AATA 929; PSR Annual Report 2006–07 p. 32–33
- 92 Saint v Holmes [2008] FCA 987 (4 July 2008)
- 93 Selim v Lele [2008] FCAFC 13
- 94 Pradhan v Holmes [2001] FCA 1560
- 95 Grey v Health Insurance Commission [2001] FCA 1257
- 96 Freeman v HIC [2004] FCAFC 335
- 97 Phan v Kelly (2007) 158 FCR 75
- 98 Mathews v HIC (2006) 90 ALD 49