Legal cases
Outcomes
Subject to any successful appeal to the High Court, the decision of the Full Federal Court in Selim and Wong seems to have settled that, within the broader context of Medicare, the PSR Scheme does not involve civil conscription and is not thereby constitutionally invalid. Once the decision of the High Court of Australia is received the other 14 court applications raising the constitutional question should be resolved.
The Federal Court decision in Selim confirmed that the Determining Authority is not invalidly exercising the judicial power of the Commonwealth in breach of the Constitution. At the hearing of the Special Leave Application the applicants confirmed that they would not be pursuing the issue of judicial power.
Thoo confirms that the Director may refer all services by a practitioner in a referral period, whatever the reasons for Medicare Australia’s request and whatever his reasons for asking a Committee to investigate.
Thoo also confirms that, where a Medicare Australia request and the Director’s referral are based on a suspected prescribed pattern of services, a Committee may nevertheless make findings without considering a prescribed pattern of services and may use sampling for this purpose.
In Do and Ho the Full Federal Court reversed a finding that the Committees had wrongly excluded ‘exceptional circumstances’ of an ongoing nature as a defence for a prescribed pattern of services. This has implications for several other cases. The Court also took a robust view of ‘unusual’ in the context of Health Insurance (Professional Services Review) Regulations 1999 Regulation 11(a), holding that public holidays, practitioner illness, and staffing changes were not unusual occurrences and their consequences should be manageable. This too will affect other cases.
Saint involved a large number of evidentiary issues each of which the court considered in detail. Importantly, the court upheld the immunity and confidentiality of Committee processes. Thus discovery of Committee documents was limited to evidence before it and its internal reasoning could not be examined beyond what it gave in its report. The court also dismissed a large number of assertions (for example, of unfair procedures) that were tenuous or not supported by clear evidence.
Thoo and Mitchelson both indicate that courts will not condone excessive delay. It was not a denial of procedural fairness when a Committee refused Dr Thoo a late adjournment to obtain legal advice because he had had ample prior opportunity to do so. Not only was Dr Mitchelson’s case struck out, but also he was further penalised with indemnity costs because of severely inadequate pleadings, excessive delay, and ignoring court orders.
Nevertheless Mitchelson also shows that the court will make every endeavour to identify and address the real issues in an application, so that justice can be done notwithstanding poor drafting and delay by an applicant.