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Barristers and Solicitors
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Case Studies
The Practitioner is entitled to natural justice and may seek judicial review in the Federal Court.
Retnaraja v. Moranta [1999] F.C.R. 80
Dr. Retnaraja was the subject of a Health Insurance Commission referral to the Director of Professional Services Review who established a Committee to inquire as to whether he had engaged in “innapropriate practice”. The emphasis in the referral was not on the high overall volume of services, but rather the high number of services per patient and the high number of home visits.
This referral illustrates the wide scope for a finding of inappropriate practice and also the way in which a doctor’s practice can be profiled by the Health Insurance Commission computer. For example, during the twelve month referral period, Dr. Retnaraja provided 1,602 home visits which the computer indicated was more than 99 percent of all active general practitioners in Australia. The 1,602 home visits equated to a rate of 29.5 percent of all the doctors’ consultations and again the computer indicated this was a higher rate than that provided by 99% of all active general practitioners in Australia.
Another question raised by the referral was what were said to be the high number of level C consultations, being 1,345 which was 24.8 percent of total consultations. This was a higher rate than that provided by 90 percent of all active general practitioners in Australia.
The Director established a Committee to conduct a hearing. Dr. Retnaraja gave evidence and was questioned by the Committee at considerable length. The Committee made findings of inappropriate practice and referred the case to the Determining Officer. The Final Determination directed that Dr Retnaraja:
Dr Retnaraja appealed to the Professional Services Review Tribunal without success and the Final Determination was affirmed. He then appealed to the Federal Court and his appeal was allowed in part, the Court holding that the order for repayment be set aside. The Court held that the reasoning process adopted by the Determining Officer was incorrect and thus the order for payment of $55,115.90 was not authorised by the Health Insurance Act as the Act stood at that time.
Yung v. Adams [1998] 80 F.C.R. 453
Adams v. Yung [1998] 83 F.C.R. 248
The Health Insurance Commission referred Dr Yung’s practice profile tot he Director of Professional Services Review (P.S.R.). The Director established a Committee to inquire into whether Dr Yung had engaged in “inappropriate practice” by reason of the high volume of services provided by the Doctor. The Committee conducted the hearing and heard evidence from Dr Yung and then made a finding of “inappropriate practice”. As required by the Health Insurance Act 1973, the matter was then referred to a Determining Officer for final determination.
The Determining Officer directed that Dr Yung:-
Dr Yung appealed to the Professional Services Review Tribunal which rejected his appeal and affirmed the orders of the Determining Officer and the Committee. Dr Yung then appealed to the Federal Court. The Court held that there were three major flaws in the Committee’s proceedings:-
The Federal Court having heard Dr Yung’s appeal remitted his case to the Professional Services Review Tribunal differently constituted to be heard and decided again.
There was a subsequent appeal to the Full Court of the Federal Court and the majority of that Court were also of the view that the Committee’s proceedings were infected with error. They affirmed the order of the primary judge that the Professional Services Review Tribunal’s decision be set aside but they did not order the matter be remitted to the Professional Services Review Tribunal for further hearing. The order of the Determining Officer against Dr Yung was also set aside. The end result was that all orders against Dr Yung were set aside by the Court.
Hill v. Holmes and Others [1999] F.C.R. 120
In August 1997, the Health Insurance Commission referred Dr Hills’ conduct to the Director of the Professional Services Review Scheme. The allegation was that Dr Hill provided more services than 97 percent of other doctors and the Director established a Committee to inquire whether the doctor had engaged in “inappropriate practice”. The Committee gave the appropriate notices to Dr Hill and she was required to attend and give evidence to the Committee. She attended and was questioned but although she answered questions, a member of the Committee was of the view that she did not answer directly or responsively. That Committee member reported this to the Director as a failure to give evidence under section 102 of the Health Insurance Commission Act. The Director thereupon fully disqualified Dr Hill from access to Medicare under section 105 (3) of the Health Insurance Commission Act.
Dr Hill appealed to the Federal Court. The Court held that in the circumstances Dr Hill had given evidence and not “failed to answer a question” as had been decided by the Committee. The Court set aside the disqualification imposed by the Director.
Adams v. Tankey [1999] F.C.A. 683
Tankey v. Adams [2000] F.C.R. 152
The Director of Professional Services Review received a referral from the Health Insurance Commission and as a result he established a Committee to inquire as to whether Dr Tankey had engaged in “inappropriate practice” in rendering medical services. The Committee made a finding that Dr Tankey had engaged in “inappropriate practice” in rendering a high volume of services during the referral period. The Determining Officer directed that the doctor be fully disqualified from access to Medicare for 6 months and ordered that he be partially disqualified for a further 6 months. The Determining Officer further directed that he repay to the Commonwealth $258,277.45. Dr Tankey appealed to the Professional Services Review Tribunal which affirmed the decisions of the Committee and the Determining Officer but increased the repayment amount to $580,576.00.
Dr Tankey then appealed to the Federal Court. The Court affirmed the findings but reduced the amount of repayment to the original figure of $258,277.45.
Under construction
Federal court decisions concerning the Professional Services Scheme:
Dr Yacoub Artinian v The Commonwealth of Australia and Ors (unreported)
Federal Court of Australia, NG 1004 of 1996
Hill J
Dr Garo Artinian v The Commonwealth of Australia and Ors (1996) 43 ALD 235
NG 861 of 1996
Hill J
Steven Yung v Anthony Adams (1997) 150 ALR 436
NG 705 of 1996
Davies J
Determining Officer and others v Demirtzoglou (unreported)
Federal Court of Australia, VG 341 of 1997
Sundberg J
Theodore T. Tang v Alan John Holmes & Ors [1998] FCA 135
VG631 of 1997
Sundberg J
Anthony Adams v Steven Yung and Anor [1998] FCA 506
NG 11 of 1998
Beaumont, Burchett and Hill JJ
Note: This was an appeal against Steven Yung v Anthony Adams (above).
Retnaraja v Morauta [1999] FCA 80
SG 116 of 1998
Von Doussa J
Tankey v Adams [1999] FCA 683
QG 53 of 1997
Einfeld J
Damato v Holmes [1999] FCA 758
N449 of 1999
Whitlam J
Hill v Holmes [1999] FCA 760 V257 of 1999
Goldberg J
Mercado v Holmes [2000] FCA 620
V 162 of 2000
Heerey J
Tankey v Adams [2000] FCA 1089
Q185 of 1999
Ryan, O'Connor & Weinberg JJ
Note: This was an appeal against Tankey v Adams (above).
Tankey v Adams [2000] FCA 1089 Administrative Law [2000]
104 FCR 152
Ryan, O'Connor & Weinberg JJ
Holmes v Mercado [2000] FCA 1848
V373 of 2000
Wilcox, Merkel & Weinberg JJ
McFarlane v Batman [2000] FCA 1663
QG192 of 1997
Drummond J
10 November 2000
McFarlane v Batman [2001] FCA 107
Q156 of 2000
Ryan, Dowsett & Hely JJ
23 February 2001
Grey v Health Insurance Commission [2001] FCA 1257
V914 of 2000
Finlelstein J
17 September 2001
Pradhan v Holmes [2001] FCA 1560
S12 of 2001
Finn J
8 November 2001
Christie v The Honourable A R Neaves [2001] FCA 1401
N329 of 2001
Conti J
4 October 2001
PROFESSIONAL SERVICES REVIEW TRIBUNAL (PSRT) DECISIONS
These decisions are made available by permission of the Tribunal.
Bar-Mordecai v Graham
Christie v Mourata
Demirtzoglou v Adams
Gad v Batman
Heinrich v Morauta
Hill v Keith
McFarlane v Batman
Retnaraja v Morauta
Sabag v Morauta
Tankey v Adams
Traill v McRae
Yohendran v Morauta
Yung v Adams
Ho v Morauta