Lee v Grigor [2005] FCA 25 (7 February 2005)

Last Updated: 7 February 2005

FEDERAL COURT OF AUSTRALIA

Lee v Grigor [2005] FCA 25

ADMINISTRATIVE LAW - Professional Services Review Scheme - whether a medical practitioner has engaged in "inappropriate practice" in connection with the rendering or initiation of services for which Medicare benefits are payable – investigative referral – adjudicative referral – referral period - "prescribed pattern of services" – breach of the 80/20 rule – exceptional circumstances – s 92 Agreement

Health Insurance Act 1973 (Cth) - Part VAA – ss 92, 106KA
Administrative Decisions (Judicial Review) Act 1977 (Cth) – ss 11(1)(c) and 11(3)
Judiciary Act 1903 (Cth) - s 39B(1A)
Health Insurance (Professional Services Review) Regulations 1999 (Cth) – Regs 11(b)

Lee v Kelly [2004] FCA 26 applied
Oreb v Willcock [2004] FCA 1520 referred to
Dimian v Health Insurance Commission [2004] FCA 1615 referred to

Daniel v Kelly (2003) 200 ALR 379 referred to
Hatcher v Cohn [2004] FCA 1548 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited

IL SONG LEE v WAL GRIGOR, PATRICK TAN AND DAVID RIVETT AND THE DETERMINING AUTHORITY AND HEALTH INSURANCE COMMISSION AND ALAN JOHN HOLMES AND BERNARD RAYMOND KELLY
N 1430 of 2003


JACOBSON J
SYDNEY
7 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1430 of 2003

BETWEEN:	IL SONG LEE APPLICANT
AND:	WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director of Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director of Professional Services Review FIFTH RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	7 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The finding by the first respondents that the applicant engaged in inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside.

2.	The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Professional Services Review Committee should be made.

3. The first respondent is to pay the applicant’s costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1430 of 2003

BETWEEN:

IL SONG LEE APPLICANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director of Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director of Professional Services Review FIFTH RESPONDENT

JUDGE:	JACOBSON J
DATE:	7 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an application for review of decisions made by the first respondent ("Committee 292") and the fifth respondent ("the Acting Director") under the peer-review based Professional Services Review Scheme ("the Scheme") contained in Part VAA of the Health Insurance Act 1973 (Cth) ("the Act").

2 I described the Scheme in my decision in Oreb v Willcock [2004] FCA 1520 ("Oreb") at [28] – [70]. I also set out the relevant provisions of the Act. I will not repeat what I said in Oreb about the Scheme or the Act. As in Oreb, the relevant provisions are those in the Act as it stood in 1999.

3 The applicant ("Dr Lee") seeks review of the decisions under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B(1A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

4 The decisions which Dr Lee challenges are, first, an adjudicative referral made by the Acting Director on 14 February 2002 and, second, a finding made by Committee 292 that Dr Lee engaged in inappropriate practice and that exceptional circumstances did not exist; see s 106KA of the Act. The Final Report of Committee 292 was made on 18 August 2003.

5 The application was filed on 16 September 2003. The application for a review of the decision of Committee 292 was filed within the time limited by ss 11(1)(c) and 11(3) of the ADJR Act. An extension of time under the ADJR Act or a favourable exercise of my discretion under the Judiciary Act is required for any order of review of the adjudicative referral.

6 The Further Amended Application raises, in addition to the grounds of judicial review, three Constitutional questions. On 27 October 2004, I made an order severing the Constitutional questions and providing for the hearing of the claims for judicial review before the hearing of the Constitutional questions.

7 Dr Lee raised two questions for consideration. The first was a "s 92 question" which is similar to the question on which I found against the applicant in Oreb and in Dimian v Health Insurance Commission [2004] FCA 1615 ("Dimian").

8 The second question is whether the Final Report of Committee 292 was affected by jurisdictional error in its approach to the question of whether "exceptional circumstances" existed pursuant to s 106KA(2) of the Act and Regulation 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) ("the Regulations").

9 A similar question arose in Oreb. However, Dr Lee contends that the nature of the jurisdictional error which affects the finding of inappropriate practice travels beyond the scope of the error which affected the Committee’s report in Oreb. Dr Lee raised the same contention in relation to a decision of another Committee, the subject of my judgment in Lee v Kelly [2004] FCA 26 ("Lee v Kelly").

10 In particular, Dr Lee contends that Committee 292 took into account irrelevant considerations of a racial nature. These may be summarised as considerations of the need for Dr Lee’s Korean patients to integrate into the Australian community.

11 Dr Lee also contends that Committee 292 asked itself the wrong question by considering whether his Korean patients should integrate into the Australian community instead of asking whether exceptional circumstances existed under Regulation 11(b) by reason of the characteristics of Dr Lee’s patients.

The Factual Background

12 On 13 December 2001, the third respondent ("the Commission") referred Dr Lee’s conduct to the fourth respondent ("the Director"), under Investigative Referral no 292. The referral period was 1 January 2000 to 25 September 2000. The Commissioner considered that Dr Lee had engaged in inappropriate practice by reason of a prescribed pattern of services under s 106KA of the Act and Regulation 11.

13 The prescribed pattern of services to which the Commission referred was that Dr Lee had rendered 80 or more attendances per day on 37 occasions during the referral period. This was a breach of the "80/20 rule" to which Ryan J referred in Daniel v Kelly (2003) 200 ALR 379 at [8].

14 The Further Amended Application in these proceedings seeks review of the investigative referral but this was pursued only in a formal way in the written submissions. It was not addressed at the hearing.

15 On 17 December 2001, the Director wrote to Dr Lee informing him of the investigative referral. The letter was in the same form as the letters to which I referred in Oreb at [92] and [107], in Dimian at [22] and in Lee v Kelly at [15]. However, for completeness, I will set it out in full as follows:-

"On 14 December 2001, I received Investigative Referral No 292 from the Health Insurance Commission (the HIC) regarding your conduct in relation to the Medicate program.

I understand that the HIC has delivered to you a copy of the referral documentation and the relevant sections of the Health Insurance Act 1973 (the Act). In accordance with subsection 89(1) of the Act, I must carry out an investigation of this referral. Following the investigation, I have the option to:

• dismiss the referral for the reasons set out in section 91 of the Act,
• enter into an agreement with you as set out in section 92 of the Act, or
• refer the matter to a Professional Services Review Committee as set out in section 93 of the Act.

Subsection 88(3) of the Act provides that you may make written submissions to the Director, within 14 days of the day when you were sent the referral, as to reasons why the Director should dismiss the referral without setting up a Professional Services Review Committee. I would be pleased to receive a submission from you and would give it careful consideration along with any other relevant documents or materials I may decide to obtain.

Should you wish to communicate with this office, the address and telephone numbers are detailed below. If you would prefer any further communications from this office to be directed to you at another address, I would appreciate your written advice.

If you have any questions, please contact the Administrative Officer, Mrs Belinda Steward, during business hours on 02-62819155."

16 Dr Lee did not respond to the letter.

17 On 14 February 2002, the Acting Director made an adjudicative referral and established Committee 292, pursuant to s 93(1), to consider whether Dr Lee’s conduct constituted inappropriate practice under s 82 of the Act.

18 The adjudicative referral was in respect of Dr Lee’s attendances at his practice at 87 Rowe Street, Eastwood on the 37 days specified in the referral period and was in almost identical terms to the adjudicative referrals in Oreb and Dimian. The Director stated that he did not dismiss the investigative referral because he was not satisfied that there were insufficient grounds on which a committee could reasonably find inappropriate practice.

19 Committee 292 held a hearing on 30 May 2002. Dr Lee tendered written submissions dated 30 May 2002 at the commencement of the hearing.

20 The effect of Dr Lee’s written submissions was not to dispute that he had rendered 80 or more consultations a day on 20 or more days during the referral period, but that there were exceptional circumstances, which may be summarised as:-

• The patient profile of Dr Lee’s practice is abnormally skewed towards Korean-speaking patients. 90% of his patients are Korean-speaking or from a Korean background.

• The Korean population has unique socio-economic and health characteristics, and very particular expectations in relation to medical care as a result of their confucianist philosophical beliefs.

• Dr Lee is one of only two full time Korean-speaking doctors practicing north of the Parramatta River, and there are a further two to three part time Korean-speaking doctors practicing in this area.

• There is an absence of other medical services for Korean patients and/or Korean interpreter services available to Dr Lee’s patients.

21 Dr Lee’s evidence at the hearing was to the same effect. He said that the Korean population of New South Wales is about 45,000 to 50,000.

22 He said his practice was unique because he deals mainly with patients from a Korean background and that he has an advantage over other doctors because he speaks Korean and understands the culture.

23 On 22 November 2002, Committee 292 provided a copy of its draft report to Dr Lee’s solicitors. The draft report contained a preliminary finding that Dr Lee had engaged in inappropriate practice on each of the 37 days specified in the referral period. It also contained a preliminary finding that exceptional circumstances did not exist on any of the days.

24 At [64] – [65] of the draft report, Committee 292 noted Dr Lee’s claim that his patient profile was exceptional, leading to times of increased demand for his services, but observed that Dr Lee had available to him at least four options for referring patients, making reference to the NSW multicultural health service and the Australian Government’s multicultural policy statement entitled A New Agenda for Multicultural Australia ("A New Agenda")

25 In [67] of the draft, Committee 292 stated its view that it was the responsibility of practitioners, such as Dr Lee, to enlist strategies to reform patients’ expectations within Australian health care/service conventions and utilise available infrastructures.

26 In [76] of the draft report, Committee 292 stated its view that during the referral period there were other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health in NSW. In [86] the Committee also indicated its belief that there were adequate, appropriate and accessible interpreter services available in NSW for the Korean population which presented Dr Lee with viable ‘refer on’ options.

27 In [87], Committee 292 went on to observe that in its opinion, Dr Lee had not considered the relative ease with which his Korean patients who spoke English could access the mainstream health system without the need for an interpreter.

28 Committee 292 again made reference to A New Agenda under the heading ‘Other Concerns’, in [115] – [119] of the draft, pointing out that in its view, Dr Lee’s claim that exceptional circumstances existed for an ethnic minority in isolation from inclusive mainstream health care was not congruent with the national policy on multiculturalism contained in A New Agenda.

29 On 10 July 2004, Dr Lee’s solicitors provided written submissions in response to the Draft Report. It was submitted that in refering to other options available to Dr Lee’s patients at [64]-[65] of the Draft Report, the Committee had failed to give adequate consideration to the idiosyncracies of Korean culture and the characteristics of Dr Lee’s patients.

30 In response to [67] of the Draft Report, it was submitted that an expectation that Dr Lee proactively enlist strategies to reform patient expectations was unrealistic.

31 Reference was made to National Health Strategies Issues Paper No 6, entitled Removing Cultural and Language Barriers to Health (Commonwealth of Australia, March 1993). It was submitted that, particularly in relation to the observations it made at [76] and [86], the Committee ought take into account key messages in the paper, which included the importance of shared language and culture for appropriate communication, and an assertion that that westernised biomedical culture has resulted in poor access in services and reduced quality of care for people from non-English speaking backgrounds.

32 In its Final Report dated 18 August 2003, Committee 292 made findings of inappropriate practice and absence of exceptional circumstances.

33 The Final Report of Committee 292 contained an analysis of the meaning of "exceptional circumstances" in exactly the same terms as the reports of the Committees in Oreb and Lee v Kelly. I refer to this in my judgment in Lee v Kelly; see [33].

34 The Committee observed that it had considered in detail the further written submissions from Dr Lee’s solicitors response to the Draft Report, but was still of the view that there were not exceptional circumstances within the meaning contained in the Act.

35 With the exception of slightly different paragraph numbering, the Final Report is in the same terms as the draft. The salient paragraphs are as follows:

"66 The Committee finds worthy of note that the NSW Multicultural Health Communication Service has developed and implemented a state wide infrastructure within mainstream health services to ensure that appropriate, timely, accessible and equitable information about health issues and health care/services is available to people who speak languages other than English. This approach is congruent with the Australian Government’s multicultural policy statement A New Agenda for Multicultural Australia which emphasises that for multiculturalism to be a unifying force, it needs to be inclusive.

67 ... The Committee considers it the responsibility of practitioners such as Dr Lee, to ...in the case of an ethnic minority, proactively enlist strategies to reform patients’ expectations within Australian health care/service conventions and to utilise available mainstream infrastructures in place for this purpose
...
88 ... The Committee considers it the responsibility of practitioners, such as Dr Lee, to proactively utilise other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health services in NSW.
...
99 ... The Committee considers that there were sufficient other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health services in NSW and that his claim in this regard does not constitute an exceptional circumstance."

36 At [110] the Committee made reference to A New Agenda, stating that it had done so in light of the fact that:

"Dr Lee’s substantiation of exceptional circumstances revolve around his claims that the characteristics of his patients are such that there is an absence of ‘other’ culturally appropriate medical services for those patients".

37 It emphasised the policy contained in A New Agenda that "in order for multiculturalism to be a unifying force for the nation, it needs to be inclusive". In [114] it stated that

"Dr Lee’s claims of exceptional circumstances necessitating the requisite to be responsive to an ethnic minority’s cultural medical needs in isolation from inclusive mainstream health care services is not congruent with the national policy agenda concerning such matters."

The s 92 Question

38 The claim that the adjudicative referral was affected by jurisdictional error by reason of the Director’s erroneous construction of s 92 or denial of procedural fairness is identical to the claims made in Oreb and Dimian. Counsel for Dr Lee made submissions in the same terms as were put forward in Lee v Kelly, and I reject the claim for the same reasons as provided in Lee v Kelly at [39] – [42].

39 In his letter of 17 December 2001 set out at [15], the Director presented Dr Lee with the option of approaching the Director to negotiate a s 92 agreement. Dr Lee made no response to the letter. Nor did Dr Lee at any time approach the Director to discuss the possibility of entering into such an agreement. The Director had no further occasion to consider it in view of Dr Lee’s failure to raise the possibility with the Director

Exceptional Circumstances

40 Counsel for Dr Lee submitted that Committee 292 fell into the same error as that made by Committee 348 in Lee v Kelly, being a similar error to that made by the Committee in Hatcher v Cohn [2004] FCA 1548 ("Hatcher"). In particular, it was said, that Committee 292 asked itself the wrong question about the need for the services and took into account irrelevant considerations about the need for the patients to integrate into the wider Australian community.

41 I refer to the construction of the term "exceptional circumstances" in s 106KA(2), and to the observations of Kiefel J in Hatcher, in my judgment in Lee v Kelly; see [43] – [46].

42 Dr Lee’s claim of exceptional circumstances to Committee 292 was, in substance, that the need for his services was a circumstance outside his control because Korean patients demand a Korean doctor and that there were no other doctors (or perhaps only one other doctor) in the Eastwood area capable of providing the required services.

43 It seems to me the be that in the present case the findings of Committee 292 went further than those of the Committee in Lee v Kelly. There, the Committee considered that Dr Lee’s patients had sufficient English to obtain medical services from non-Korean speaking doctors, and that there were 30 other doctors in the Eastwood area available to Dr Lee’s patients. Here, Committee 292 found that there were sufficient ‘culturally appropriate’ and ‘accessible’ services available for Korean speaking people. Committee 292 also considered that Dr Lee’s claim of exceptional circumstances was not consistent with the approach of multiculturalism as expressed in A New Agenda.

44 In my opinion, it follows that, by constrast with Lee v Kelly, Committee 292 did consider whether the circumstances relied upon by Dr Lee amounted to exceptional circumstances. However, in doing so, it did not take into account that Regulation 11(b) directs attention, inter alia, to the ‘characteristics’ of the patients. As I said in Lee v Kelly at [51], in my view these include ethnic characteristics.

45 Moreover, as in Lee v Kelly, Committee 292 assumed that Dr Lee’s Korean speaking patients would see the ‘culturally appropriate’ health service providers without asking whether they were prepared able or in a position to do so and whether this provided the explanation for their demands on Dr Lee.

46 Accordingly, in my opinion, the findings of Committee 292 were affected by errors of law. As in Oreb, it commenced with a misunderstanding of what was meant by "exceptional circumstances". It then failed to ask itself the correct question as to what had given rise to the claimed exceptional circumstances and whether they fell within the terms of Reg 11(b). It distracted itself from addressing the correct question by taking into account an irrelevant consideration, namely the need for the patients to integrate within the wider community. These were jurisdictional errors; see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ("Yusuf") at [84] (McHugh, Gummow and Hayne JJ).

47 As Counsel for Dr Lee properly accepted, there were no racial undertones in the approach taken by Committee 292. It misdirected itself by focussing, wrongly, upon "assimilation" and the need for integration. But this does not in any way suggest racial bias.

48 Counsel for the respondents submitted that Committee 292 was entitled to take into account that the high level of servicing reflected an exercise of choice on the part of Dr Lee. It is true, as Kieffel J said in Hatcher at [53] that exceptional circumstances bringing about a large number of consultations must be circumstances which are out of the ordinary and which are beyond the control of the practitioner.

49 Thus, in Hatcher, even if the doctor exercised practice management to control the number of his services, this would not have addressed the shortage of medical services for disadvantaged people which was beyond the doctor’s control.

50 In the present case, it may have been open to Committee 292 to find that Dr Lee made a deliberate choice to see a large number of patients. Its finding that Dr Lee had a responsibility to proactively utilise other culturally appropriate, equitable, and accessible health services suggests that this is what Committee 292 had in mind. However, reading the report fairly, it seems to me to fall short of a finding that the circumstances upon which Dr Lee relied were based upon an exercise of his own choice in the matter.

Orders

51 It follows that the finding by Committee 292 of inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside. The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Committee should be made.

52 Dr Lee has succeeded on the only issue which was agitated, other than in a formal way, at the hearing. Accordingly, the first respondent should pay the applicant’s costs of the proceedings.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson

Associate:

Date: 7 February 2005

Counsel for the Applicant:	Mr M Robinson with Mr C Jackson
Solicitors for the Applicant:	Tress Cox
Counsel for the Respondent:	Ms R Henderson
Solicitors for the Respondent:	Minter Ellison
Date of Hearing:	8 December 2004
Date of Judgment:	7 February 2005