The National Home Doctor Service (NHDS) successfully brought an application to set aside the Director of the Professional Services Review’s (Director) decision to set up and refer to a Committee (pursuant to section 93 of the Health Insurance Act 1975) regarding the issue that NHDS may have engaged in inappropriate practice by knowingly, recklessly, or negligently, permitting or causing 56 specified practitioners to engage in conduct constituting inappropriate practice with reference to MBS Item 597 (urgent after hours consultation item).
During the relevant period (September 2016 – August 2017), NHDS operated an approved medical deputising service to expand the number of medical practitioners providing after-hours care on behalf of GPs. Under the relevant Services Agreement, the practitioners appointed NHDS as their billing agent and NHDS would charge a service fee and distribute the remaining benefit to the relevant practitioner.
In her section 89C report, the Director summarised the request she received from the delegate with respect to urgent after-hours items and confirmed that she had decided to undertake a review of NHDS’s conduct. The Director based her conclusions in large part on findings made in respect of 15 practitioners she had interviewed who were associated with NHDS. The NHDS then provided detailed written submissions and complained that the Director had not identified the services reviewed and had not provided the NHDS with sufficient information to identify the services to allow for substantive submissions with respect to each practitioner’s conduct.
On 23 July 2019, the Director determined to make a referral to a Committee under section 93 and publish her section 93 report. The Committee was to investigate whether NHDS had engaged in inappropriate practice with respect to 56 specified practitioners. At no time prior to this, had the Director informed NHDS that her referral decision was based, in part, on the conduct of those 56 NHDS practitioners.
The Court held that the Director had denied NHDS procedural fairness in making her decision to refer because:
- the Director did not give prior notice that she intended to rely upon the conduct of those 56 practitioners in determining that their conduct should be the focus of the section 93 referral (denying NHDS of an opportunity to persuade the Director she could not be reasonably satisfied that their conduct involved inappropriate conduct); and
- the Director did not provide NHDS, as the person under review, with the relevant and significant information concerning the original group of 15 NHDS practitioners and the services rendered which were reviewed, nor an opportunity to respond to that material.
With respect to first limb, the Court noted that “[t]he statutory requirements of procedural fairness under the PSR Scheme would be seriously compromised if the Director proceeded as she has done without giving NHDS proper notice and relevant information about the significant change in direction she had taken”.
It was unnecessary for the Court to determine the remaining grounds of review.
The Director’s decision to make a referral to a Committee was set aside.
The full decision in National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 386 can be read here.
