Foong v Professional Services Review Committee No 1359 [2026] FCA 373

The parties' submissions on reopening

THE REFFERAL AND THE FINAL REPORT

CONSIDERATION: MBS ITEMS 14050 AND 14053 (PHOTOTHERAPY)

Where the phototherapy treatment was initiated by a practitioner other than Dr Foong

The submission that there was no logical basis for the Committee's finding that Dr Foong had engaged in inappropriate practice by allowing his provider number to be used

The submission that the Committee's finding that the services were incorrectly attributed to Dr Foong instead of the practitioners who initiated the services

Where phototherapy treatment was initiated by Dr Foong

Appendix 1, Randomly Sampled Service No. 5

The submission that the Committee made a finding of inappropriate practice in respect of a service not referred to the Committee

The submission that the Committee ignored relevant evidence

The submission that the Committee failed to assess whether the standard in s 5 of the 1999 Regulations was satisfied

The submission that the Committee failed to address the fact that the records were made by Dr Foong's employees, not Dr Foong

Appendix 1, Randomly Sampled Service No. 6

Appendix 1, Randomly Sampled Service No. 7

Appendix 1, Randomly Sampled Service No. 11

Appendix 1, Randomly Sampled Service No. 17

Appendix 1, Randomly Sampled Service Nos. 19 and 25

Appendix 2, Randomly Sampled Service Nos. 2 and 24

Appendix 2, Randomly Sampled Service Nos. 20 and 30

Where the identity of the responsible practitioner is unclear

CONSIDERATION: MBS ITEMS 18234 AND 18236

Findings that administration of local anaesthetic under MBS Items 18234 and 18236 was inappropriate practice because it was not clinically indicated

Findings that Dr Foong's record-keeping in respect of MBS Items 18234 and 18236 was inadequate

CONSIDERATION: MBS ITEMS 45201, 45562 AND 45563

1. On 14 July 2020, the second respondent, the Director of Professional Services Review (the Director) established Professional Services Review Committee No. 1359 (the Committee) to investigate whether the applicant, Dr Damien Peng Sung Foong, had engaged in "inappropriate practice" during the referral period.
2. On 28 November 2022, the Committee gave its final report (the Final Report) pursuant to s 106L of the Health Insurance Act 1973 (Cth) (the HIA) making numerous findings that Dr Foong had engaged in inappropriate practice.
3. Dr Foong seeks judicial review of the Committee's "decision" under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). The application is contested by the Director.
4. Dr Foong's Third Further Amended Originating Application contains nine grounds of review. After the hearing had been conducted over three days and after I reserved my judgment, Dr Foong applied to reopen the case to add a tenth ground and adduce further evidence. I also reserved my judgment upon the application to reopen.
5. I will commence by considering the application to reopen the case before turning to consider the grounds of review.
6. As will be explained, the application to reopen will be refused and the proceeding will be dismissed.

1. On 29 August 2025, some six months after the trial of the proceeding had been conducted and judgment had been reserved, Dr Foong lodged for filing an interlocutory application seeking the following orders:
   1. The Applicant have leave to reopen the matter.
   2. The Applicant have leave to file a Fourth Further Amended Originating Application for Judicial Review in the form annexed to this Application and marked "Annexure A".
   3. The Applicant have leave to adduce further evidence on the further ground of jurisdictional error.
   4. The Applicant have leave to make further and additional submissions on the further ground of jurisdictional error.
2. The proposed Fourth Further Amended Originating Application would add the following additional ground:

Ground 10: Jurisdictional error in the making of findings by the Committee and preparation of the final report, in that documents produced demonstrate Dr Cross did not prepare or engage in the process of making findings prior to preparation of the draft or final report, and as such, did not bring to bear her skill, training and expertise as a member of the Committee in the making of findings. This amounts to jurisdictional error.

1. It may be noted that the Committee comprised Dr Catherine Reid (dermatologist) as Chair and Dr Marjorie Cross and Dr Glynn Kelly as Members (general practitioners).

1. The interlocutory application has been brought pursuant to ss 20 and 37P of the Federal Court of Australia Act 1976 (Cth) which provide a general power to the Court to make directions about the conduct of a matter and the practice and procedure to be followed.
2. In considering whether to grant leave to reopen a case for the admission of further evidence after judgment has been reserved, the overriding principle is whether leave is in the interests of justice: Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 at [22] (and the cases cited therein).
3. In Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 at [17]- [18], the Victorian Court of Appeal indicated that to allow reopening after judgment has been reserved, exceptional circumstances are required:

[17] There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one... Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

[18] The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the re-opened issues would be hard to define and as difficult to protect. The re-opened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the re-opening to polish parts of its case which were more or less within the scope of the re-opened proceeding but not clearly on one side or the other of the prescribed limits.

(See also MF Lady Pty Ltd (Trustee) v Henry Morgan Ltd [2022] FCA 978 at [88]; Frigger v Trenfield (No 7) [2020] FCA 1740 at [49]; Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 at [280]; Milicevic v Ferrari East Pty Ltd [2022] NSWSC 585 at [26].)

1. In judicial review proceedings, the public interest in the finality of litigation is a, "powerful factor tending against the grant of leave, as is the need to keep the ambit of the inquiry within reasonable bounds": EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [254].
2. In Inspector General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J explained at [24] that there are four recognised grounds for reopening a case, although they are not exhaustive:

The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law.

(Citations omitted.)

1. Whether evidence is "fresh" calls for consideration of whether the evidence is "new" in the sense that the applicant was unaware of it at the time of the original hearing and could not have obtained it with reasonable diligence: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74].
2. In McCarthy v McIntyre [2000] FCA 1250, the Full Court held at [30]:

Where an application is made to reopen on the basis that new or additional evidence is available, it would be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.

(See also Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 476; Robertson v Unique Lifestyle Investments Pty Ltd [2007] VSCA 29 at [6].)

1. The matters relevant to the exercise of the discretion include the degree of probability that the additional evidence will affect the result and whether the evidence would be complex and contested: Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 at 81-82; Telstra Corporation Ltd v Australian Competition & Consumer Commission (2008) 171 FCR 174; [2008] FCA 1436 at [208]- [211].

1. The basis of Dr Foong's application is that following a Freedom of Information (FOI) request made by his legal representatives on 30 May 2025, he obtained further documents on 27 June 2025 which revealed the basis for the proposed new ground. The further documents revealed that one of the Committee members, Dr Cross, had last been paid for a hearing on 21 April 2021 while the other members had been paid for work on the Final Report published on 28 November 2022, which Dr Foong contends raises an inference that Dr Cross did not participate in the making of the findings attributed to the Committee.
2. The applicant submits that:

1. The documents discovered through the FOI applications, including those decisions releasing documents after the hearing of the originating Application had concluded reveal an arguable case there has been a failure to exercise jurisdiction or a failure in the exercise of jurisdiction: 1. On the final report, a certain degree of work was done by Dr Reid and Dr Kelly (about two to three hours each) on a document of 397 pages. That may not reflect inadequate attention to the task by them because those two members were finalising a draft report prepared by PRS Legal. 2. However, in that period, there was no relevant claim for remuneration by Dr Cross. That is potentially significant as it may reflect no input or consideration in arriving at "findings" as she was obliged to do.

1. It was not until 27 June 2025 further evidence demonstrated Dr Cross does not appear to have participated in the decision making process (by bringing her own logic, professional skill, training and expertise to the findings) came to the attention of Dr Foong through of freedom of information process. If those records are complete and accurate, that material revealed Dr Reid spent considerable time working on the draft report with minor input from Dr Kelly. There are no documents demonstrating any work on the draft report by Dr Cross as follows: 1. No Payments were made to Dr Cross after 21 April 2021 (the last hearing day) 2. No payments were made to Dr Kelly between 21 April 2021 and 10 October 2022. 3. The consideration of the report appears to have been performed by Dr Kelly and Dr Reid. 4. Dr Kelly considered the reports for a total of 3.5 hours. It would be fair to say the Committee itself did not consider the reports and therefore it appears the Final Report does not comply with the requirements of s 106L of the HIA.

Y. The documents produced demonstrate:

1. An absence of consideration of the contents of the report (of 397 pages) by one of the Committee's members, Dr Cross.
2. Limited consideration of the contents of the report by Dr Kelly.
3. A prepared report was presented to the Committee in August and October 2021 by persons unknown.

1. Dr Foong submits that there would be no prejudice to the Committee in allowing the case to be reopened and allowing further evidence to be adduced in relation to his additional ground.
2. The Director contends that none of the documents obtained in the latest FOI request amount to "fresh" evidence and argues that the public interest and the need for finality in litigation weigh heavily against Dr Foong being permitted to reopen the case.
3. The Director submits that the conduct of Dr Foong's case demonstrates his legal representatives were already aware of the information contained in the documents provided on 27 June 2025:

The Applicant already knew from at least 6 January 2025 that the last time that relevant committee members were paid was 21 April 2021. In his correspondence of 17 January 2025, [Dr Foong's legal representative] contended that the evidence he cited demonstrated that "the Committee cannot have properly considered the content of the draft or final report". The material obtained in June 2025 adds nothing significant to the state of the Applicant's knowledge beyond the information he held at the start of 2025 when he instructed his lawyers not to pursue the ground now sought to be advanced.

(Emphasis in original.)

1. The Director notes that in correspondence dated 17 January 2025, Dr Foong's legal representatives foreshadowed an application to amend the originating application, but then at a case management hearing on 30 January 2025, Dr Foong's senior counsel stated, "it has been decided not to seek to amend to raise that ground".
2. In these circumstances, the Director submits:
   1. Clearly, from 6 January 2025 onwards the Applicant and his representatives have had information about the sums paid to committee members and the dates of those payments and sought to draw inferences from those payments as forming the basis for the new ground yet, when given the opportunity to do so prior to the resumed hearing in February 2025, the Applicant made the strategic decision, apparently on the basis of advice by competent senior and junior counsel, not to rely on it. The material produced in response to the further FOI request dated 30 May 2025 did not materially advance what the Applicant knew as at 6 January 2025. Indeed, in his submissions on this application, counsel for the Applicant notes that the fact that there was no relevant claim for remuneration by Dr Cross was "potentially significant as it may reflect no input or consideration in arriving at 'findings'". That the Applicant had possession of this "potentially significant" information by 6 January 2025 is simply ignored by the Applicant. Accordingly, the material relied on to support the [interlocutory application] should not be considered to demonstrate the discovery of 'new' evidence or the elucidation of a 'new' ground.
   2. Within this context, the affidavit material relied on in support of the IA does not reveal a reasonable explanation for the Application to re-open, other than the obvious inference that the Applicant has changed his mind and seeks to withdraw from his previous position taken in the proceeding on the advice of counsel. It is notable that the Applicant has not provided any evidence personally in support of the [interlocutory application].
3. The Director also relies on the delay by Dr Foong in bringing the application, noting he has not explained why the additional FOI request was made so long after judgment was reserved, nor why it could not have been made well before the final hearing. The Director submits Dr Foong has also not explained why it had taken two months since the provision of the relevant documents to bring the application.

1. The proceeding has a long and tortuous procedural history. It is necessary to recount some aspects of that history.
2. The Committee held hearings on 4, 5, 22 and 23 February 2021 and 20 and 21 April 2021. The Draft Report was provided to Dr Foong on 24 June 2021, and the Final Report was given on 28 November 2022.
3. The originating application for judicial review was filed on 11 December 2023. The hearing of the judicial review application was set down for one day on 3 September 2024 but was not completed that day and was adjourned for further hearing on 18 and 19 February 2025.
4. On 17 January 2025, Dr Foong's solicitors wrote to the solicitors for the Director foreshadowing an application to vacate the 18 and 19 February 2025 hearing dates and for further amendment of the application for judicial review. The letter stated, relevantly:

Our Client's Reasons behind the Further Amending Application

In early October 2024 Dr Foong received a telephone call from someone within the PSR who cannot be named. The tip off advised Dr Foong that the draft and final reports relied upon by the PSR were not drafted by the Committee as required by ss 106KD and 106L of the Health Insurance Act.

Our client's informant advised that all draft and final reports relating to PSR Committees were authored by the PSR legal team and that this is a systemic issue of compliance with the obligations prescribed by the Health Insurance Act 1973.

The documents discovered under the recent FOI Applications indicate that the last time that the members of Committee 1359 were paid by the Commonwealth was on 21 April 2021.

We further note the following:

1. The draft report is dated 24 June 2021

1. The final report, containing 5 more pages than the draft report, is dated 28 November 2022.

2. There were three emails to Committee 1359 on 14-15 November 2022 of which we are seeking further disclosure.

The Committee had no power to delegate the drafting of the reports to another persons. (See Raiz v Director of Professional Services Review [2024] FCAFC 91 at [75).

We further note the Full court said at [82]:

Section 106G is concerned with the action to be taken by a Committee "for the purposes of' its investigation. It "is the duty of the Committee to carry out its functions so that its final report is given to the Determining Authority" within specified timeframes: s 106G(2). That duty is imposed collectively, and provision is made for unanimous and majority findings in the case of a draft and final report, respectively at ss 106KD and 106L.

Given the disparity between the transcript and the findings in the report, together with the information released under the FOI requests the Committee cannot have properly considered the content of the draft or final reports.

Despite request we have received no information that supports the proposition that the Committee had any meaningful input into the preparation of the reports.

On this basis our client believes that the reports are tainted in that the reports do not appear to reflect the Committee's reasonings as recorded in the Committee hearing transcripts.

We have consequently requested Counsel to prepare a further Application to Amend the originating Application so this proposed amendment can be properly agitated before the Court.

Proposal

We propose that a further application is made to the Court to:

(a) Vacate the 18 and 19 February 2025 continued trial dates, to a date to be fixed;

(b) Hear and Determine the Application to further amend the initiating Application.

Kindly provide your client's response.

(Emphasis added.)

1. The documents "discovered under the recent FOI Applications" were three documents received by Dr Foong's solicitors on 6 January 2025. The documents were produced from the payment database for the three Committee members in respect of all meetings the Committee held between 14 July 2020 and 28 November 2022. They showed:

(a) printouts of payments made to Dr Cross which showed she had last been paid for work done on 21 April 2021 for "Meeting/Hearing";

(b) printouts of payments made to Dr Reid which showed she had last been paid for work done on 21 April 2021 for "Meeting/Hearing";

(c) printouts of payments made to Dr Kelly which showed he had last been paid for work done on 21 April 2021 for "Meeting/Hearing".

1. In the lead-up to the resumed hearing, the Director requested a case management hearing which was listed for 30 January 2025. The Director's senior counsel explained that the letter from Dr Foong's solicitors of 17 January 2025 had raised concerns about whether the resumed hearing could proceed on the appointed dates.
2. At the case management hearing, Dr Foong's senior counsel stated:

The letter of 17 January your Honour has been taken to proposed an additional ground of reviewable error in that the Tribunal had not itself prepared the report. After some reflection, it has been decided not to seek to amend to raise that ground. So there is no longer an application for - to amend the OA to raise that additional ground. Nor do we seek to vacate the hearing dates.

1. The ground that the applicant's senior counsel said was not being taken was that the members of the Committee had not made the findings in the Final Report, presumably in contravention of s 106L(1) of the HIA which provides that, "the Committee must... prepare a final report" setting out the "findings" of "the Committee members".
2. The hearing then proceeded on 18 and 19 February 2025. At the conclusion of the hearing, I reserved my judgment subject to the filing of further written submissions. The last of those submissions was filed on 11 April 2025.
3. Dr Foong's application to reopen was lodged for filing on 29 August 2025, nearly six months later. The interlocutory application was heard on 18 September 2025 and I reserved my judgment.
4. Dr Foong's solicitors sent a letter dated 30 May 2025 to the Professional Services Review Agency. The letter states:

On 6 January 2025 we received a notice of internal review undertaken by Mr Topperwein which confirmed that a telephone meeting was held between the PSR and the Committee on 22 July 2020 and 28 November 2022.

The decision granted access to 3 additional documents being payments in respect of all meetings between 14 July 2020 and 28 November 2022.

Based upon the decision received a reasonable observer would be able to conclude that between 21 April 2021 and 15 November 2022 were the only communications between the PSR and the Committee prior to the release of the final report and therefore it was impossible for the Final report to comply with section 106L of the Health Insurance Act.

1. The letter requested further internal review and also made a request for other documents. Amongst the documents requested were, "a copy of the log of hours of the consultants and the members of the Committee who consulted or contributed to the draft of either of the reports relied upon by Committee 1359".
2. On 27 June 2025, Dr Foong's solicitor was provided with six further documents. The documents to which Dr Foong and his solicitors were given full access were:

(a) List of staff who contributed to the drafting of the Draft or Final Report of the Committee;

(b) Dr Kelly's timesheet for review of the Final Report; and

(c) Dr Reid's timesheet for review of the Draft and Final Report.

1. The documents to which Dr Foong and his solicitors were given partial access were:

(d) PSR Payment for Processing Report for Dr Reid which showed she had been paid for work done on 8 and 12 December 2021 and 2, 4 and 6 February, 25 and 28 April, 2 September, 15 October and 21 November 2022 for "Preparation (Report/Meeting)";

(e) PSR Payment for Processing Report for Dr Cross which showed she had last been paid for work done on 21 April 2021 for "Meeting/Hearing"; and

(f) PSR Payment for Processing Report for Dr Kelly which showed he had been paid for work done on 10 October and 21 November 2022 for "Preparation (Report/Meeting)".

1. Dr Foong contends that the further documents show that Dr Cross had no input into the Draft Report or Final Report. It is these documents which Dr Foong contends amount to "fresh evidence" for the purpose of the application for reopening.
2. Dr Foong submits that he did not previously have the information indicating that Dr Reid and Dr Kelly went on to consider and prepare the report in the absence of Dr Cross in the period between 21 April 2021 and 21 November 2022 and, in particular, he did not have the evidence that Dr Kelly and Dr Reid had been paid for that work and that Dr Cross had not.
3. Dr Foong submits that the Committee members are required to collectively act to perform the functions and exercise the powers of the Committee: see Raiz v Director of Professional Services Review [2024] FCAFC 91 at [75]. The error of law that Dr Foong now wishes to allege is that Dr Cross did not engage in the making of the findings contained in the Final Report, contrary to s 106L(1) of the HIA.
4. The new error of law is different, but, in my opinion, not substantially different, to the ground his solicitors indicated an intention to raise in their letter of 17 January 2025 and which was abandoned at the case management hearing on 30 January 2025. That ground was in substance that none of the members of the Committee had made the findings contained in the Final Report, contrary to s 106L(1) of the HIA. Dr Foong's proposed new ground proceeds on the basis that Dr Reid and Dr Kelly, but not Dr Cross, made the findings.
5. What is common between the ground raised and abandoned in January 2025 and the ground raised by the interlocutory application is the allegation that Dr Cross did not make any of the findings in the Final Report. However, it may be noted Dr Foong already had information that Dr Cross had not been paid since 21 April 2021.
6. Dr Foong's solicitor explains that the ground was abandoned on 30 January 2025 because, "[c]ounsel engaged at the time advised there was insufficient evidence to support an application to further amend the Application particularly on the eve of the final hearing". There was, accordingly, a deliberate decision not to pursue the ground.
7. I consider that there was an adequate basis for Dr Foong to apply for amendment to add a ground that the members of the Committee had not made the findings contained in the Final Report in January 2025, before the hearing had concluded. He made a deliberate decision not to pursue that ground. I do not accept that the further documents obtained on 27 June 2025 substantially improve Dr Foong's prospects of success.
8. The further evidence that Dr Foong relies upon consists of timesheets and payroll records that indicate that Dr Reid and Dr Kelly were involved in preparation of the Final Report. I can accept that these records add some strength to the argument that an inference should be drawn that Dr Cross was not paid after 21 April 2021 because she did not perform work on the Final Report. However, the argument itself was already available from the records received on 6 January 2025 which showed that Dr Cross (and the other members) had last been paid on 21 April 2021 and that payment was for a hearing. Those records had led to the assertion by Dr Foong's solicitor on 17 January 2025 that, "the Committee cannot have properly considered the content".
9. I accept that if Dr Foong were permitted to reopen the case and pursue the proposed ground, the ground would be at least reasonably arguable, although not necessarily have strong prospects of success. There are other inferences that may be available, including that Dr Cross simply failed to submit timesheets and a claim for payment for the Final Report. It may also be noted that s 106ZR(1) of the HIA prohibits a person from disclosing "any of the deliberations" of a Committee unless required or permitted by the HIA. Further, s 106F(1) provides that, "[a] Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court". Those provisions may give rise to a claim of privilege from disclosure of information concerning the Committee's deliberations: cf. Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698 at [16] (Gaudron J); O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at [183].
10. It is relevant that, leaving aside any question of privilege, the reopening of the ground would entail the calling of further evidence and the distinct possibility of Dr Foong seeking to cross-examine members of the Committee. That distinguishes the case from one where the proposed new ground could be determined solely on the basis of submissions.
11. It is also relevant that there were substantial delays by Dr Foong and his lawyers in pursuing the claims that the Committee as a whole and Dr Cross individually had failed to make findings. Dr Foong's solicitor has provided no explanation for why it took nearly six months after judgment had been reserved for the application to reopen to be made. The relevant documents were received on 27 June 2025 following a request that had not been made until 30 May 2025, some three months after judgment had been reserved. Even after the documents were received on 27 June 2025, it took a further two months before the application for reopening was lodged for filing on 29 August 2025. These unexplained delays weigh against the application for reopening.
12. Although Dr Foong submits that there would be no prejudice to the Committee in allowing the case to be reopened and further evidence to be adduced, it is necessary to take into account the important public interest in finality of litigation.
13. It may be noted that Dr Foong's written submissions assert that the newly obtained documents also allow an inference to be drawn that, "Dr Kelly could not have adequately participated in the fact-finding process that gave rise to the final report". That allegation goes beyond the proposed new ground, which relates solely to the involvement of Dr Cross, and illustrates the problem described in Spotlight at [18] that, "very often, the boundaries of the re-opened issues would be hard to define and as difficult to protect".
14. I do not consider that Dr Foong has demonstrated the existence of "exceptional circumstances" necessary for reopening a case where judgment has been reserved: see Spotlight at [17]. I am not ultimately satisfied that it is in the interests of justice to allow reopening.

1. The Director, acting under s 93(1) of the HIA, established the Committee and made the following referral:

Item 2

The Committee is established to investigate whether Dr Damien Foong of Logan Skin Clinic, Unit 2/13-21 Mayes Avenue, Logan Central, Queensland, engaged in inappropriate practice in providing the following services during the review period of 1 October 2017 to 30 September 2018 (the review period):

• Medicare Benefits Schedule (MBS) item 14050;
• MBS item 14053;
• MBS item 18234;
• MBS item 18236;
• MBS item 30192;
• MBS Item 30195;
• MBS item 30196;
• MBS item 30197;
• MBS item 45201;
• MBS item 45562; and
• MBS item 45563.

1. The Final Report was signed by Dr Reid and dated 28 November 2022. It begins with the following "Finding":
   1. The Committee's finding is that Dr Damien Foong, medical practitioner, of Logan Skin Clinic, Unit 2/13-21 Mayes Avenue, Logan Central, Queensland engaged in inappropriate practice in connection with providing the Referred services.
   2. In particular, the Committee finds that the conduct of Dr Foong in connection with providing the services examined by the Committee and referred to below would be unacceptable to the general body of medical practitioners as defined in paragraph 82(1)(d) of the Act:

• 84% of the MBS item 14050 services
• 100% of the MBS item 14053 services
• 100% of the MBS item 18234 services
• 90% of the MBS item 18236 services
• 90% of the MBS item 30195 services
• 35% of the MBS item 30196 services
• 100% of the MBS item 30197services
• 5 of 5 MBS item 45201 services
• 5 of 5 MBS item 45562 services, and
• 5 of 5 MBS item 45563 services.
  1. Appendices 1 to 10 set out reasons why the Committee finds that the conduct of Dr Foong in connection with rendering the services described in paragraph 2 would be unacceptable to the general body of medical practitioners.
  2. In making the findings in paragraph 2 which refer to a percentage of services, the Committee has applied the Health Insurance (Professional Services Review - Sampling Methodology) Determination 2017 made under subsection 106K(3) of the Act to its findings in the relevant Appendices.

1. Near the end of the Final Report at [218], the Committee set out a Table that, "indicates the outcome of the Committee's examination of Dr Foong's conduct in connection with providing the MBS item 14050, 14053, 18234, 18236, 30195, 30196 and 30197 services" (the Table omits MBS Items 45201, 45562 and 45563). The Table provides, relevantly:

1. In the course of the hearing, Dr Foong's counsel indicated that he did not challenge the Committee's findings of inappropriate practice in respect of MBS Items 30195, 30196 and 30197.
2. In the Final Report, after the "Finding" section, appears the following "Executive Summary":

During the Review Period Dr Foong worked as a medical practitioner solely in the field of skin cancer medicine. The Committee has made widespread findings of inappropriate practice in relation to Dr Foong's rendering of the Referred services.

As the owner of Logan Skin Clinic and the phototherapy machines, all phototherapy services (MBS items 14050 and 14053) provided at the Clinic were billed to Dr Foong's provider number, regardless of whether he had seen the patient or initiated the treatment. There was a collective lack of responsibility taken by the practitioners at the Clinic, including Dr Foong, in relation to patients receiving phototherapy. Many patients received the treatment (administered by a practice nurse or receptionist) for years without being reviewed by a doctor. Some patients received phototherapy despite having conditions which contraindicated the treatment.

Further, the patient's skin type and the intended length of treatment was not recorded and often the diagnosis and clinical indication for phototherapy was not recorded. The cumulative number of phototherapy treatments were never recorded.

In some instances, it was not possible to ascertain which practitioner had initiated the treatment. In these instances the Committee considered that Dr Foong was responsible, given he was the owner of the Clinic and the person to whom the services were billed. Where it was clear that another practitioner had initiated the services the Committee considers that Dr Foong impermissibly allowed his provider number to be used for these services. In relation to all phototherapy services reviewed the Committee considers Dr Foong's conduct in connection with those services would be unacceptable to the general body of medical practitioners.

The Committee is also concerned that Dr Foong treated field actinic keratosis with electrodessication and curettage (billing MBS item 30195) rather than by a less invasive treatment such as cryotherapy or topical field treatments which are indicated for widespread sun damage. Often, Dr Foong administered multiple nerve blocks in association with the treatment (billing MBS items 18234 and 18236) and in these instances the Committee considers that neither the treatment nor the nerve blocks were clinically indicated.

With respect to nerve blocks billed as MBS item 18234, the Committee has made findings of inappropriate practice because Dr Foong injected the infraorbital nerve rather than a primary division of the trigeminal nerve, contrary to the MBS item descriptor.

Dr Foong's rendering of services as MBS items 30196 and 30197 was particularly concerning. Both items are for the removal of malignant neoplasms of skin and require proof of malignancy by histopathology or specialist opinion. Dr Foong generally did not obtain new histopathology when rendering these items but instead relied on pathology from an older lesion in the same anatomical area. In many instances the pathology was over a year old and sometimes over five years old. This practice is an unreliable method for determining whether lesions are malignant.

The Committee does not hold concerns regarding Dr Foong's clinical acumen (other than with respect to phototherapy services). However, the Committee is concerned that Dr Foong did not assess patients' suitability for skin flap procedures (billed as MBS items 45201, 45562 and 45563) prior to performing the procedure. The Committee also considers that Dr Foong's records for these procedures were inadequate, including in relation to obtaining patient consent.

This summary is not a substitute for the Committee's reasons as set out in the remainder of the report and the Appendices.

(Emphasis in the original.)

1. The Committee then set out its "Reasons for Finding". This section of the Final Report explains the Committee's reasons for making its findings at a relatively general level, particularly where the Committee gave the same or similar reasons in respect of a group of services.
2. The Reasons for Finding section is followed by Appendices 1 to 10. In the Appendices, the Committee individually considers each service. In each Appendix, Table 1 sets out any services excluded from consideration. Table 2 sets out services in respect of which the Committee made no finding of inappropriate practice.
3. Table 3 in each Appendix then sets out the services in respect of which the Committee found there had been inappropriate practice. Table 3 sets out the "Date of service" for each individual randomly sampled or referred service it considers. Table 3 then sets out the material considered, usually from Dr Foong's records and his oral evidence. Table 3 then has a heading "Reasons for finding of inappropriate practice" under which the Committee sets out its reasons.
4. I consider that it is in Table 3 that the findings of inappropriate practice themselves are made. That is demonstrated by the heading to Table 3, "Inappropriate practice found". The material in the body of the Final Report under the heading "Finding" and at [218] are summaries of the findings made in Table 3.
5. In its Final Report, the Committee sought to distinguish its "Finding" from its "Reasons for Finding". It would have been more accurate for the Committee to have used the heading "Findings", since it made findings that Dr Foong had engaged in inappropriate practice in the provision of many of the referred services. The distinction between the Committee's "findings" and its "reasons for findings" is of some importance in the present case. That is because the Committee may only make "findings" of inappropriate practice in respect of the referred services but may have regard to unreferred services in its reasons.
6. In order to properly understand the Committee's reasons, it is necessary to read the individual findings and reasons in Table 3 of each Appendix together with corresponding material in the "Reasons for Finding" section of the Final Report.

1. Part VAA of the HIA has the heading, "The Professional Services Review Scheme". Under s 79A, the object of the Scheme is protection of the integrity of the Commonwealth medical benefits program so as to protect patients and the community from the risks associated with inappropriate practice, and the protection of the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
2. Section 80(2) of the HIA states that the Scheme is for reviewing and investigating the provision of services to determine whether there has been inappropriate practice. Effectively, medical practitioners who wish to participate in the Medicare scheme are prohibited from engaging in inappropriate practice: Wong v Commonwealth (2009) 236 CLR 573 at [224].
3. The expression "service" is relevantly defined in s 81(1) as, "a service that has been rendered if, at the time it was rendered, medicare benefit... was payable in respect of the service".
4. The expression "inappropriate practice" is relevantly defined in s 82(1) as follows:

82 Definitions of inappropriate practice

Unacceptable conduct

(1) A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services (other than a service of a kind referred to in paragraph (c) or (d) of the definition of service in subsection 81(1)) is such that a Committee could reasonably conclude that:

...

(d) if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession - the conduct would be unacceptable to the general body of the members of that profession...

1. It may be noted that the Committee at [47]-[48] of the Final Report indicated that it regarded the relevant "profession" for the purposes of s 82(1)(d) as general practitioners who work in a specialist skin care clinic in a "mini hospital type setting".
2. In National Home Doctor Service Pty Ltd v Director of Professional Services Review (2020) 276 FCR 338; [2020] FCA 386, Griffiths J observed that the PSR Scheme has four tiers of decision-making, each providing for decisions to be made by different administrative decision-makers. Those tiers may be described as follows:

(a) Tier 1 - a request by the Chief Executive Medicare to the Director to review the provision of services: Div 3, ss 86-87;

(b) Tier 2 - a decision by the Director as to whether or not to undertake the review, the undertaking of any review; and then whether to take no further action, enter into an agreement, or make a referral to a Committee: Div 3A, ss 88-94;

(c) Tier 3 - referral by the Director to a Committee to investigate whether the person engaged in inappropriate practice; and investigation and reporting by the Committee: Divs 3A and 4, ss 93 and 95-106N;

(d) Tier 4 - the imposition of sanctions by the Determining Authority if the Committee makes a finding that the person engaged in inappropriate practice: Divs 5 and 5A, ss 106Q-106XB.

1. The present proceeding is concerned with investigation and reporting by a Committee.
2. The Committee is to be afforded a wide discretion in determining what conduct could be found to meet the test in s 82(1): see Selia v Commonwealth of Australia [2017] FCA 7 at [104].
3. A referral by the Director to a Committee initiates an investigation into the provision of the services specified in the referral: s 80(6). Section 93 provides, relevantly:

93 Referral to a Committee

(1A) This section applies if it appears to the Director that a person under review may have:

(a) provided services during the review period; and

(b) engaged in inappropriate practice in the provision of the services.

(1) The Director may, by writing, set up a Committee in accordance with Division 4, and make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral.

1. The constitution of the Committee is dealt with in s 95. The Committee is not a lay tribunal. In Kew v Director of Professional Services Review [2021] FCA 1607, Beach J observed at [55]:

[i]t is constituted as a group of professional peers, charged with investigating whether there has been inappropriate practice and then making consequential findings against specified criteria. Each member of the committee brings to the deliberations their own knowledge and experience that qualified them for appointment. And in that context the committee was entitled to reach its own views on the basis of the professional training, knowledge and experience of its members, as to whether it would be reasonable to conclude that the relevant conduct would be unacceptable to the general body of specialists in this case.

1. The Committee is permitted to investigate any aspect of the provision of the referred services, and its investigation is not limited by any reasons given in the Director's referral: s 80(6). Section 106H provides, relevantly:

106H Committee findings, scope of investigation etc.

(1) The Committee is to make findings only in respect of the referred services.

(2) However, the Committee is not required to have regard to conduct in connection with rendering or initiating all of the referred services but may do so if the Committee considers it appropriate in the circumstances.

Note: Under section 106K, a Committee can make findings about a sample of the referred services and apply those findings across the relevant class of referred services.

(3) The Committee's investigation of the referred services is not limited by:

(a) the reasons given in the Director's report to the Committee under paragraph 93(6)(a) or anything else in that report; or

(b) the reasons given in any request under section 86 or 106J or anything else in such a request.

1. The Committee is empowered to hold hearings at which evidence is given and documents are produced: s 101(1). The Committee is not bound by the rules of evidence and may inform itself on any matter in any way it thinks appropriate: s 106(2). Section 103 sets out the rights of a person who is under review by a Committee.
2. Section 106L deals with the final report of a Committee and provides relevantly:

106L Final report of Committee

...

(1) After the period of 1 month referred to in subsection 106KD(3), the Committee must, after taking into account any submissions made to the Committee by the person under review within that period, prepare a final report setting out:

(a) if the Committee members are unanimous in their findings - those findings; or

(b) if a majority of the Committee members are agreed on findings - those findings and the findings of the other Committee member or Committee members; or

(c) if there are not a majority of the Committee members who are agreed on findings - the respective findings of the Committee members.

...

(3) Unless subsection (5) applies, the Committee must:

(a) give copies of the final report to the person under review and the Director; and

(b) give the final report to the Determining Authority not earlier than 1 month after the day on which a copy of the report is given to the person under review.

1. The grounds of Dr Foong's Third Further Amended Originating Application are lengthy but can be summarised as follows:

Ground 1: Error in finding that the applicant engaged in "inappropriate practice" based on conduct engaged in by other persons

In respect of MBS Items 14050 and 14053, the Committee found that the applicant engaged in "inappropriate practice" based on conduct engaged in by other persons or practitioners rather than the applicant's own conduct, whereas the applicant could only be responsible for the conduct of other persons if the circumstances in s 82(2) of the HIA were found to be satisfied. The Committee made no such finding and did not apply s 82(2).

Ground 2: Erroneous construction of "adequate and contemporaneous records"

The Committee found that the applicant failed to keep "adequate and contemporaneous records" of rendering services because of his failure to keep adequate records to the "standard" required by s 6 of the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth) (the 2019 Regulations) and Part 8.4 of the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia (the Doctors' Code of Conduct). The Committee erred in failing to make findings as to the inadequacy of the record and/or in applying s 6 of the 2019 Regulations when the applicable regulation was s 5 of the Health Insurance (Professional Services Review Scheme) Regulations 1999 (Cth) (the 1999 Regulations) and/or construing s 5 of the 2019 Regulations as imposing the "standard" of conduct outlined in the Doctors' Code of Conduct.

Ground 3A: Error in finding of inappropriate practice in respect of service not referred to Committee

The Committee found that the applicant engaged in inappropriate practice in respect of certain services which had not been referred to the Committee.

Ground 4A: Finding of inappropriate practice was illogical or irrational

The Committee's finding that the applicant engaged in inappropriate practice was illogical and/or irrational and, or, alternatively, affected by Wednesbury unreasonableness.

Ground 6: Error in conclusion as to practitioner responsible for treatments or "allowing" provider number to be "incorrectly" applied

The Committee erred in concluding that:

(a) the applicant was responsible for:

(i) the clinical assessment of patients who received treatment the subject of MBS Items 14050 or 14053 (the service under review); and

(ii) providing, or reviewing, the decision to provide the course of treatment the subject of the service under review,

when the evidence before the Committee was that another doctor was responsible for the clinical assessment of the patient and the decision to provide the course of treatment by the service under review;

(b) further, or alternatively, the applicant "allowed" his provider number to be "incorrectly" applied to the services under review when, on the evidence before the Committee:

(i) the service under review was provided by, or supervised by, the applicant;

(ii) the applicant did not provide the initial consultation, which was a separate and distinct service and which preceded the service under review;

(iii) the Committee was not, pursuant to s 93 of the HIA, referred the service that was the initial consultation and therefore the clinical assessment provided in that initial consultation and the decision that the patient undergo the course of treatment by way of the provision of the services under review was not within the scope of the referral to the Committee.

Ground 7: Error in conclusion that nerve blocks were not clinically indicated treatments

The Committee found that the administration of the nerve blocks (MBS Items 18234 and 18236) was not clinically indicated because other services (namely electrodessication and serial curettage) were not clinically indicated when:

(a) the provision of electrodessication and serial curettage were not part of the services that are MBS Items 18234 or 18236; and

(b) the Committee was not, pursuant to s 93 of the HIA, referred the services that were the provision of electrodessication and serial curettage.

Ground 8: Errors in conclusion as to adequacy of records

The Committee found that the applicant's records were inadequate (or the provision of the service was "contraindicated" or "given the patient's history... they should not have undergone" the service or similar) in circumstances where:

(a) the Committee only considered the notes recorded for a particular service;

(b) the Committee did not consider the notes kept by the applicant as a whole and which demonstrated that:

(i) the record was not inadequate;

(ii) the provision of the service was not "contraindicated" or not one which the patient should not have undergone; and

(c) the records were "adequate and contemporaneous records" within the meaning of that term in s 81 of the HIA and s 5 of the 1999 Regulations.

Ground 9: Errors in conclusions as to clinical input

The Committee took into account an irrelevant consideration and/or failed to take into account a relevant consideration, namely the Committee found that the applicant's clinical input, as recorded in the applicant's records, was inadequate (or insufficient or not sufficient or not clinically indicated or similar) in circumstances where:

(a) the Committee only considered the notes recorded for a particular service;

(b) the Committee did not consider the notes kept by the applicant as a whole and which demonstrated that the applicant's clinical input was not inadequate;

(c) the records were "adequate and contemporaneous records" within the meaning of that term in s 81 of the HIA and s 5 of the 1999 Regulations;

(d) the clinical input (or alleged inadequate clinical input) was in respect of another service not the subject of the referral to the Committee.

CONSIDERATION: MBS ITEMS 14050 AND 14053 (PHOTOTHERAPY)

1. The Committee made findings of inappropriate practice in respect of ten categories of services provided by Dr Foong. The Final Report groups the referred MBS items involving similar or related services together, while others are dealt with individually. The services are dealt with in the following order:

• MBS Items 14050 and 14053 - phototherapy
• MBS Items 18234 and 18236 - nerve blocks
• MBS Item 30195 - removal of benign neoplasia
• MBS Items 30196 and 30197 - removal of malignant neoplasia
• MBS Items 45201, 45562 and 45563 - skin flaps

1. Dr Foong's submissions address the Committee's findings by reference to the groupings of services used by the Committee. Some of the grounds of review apply to one or more groupings, while others apply only to one grouping. I will consider Dr Foong's submissions in the order they were presented, commencing with MBS Items 14050 and 14053.
2. Dr Foong has owned the Logan Skin Clinic since 2011. During the review period, seven or eight doctors and approximately 2.5 full-time equivalent nursing staff as well as some reception staff were employed at the Clinic.
3. MBS Items 14050 and 14053 involve the administration of phototherapy treatment. Phototherapy involves delivering ultraviolet (UVB) phototherapy radiation to treat skin conditions, such as psoriasis. Phototherapy works by suppressing DNA synthesis, which in turn reduces inflammation.
4. UVB phototherapy is delivered within a specially designed cabinet called a NUVB cabinet. During the period of review (1 October 2017 to 30 September 2018), there were only five or six NUVB cabinets in South-East Queensland. Dr Foong owned and operated three NUVB cabinets: one for full body; one for hands; and one for feet.
5. Administration of the treatment would involve the patient's whole body, hands or feet being inserted into the appropriate cabinet and being treated with the ultraviolet light emitted by the cabinet. The service under MBS Item 14050 involves phototherapy in a full body cabinet, while MBS Item 14053 involves phototherapy in hands and feet cabinets.
6. The Committee divided its reasons for its findings of inappropriate practice concerning the referred phototherapy services into three categories:

(a) phototherapy treatment initiated by a practitioner other than Dr Foong:

(b) phototherapy treatment where Dr Foong initiated the treatment;

(c) phototherapy treatment where the practitioner who initiated the treatment is unclear.

1. I will consider the submissions made in respect of each category in turn.

Where the phototherapy treatment was initiated by a practitioner other than Dr Foong

1. It may be noted that the Final Report uses the term "initiated" in respect of phototherapy treatment, apparently taking the word from s 82 of the HIA, where the phrase "rendered or initiated the services" is used. The word "initiated" is not defined in the HIA. The parties' submissions proceeded on the basis that the word was used by the Committee to describe the prescribing of phototherapy treatment for a patient.
2. The material before the Committee indicated that where phototherapy treatment was initiated or prescribed by a practitioner other than Dr Foong, the pattern of their treatment and billing was as follows:

(a) The patient would be examined by the patient's doctor (generally a general practitioner or dermatologist), who would recommend phototherapy treatment and prescribe the duration and intensity of the treatment.

(b) The examining doctor would refer the patient to the Logan Skin Clinic.

(c) The nursing or reception staff at Logan Skin Clinic would administer the phototherapy treatment in accordance with the duration and intensity prescribed by the referring doctor.

(d) The phototherapy treatment could occur on a number of occasions over an extended period.

1. In cases where phototherapy treatment was prescribed by another practitioner, Dr Foong would generally not consult with the patient and did not personally administer the treatment.
2. At the completion of each phototherapy treatment, Dr Foong (through his staff) would bill for the service under either MBS Item 14050 or MBS Item 14053, depending on which cabinet was used to deliver the treatment. Dr Foong's provider number would be used.
3. An illustration of the pattern of treatment and billing can be seen in respect of Randomly Sampled Service No. 1 in Appendix 1 to the Final Report. The patient had been seen on 30 April 2018 by Dr Lai, another doctor at the Logan Skin Clinic, who had examined the patient and recommended a six-week course of UVB phototherapy treatment. The patient had then received 19 MBS Item 14050 services from May to June 2018. Dr Foong did not see the patient. On 9 May 2018, the patient was seen by a member of the nursing or reception staff, Ms O'Loughlin, who administered the UVB treatment.
4. The Committee found that in respect of Randomly Sampled Service No. 1, Dr Foong had engaged in inappropriate conduct in respect of the use of his provider number for the following reasons:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. As discussed in the body of the report, Dr Foong implemented and oversaw a system of work that allowed his provider number to be incorrectly attributed to the service that was, in fact, rendered on behalf of another doctor in the practice.
2. The patient's history of melanoma meant that phototherapy was contraindicated for this patient.

(Paragraph numbers added for ease of reference.)

1. The reference to "the body of the report' is principally to the following paragraphs of the Final Report:

Services initiated by another practitioner

1. As discussed above, all phototherapy services provided at the Clinic were attributed to Dr Foong, by way of his provider number being used for every service regardless of which doctor was responsible for the treatment. Dr Foong said that where the billings for the item being assigned to his provider number, he was satisfied that patients were being properly managed and reviewed by the doctor who initiated the course of treatment. He also submitted that it was harsh to criticise him for the performance of other doctors in managing patients. He said that he was not responsible for whether other doctors appropriately initiated or reviewed patient's phototherapy treatment.

2. While the Committee accepts Dr Foong did not personally render the services, his conduct in connection with the services included allowing his provider number to be used to make claims in his name for services which he did not oversee. Although some patients may have been followed up by the practitioner who initiated the services, Dr Foong himself did not have any measures in place to ensure the services were provided to an appropriate standard.

3. The Act and Regulations provide that Medicare benefits will not be payable unless the claim includes the name and address or provider number of the practitioner who rendered the service. In the reviewed services the claims were made indicating Dr Foong rendered the service, when this was not the case. And the Committee does not accept the construction advanced by Dr Foong in his submissions in response to the Draft Report that he rendered services by supplying the machine. Clearly that is not what the word means in the context of the medicare scheme.

4. Despite Dr Foong's recurrent submissions that the assignment of the billing was, at the most, a technical error, it is not an error without consequences. Dr Foong caused or at least permitted a misrepresentation to occur and in doing so permitted Commonwealth funds to be expended to his benefit. Further, by incorrectly attributing the services to Dr Foong, the practitioners who actually initiated and were responsible for the services evade any realistic possibility of Medicare compliance activity.

5. The Committee considers that Dr Foong's conduct in allowing his provider number to be used for services he did not provide or oversee would [be] unacceptable to the general body of medical practitioners. Further, Dr Foong did not establish any policies or procedures to ensure that such services were being provided appropriately. As such, the Committee has made findings of inappropriate practice in relation to all MBS item 14050 and 14053 services initiated by another practitioner and billed to Dr Foong's provider number (but not all services rendered by Dr Foong).

(Emphasis in original.)

1. The Committee's reasons at [124]-[128] applied to the Randomly Sampled Services described as Nos. 1, 2, 3, 10, 12, 13, 14, 15, 16, 18, 24 and 29 in Appendix 1; and Nos. 1, 3, 4, 5, 6, 9, 10, 11, 12, 13, 15, 16, 17, 18, 21, 22, 26, 27 and 28 in Appendix 2.

The submission that there was no logical basis for the Committee's finding that Dr Foong had engaged in inappropriate practice by allowing his provider number to be used

1. Dr Foong submits that there was no logical or probative basis for the Committee to determine that: "the phototherapy treatment was rendered on behalf of another doctor"; "Dr Foong incorrectly allowed his provider number to be used for a service that he did not provide or oversee"; and, "all phototherapy services provided at the clinic were attributed to Dr Foong by way of his provider number being used for every service regardless of which doctor was responsible for the treatment".
2. Dr Foong advances his argument by reference to Randomly Sampled Service No. 1 described above, where Dr Lai had examined the patient and recommended phototherapy treatment. Dr Foong submits that on the information before the Committee, the phototherapy treatment under MBS Items 14050 or 14053 was not provided by Dr Lai: it was provided by Dr Foong, through his staff operating his NUVB machines. Dr Foong points out that s 1.2.8 of the Health Insurance (General Medical Services Table) Regulations 2017 (the 2017 Regulations) specifically permits a medical practitioner to provide MBS Item 14050 and 14053 services where the treatment is administered by an employee of the medical practitioner. Dr Foong submits that the information before the Committee indicated that he did provide the phototherapy service through the NUVB machine operated by his staff and that his provider number was correctly attributed to the MBS Item 14050 service.
3. Dr Foong submits that the Committee's reference at [124] to the "doctor... responsible for the treatment" is a confused reference to the doctor who had, at an earlier time, consulted the patient and recommended phototherapy treatment. He submits that the Committee overlooked, or did not appreciate, that there are two different medical services involved. The first is the consultation and recommendation for phototherapy treatment by a general practitioner: MBS Item 53 (general consult). The second is the administration of the phototherapy treatment: MBS Items 14050 or 14053. Dr Foong argues that there is no logical basis for concluding that the general practitioner who recommends the patient for a course of phototherapy treatment is the doctor who provides the phototherapy service: cf. MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22].
4. Dr Foong also submits that contrary to the Committee's reference at [128] to Dr Foong allowing his provider number to be used for services he did not provide or oversee, the evidence was all to the effect that the phototherapy services were provided by his staff on his behalf. Dr Foong submits the staff were not providing the phototherapy service on behalf of the other doctor who had prescribed phototherapy.
5. The Director submits that, construed in context, the Committee's reasons contain no error in determining that Dr Foong engaged in improper practice by allowing his provider number to be used for services he did not provide or oversee. The Director submits that at [126], the Committee was responding to the submission made by Dr Foong that he rendered services by supplying the phototherapy machine. The Director also submits that the Committee determined at [128] that Dr Foong had not supervised his employees who provided the services and, for that reason, was not entitled to use his provider number.
6. To assess the parties' submissions, it is necessary to consider the Committee's reasons in light of the statutory scheme for the payment of Medicare benefits.
7. Section 10(1) of the HIA provides, relevantly, that where medical expenses are incurred in respect of a professional service to an eligible person, a Medicare benefit is payable, subject to and in accordance with the HIA, in respect of that professional service.
8. Section 19(6) of the HIA provides, relevantly, that:

A medicare benefit is not payable... unless the person by or on behalf of whom the professional service was rendered... has recorded on the account, or on the receipt... such particulars as are prescribed in relation to professional services...

1. Section 13(1A) of the Health Insurance Regulations 1975 (Cth) (the 1975 Regulations) provided that for the purposes of s 19(6) of the HIA the prescribed particulars for, "professional services rendered by a person who has been determined to be a medical practitioner", included the provider number of the medical practitioner.
2. At the relevant times, Schedule 1 Part 2 Division 2.37 Group T1 Subgroup 12 of the 2017 Regulations provided the following descriptors of MBS Items 14050 and 14053:
   1. PUVA therapy or UVB therapy administered in whole body cabinet (other than a service associated with a service to which item 14053 applies) including associated consultations other than an initial consultation.

Fee: $52.75

1. PUVA therapy or UVB therapy administered to localised body areas in a hand and foot cabinet (other than a service associated with a service to which item 14050 applies) including associated consultations other than an initial consultation.

Fee: $52.75

1. The Medicare Benefits Schedule Note TN.1.14 explains in relation to MBS Item 14050:

A component for any necessary subsequent consultation has been included in the Schedule fee for this item. However, the initial consultation preceding commencement of a course of therapy would attract benefits.

1. Section 1.2.8 of the 2017 Regulations has the heading, "Services that may be provided by persons other than medical practitioners". The Items listed in that section include MBS Items 14050 and 14053. The section then states:

(2) The item applies whether the medical service is given by:

(a) a medical practitioner; or

(b) a person, other than a medical practitioner, who:

(i) is employed by a medical practitioner; or

(ii) in accordance with accepted medical practice, acts under the supervision of a medical practitioner.

1. Accordingly, MBS Items 14050 and 14053 could apply to phototherapy treatment given by nursing or reception staff employed by Dr Foong even though they were not medical practitioners.
2. It may be noted that the word "rendered", which is used in s 19(6) of the HIA and s 13(1A) of the 1975 Regulations, is not a defined term. The word is relevantly defined in the Macquarie Dictionary as, "2. to do; perform: to render a service. 3. to furnish: to render aid.". I consider that the words "given" in s 1.2.8(2) and "administered" in the descriptions of MBS Items 14050 and 14053 of the 2017 Regulations are intended to have a meaning consistent with "rendered" in s 19(6) of the HIA.
3. The Committee recognised at [106] that the effect of the descriptors for MBS Items 14050 and 14053 was that such services, "could be performed on a medical practitioner's behalf, so long as it was in accordance with accepted medical practice and occurred under the supervision of a medical practitioner". The Committee referred to s 19(6) of the HIA and s 13 of the 1975 Regulations when it stated at [126] that, "Medicare benefits will not be payable unless the claim includes the... provider number of the practitioner who rendered the service". The Committee appreciated that what s 19(6) of the HIA and s 13(1A) of the 1975 Regulations required was the provider number of the medical practitioner who had rendered the service, or on whose behalf the service was rendered (in the sense of performed, provided, administered or given). The Committee proceeded on the basis that for a service to be described as having been rendered on a medical practitioner's behalf by an employee who was not a medical practitioner, the employee had to act under the supervision of a medical practitioner.
4. The Committee found at [128] that, "Dr Foong's conduct in allowing his provider number to be used for services he did not provide or oversee would [be] unacceptable to the general body of medical practitioners". I consider that, consistently with its reasoning at [106] and [126], the Committee found that Dr Foong's unacceptable conduct lay in allowing his provider number to be used for billing of phototherapy services that he had neither rendered nor supervised. The Committee must be understood to have used "oversee" as a synonym for "supervise".
5. The Committee had earlier recorded that:
   1. In terms of the process of the treatment, Dr Foong said that patients would undress, apply sunscreen and don goggles, and enter the cabinet themselves. He said that nursing or reception staff would enter the patient's identifying number into the machine which would automatically recall the last dosage given to the patient. Dr Foong said that the staff were trained by himself and the providers of the equipment. At the conclusion of the treatment the patients would dress and return to reception.
   2. Dr Foong told the Committee that ... he had very little knowledge about UVB treatment. This became evident to the Committee during the hearing as he was not sure what dose he would have administered to a patient, saying that the machine gives a set dose.
   3. Many of the patients who received UVB treatments billed to Dr Foong's provider number were not seen by Dr Foong. Rather, all of the Medicare billings for UVB services provided at the Clinic were assigned to Dr Foong's provider number regardless of the practitioner responsible for the patient. Dr Foong said this was due to his ownership of the practice and the machines.

...

1. The Committee considers that there was a collective lack of responsibility taken by Dr Foong and the other practitioners at the Clinic in respect of phototherapy treatments. Dr Foong, for his part, described his responsibility (in instances where he did not commence the treatment) as being limited to whether the machines were functioning properly.

1. The Committee at [126] rejected Dr Foong's submission that, "he rendered services by supplying the machine". The service under MBS Items 14050 and 14053 is the administration of phototherapy (or associated consultations other than an initial consultation), not the mere supply of the NUVB machine. The Committee was correct to reject Dr Foong's submission.
2. There was ample material before the Committee to allow it to conclude that where phototherapy had been prescribed by other doctors, Dr Foong had neither administered phototherapy nor supervised the administration by his nursing and reception employees of such phototherapy. Accordingly, there was a reasonable and logical basis for the Committee's view that Dr Foong had allowed his provider number to be used in connection with the payment of Medicare benefits for services he did not render or supervise.
3. Dr Foong submits that the Committee misconstrued s 1.2.8(2)(b) of the 2017 Regulations as only applying to an item where the medical service is given by an employee who is not a medical practitioner where the employee, "(ii) in accordance with accepted medical practice, acts under the supervision of a medical practitioner". Dr Foong submits that this construction ignores the express reference in s 1.2.8(2)(b)(i) to "a person... who is employed by a medical practitioner". He submits that the relevant item applies where the medical service is given by an employee who is not a medical practitioner even though the employee does not act under the supervision of a medical practitioner.
4. However, s 19(6) of the HIA provides that a Medicare benefit is not payable unless, "the person by or on behalf of whom the professional service was rendered... has recorded on the account, or on the receipt... such particulars as are prescribed in relation to professional services". The person whose provider number was used was Dr Foong. Since Dr Foong did not render the phototherapy service himself, his claim must have been that the service was rendered on his behalf. Section 3(17) of the HIA provides relevantly that:

... a service is taken to be rendered on behalf of a medical practitioner if, and only if... it is rendered by another person who is not a medical practitioner and who provides the service, in accordance with accepted medical practice, under the supervision of a medical practitioner.

1. Having regard to s 3(17), the Committee cannot be held to have made any legal error in concluding that Dr Foong's unacceptable conduct lay in allowing his provider number to be used for billing of phototherapy services that he had neither rendered nor supervised.
2. It is true that if s 1.2.8(2)(b)(i) of the 2017 Regulations is read literally, it permits the giving of the itemised medical service by an employee without supervision of a medical practitioner. However, such a construction is inconsistent with ss 19(6) and 3(17) of the HIA. It is most unlikely that the provision could be intended to allow any employee of a medical practitioner to be let loose without supervision to provide medical services, including phototherapy, which as, the Committee explained, can be harmful. Neither could there be an intention to allow a medical practitioner to bill for such an unsupervised service. Further, it is not likely to be intended that any random, untrained person could, under s 1.2.8(2)(b)(ii), give an itemised medical service that attracts a Medicare benefit as long as it is given under the supervision of a medical practitioner.
3. The most obvious explanation for s 1.2.8(2)(b)(i) is that it is the product of a drafting error. If it is read literally, it would be invalid since it would be inconsistent with ss 19(6) and 3(17) of the HIA. It is necessary to apply s 13(1)(c) of the Legislation Act 2003 (Cth), which requires that a legislative instrument, "is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument". This is a case where, "a simple grammatical mistake was made in the drafting of the sub-section, and... if the strict grammatical sense of the words is adhered to it would lead to an absurdity": Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630. The word "or" between subparagraph (b)(i) and (b)(ii) should be read as "and".

The submission that the Committee's finding that the services were incorrectly attributed to Dr Foong instead of the practitioners who initiated the services

1. Dr Foong's next argument is concerned with the Committee's statement at [127] that, "by incorrectly attributing the services to Dr Foong, the practitioners who actually initiated and were responsible for the services evade any realistic possibility of Medicare compliance activity". The Committee apparently considered that the provider numbers of the medical practitioners who had prescribed the phototherapy treatment and referred their patients to the Logan Skin Clinic should have been used for billing for services under MBS Items 14050 and 14053.
2. I accept Dr Foong's submission that this conclusion involved an error of law. Section 13(1A) of the 1975 Regulations provided that for the purposes of s 19(6) of the HIA, the prescribed particulars for, "professional services rendered by a person who has been determined to be a medical practitioner", included the medical practitioner's provider number. In cases where phototherapy services were provided as a result of initiation or prescription by a medical practitioner other than Dr Foong, the prescribing medical practitioner did not render, administer, provide or supervise the phototherapy. Neither can it be said that the service was rendered on behalf of the prescribing medical practitioner, allowing a benefit to potentially be paid to that practitioner in circumstances where they did not employ or supervise the person administering the phototherapy. Therefore, the services described in MBS Items 14050 and 14053 were not rendered by or on behalf of the prescribing medical practitioner and there was no basis for their provider numbers to be used for billing purposes. In my opinion, the Committee's view at [127] that the services should properly have been attributed to the prescribing practitioners involves a misconstruction of s 13(1A) of the 1975 Regulations.
3. However, the error is immaterial. The Committee's view concerning use of the provider numbers of prescribing practitioners was expressed in the context of explaining why it rejected Dr Foong's submission that his error was at most, technical and without consequences. The Committee did not rely only on its view that the services should properly have been attributed to the prescribing practitioners for its finding of improper conduct. It expressly stated at [128] that Dr Foong's improper conduct lay in allowing his provider number to be used for services he did not provide or oversee (supervise). This was an independent reason for the Committee's finding of inappropriate conduct. It also found in Appendix 1 in respect of Randomly Sampled Service No. 1 at paragraph 2 that, "[t]he patient's history of melanoma meant that phototherapy was contraindicated for this patient". This was another independent reason for the finding. I am satisfied that the finding could not realistically have been different had the error not been made: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14].
4. I consider that relief should be refused in respect of the error in the exercise of the Court's discretion under s 16(1) of the ADJR Act. Further, I hold that since the Committee's error was not jurisdictional because it was immaterial, there is no basis for a grant of mandamus, prohibition or certiorari under s 39B(1) of the Judiciary Act.

Where phototherapy treatment was initiated by Dr Foong

1. The Committee made findings that Dr Foong had engaged in inappropriate practice concerning a number of services under MBS Items 14050 and 14053 where Dr Foong had assessed the patient and prescribed the phototherapy. The Final Report summarises the Committee's reasons for its findings as follows:
   1. In any case, despite Dr Foong's description, the Committee saw examples where Dr Foong commenced patients on UVB therapy and then did not attend the patient again for many months [Appendix 1, Services 5 and 25.] In one instance the patient continued the treatments for 12 months without being reviewed [Appendix 1, Service 19.] In these instances the Committee found Dr Foong's clinical input was inadequate as he failed to monitor the patient's progress, determine whether the patient was experiencing burning or other side effects or determine that the treatment remained clinically indicated.
   2. On this point, Dr Foong says (in his submissions responding to the Draft Report) that despite the lack of notes recording any review, in those examples the treatment varied over time and it is implausible that that could have occurred without review by the treating doctor. However, it is entirely consistent with Dr Foong's lack of acceptance of responsibility for the monitoring of patients having UVB therapy that he did not monitor the patient.
   3. Further, the records for Dr Foong's assessment of the patient were often inadequate (whether when commencing phototherapy or conducting a review of the patient's progress). Generally, the records failed to note whether the patient was taking any photosensitising medication which would contraindicate phototherapy. When initiating phototherapy, the records also often failed to indicate whether the patient had trialled any topical treatments and generally did not specify dosages to be administered or a treatment plan [See for example Appendix 1, Services 5, 6, 9 and 11.]
2. The Committee's specific findings in respect of the services provided to each patient in this category are set out in Appendix 1 and Appendix 2 to the Final Report.
3. Dr Foong's submissions concerning these findings are made by reference to the individual services sampled by the Committee.

1. Table 3 of Appendix 1 has the heading, "Inappropriate practice found". Randomly Sampled Service No. 5 (Service 5 Appendix 1) was a service provided to a patient named Maria (I will only use first names) on 8 January 2018.
2. The patient records show that Dr Foong examined the patient on 21 June 2017 and prescribed a course of phototherapy treatment for relapse of psoriasis. That was a general consultation, presumably billed under MBS Item 53. The patient then underwent a course of phototherapy. Service 5 Appendix 1 was the administration of phototherapy treatment to Maria on 8 January 2018. It was administered by Ms O'Loughlin.
3. The Committee's reasons for finding inappropriate practice in respect of the 8 January 2018 service under MBS Item 14050 were as follows:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. The record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate because Dr Foong did not document the patient's current medication other than medication related to the patient's skin condition. Given the patient was over 50 years old, the Committee considers it likely that the patient was on medications not reflected in the record to treat co-morbidities.

2. Further, Dr Foong did not provide sufficient clinical input into the service. Dr Foong last determined that MBS item 14050 was clinically appropriate on 1 December 2016. The Committee considers it would have been necessary for Dr Foong to undertake a subsequent consultation to determine the patient's response to the treatment before additional MBS item 14050 services were provided.

3. Further, the Committee is concerned that the patient had phototherapy eight times per month for most months of the year leading to a total of just less than 100 treatments. This had been done from 2013 to the review period, resulting in a large cumulative dose of phototherapy, which may be harmful to the patient and increase the risks of skin cancers. The record of the service is inadequate in failing to record the cumulative dose.

(Paragraph numbers added for ease of reference.)

The submission that the Committee made a finding of inappropriate practice in respect of a service not referred to the Committee

1. Dr Foong submits that paragraph 1 of the Committee's reasons in respect of Service 5 Appendix 1 makes a finding of inappropriate conduct in respect of the medical service provided by Dr Foong of examining the patient and recommending phototherapy treatment: ie. a general consultation under MBS Item 53. That was a different service to the service under MBS Item 14050. Dr Foong submits that the referral to the Committee under s 93(1) of the HIA did not empower the Committee to examine any service under MBS Item 53, and, pursuant to s 106H(1), the Committee was precluded from making a finding in respect of an unreferred service.
2. The Director relies on s 82(1) of the HIA which provides, relevantly, that a practitioner engages in inappropriate practice, "if the practitioner's conduct in connection with rendering or initiating services", is such that a Committee could reasonably conclude that the conduct would be unacceptable to the general body of the members of the relevant profession. The Director submits that the Committee was permitted to address, in connection with Dr Foong rendering or initiating the service on 8 January 2018, the record initiating the service, being the record of 21 June 2017.
3. The first issue to be determined is whether s 106H(1) of the HIA operates to prohibit a Committee from making findings in respect of a service not referred to the Committee where the service can be described as "in connection with rendering or initiating" a referred service within s 82(1).
4. Section 93(1) provides that the Director may set up a Committee and, "make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral". It may be noted that the purpose of setting up a Committee and making a referral is limited to investigation of any inappropriate practice in respect of "the services specified in the referral".
5. Section 106H(1) defines and limits the scope of the Committee's function. The section provides that, "[t]he Committee is to make findings only in respect of the referred services".
6. Section 106H(3) provides, relevantly, that the Committee's investigation "of the referred services" is not limited by the reasons given in the Director's report to the Committee.
7. Section 106J(1) specifically deals with what a Committee must do if it wishes to investigate and make findings upon services other than those referred to the Committee. The section provides that, despite s 106H(1), the Committee may request the Director to review the provision of other services. Under s 106J(2), the Director may make another referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral.
8. In National Home Doctor Service Pty Ltd v Director of Professional Services Review, Griffiths J observed at [53]:

The combined effect of ss 106H and 106J is that the Committee is confined to making findings only in respect of services which have been referred to it by the Director (which is reinforced by the definition of "referred services" in s 81(1)), and if during the course of the Committee's investigation it appears to the Committee that the person under review may have engaged in inappropriate practice in the provision of other services, the Committee cannot make findings in respect of those services in that particular review. But the Committee may request the Director to review the provision of the additional services and, if this occurred, the Director would necessarily have to consider whether or not to make a separate referral of those additional services to the Committee under s 93.

1. Section 106L(1) requires the Committee to prepare a final report setting out the "findings" of its members.
2. The effect of these provisions is consistent and clear. Under s 106H(1), a Committee may make findings, "only in respect of the referred services". Correspondingly, a Committee may not make findings of inappropriate practice in respect of services that have not been referred to the Committee.
3. This conclusion is not affected by s 82(1) of the HIA, which is merely a definition provision, not a provision that of itself has substantive application. The provision defines the circumstances in which a practitioner is taken to have engaged in "inappropriate practice". Those circumstances are where a practitioner's conduct "in connection with rendering or initiating services" is such that a Committee could reasonably conclude that the conduct would be unacceptable to the general body of the members of the relevant profession.
4. It is true that s 82(1) is not confined in its terms to "referred services", and that a related, unreferred service may well be "in connection with" the rendering or initiating of a referred service. In Wong v Commonwealth, the plurality held at [215] that the expression "in connection with" in s 82(1), "is not to be given a narrow or confined construction". However, the language of s 82(1) cannot overcome the clear terms of s 106H(1) which limit a Committee to making findings of inappropriate practice in respect of services that have been referred to the Committee.
5. The next issue is whether, as Dr Foong asserts, the Committee in fact made a finding of inappropriate practice in respect of a service that had not been referred.
6. The Director points out that the Final Report should be read as a whole, fairly and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Court should not be concerned with looseness in language or unhappy phrasing: Wu Shan Liang at 272. Care is necessary in examining the Committee's report to ensure that the breadth of the statutory concept of "inappropriate practice" and the Committee's role in determining what constitutes inappropriate practice in respect of particular services provided by a practitioner is not undermined or constrained in a way that is not provided for by the HIA_: Wong v Commonwealth_ at [215]-[216].
7. It is necessary to emphasise that the word "findings" in s 106H(1) has a particular meaning under the HIA. The expression is defined in s 81(1) to mean, in relation to a draft or final report, "the Committee's findings as to whether the person under review engaged in inappropriate practice in the provision of some or all of the services specified in the referral made to the Committee". The word "findings" describes the ultimate assessment the Committee is required to make in respect of the referred services. In contrast, in other legal contexts the expression "findings" is often used to describe factual determinations made along the way to making an ultimate decision. It may be that the defined term "findings" is used in s 106H(1) instead of "decision" because, unlike the usual conception of a "decision", the Committee's "findings" have no direct legal consequences. Once the Committee makes its findings, the consequences are generally for the Determining Authority to determine under s 106TA(1).
8. There is a distinction between a Committee's "findings" and its "reasons" for making those findings. A "finding" is the Committee's decision as to whether the person under review engaged in inappropriate practice in the provision of a service, whereas its reasons explain why the finding was made. Although s 106L(1) and (3) require a Committee to prepare a final report containing the findings of the members, it does not in terms require the provision of reasons for those findings. However, s 106KD(1A) requires that the draft report must set out the reasons for the preliminary findings. In any event, the Committee provided reasons for its findings.
9. In Holmes v Mercado (2000) 111 FCR 160; [2000] FCA 1848, the Full Court made it clear at [57] that merely because a Committee considers the circumstances surrounding the provision of referred services in its reasons, that does not mean it is making any "finding" about those circumstances:

It is important for committees and tribunals undertaking statutory reviews in respect of the provision of professional services to confine their findings to the period of time and the work locations specified in the relevant Commission reference. However, evidence about events that occur outside those work locations and period of time may bear on the matter under review. This is, perhaps, particularly a possibility in relation to a concept as imprecise as "inappropriate practice", as defined in s 82(1)(a) of the Health Insurance Act. It will be recalled this definition makes the question whether particular conduct is "inappropriate practice" depend on the committee's perception as to whether the conduct "would be unacceptable to the general body of practitioners". That must depend upon the whole of the circumstances surrounding the conduct.

1. Similarly, in Crowley v Holmes (2003) 132 FCR 114; [2003] FCAFC 189, Dowsett J (with whom Madgwick and Finkelstein JJ agreed) stated at [29]:

It is true that pursuant to s 106H the Committee may "make findings" only concerning services which are the subject of the referral. However that is a jurisdictional limitation upon the subject matter of the inquiry, not a limitation upon the material which the Committee may treat as relevant to its task. Undoubtedly, the appellant will be heard as to the relevance and weight of the additional material and invited to explain or contradict it. It cannot be said at this stage that evidence of the appellant's prior professional conduct is necessarily irrelevant to the Committee's consideration of this matter.

1. In paragraph 1 of Service 5 Appendix 1, a reason given by the Committee for its finding of inappropriate practice was that, "[t]he record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate", The Committee also considered it, "likely that the patient was on medications not reflected in the record". The Committee had earlier noted that the sampled service on 8 January 2018 was, "one of a course of 80 MBS Item 14050 services". I understand the Committee's reasons to mean that Dr Foong had never recorded or caused to be recorded the patient's history of any medications, including on 8 January 2018. This resulted in the finding of inappropriate practice in respect of the service on 8 January 2018.
2. The Committee's explanation that an adequate record had never been made evidently encompassed the attendances on 1 December 2016 and 21 June 2017 (which were for services under MBS Item 53) as well as the many attendances for MBS Item 14050 services. However, the Committee was entitled to consider "the whole of the circumstances surrounding the conduct" in the course of making its finding in respect of Service 5 Appendix 1. If there had been a record of the patient's medication made on a previous occasion, that may have obviated the need to make such a record on 8 January 2018. The Committee's reasons do not indicate that it made any "finding" of inappropriate practice in respect of unreferred MBS Item 53 services.
3. It may also be observed that the Committee's summary of its findings under the heading "Finding" in the body of the Final Report makes no reference to MBS Item 53. Accordingly, the Committee should be understood to have sought to refrain from making any findings in respect of MBS Item 53. This understanding of the Committee's approach also applies to other services considered in these reasons where Dr Foong makes a similar argument concerning MBS Item 53.
4. I reject Dr Foong's submission that the Committee acted in contravention of s 106H(1) by making findings of inappropriate practice in respect of services that had not been referred.

The submission that the Committee ignored relevant evidence

1. Dr Foong argues that paragraph 2 of Service 5 Appendix 1 ignores relevant evidence before the Committee, namely that Dr Foong had examined and made a fresh prescription of phototherapy treatment on 21 June 2017. He submits that the Committee's failure to take into account relevant information that was before the Committee was an error of law.
2. The Director submits that Dr Foong has not identified why, as a matter of statutory construction, that Dr Foong had examined and made a fresh prescription of phototherapy treatment on 21 June 2017 was a relevant consideration the Committee was bound to take into account. The Director also submits that Dr Foong has also not demonstrated that the Committee in fact failed to take that evidence into account, particularly as the full record of 21 June 2017 was extracted and relied on by the Committee. The Director also submits that the finding in the second paragraph that Dr Foong did not provide sufficient clinical input into the service must be read with [121]-[123] of the body of the Final Report, where the Committee referred to examples where Dr Foong commenced patients on UVB therapy and did not attend the patient again for "many months"; and said that, in those instances, the Committee found Dr Foong's clinical input was inadequate as he failed to monitor the patient's progress and determine whether there was burning or whether the treatment remained clinically indicated.
3. In the second paragraph, the Committee stated that, "Dr Foong last determined that MBS item 14050 was clinically appropriate on 1 December 2016". The Committee reasoned it would have been necessary to undertake a consultation subsequent to the consultation on 1 December 2016 to determine the patient's response to the treatment before additional MBS Item 14050 services were provided. However, the records before the Committee clearly indicated there had been a consultation on 21 June 2017 where Dr Foong had prescribed a resumption of phototherapy for relapse of psoriasis.
4. Although the Committee extracted Dr Foong's notes of his consultation on 21 June 2017, it seems to have overlooked that consultation when finding that it would have been necessary to undertake a consultation subsequent to 1 December 2016. Whether the Committee is obliged to consider relevant evidence will depend on the circumstances of the case and the nature of the evidence: cf. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]- [113]. In this case, the overlooked consultation was vital to the Committee's finding that Dr Foong did not provide sufficient clinical input into the service. I find that the Committee made an error of law in overlooking evidence of the consultation on 21 June 2017.
5. However, I consider that the Committee's error did not ultimately affect its finding of inappropriate practice in respect of Service 5 Appendix 1. The Committee provided two independent reasons for its finding: inadequacy of the records; and insufficient clinical input. The Committee's error in respect of the latter did not affect its reasoning in respect of the former. I am satisfied that the finding could not realistically have been different had there been no error: see LPDT at [14].
6. I consider that relief should be refused in respect of the error in the exercise of the Court's discretion under s 16(1) of the ADJR Act. Further, I hold that since the Committee's error was not jurisdictional because it was immaterial, there is no basis for a grant of mandamus, prohibition or certiorari under s 39B(1) of the Judiciary Act.

The submission that the Committee failed to assess whether the standard in s 5 of the 1999 Regulations was satisfied

1. Paragraph 3 of Service 5 Appendix 1 relates to the record of the phototherapy service on 8 January 2018. Dr Foong submits that the Committee's failure to make findings as to the adequacy of the record against the requirements of s 5 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (the 1999 Regulations) is an error of law. Dr Foong submits that the words "have regard to" in s 82(3) required the Committee to make a finding as to whether the records met the standard set out in s 5 of the 1999 Regulations.
2. Section 82(3) of the HIA provides that:

A Committee must, in determining whether a practitioner's conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.

1. Section 81(1) of the HIA provides that "adequate and contemporaneous records" of the rendering or initiation of services means, "records that meet the standards prescribed by the regulations for the purposes of this definition".
2. Section 5 of the 1999 Regulations provided:

5 An adequate record

For the definition of adequate and contemporaneous records in section 81 of the Act, the standard to be met in order that a record of service rendered or initiated be adequate is that:

(a) the record clearly identify the name of the patient; and

(b) the record contain a separate entry for each attendance by the patient for a service and the date on which the service was rendered or initiated; and

(c) each entry provide clinical information adequate to explain the type of service rendered or initiated; and

(d) each entry be sufficiently comprehensible that another practitioner, relying on the record, can effectively undertake the patient's ongoing care.

1. The Director submits that when the reasons are read as a whole, the Committee clearly had regard to the terms of the 1999 Regulations in considering the task it was required to perform.
2. The Committee found in the third paragraph that, "[t]he record of the service is inadequate in failing to record the cumulative dose". While the Committee did not refer there to the 1999 Regulations, the Committee's findings in the Appendices must be read together with the body of the Final Report.
3. The Final Report contained a heading, "Failure to keep adequate medical records". The Committee noted at [94] that it was required under s 82(3) to have regard to whether Dr Foong kept adequate and contemporaneous records. The Committee at [95] referred to the 1999 Regulations and noted that they had been replaced by the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth) but that the Committee had considered Dr Foong's conduct by reference to both definitions of "adequate and contemporaneous records". The Committee then stated, "whichever definition of adequate and contemporaneous records is applied the Committee has found Dr Foong's records fall well short". The Committee also noted in footnote 132 that although Dr Foong's submission in response to the Draft Report suggested that the Committee failed to have regard to the current regulations, "[i]t did, and expressed that it did in its Draft Report".
4. It is evident that the material in the Final Report under the heading, "Failure to keep adequate medical records" was intended by the Committee to explain and inform its findings of inadequate record-keeping made in respect of the specific services considered in the Appendices.
5. The expression "have regard to" in s 82(3) of the HIA requires the Committee to engage in an active intellectual process in respect of whether or not the practitioner kept adequate and contemporaneous records: cf. Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46]; He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [53]. A requirement to "have regard to" a matter will not necessarily require making a finding of fact about that matter: Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92 at [24].
6. However, the language of s 82(3) of the HIA is particular. It is first necessary for the Committee to decide "whether or not" the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services: ie. whether or not the standard in s 5 of the 1999 Regulations has been met. It is then necessary for the Committee to have regard to whether or not that standard has been met in determining whether the practitioner's conduct in connection with rendering or initiating services was inappropriate practice. I accept that s 82(3) requires the Committee to make a finding (in the sense of making a decision) as to whether or not the standard has been met.
7. However, the Committee expressly stated at [95] that, "whichever definition of adequate and contemporaneous record is applied, the Committee has found Dr Foong's records fall well short". When the findings in the third paragraph are read in the context of [95] of the Final Report, it is apparent that the Committee did decide whether the standard in s 5 of the 1999 Regulations had been met in respect of each service. Dr Foong's submission to the contrary must be rejected.

The submission that the Committee failed to address the fact that the records were made by Dr Foong's employees, not Dr Foong

1. Dr Foong also submits that as the phototherapy treatment for Service 5 Appendix 1 was administered by Ms O'Loughlin, and Dr Foong's evidence to the Committee was that he did not make the record of the treatment on 8 January 2018, it may be inferred that the record was made by Ms O'Loughlin. Dr Foong's argument morphed during the hearing, but I understand the ultimate argument to be that the Committee failed to address how inadequacies in the record could amount to inappropriate conduct on the part of Dr Foong when Dr Foong did not make the record: that is, it was not his conduct.
2. It is evident from s 82(3), that the HIA regards a practitioner as being under an obligation to keep a record of the service rendered or initiated. The obligation to keep a record may require the medical practitioner to ensure that an adequate record is made where the practitioner does not himself or herself administer the medical treatment. The obligation may, for example, apply where a medical practitioner bills under MBS Item 14050 for phototherapy that is administered by an employee who is not a medical practitioner. The extent of any obligation is left for the Committee's consideration.
3. Section 5 of the 1999 Regulations cannot be regarded as operating to require the Committee to accept that a practitioner's record-keeping is adequate where the records meet the standard set out in that regulation. Section 82(3) merely requires a Committee to, "have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records". In Sevdalis v Director of Professional Services Review [2017] FCAFC 9, the Full Court held at [15] that, "[t]he Committee was neither required nor permitted to restrict its inquiry only to the terms of regs 5 and 6". Section 5 does not prevent a Committee from finding that failure of a practitioner to record other relevant information constitutes inappropriate practice. The overarching issue the Committee was required to consider was whether Dr Foong's conduct in connection with each of the referred services would be unacceptable to the general body of members of the relevant profession.
4. The Committee's opinion was that keeping an adequate record was Dr Foong's own obligation. That opinion was evidently affected by the requirement for supervision of the employee administering the phototherapy by Dr Foong in order for his provider number to be used for billing the patient. It was open to the Committee to determine that the general body of Dr Foong's profession would regard his conduct in failing to ensure that there was a record of the cumulative dose of phototherapy treatment as unacceptable.
5. I reject the submission that the Committee failed to address the fact that the records were made by Dr Foong's employees rather than Dr Foong.

1. Dr Foong had a consultation with a patient, Te, on 2 November 2017 in which he examined the patient and recommended a course of phototherapy. Randomly Sampled Service No. 6 comprised the phototherapy administered on 7 November 2017. It was administered by Ms O'Loughlin.
2. The Committee's reasons for finding inappropriate practice were:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. The record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate. The medical record is inadequate because Dr Foong did not correspond with the patient's general practitioner, despite the patient being referred for said treatment by said general practitioner. Dr Foong also failed to document the patient's past history of the psoriasis, whether she was on current medications and what Dr Foong prescribed to her, noting that medications were only inputted into Best Practice in 2018 and 2019.

2. In addition, the record of the service is inadequate in failing to record the cumulative dose, which would have been significant at that time.

(Paragraph numbers added for ease of reference.)

1. Dr Foong submits that paragraph 1 is a finding that the record of Dr Foong's medical service provided on 2 November 2017 in which he assessed the patient and made a recommendation of phototherapy treatment was inadequate: that was a general consultation under MBS Item 53. Dr Foong submits that the service had not been referred to the Committee and, pursuant to s 106H(1), the Committee could not make findings of inappropriate practice in respect of that service.
2. In paragraph 1, the Committee stated that, "[t]he record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate". That was because Dr Foong had, "failed to document the patient's past history of the psoriasis [and] whether she was on current medications". I understand the Committee's reasons to mean that Dr Foong had never recorded or caused to be recorded the patient's history of the psoriasis and any current medications, including on 7 November 2017. This resulted in the finding of inappropriate practice in respect of the service on 7 November 2017.
3. The Committee's explanation that an adequate record had not been made evidently encompassed the attendance on 2 November 2017 (which was for a service under MBS Item 53). However, as I have explained in relation to Service 5 Appendix 1, the Committee was entitled to consider, "the whole of the circumstances surrounding the conduct".
4. I reject the submission that the Committee made any "finding" of inappropriate practice in respect of an unreferred MBS Item 53 service.
5. Dr Foong submits that in paragraph 2, the Committee failed to make findings as to whether the record was inadequate by reference to the requirements of s 5 of the 1999 Regulations. Again, when the findings in paragraph 2 are read with the relevant passages from the body of the Final Report, it is apparent that the Committee did have regard to the standard in s 5 of the 1999 Regulations.
6. Dr Foong again submits that the record for the service on 7 November 2017 was made by Ms O'Loughlin and the Committee failed to address how inadequacies in the record could amount to inappropriate conduct on the part of Dr Foong when Dr Foong did not make the record: that is, it was not his conduct. Again, it was open to the Committee to determine that the general body of members of the relevant profession would regard Dr Foong's conduct in failing to keep an adequate record as unacceptable.

1. This is the same patient, Maria, as in Service 5 Appendix 1. Dr Foong had a consultation on 21 June 2017 when he examined the patient, recommended phototherapy treatment three times weekly and recommended that he review the patient at the end of October. The particular service sampled was the phototherapy treatment on 29 June 2018, administered by Dr Foong's employee, Ms Dennis.
2. The reasons for finding inappropriate practice of the Committee were:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. The record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate. The medical record is inadequate because Dr Foong failed to document details of the patient's past history of the psoriasis, whether she was on current medication (other than that used to treat her skin condition), what treatments she had used in the past or dosages of phototherapy.

2. In addition, the record of the service is inadequate in failing to record the cumulative dose, which would have been significant at that time, potentially contraindicating the service.

3. The Committee is also concerned that the medical record itself does not provide sufficient detail to allow another practitioner to monitor the patient's progress with respect to her psoriasis.

4. Dr Foong did not provide sufficient clinical input into the service. It is unclear whether Dr Foong has any regard to what medications the patient was on to treat her diabetes, as they were not documented. Further, Dr Foong should have reviewed the patient prior to the date of service to check her response to treatment and ensure it remained clinically relevant.

(Paragraph numbers added for ease of reference.)

1. In paragraph 1, the Committee stated that, "[t]he record of Dr Foong's assessment in connection with the course of treatment (that includes this service) is inadequate". I reject the submission that the Committee made a finding of inappropriate practice in respect of a MBS Item 53 service for the same reasons as for Service 5 Appendix 1.
2. Paragraph 2 is a finding regarding record-keeping of the MBS Item 14050 service on 29 June 2018. Dr Foong again argues that the Committee failed to make findings as to the adequacy of the record-keeping under s 5 of the 1999 Regulations and that the record was made by Dr Foong's employee, Ms Dennis. I reject those arguments for reasons I have previously given.
3. Dr Foong submits that paragraph 3 appears to relate to the record of Dr Foong's 21 June 2017 examination of the patient and recommendations for treatment because the reference to the medical record not enabling another practitioner to monitor the patient's progress regarding her psoriasis would not make sense if it was referring to the record of the MBS Item 14050 service on 29 June 2018. As the treatment was ongoing at 29 June 2018, I reject the submission.
4. Paragraph 4 states that Dr Foong did not provide sufficient clinical input into the MBS Item 14050 service on 29 June 2018. Dr Foong submits that the Committee's reasons did not take into account the following relevant considerations:

(a) Dr Foong's consultation with the patient on 21 June 2017 includes the advice "review end October";

(b) if the patient chooses not to follow that advice, and does not seek further consultation with Dr Foong but chooses to continue the treatment, that is the patient's decision;

(c) there was no information before the Committee that the patient sought a subsequent consultation with Dr Foong. Nor was there evidence that there was any contact between Dr Foong and the patient after 21 June 2017;

(d) the most that could be said is that Dr Foong's employee, Ms Dennis, on 29 June 2018 should have declined to provide phototherapy treatment to Maria on that day unless and until the patient had seen Dr Foong or another doctor, and continuation of the treatment had been prescribed by a doctor;

(e) Dr Foong would only engage in inappropriate practice through the omission of Ms Dennis to do so, if the circumstances satisfied the requirements of s 82(2)(a);

(f) the Committee did not address or make findings as to whether Ms Dennis' provision of the phototherapy treatment on 29 June 2018 amounted to inappropriate practice on the part of Dr Foong, through the application of s 82(2)(a).

1. The first three of Dr Foong's complaints are, in substance, about the merits of the Committee's factual assessment of insufficient clinical input. The Committee determined that Dr Foong had not examined the patient in the year between 21 June 2017 and the phototherapy being administered by Ms Dennis on 29 June 2018. As to the fourth, the criteria for MBS Item 14050 required Dr Foong to supervise Ms Dennis, so it was open to the Committee to reason that the responsibility for inadequacies in the patient's treatment cannot be shifted onto her. It was open to the Committee to find on the material before it that Dr Foong engaged in inappropriate practice by failing to provide sufficient clinical input into the MBS Item 14050 service on 29 June 2018.
2. I reject Dr Foong's fifth and sixth complaints for reasons I have already given.

1. The records showed that in 2014 a dermatologist (Dr Rodins) diagnosed the patient, Matthew, as having chronic plaque psoriasis and prescribed UVB treatment. On 18 October 2017, Dr Foong examined the patient in a general consultation, recommended UVB treatment and drew up a plan for a course of that treatment over a number of weeks. On 2 November 2017, Dr Foong examined the patient in a second general consultation, and the record of the examination includes, "Reason for visit: Psoriasis".
2. The sampled MBS Item 14050 service was the administration of phototherapy to Matthew on 9 February 2018. The phototherapy was administered by an employee of Dr Foong, Ms Dennis.
3. The Committee's decision was:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. The record of Dr Foong's initial assessment in connection with the course of treatment (which includes this service) is inadequate in failing to document whether the patient was taking any medication (other than that prescribed by Dr Foong).

2. Further, if Dr Foong reviewed the patient's response to treatment on 2 November 2017 this was not adequately recorded. There is no detail regarding whether the patient's psoriasis was improving and whether further treatments were clinically required. In addition, the record fails to indicate whether the patient was in fact experiencing burning as a result of the treatment and if so, what was going to be done to address this concern.

3. Alternatively, if Dr Foong did not review the patient's progress after commencing the treatment and prior to the date of service, his clinical input was inadequate.

4. In addition, the record of the service is inadequate in failing to record the cumulative dose, which would have been significant at the time, potentially contraindicating the service.

(Paragraph numbering added for ease of reference.)

1. Paragraph 1 refers to Dr Foong's "initial assessment" which took place on 18 October 2017 (presumably under MBS Item 53) and concludes that his record of that consultation was inadequate because it failed to document whether the patient was taking any medication. Paragraph 2 refers to Dr Foong's second consultation with the patient on 2 November 2017 (again presumably under MBS Item 53) and concludes that his record of that consultation was inadequate because it failed to document whether the patient's psoriasis was improving and whether further treatments were clinically required; paragraph 3 indicates, alternatively, that his clinical input was inadequate in failing to review the patient's progress prior to the service on 9 February 2018. Paragraphs 1 and 2 are offered as reasons for the finding of inappropriate practice in respect of the service on 9 February 2018, which was phototherapy under MBS Item 14050, but the Committee did not explain why this was so.
2. It may be that the 18 October and 2 November 2017 consultations were "in connection with" the 9 February 2018 service and so the Committee reasoned that because those services (under MBS Item 53) involved inappropriate practice, the 9 February 2018 service (MBS Item 14050) also involved inappropriate practice. If so, that was in substance a finding of inappropriate practice in respect of the Item 53 services, which had not been referred to the Committee, contrary to s 106H(1). The "in connection with" aspect of the definition of inappropriate practice in s 82(1) cannot be used as a backdoor method of finding inappropriate practice in respect of an unreferred service.
3. However, I consider that the Committee's error did not affect its finding of inappropriate practice in respect of the MBS Item 14050 service on 9 February 2018. The Committee provided an independent reason for its finding, namely that the record of the service in respect of the MBS Item 14050 was inadequate in failing to record the cumulative dose. I am satisfied that the finding concerning the MBS Item 14050 service could not realistically have been different had there been no error: see LPDT at [14].
4. Dr Foong submits that paragraph 4 fails to apply s 5 of the 1999 Regulations and that the record was made by Ms Dennis, not by Dr Foong. I reject these arguments for reasons I have already given.

1. Dr Foong examined a patient, Barry, on 5 September 2017. Dr Foong again examined the patient on 24 October 2017 in a general consultation. As part of that examination, Dr Foong decided to continue phototherapy treatment. The phototherapy service the subject of Randomly Sampled Service No. 17 was administered on 17 November 2017. The phototherapy was administered by Ms O'Loughlin.
2. The Committee's finding was:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. The record is inadequate in failing to record the cumulative UVB dose the patient had received over the course of treatment, which would have been significant at that time. Given the lack of recorded cumulative dose it is not clear from the record whether the service was contraindicated.

2. Further, the record does not document the clinical reasoning for the service. Nor is there sufficient detail regarding the rash the patient had developed, including a description of the rash or any history regarding the rash.

(Paragraph numbering added for ease of reference.)

1. Dr Foong submits that the Committee made a finding in paragraph 2 concerning the inadequacy of the record of the consultation on 24 October 2017 in respect of MBS Item 53. The Committee's anterior discussion about Dr Foong's evidence about the "new patient form" suggests that paragraph 2 was concerned with the record of the initial consultation. Further, the "rash" had been documented in the initial consultation, and it was that record that was found to contain insufficient detail. The Committee seems to have determined that because the record of the consultation on 24 October 2017 (under MBS Item 53) was inadequate, the service under MBS Item 14050 on 17 November 2017 was inadequate but gave no explanation for why that was so.
2. It may be that the 24 October 2017 consultation was "in connection with" the 17 November 2017 service and so the Committee reasoned that because the 24 October 2017 service (under MBS Item 53) involved inappropriate practice, the 17 November 2017 service also involved inappropriate practice. If so, that was in substance a finding of inappropriate practice in respect of the Item 53 service that had not been referred.
3. However, I consider that the Committee's error did not affect its finding of inappropriate practice in respect of the MBS Item 14050 service on 17 November 2017. The Committee provided an independent reason for its finding, namely that the record was inadequate in failing to record the cumulative UVB dose the patient had received over the course of treatment. I am satisfied that the finding that the MBS Item 14050 service could not realistically have been different had there been no error: see LPDT at [14].
4. I reject Dr Foong's submission that the Committee erred in paragraph 1 in failing to address whether the record was inadequate by reference to s 5 of the 1999 Regulations and concluding that there was inappropriate practice despite the record being made by Ms O'Loughlin, not Dr Foong, for the reasons I have already given.

Appendix 1, Randomly Sampled Service Nos. 19 and 25

1. Both services concern phototherapy treatments for the same patient, Maria, on 6 June 2018 (Randomly Sampled Service No. 19) and 9 March 2018 (Randomly Sampled Service No. 25). This is the same patient who was provided Randomly Sampled Service Nos. 5 and 7. The Committee gave almost identical reasons about Randomly Sampled Service Nos. 19 and 25, and they can be considered together.
2. Dr Foong's records showed that he examined the patient on 21 June 2017, recommended that the patient should "[r]e-start NUVB", and prescribed the frequency of the phototherapy treatment. There was a recommendation for "[r]eview end October". On each of 9 March and 6 June 2018, the patient attended the Logan Skin Clinic and received phototherapy treatment. On 9 March 2018 it was administered by Ms O'Loughlin and on 6 June 2018 it was administered by Ms Dennis.
3. The reasons for finding that there had been inappropriate practice by Dr Foong were expressed in respect of Randomly Sampled Service No. 19 as follows:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. Dr Foong's clinical input was inadequate. There is no record of any assessment proximate to the service that would explain the clinical indication or continued treatment with UVB. The most recent previous assessment of the patient was nearly a year earlier than the service. That is an unacceptably long time to continue treatment without assessing the patient.

2. Further, the record of Dr Foong's most recent [assessment] in connection with the course of treatment (which includes this service) is inadequate. It does not include any record of the patient's medications, other than those in connection with the patient's skin conditions, which may contraindicate the service.

3. In addition, the record of the service is inadequate in failing to record the cumulative dose, which would have been significant at that time, potentially contraindicating the service.

(Paragraph numbering added for ease of reference.)

1. The reasons in respect of Randomly Sampled Service No. 25 concerning phototherapy treatment administered on 9 March 2018 are in similar terms.
2. Dr Foong submits that the Committee's finding in paragraph 1 that Dr Foong should have assessed the patient prior to administering the phototherapy treatment on 9 March and 6 June 2018 to ensure that treatment should be continued does not take into account the following considerations:

(a) Dr Foong's consultation with the patient on 21 June 2017 includes the advice "review end October";

(b) if the patient chooses not to follow that advice, and does not seek further consultation with Dr Foong but chooses to continue the treatment, that is the patient's decision;

(c) there was no information before the Committee that the patient sought a subsequent consultation with Dr Foong. Nor was there evidence that there was any contact between Dr Foong and the patient between 21 June 2017 and 6 June 2018;

(d) there was no information before the Committee that Dr Foong was aware that the patient was attending for phototherapy treatment on the occasions of 9 March or 16 June 2018;

(e) nor was there any evidence before the Committee that Dr Foong had had any contact with the patient either before, on, or for a reasonable period after that date;

(f) the most that could be said is that Dr Foong's employees, Ms O'Loughlin, on 9 March 2018 and Ms Dennis on 6 June 2018, should have declined to provide phototherapy treatment to Maria on each occasion unless she had or could obtain a reasonably recent recommendation from a doctor for continuation of the treatment.

1. For the reasons I gave in respect of Randomly Sampled Service No. 7, I reject these submissions.
2. It does not matter whether the Committee made a finding at paragraph 2 that Dr Foong failed to keep any adequate record in respect of the provision of the service under MBS Item 53 because paragraphs 1 and 3 provide independent reasons for the finding of inappropriate practice in respect of the MBS Item 14050 services of 9 March and 6 June 2018: see LPDT at [14].
3. I reject Dr Foong's submission that the Committee failed to address whether the record was inadequate by reference to s 5 of the 1999 Regulations and that the records were made by Ms O'Loughlin and Ms Dennis, not by Dr Foong.

Appendix 2, Randomly Sampled Service Nos. 2 and 24

1. Both services concern the same patient, Richard, and phototherapy treatments on 22 August and 4 September 2018.
2. The records show that Dr Foong examined the patient on 15 August 2018 in the course of a general consultation (MBS Item 53). As part of that consultation, Dr Foong recorded that the patient suffered from eczema on his right hand. Dr Foong recommended a course of phototherapy to the right hand, three times weekly, with a review by Dr Foong in September.
3. On 22 August 2018 the phototherapy treatment was administered by Ms O'Loughlin and on 4 September 2018 by Ms Dennis.
4. Dr Foong's evidence was that he had a consultation with the patient on 15 August 2018 but did not see the patient again until he reviewed the patient's condition on 20 September 2018. He also said that he did not make the record of the phototherapy treatment on 22 August 2018.
5. The Committee noted Dr Foong's evidence that the phototherapy was used to treat eczema on the patient's right hand. He said that he obtained the patient's oral consent to phototherapy. He said that the patient's atrial fibrillation was not relevant. Dr Foong, when asked what dose he suggested, said "I don't know", and stated that he usually says one minute and the machine gives a set dose. Dr Foong explained that the hand machine treats both sides of the hands. When asked what steps he took to protect the top of the patient's hand (given that he was treating the patient's palm), he said he did not take any.
6. The Committee gave the following reasons for finding that Dr Foong engaged in inappropriate conduct in respect of both Randomly Sampled Service Nos. 2 and 24:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners in relation to both services for the following reasons:

1. Dr Foong did not adequately obtain and record patient consent to the phototherapy treatment. If oral consent was obtained, this was not documented.

2. In addition, the top of the patient's hand should have been protected from the light (e.g. with sunscreen) given that that part of the patient's body did not require treatment.

3. The record of Dr Foong's assessment in connection with the course of treatment (which includes this service) is inadequate. Dr Foong failed to adequately document the patient's current medications in the record, noting that according to a referral letter from 2014, the patient was on warfarin, which was not recorded in the 'current medications' list in the patient record.

(Paragraph numbering added for ease of reference.)

1. I do not accept Dr Foong's submission that paragraph 1 amounts to a finding of inappropriate practice in respect of Dr Foong's general consultation on 15 August 2018. The Committee's reasons suggest that the consent could have been obtained any time before the phototherapy treatments and not only at the consultation on 15 August 2018.
2. Paragraph 2 concerns the manner in which the phototherapy was administered to the patient's hand. Dr Foong submits that he did not personally administer the phototherapy. However, the Committee was entitled to regard Dr Foong as responsible for the supervision of the treatment.
3. I understand paragraph 3 to mean that Dr Foong had never recorded or caused to be recorded the patient's history of any medications, including on 24 August and 4 September 2018. This supported the finding of inappropriate practice on those dates.
4. I reject Dr Foong's submission that the Committee failed to assess the adequacy of the record by reference to the requirements of s 5 of the 1999 Regulations.

Appendix 2, Randomly Sampled Service Nos. 20 and 30

1. Both services relate to the same patient, Beverly. Dr Foong examined Beverly in a general consultation on 15 August 2018. She had eczema on her hands. He recommended a course of phototherapy treatment. She subsequently attended and received phototherapy on 20 and 27 August 2018. The phototherapy on 20 August 2018 was administered by Ms O'Loughlin and on 27 August by Ms Dennis.
2. The Committee made findings of inappropriate practice regarding both phototherapy treatments. The Committee's reasons were:

Reasons for finding of inappropriate practice

Dr Foong's conduct in relation to each reviewed service would be unacceptable to the general body of medical practitioners for the following reasons:

1. The services were not clinically indicated as first line treatment. Dr Foong should have waited to see if the topical treatments were effective before initiating phototherapy, particularly given that the patient had undergone numerous removals and excisions on their hands prior to the date of service.

(Paragraph numbering added for ease of reference.)

1. Dr Foong submits this is a finding as to inappropriate practice in respect of Dr Foong's consultation with the patient on 15 August 2018 under MBS Item 53. However, the statement that Dr Foong "should have waited" indicates that the Committee's view was he should not have allowed the phototherapy to be administered on 20 and 27 August 2018. The inappropriate practice was in respect of the phototherapy treatment. Dr Foong's submission must be rejected.

Where the identity of the responsible practitioner is unclear

1. The Committee's Final Report contains the following reasoning under the heading, "Services where the responsible practitioner is unclear":
   1. In a number of cases it was not possible to tell which practitioner (if any) was responsible for the provision of the UVB services. These instances may have included patients who were previously seeing a practitioner, who was no longer at the practice during the review period. While Dr Foong said that he continued the management of these patients, there was no evidence that Dr Foong attended the patients for the purpose of reviewing their phototherapy treatments.
   2. In these instances the Committee considers that Dr Foong, as both the practice principal and the person whose provider number was used for billing, was ultimately responsible for the services. As the person responsible for the services Dr Foong's clinical input was inadequate as he failed to review the patients, even when they had been receiving the treatments for months or years. At times, this resulted in the patient receiving a significant number of phototherapy treatments which may not have been clinically indicated and which increased the patient's risk of developing skin cancer. As the practice principal Dr Foong should have taken steps to ensure that patients receiving phototherapy services at his clinic were regularly reviewed by a medical practitioner.
   3. For completeness, and in view of Dr Foong's submissions in response to the Draft Report, the Committee does not say that Dr Foong needed to be physically present at each MBS item 14050 or 14053 service in order to avoid a finding of inappropriate practice.
2. The Randomly Sampled Services in this category (Appendix 1, Randomly Sampled Service Nos. 4, 8, 20, 21, 22, 23, 26, 27, 28 and Appendix 2, Randomly Sampled Service Nos. 7, 8, 14, 19, 23, 25, 29) fall into the same pattern and were the subject of substantially the same reasons for findings of inappropriate conduct.
3. The findings and reasons can be illustrated by reference to Randomly Sampled Service No. 4. The sampled service was an MBS Item 14050 service on 26 September 2018, which was one of 28 phototherapy services provided to the patient during the review period. The patient had been receiving phototherapy regularly since June 2012. The first entry in the patient record was made on 13 June 2012, with the treatment being administered by Dr Foong's employee, Ms Hutchins. The 26 September 2018 service, which was the subject of the Committee's review, was administered by Ms Leahy.
4. A doctor (Dr Elliott) had examined the patient on 4 November 2013. In the records of the Logan Skin Clinic there was no further record of any medical practitioner examining the patient or making further recommendations for phototherapy up to 26 September 2018. Dr Foong told the Committee he had never seen the patient. He also said that other doctors were involved in the management and review of the patient.
5. The Committee found there had been inappropriate conduct in respect of Randomly Sampled Service No. 4 on the basis that Dr Foong's clinical input to the continuation of phototherapy treatment was inadequate. The Committee's reasons were:

Dr Foong was responsible for the patient's phototherapy treatment, given that he was the practice principal and the service was billed to his provider number. In these circumstances Dr Foong's clinical input was inadequate as he failed to review the patient and ensure that the treatment was clinically indicated and safe. The patient had a large number of phototherapy treatments between 2013 and 2018 without review by a medical practitioner, which was not appropriate medical treatment.

1. Dr Foong submits that there was no evidence before the Committee to justify the finding that the patient, "had a large number of phototherapy treatments between 2013 and 2018 without review by a medical practitioner". He submits that while it could be reasonably inferred that the patient's condition was not reviewed by any doctor operating at the Logan Skin Clinic between November 2013 and September 2018, there was no basis for an inference that the patient had not been seen by a doctor elsewhere.
2. Dr Foong submits that as he had no involvement in the management of this patient and had never seen the patient, there is no logical or probative basis for the Committee to find that he engaged in inappropriate conduct by inadequate clinical input. He submits the most that could be said is that his employee, Ms Leahy, should have declined to provide phototherapy treatment to the patient on 26 September 2018 unless the patient could produce (or obtain) a reasonably contemporaneous recommendation by a doctor for continuation of the treatment.
3. I accept Dr Foong's submission that there was no evidence to support the positive inference drawn by the Committee that the patient had received phototherapy treatments "without review by a medical practitioner" when the patient may have been seen by a medical practitioner outside Logan Skin Clinic. However, I consider the error to be immaterial. The reason for the finding of inappropriate treatment made against Dr Foong was that his, "clinical input was inadequate as he failed to review the patient and ensure that the treatment was clinically indicated and safe". The Committee explained at [130] of the Final Report, that Dr Foong's clinical input was inadequate as he failed to review the patients even when they had received the treatments for months or years and he should have taken steps to ensure patients were regularly reviewed by a medical practitioner. Irrespective of whether the patients were in fact reviewed by other medical practitioners, the Committee's conclusion was that Dr Foong's own conduct was such that it would be unacceptable to the general body of relevant practitioners.
4. Dr Foong's submission that as he had no involvement in the management of the patient and had never seen the patient, there was no logical or probative basis for the Committee to find that he engaged in inappropriate conduct must be rejected. The Committee found at [130] of the Final Report that Dr Foong, not his employee, was "ultimately responsible for the services" as the practice principal and the person whose provider number was used for the billing. Section 1.2.8 of the 2017 Regulations, which applies to MBS Item 14050, requires that the administration of phototherapy by an employee of the medical practitioner whose provider number is used be supervised. It is implicit in the Committee's findings that it considered that the general body of members of the relevant profession would not regard it as acceptable for Dr Foong to repeatedly have his employees administer the treatment and bill for the service without taking responsibility for reviewing the patient to ensure that treatment continued to be appropriate.
5. Dr Foong submits that he could only be held to have engaged in inappropriate practice vicariously through the omission of Ms Leahy if the circumstances satisfied the requirements of s 82(2)(a) of the HIA and that the Committee made an error of law by failing to address the application of that provision in respect of Ms Leahy's provision of the phototherapy treatment. I reject this argument for reasons I have already given.

Findings that administration of local anaesthetic under MBS Items 18234 and 18236 was inappropriate practice because it was not clinically indicated

1. The Committee found that all 30 of the sampled services rendered by Dr Foong under MBS Item 18234 involved inappropriate practice. The Committee also found that 29 of the 30 sampled services rendered by Dr Foong under MBS Item 18236 involved inappropriate practice. The Committee considered MBS Items 18234 and 18236 together in its Final Report at [132]-[165].
2. MBS Items 18234 and 18236 both relate to the administration of facial nerve blocks. MBS Item 18234 involves the injection of an anaesthetic agent into a primary division of the trigeminal nerve, whereas MBS Item 18236 involves the injection of an anaesthetic agent into a peripheral branch of the trigeminal nerve. Local anaesthetic is injected into the trigeminal nerve in order to enable a surgical procedure to be performed without discomfort to the patient.
3. During the period under review, the 2017 Regulations provided the following descriptors of MBS Items 18234 and 18236:
   1. Trigeminal nerve, primary division of, injection of an anaesthetic agent (Anaes.)

Fee: $124.85

1. Trigeminal nerve, peripheral branch of, injection of an anaesthetic agent (Anaes.)

Fee: $62.50

1. The Committee found inappropriate practice in respect of the services under MBS Items 18234 and 18236 on the basis of billing errors; inadequate record-keeping; and use of nerve blocks when such treatment was not clinically indicated. It is the third group of findings that is presently under consideration.
2. In each of the 30 sampled MBS Item 18234 services listed in Appendix 3 of the Final Report, the local anaesthetic was administered because Dr Foong was carrying out a surgical procedure on the patient, being either electrodessication (MBS Item 30195) or serial curettage (MBS Item 30196).
3. The Committee's findings were summarised at [154] as follows:

The Committee considers that electrodessication and serial curettage are not clinically indicated treatments for field actinic keratosis. As such, where Dr Foong administered nerve blocks for the performance of that procedure, the nerve blocks were also not clinically indicated.

1. Dr Foong submits that in respect of each such MBS Item 18234 services, the essential steps in the Committee's reasoning were:

(a) Dr Foong was carrying out electrodessication and serial curettage as a treatment for actinic keratosis or another condition;

(b) the Committee considered that electrodessication and serial curettage is not a clinically accepted treatment for the patient's condition;

(c) because electrodessication and serial curettage were not clinically indicated, it followed that the nerve block service (MBS Item 18234) was not clinically indicated;

(d) Dr Foong therefore engaged in inappropriate practice in providing the local anaesthetic under MBS Item 18234.

1. Dr Foong submits that it was not open to the Committee to reach conclusions (c) and (d). He submits that the real finding was that electrodessication or serial curettage should not have been performed in the first place, but there was no finding that administration of a local anaesthetic was not clinically indicated where electrodessication or serial curettage was to be performed. He submits that there was no logical or probative basis for the Committee's transposition of a conclusion that there was inappropriate practice in performing electrodessication and serial curettage into a conclusion that there was inappropriate practice in administering a local anaesthetic in order to perform those surgical procedures. In other words, Dr Foong argues there were not two separate items of inappropriate conduct: there was only one.
2. I do not accept Dr Foong's submission. Dr Foong submits that by "not clinically indicated", the Committee meant not clinically justified by the patient's condition, or, in other words, not the appropriate treatment given the patient's condition. Once the Committee reasoned that electrodessication and serial curettage were not clinically indicated, it necessarily followed that the administration of nerve blocks to enable those procedures to be performed was not clinically indicated. In other words, nerve blocks were not appropriate. The Committee's findings meant that patients were unnecessarily subjected to the administration of nerve blocks and also unnecessarily subjected to the administration of electrodessication and serial curettage. They were related but distinct services. It was logically and reasonably open to the Committee to find that Dr Foong's conduct in unnecessarily rendering services under MBS Item 18234 would be unacceptable to the general body of members of his profession.
3. Dr Foong also submits that the "conclusions" the Committee reached are outside the services referred pursuant to s 93(1) and are therefore contrary to s 106H(1) of the HIA. Although Dr Foong's senior counsel indicated that the Committee's findings in respect of MBS Items 30195 and 30196 are not challenged, I understand the submission to mean that the Committee was not entitled to conclude that MBS Items 30195 and 30196 were not clinically indicated.
4. Section 106H(1) of the HIA provides that, "[t]he Committee is to make findings only in respect of the referred services". The expression "findings" is given a particular and limited meaning in s 81(1) as, "the Committee's findings as to whether the person under review engaged in inappropriate practice in the provision of some or all of the services specified in the referral made to the Committee". A mere "conclusion" about whether an unreferred service was unnecessary is not a "finding" for the purposes of s 106H(1). In my opinion, s 106H(1) does not prevent the Committee from reaching a conclusion about whether an unreferred service was unnecessary as a step along the way to finding that a practitioner engaged in inappropriate practice in connection with an associated referred service. In any event, MBS Items 30195 and 30196 are amongst the referred services.
5. Dr Foong next argues that for the purposes of s 82(1) of the HIA, a practitioner's conduct in connection with rendering or initiating a service does not encompass the rendering or initiating of another service. He submits that if the words "conduct in connection with" in s 82(1) were read as extending to the performance of a different but related medical service, that would allow a Committee to circumvent s 106H(1) because the Committee could make a finding of inappropriate practice in the performance of the different service even though it had not been referred.
6. In Wong v Commonwealth, the plurality held at [215] that the expression "in connection with" in s 82(1), "is not to be given a narrow or confined construction". Where the referred service is related to a second service that has not been referred, the Committee would not be prevented from considering the unreferred service as part of the circumstances relevant to inappropriate practice concerning the referred service. But s 106H(1) would prevent the Committee from making a finding of inappropriate practice in respect of the unreferred service. Contrary to Dr Foong's submission, no circumvention of s 106H(1) would result from construing the phrase "in connection with" in s 82(1) according to its natural width.
7. The Committee was entitled to consider whether Dr Foong's conduct in connection with MBS Item 18234 amounted to inappropriate practice by reference to the whole of the circumstances surrounding the conduct, including his conduct concerning related services.

Findings that Dr Foong's record-keeping in respect of MBS Items 18234 and 18236 was inadequate

1. Section 82(3), read with the s 81(1) definition of "adequate and contemporaneous records", requires compliance with the standard of record-keeping prescribed by regulation. The relevant regulation during the period under review from October 2017 to September 2018 was s 5 of the 1999 Regulations. The 1999 Regulations were replaced by the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth) (the 2019 Regulations) on 23 February 2019.
2. The Final Report at [95] referred to both s 5 of the 1999 Regulations and s 6 of the 2019 Regulations. Dr Foong submits that as the 2019 Regulations only came into operation after the review period and are not expressed to be retrospective, the 2019 Regulations could not have governed what records were to be kept during the review period and are irrelevant.
3. The Committee's reasons also refer at [99] to Part 8.4.4 of a guideline for medical record-keeping issued by the Medical Board of Australia entitled, "Good Medical Practice: a Code of Conduct for Doctors in Australia" (the Doctors' Code of Conduct). Dr Foong submits that was not the standard set by s 82(3) of the HIA. Dr Foong submits that the Committee referred at [104] to the adequacy of record-keeping by reference to what his peers would consider to be deficient, but that was also legally irrelevant.
4. Dr Foong submits that the Committee erred in law in reaching its decision about record-keeping regarding MBS Item 18234 by not determining the adequacy of the records kept by Dr Foong by reference to the requirements of s 5 of the 1999 Regulations. The error is submitted to appear in the Final Report at [142] and [143] where the Committee reaches conclusions as to "important clinical information" which the reviewed records fail to contain. Further, Dr Foong submits that the Committee does not distinguish between whether the absent clinical information was important for the service under review he provided to the patient, or whether it was necessary to enable another practitioner to undertake the patient's ongoing care for the purposes of s 5(d). For example, the absence of a recording of the patient's weight (at [143]) might be material to the administration of the anaesthetic under MBS Item 18234, but it is unclear how it would be relevant to another practitioner later taking on the patient's ongoing care.
5. Dr Foong submits that the specific findings of inappropriate conduct in respect of all 30 individual MBS Item 18234 services listed in Appendix 3 follow the same pattern. The records for Randomly Sampled Service No. 1 indicate that on 18 October 2017, Dr Foong provided surgical procedures to the patient and administered a local anaesthetic to facilitate those procedures. One involved excising lesions from the patient's face. Another involved serial curettage of a malignant lesion on the patient's forearm. He provided a number of local anaesthetic injections in order to perform those surgical procedures. The reasons of the Committee concerning inadequate record-keeping are:

Reasons for finding of inappropriate practice

...

1. The record is inadequate. The record reflects that the patient had previously been taking medications including Fentanyl patches, Endone, OxyContin and Lyrica but it is unclear from the progress note for this service whether the patient was still taking these medications. This was particularly concerning as Dr Foong prescribed the patient with Panadeine Forte and Tramal at the service.

2. Further, notwithstanding that the total amount of anaesthetic was recorded, it is not clear how much was used in each nerve block. Nor was the patient's weight recorded in order to calculate an appropriate volume of anaesthetic. Further, the record does not detail any aftercare advice provided.

(Paragraph numbering added for ease of reference.)

1. Dr Foong submits that the Committee's findings do not entail testing the adequacy of the record against the requirements of s 5 of the 1999 Regulations. He submits that, for example, there is no identification as to whether the absence of a record as to the patient's current medication was something the Committee considered to be significant for the surgical procedures performed on 18 October 2017, or whether it was made necessary by s 5 of the 1999 Regulations. The absence from the record of how much anaesthetic was used in each nerve block was not tested against the requirements of s 5. The reference to the patient's weight seems to be related to the proper administration of the anaesthetic on 18 October 2017, rather than to any requirement under s 5. The absence of detail of any after care advice provided, again, is not tested by reference to the requirements of s 5. Dr Foong submits that, indeed, "there is no finding that any after care advice was provided in respect of service 18234". One would expect that any after care advice provided would have been in respect of management of the wounds and pain relief after the anaesthetic wore off (ie. a consequence of the surgical procedure, rather than the local anaesthetic).
2. Dr Foong makes the same submissions in respect of the findings of inadequate record-keeping concerning Randomly Sampled Service Nos. 2 to 30, which he submits follow the same pattern as the findings in respect of Randomly Sampled Service No. 1.
3. I will commence by considering Dr Foong's submission that the Committee erred by applying s 6 of the 2019 Regulations when they were enacted after the review period and were irrelevant.
4. The Committee stated at [95] of the Final Report:

Between the Review Period and the Committee hearing the Health Insurance (Professional Services Review) Regulations 1999 (Previous Regulations) were repealed and replaced with the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Current Regulations). The Current Regulations amend the definition of 'adequate and contemporaneous records', to which the Committee is obliged to have regard. The new definition is effectively a clarified version of the previous definition. The Committee has considered Dr Foong's conduct by reference to both definitions. None of the Committee's findings or reasons turn on which definition applies as whichever definition of adequate and contemporaneous record is applied, the Committee has found Dr Foong's records fall well short.

1. The Committee stated that it had considered Dr Foong's conduct by reference to both definitions. I accept Dr Foong's submission that the 2019 Regulations were irrelevant to the Committee's consideration of the referred services. However, I agree with the Committee's view that the new definition in s 6 of the 2019 Regulations is, "effectively a clarified version of the previous definition", so there was no material difference. In any event, the Committee determined that whichever definition applied, Dr Foong's records fell well short of the applicable standard.
2. Accordingly, the Committee's error in applying the 2019 Regulations was immaterial. I refuse relief in the exercise of the Court's discretion under s 16(1) of the ADJR Act and also find there was no jurisdictional error for the purpose of s 39B(1) of the Judiciary Act.
3. Dr Foong also submits that the Committee erred by taking into account the guidelines in the Doctor's Code of Conduct, which he contends were irrelevant. The argument seems to be that as a matter of construction of s 82(1) and (3) of the HIA and s 5 of the 1999 Regulations, the guidelines in the Doctors' Code of Conduct could not be taken into account.
4. In addressing that submission, the following observations of Beach J in Kew v Director of Professional Services Review are relevant:

[156] First, the function of the regulations is to prescribe standards. But their content and application very much require an evaluative exercise that the committee was best placed to undertake with its expertise.

[158] Generally, s 82(3) requires the committee, when determining whether a practitioner has engaged in inappropriate practice in respect of the services in the Director's referral, to examine and take into account "whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services". The keeping of adequate and contemporaneous records is a relevant consideration in the committee's determination concerning inappropriate practice...

1. The question for the Committee was ultimately whether there were reasonable grounds to conclude that Dr Foong's record-keeping in connection with the referred MBS Item 18234 services would be unacceptable to the general body of the members of his profession: s 82(1) of the HIA. The Committee was not confined to addressing that question only by reference, to the standard in s 5 of the 1999 Regulations, which does not purport to stipulate a standard of record-keeping that a Committee must consider acceptable. The legislative scheme does not impose any prohibition upon the Committee considering the question of inappropriate practice by reference to guidelines the Committee considers would be applied by the general body of the members of the relevant profession.
2. For reasons I have already given, I reject Dr Foong's submission that the Committee failed to test the adequacy of the records against the requirements of s 5 of the 1999 Regulations. Dr Foong's submissions upon this issue seem largely to take issue with the adequacy of the Committee's reasons, but the grounds of review do not challenge the adequacy of the reasons. It is plain that the Committee had regard to the standard under s 5 since it expressly stated at [95] that it had done so.
3. Dr Foong's next submission is that the Committee's conclusions regarding deficiencies in the record-keeping fail to distinguish between record-keeping concerning the referred service (ie. administration of a local anaesthetic under MBS Item 18234) and the surgical procedure in support of which the local anaesthetic was administered. An example of this is said to appear in the reasons concerning Randomly Sampled Service No. 1 in Appendix 3 where it is argued that conclusions that the records do not record current medications and health conditions are a finding of inadequacy in the record of a different service, namely electrodessication under MBS Item 30195 or serial curettage under MBS Item 30196. The complaint seems to be that the Committee made an error at [141] when it said that it had, "made widespread findings of inappropriate practice in relation to MBS items 18234 and 18236 on the basis that Dr Foong's record keeping was inadequate".
4. I accept that in respect of the 30 randomly sampled services in Appendix 3, the Committee's findings of inadequate record-keeping were in connection with MBS Items 30195 and 30196 as well as MBS Items 18234 and 18236. That may be seen, for example, in the fact that the reasons in connection with all 30 services identified as one aspect of the inadequacy of the records that, "the record does not detail any aftercare advice provided". That finding must relate at least partly, if not wholly, to aftercare following electrodessication and curettage. It is the case that the Committee's findings concerning inadequacy of records were in connection with MBS Items 30195 and 30196 as well as MBS Items 18234 and 18236.
5. It can be accepted that the Committee did make an error of sorts at [141]. The error was that the Committee should have said that it had made findings of inappropriate practice not only in respect of MBS Items 18234 and 18236 but also in respect of MBS Items 30195 and 30196. However, the error was immaterial: see LPDT at [14]. MBS Items 30195 and 30196 were among the services referred to the Committee, so that the Committee was not prevented by s 106H(1) of the HIA from making findings of inappropriate practice in respect of those services.
6. The Committee's error resulted in its findings not being as clear as would be desirable. However, Dr Foong was able to understand that the Committee had in fact made findings of inappropriate practice about his record-keeping in respect of MBS Items 30195 and 30196, as has been demonstrated by his submissions. His grounds do not challenge the adequacy of expression of the Committee's reasons.
7. I refuse relief in the exercise of the Court's discretion under s 16(1) of the ADJR Act and also find there was no jurisdictional error for the purpose of s 39B(1) of the Judiciary Act.
8. Dr Foong's submissions proceeded on the basis that his challenge to the Committee's findings concerning the services under MBS Item 18236 replicated his challenge to the findings in respect of MBS Item 18234. Consequently, the outcome must be the same.

CONSIDERATION: MBS ITEMS 45201, 45562 AND 45563

1. MBS Item 45201 is described in the 2017 Regulations as, "Muscle, myocutaneous or skin flap, where clinically indicated to repair one surgical skin excision made in the removal of a malignant or non-malignant skin lesion (only in association with items 31000, 31001, 31002, 31358, 31359, 31360, 31363, 31364, 31369, 31370, 31371, 31373 or 31376)". A service under MBS Item 45201 involves repair of a skin defect caused by removal of a lesion by grafting attached skin from an adjoining area to close a defect which cannot be closed by direct suture.
2. MBS Item 45562 is described as, "Free transfer of tissue involving raising of tissue on vascular or neurovascular pedicle, including direct repair of secondary cutaneous defect if performed". MBS Item 45563 is described as, "Neurovascular island flap, including direct repair of secondary cutaneous defect if performed, excluding flap for male pattern baldness". These services also involve skin grafts to close a defect which cannot be closed by direct suture.
3. The Committee found that Dr Foong had engaged in inappropriate practice in respect of 15 randomly sampled services in the following respects:

(1) failing to assess patients' suitability for the surgery to be performed in an outpatient setting by directly taking a history of pre-existing conditions and current medications: [206]-[209];

(2) failing in a number of cases to:

(a) adequately record the patients' consent to the procedure, which should have also recorded details about any alternative treatments and risks involved in the procedure: [210]-[213];

(b) failing to record aftercare advice: [214]-[215];

(c) failing to record the type and dose of local anaesthetic used: [216].

1. Dr Foong submits that the Committee generally found his clinical input to be inadequate because, for example, in Appendix 8, Randomly Sampled Service No. 2, the Committee stated:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. Dr Foong's clinical input was inadequate. He did not perform any assessment of the patient's suitability for the skin flap surgery in an outpatient environment. He did not take a patient history or review the patient's medications. Without making such an assessment, Dr Foong could not know whether the patient had co-morbidities or other issues which could heighten the risk of an adverse outcome. If Dr Foong did undertake an assessment of the patient's suitability for the surgery, his record is inadequate in failing to include that information.

...

(Paragraph numbering added for ease of reference.)

1. This conclusion is replicated in Appendix 8, Randomly Sampled Service Nos. 3 and 5. Similar conclusions are reached in Appendix 9, Randomly Sampled Service Nos. 1 and 2, and all five of the randomly sampled services in Appendix 10.
2. Dr Foong submits that the first error arising from the Committee's findings is that the Committee did not conclude that Dr Foong did not perform an assessment of suitability for surgery. Each of its findings is hedged with the alternative conclusion that if he did undertake an assessment, he did not record it. Therefore, the Committee's own findings do not support a finding of inadequate clinical input. Dr Foong submits that the alternative conclusion is that there was adequate clinical input but the record was incomplete, which raises a different issue as to the extent of the obligation to maintain records.
3. As I have indicated, the Committee's findings in the Appendices must be read together with the body of the Final Report. The Committee found relevantly:
   1. First, Dr Foong should have determined whether each patient was suitable for the surgery to be performed in an outpatient setting or whether they had pre-existing conditions or were taking medications. Dr Foong's lack of assessment was particularly concerning given many of his patients were elderly and therefore more likely to have pre-existing conditions or be taking medications.
   2. Dr Foong did not appear to assess the patient's suitability for the surgery in an outpatient setting prior to performing the procedure. None of the records contained a patient history relevant to the procedure including their current medications or whether the patient had co-morbidities which may increase the risks of an adverse outcome. Where the record did contain a history, it was taken by the referring general practitioner and contained within the referral or contained within the new patient questionnaire. In these instances the history was limited, not tailored to the procedure and not confirmed to be current by Dr Foong prior to the procedure.
   3. If Dr Foong did conduct an assessment of each patient to determine that outpatient surgery was appropriate, then the records are inadequate in failing to include that information. However, the Committee considers that it is more likely that he did not make such an assessment, given his comments during the hearing that recording the patient's current medications was not relevant to the procedure.
   4. Failure to assess a patient's suitability for flap surgery in an outpatient setting is not a minor concern. These procedures were invasive and performed with local anaesthetic, and sometimes also with nerve blocks and sedation anaesthesia. The surgery itself and the anaesthesia all carry a level of risk which may be increased by the patient's pre-existing conditions, allergies or medications. For example, patients with cardiac disease, bleeding disorders or immunosuppression are all at a greater risk of an adverse event as a result of the procedure.
4. The Committee at [208] considered that in the absence of records showing assessment of the suitability of the patients for outpatient surgery, a possible inference was that Dr Foong had conducted such assessments but failed to record them. However, the Committee concluded that, "it is more likely that he did not make such an assessment". Accordingly, the Committee did conclude that Dr Foong had failed to assess the patients' suitability for flap surgery in an outpatient setting. Dr Foong's submission to the contrary must be rejected.
5. Dr Foong's second submission is that in reaching its first alternative conclusion of inadequate clinical input, the Committee failed to take into account the whole of the patient's record available to Dr Foong. Dr Foong submits that the Committee only considered his record in respect of the service provided on the day under review, but in concluding that he failed to take a patient history or review the patient's medications, the Committee failed to take into consideration his prior dealings with his patient and his records of those prior dealings.
6. Dr Foong seeks to illustrate this point by using Randomly Sampled Service No. 3 in Appendix 8 as an example. Dr Foong's records showed that:

(a) the patient, Arthur, first saw Dr Foong on 29 March 2012. He completed a patient questionnaire and underwent an "extensive examination" with Dr Foong finding "Solar keratosis as a field effect on face, scalp, trunk and both upper limbs";

(b) Dr Foong then consulted with the patient on no fewer than 30 occasions between March 2012 and the service under review on 30 October 2017. On each occasion, Dr Foong recorded the services provided, which were services in respect of solar keratosis (sun-damaged skin);

(c) Dr Foong's patient records record both the current medication that the patient was taking and his past prescriptions; and

(d) the medication records were updated on 30 October 2017, the day of the service (when the Committee found Dr Foong failed to review the patient's medications).

1. Dr Foong submits that in concluding he, "failed to perform an assessment of the patient's suitability for the skin flap surgery", the Committee confined itself to the record of the service provided on 30 October 2017 and failed to consider any of the records in respect of the prior consultations in which Dr Foong was reviewing the patient's condition, considering and providing treatment for his conditions.
2. Dr Foong submits that the Committee's finding that Dr Foong did not "review the patient's medications" is plainly incorrect. The list of medications that the patient was taking was updated that very day in Dr Foong's medical records.
3. The Committee's findings regarding this service were as follows:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

1. Dr Foong's clinical input was inadequate. He did not perform any assessment of the patient's suitability for the skin flap surgery in an outpatient environment. He did not take a patient history or review the patient's medications. Without making such an assessment, Dr Foong could not know whether the patient had co-morbidities or other issues which could heighten the risk of an adverse outcome. If Dr Foong did undertake an assessment of the patient's suitability for the surgery, his record is inadequate in failing to include that information.

2. The record is inadequate in any event. While it states that Dr Foong obtained informed consent from the patient, it does not detail the information relevant to this consent, such as any discussion he had with the patient about the risks associated with the procedure or any other potential treatment options. The record also fails to detail the aftercare advice Dr Foong said that he would have provided to the patient. Further, the record states 'local anaesthetic used' but does not state what this was, nor the dose used.

(Paragraph numbering added for ease of reference.)

1. The Committee at [207] found that none of the records contained a patient history relevant to the procedure including current medications or whether the patient had co-morbidities which may increase the risks of an adverse outcome. The Committee acknowledged that for some of the referred services, there was a history taken by the referring general practitioner or contained within the referral or the new patient questionnaire, but found that in those instances Dr Foong's practice was inadequate because the history was limited, not tailored to the procedure and not confirmed to be current by Dr Foong prior to the procedure. In light of these express findings, Dr Foong's submission that the Committee confined itself to the record of the service provided on 30 October 2017 and failed to consider any of the records in respect of the prior consultations cannot be accepted.
2. Further, Dr Foong's submission that the Committee's failure to review all the records was demonstrated by reference to the medication records for Randomly Sampled Service No. 3 in Appendix 8 must be rejected. Dr Foong submits that the medication records for the patient show that the records were updated on 30 October 2017, the day of the referred service, demonstrating that the Committee's finding that he did not "review the patient's medications" was plainly wrong.
3. However, the records state under the heading "Actions", "Prescription printed: Bactrim DS 160mg; 800mg Tablet One - twice a day. Morning and evening". This appears to have been a prescription made after the surgery. The Committee's finding of inappropriate practice was concerned with Dr Foong's failure to review the patient's medications before surgery. Therefore, the prescription made on 30 October 2017 does not suggest that the Committee failed to examine the whole of the records.
4. Dr Foong's next argument commences with the proposition that services under MBS Items 45201, 45562 and 45563 involving skin flap procedures are necessarily preceded by surgery to excise a lesion, which is a service under one of MBS Items 31358, 31360, 31363 or 31373. He submits that the Committee's reference at [206] to "the surgery" should be properly understood as being the excision surgery following which it became necessary for a skin flap to be undertaken. He submits that as MBS Items 31358, 31360, 31363 or 31373 were not amongst the referred services, the Committee was prevented by s 106H(1) of the HIA from making findings in respect of those services.
5. The difficulty with accepting Dr Foong's submission is that it ignores the contextual factors which explain what the Committee meant by "the surgery" at [206]. The Committee stated at [197] that its findings, "in relation to each MBS item 45201, 45562 and 45563 service it examined are set out in Appendix 8, 9 and 10 respectively". The Committee did not suggest it had made any findings in respect of any other services in this section of its Final Report. The Committee went on at [201]-[204] to describe Dr Foong's evidence concerning skin flap procedures. In this context, the Committee's reference at [206] to whether Dr Foong, "should have determined whether each patient was suitable for the surgery to be performed", was a reference to skin flap surgery. That is reinforced by the Committee's reference at [209] to "flap surgery" and its subsequent references to "flap failure" at [212] and [213]. The Committee refrained from making findings in respect of MBS Items 31358, 31360, 31363 and 31373 which have not been referred.
6. The Committee's discussion of the individual services at Appendices 8, 9 and 10 contain references to not only the referred service but also whichever of MBS Items 31358, 31360, 31363 or 31373 was billed. It can be accepted that in the findings contained in the Appendices there is some ambiguity about whether the findings are concerned with the unreferred services as well as the referred services. However, in my opinion, that ambiguity is clarified by the passages in the body of the Final Report I have referred to. Accordingly, subject to the exception discussed below, I reject Dr Foong's submission that the Committee erred by making findings of inappropriate practice in respect of services that had not been referred to the Committee.
7. The exception is in respect of Randomly Sampled Service No. 1 in Appendix 10 on 8 May 2018. The Committee found:

Reasons for finding of inappropriate practice

Dr Foong's conduct would be unacceptable to the general body of medical practitioners for the following reasons:

...

1. Further the record includes pathology dated 23 November 2016 from a biopsy of a BCC on the right superior eyebrow. However, on the date of service, Dr Foong excised lesions on the right crow's feet and performed the corresponding skin flap surgery. In circumstances where there was no histopathology supporting the excision of the lesion on the date of service, the co-billed MBS item 18236 (x 2) and 31358 services were also inappropriate.

(Paragraph numbering added for ease of reference.)

1. The Committee's findings included a finding that the MBS Item 31358 service was inappropriate. In circumstances where no service under MBS Item 31358 had been referred, s 106H(1) of the HIA prohibited the Committee from making a finding of inappropriate practice in respect of that service.
2. However, the Committee's error is immaterial. The Committee also made the same finding that the service under MBS Item 45563 was inappropriate practice for other independent reasons: see LPDT at [14].
3. Dr Foong submits that the Committee's finding in respect of Randomly Sampled Service No. 2 in Appendix 10 that he did, "not record any pre- or post-operative observations", was in respect of MBS Item 31363. I consider that finding to have been made in respect of skin flap surgery and reject the submission.
4. Dr Foong also submits that the Committee's finding in respect of Randomly Sampled Service No. 5 in Appendix 10 that his progress note records the lesion as being on the left medial ankle, whereas the pathology request documents the lesion as being on the left lateral ankle was a finding in respect of MBS Item 31363. However, I find that it was only a finding of inappropriate practice in respect of the skin graft under MBS Item 45563.
5. The Committee made two findings concerning the alleged failure to maintain adequate records. First, that Dr Foong's records routinely omitted important clinical details and failed to include vital clinical information in the patient health summary; and, second, that Dr Foong failed to record the amount of anaesthesia used.
6. Dr Foong submits that in respect of each finding, the Committee made an error of law in not determining the adequacy of the records kept by Dr Foong by reference to the requirements of s 5 of the 1999 Regulations. I reject this argument for reasons I have already given.

1. I have concluded that the Committee either did not make the errors of law alleged in the Third Further Amended Originating Application or that it made errors that were immaterial. Consequently, the proceeding must be dismissed.
2. I will order that Dr Foong pay the Director's costs of the proceeding.

I certify that the preceding two hundred and ninety-five (295) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.