Yoong v Director, Professional Services Review

Whether the respondent's review of services of the applicant commenced on 30 April 2019 be suspended until the determination of this proceeding 39 In relation to the need for a stay of the review, the respondent submitted, in summary: The Director seeks an order suspending her review of Dr Yoong's provision of services so that she is not prejudiced in the conduct of the review by the effluxion of time while Dr Yoong's originating application is resolved. Section 94 of the Health Insurance Act provides that if, after a period of 12 months after making a decision to review the provision of services by a person, the Director has not made one of the decisions listed in s 94(1)(b)(i)-(iii), she is deemed to have made a decision to take no further action in relation to the review. There are limited circumstances in which this 12 month statutory timeframe can be extended. Section 94(2) provides that if the review is suspended because of an injunction or other court order, the Director has power to extend the period of 12 months by a period no longer than the period of the suspension. In circumstances where Dr Yoong's requirement to provide records will necessarily be suspended by operation of the interlocutory orders proposed to be made, it is appropriate for the Court to exercise the power to suspend the review pending the determination of this proceeding. 40 In summary, Dr Yoong submitted: The legislature saw fit to deal with circumstances where a review is suspended by Court order under s 94(2) of the Health Insurance Act by the machinery in s 94(3) of the Act. If Dr Yoong vindicates his claim concerning the documents he delivered to the Director, a suspension of the review by the Director at this point will mean that Dr Yoong will not obtain the full value of the judgment, but rather will have the matter hanging over his head for another year while the review continues. This is of particular relevance because the Director's case is very weak. 41 The relevant statutory provisions in respect of this issue are ss 94 and 89B of the Health Insurance Act. 42 Section 94 provides: Director taken to have made a decision after 12 months (1) If: (a) the Director decides to review the provision of services by a person; and (b) before the end of the period of 12 months after making the decision, the Director has not: (i) made a decision under section 91 to take no further action in relation to the review; or (ii) entered into an agreement with the person under section 92 (whether or not the agreement has been ratified by the Determining Authority); or (iii) referred the provision of one or more of the services to a Committee; then, the Director is taken to have made a decision at the end of that period to take no further action in relation to the review. Note: Sections 92A and 106R set out time limits for the ratification of agreements made under section 92. (2) If the review is suspended: (a) under paragraph 89A(2)(b); or (b) because of an injunction or other court order; the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period of the suspension. (3) If a notice is given under subsection 89B(2) to the person under review, or to another person, and the person concerned fails to comply with a requirement of the notice, the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period during which the person fails to comply with the requirement. (4) This section does not apply in relation to a review undertaken because of section 89. 43 Section 89B provides: Power of Director to require the production of documents or the giving of information (1) In this section: "relevant documents" means documents that are relevant to the review and includes clinical or practice records of services rendered or initiated during the review period by: (a) the person under review; or (b) a practitioner employed or otherwise engaged by the person under review; or (c) a practitioner employed or otherwise engaged by a body corporate of which the person under review is an officer. (2) For the purpose of undertaking a review, the Director may, by written notice given to: (a) the person under review; or (b) any other person whom the Director believes to have possession, custody or control of, or to be able to obtain, relevant documents; require the person to whom the notice is given: (c) to produce to the Director, or to a person nominated by the Director, such relevant documents as are referred to in the notice; and (d) if the person does not have possession, custody or control of, and cannot obtain, any of those documents: (i) to inform the Director or a person nominated by the Director of that fact; and (ii) if the person knows, or can readily find out, the name and address of a person who has possession, custody or control of, or can obtain, any of the documents--to give that name and address to the Director or to a person nominated by the Director. (3) The notice must state: (a) the period within which, and the place at which, the documents are to be produced; and (b) the period within which a name and address referred to in subparagraph (2)(d)(ii) are to be given. (4) The period to be stated in the notice must be a period ending at least 14 days after the day on which the notice is given. (5) The notice is to set out the terms of section 106ZPM or 106ZPN, whichever is applicable to contraventions of the notice. However, a failure to comply with this subsection does not affect the validity of the notice. (6) If a document is produced in response to the notice, the Director or a person nominated by the Director: (a) may inspect the document; and (b) may retain the document in his or her possession for such reasonable period as he or she thinks fit; and (c) may make copies of, or take extracts from, the document. 44 In my view it is appropriate to make the suspension order sought by the Director. 45 First, I accept the proposition advanced by the Director that, in the absence of a suspension, the Director stands at risk of a decision being made by default pursuant to s 94(1) of the Health Insurance Act. Section 94(1) imposes a strict time limit of 12 months after the making of the relevant decision, following which the Director is taken to have made a decision to take no further action in relation to the review. 46 Second, s 94(2)(b) clearly contemplates suspension of a review by Court order. In my view it is this section which creates the critical legislative machinery permitting the rights of the Director to remain intact while a challenge to a decision of the Director takes place. 47 In this context I also note the purpose of Part VAA of the Health Insurance Act, as set out in s 79A of the Act. Specifically: Object of this Part The object of this Part is to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so: (a) protect patients and the community in general from the risks associated with inappropriate practice; and (b) protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. 48 Under s 83 of the Health Insurance Act (which falls in Part VAA), the Director has such functions, duties and powers as are conferred on him or her by this Part or the regulations. 49 Plainly s 94(2)(b), by permitting a suspension of a review by Court order, is enacted for the benefit of the Director, and to facilitate the performance of the statutory functions, duties and powers of the Director in circumstances of a challenge to a review decision. 50 Third, I note the submission of Dr Yoong that the case of the Director against him is weak, and further that, if the Court suspends the review but he is successful in his claim, he will not obtain the full value of the judgment once the review recommences following the end of the suspension. That may well be the case, however the fact that s 94(2)(b) specifically empowers the Court to suspend a review decision means, in my view, that such circumstances as Dr Yoong describes (referable to his non-receipt of the full value of any judgment) are nonetheless contemplated by that power to suspend. I do not consider that the submission of Dr Yoong warrants a refusal by the Court to refuse to exercise its suspension power under s 94(2)(b) of the Health Insurance Act. I am also not prepared at this interlocutory stage to comment on the weakness or otherwise of the Director's case. 51 Finally, I do not accept the applicant's proposition that the legislature saw fit to deal with circumstances where a review is suspended by Court order under s 94(2) of the Health Insurance Act, by the machinery in s 94(3) of the Health Insurance Act. Section 94(3) deals specifically with circumstances where a notice is given under s 89B(2) and the person fails to comply with a requirement of the notice. Section 94(3) is potentially applicable to Dr Yoong's circumstances because of the nature of the non-compliance alleged on his part by the Director. However, ss 94(2) and 94(3) appear to have different work to do. Section 94(2) permits suspension of a review decision, whereas s 94(3) is much more specific and related to notices given under s 89B(2). I am not persuaded at this interlocutory stage that where a notice is given under s 89B(2), the Court is somehow limited in its power to suspend a review decision under s 94(2).

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