Case: Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149
Outcome: cited
There is no challenge to Dr Selim's standing to bring the present proceeding. The respondents have accepted that should the applicant be disqualified from participating in the Medicare Scheme, then for the period of the disqualification the applicant's patients would not receive benefits in respect of the applicant's professional services. The respondents accept that, depending on the length of any disqualification the applicant 'may lose a number of his patients'. The pervasiveness of the Medicare Scheme and its role in covering an individual's medical expenses or, at least, in subsidising those expenses, is sufficiently well known generally as to allow me to take judicial notice of this and of its impact on medical practitioners who are unable to participate in the scheme; Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149 ; Evidence Act 1995 (Cth) s 144. It is not difficult to conclude that the consequences for a medical practitioner who is excluded from the scheme would be sufficiently serious. The disadvantages of operating outside the Medicare Scheme are such as, in my view, to impose practical, if not legal compulsion, to participate in the Scheme. 22 The written submissions made on behalf of the applicant went into considerable detail about the repercussions for the applicant should he be disqualified from the Medicare Benefits Scheme for up to three years. These included the virtual devastation of his practice and loss of his livelihood. As I have explained above these submissions are not relevant to the issue I have to decide. The applicant sought judicial review of the decisions of the Director and the Committee. Jacobson J dismissed that application. I understand that, pending the outcome of the present constitutional challenge to the legislation, no penalties have been imposed on the applicant. Whether or not hardship submissions will be relevant to the assessment of any penalty is not for me to say. The issue of whether the PSR exceeds the powers of the Commonwealth however, cannot depend on issues of hardship particular to an individual practitioner. 23 It is not in contention that medical practitioners are not obliged to participate in the Medicare Scheme. Nevertheless, the applicant contends that the realities underlying the medical benefits scheme are such that 'realistically, economically and practically' it requires medical practitioners to become approved medical providers in order for them to practise as general practitioners. The applicant submits that the HIA requires general practitioners to provide medical services in a manner designated as 'appropriate' but which is 'unstated and undefined'. According to the applicant, this dictates the 'kinds of and manner in which medical services are actually provided' and attaches significant sanctions to a failure to conform including disqualification from participation in the scheme for up to three years, public reprimand and/or the imposition of substantial repayments of Medicare benefits paid to them or assigned to them by their patients. By so doing, the applicant submits, the HIA 'impermissibly' constitutes civil conscription.