Case: Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280
Outcome: cited
Part VAA of the Act is entitled 'The Professional Services Review Scheme' . It is concerned to protect public revenues from abuse of the Medicare benefits system. It establishes a scheme whereby a medical practitioner's conduct in respect of services for which Medicare benefits are paid can be investigated to ascertain if it involves inappropriate practice. The operation of the scheme has been described in some detail in a number of other judgments of the Court. I do not consider it necessary to repeat that exercise. I refer by way of example to the description set out in Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280 at [5] - [61] . 9 Although Dr Carrick is not a specialist medical practitioner, nothing before this Court suggests that she is a 'general practitioner' within the meaning of the Act (see the definition of 'general practitioner' in s 3 of the Act and item 1 of Part 1 of Schedule 1 of the Health Insurance (1998-99 General Medical Services Table) Regulations 1998 ). For that reason the relevant definition of ' inappropriate practice ' in her case is that contained in s 82(1)(d). That definition is as follows: '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: ... (d) if the practitioner rendered or initiated the referred 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.' 10 It is sufficient here to note that the above definition, and the other definitions of inappropriate practice in s 82 of the Act, make plain that the scheme is concerned with professional conduct that a practitioner's professional peers would consider unacceptable. Where a judgment in that regard is required, it is made by a Professional Services Review Committee to which the Director has made an adjudicative referral under s 93. Section 95(2) ensures that the members of a Professional Services Review Committee are practitioners who belong to the profession in which the practitioner was practising when he or she rendered or initiated the referred services. 14 As mentioned above, on 28 June 2002 the Commission, by its delegate Dr Houston, made the Investigative Referral. No criticism has been made of the instrument of referral although it appears not to have been drafted in accordance with the construction placed on s 86 and s 87 of the Act by Finn J in Pradhan [2001] FCA 1560 ; 125 FCR 280 at [14] - [17] . As his Honour observed, s 81 defines 'referred services' relevantly to mean 'the services particulars of which are contained in the referral in accordance with paragraph 86(4)(a)' . That paragraph encompasses all services rendered or initiated during the referral period by, relevantly, the person under review. 15 The Investigative Referral specified particularly Dr Carrick's conduct in connection with the rendering of certain services identified by reference to MBS item numbers including MBS item 30487. MBS item 30487 represents small bowel intubation with biopsy. 16 The instrument of referral set out the reasons why the Commission considered Dr Carrick may have engaged in inappropriate practice as follows: 'Within the scope of Dr Carrick's conduct in connection with the rendering or initiating of the above services, the HIC is concerned that, as indicated by her practice profile, Dr Carrick may have: &#8226; rendered or initiated services that were not necessary; &#8226; not provided an appropriate level of clinical input to the services; &#8226; not provided appropriate 'professional services' to her patients, or &#8226; not satisfied the requirements of the relevant items in the Medicare Benefits Schedule Book and the Schedule of Pharmaceutical Benefits. The concerns of the HIC have been identified and analysed by: &#8226; a review of Dr Carrick's practice statistics; &#8226; a comparison of those statistics with the data concerning the practice of all active medical practitioners and surgery non-specialists in Australia; &#8226; a counselling meeting between a HIC Medical Adviser and Dr Carrick where the above referred conduct was discussed; &#8226; a report of that meeting between the HIC Medical Adviser and Dr Carrick ... ; and &#8226; a review of Dr Carrick's practice statistics since counselling. The HIC determined there had been insufficient change to remove the overall concerns about the referred conduct above. Taking into account the concerns which are outlined above, the HIC is of the view that Dr Carrick may be engaging in inappropriate practice within the meaning of section 82 of the Act and that the conduct should be referred for consideration by the Director of Professional Services Review.' (footnote omitted)