Daniel v Health Insurance Commission [2003] FCA 772

FEDERAL COURT OF AUSTRALIA

Daniel v Health Insurance Commission [2003] FCA 772 ADMINISTRATIVE LAW – judicial review – medical practitioners – Professional Services Review under Part VAA Health Insurance Act 1973 (Cth) – investigative referral by Health Insurance Commission to Director of Professional Services Review – adjudicative referral by Director to Professional Services Review Committee – where adjudicative referral purportedly under s 86 on the basis of s 106KA(1) – whether s 106KA(1) confers powers or obligations upon the Director – whether the Director can have regard to the "80/20 rule" established by regs 10 and 11, Health Insurance (Professional Services Review) Regulations 1999 – Director not entitled to rely upon the "80/20" rule alone to make adjudicative referral HEALTH LAW – medical practitioners – Professional Services Review under Part VAA Health Insurance Act 1973 (Cth) – "inappropriate practice" – s 106KA(1) does not absolve the Health Insurance Commission from inquiring whether a practitioner's "conduct would be unacceptable to the general body of general practitioners" under subs 82(1)(a) – content and form of investigative referral – meaning of "referred services" into which the Director must inquire – subs 86(4)(a) requires that investigative referral contain particulars of all services during the referral period – "referral period" under s 81 and ss 86(2) or (3) means two years period prior to referral date – Director must investigate, as he or she thinks fit, all services rendered in the two year period – investigative referral not necessarily invalid if it does not contain particulars of every service – breach of the "80/20" rule does not relieve Director from need to consider entire two year referral period – such consideration important to exercise of discretion to enter s 92 agreements with practitioner – no requirement under the Act that an agreement can only be considered after a practitioner acknowledges guilt – failure to put to practitioner that silence could be seen as a refusal to acknowledge wrongdoing a breach of procedural fairness WORDS AND PHRASES – "inappropriate practice" – "referral" – "referral period" – "80/20 rule"