Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433

FEDERAL COURT OF AUSTRALIA

Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 File number: VID 309 of 2015

Judge: MORTIMER J

Date of judgment: 29 April 2016

Catchwords: ADMINISTRATIVE LAW – judicial review – Administrative Decisions (Judicial Review) Act 1977 (Cth) – Judiciary Act 1903 (Cth) s 39B – Health Insurance Act 1973 (Cth) Pt VAA – Professional Services Review Scheme – Professional Services Review Committee – Committee found applicant engaged in "inappropriate practice" within meaning of s 82(1) of Health Insurance Act 1973 (Cth) – Committee found clinical inputs inadequate; requirements of Medicare Benefits Schedule not met; lack of contemporaneous clinical records – findings based on samples of relevant services – Committee found applicant fabricated documents purported to be contemporaneous clinical records – whether Committee wrongly inferred a requirement that clinical records must be accessible to other practitioners – whether Committee wrongly inferred a requirement that there be a clinical need for relevant services ADMINISTRATIVE LAW – judicial review – Administrative Decisions (Judicial Review) Act 1977 (Cth) – Judiciary Act 1903 (Cth) s 39B – Health Insurance Act 1973 (Cth) Pt VAA – Professional Services Review Scheme – Determining Authority – direction that applicant be reprimanded and counselled – direction that applicant be disqualified from receiving medicare benefits for two years – direction that applicant repay medicare benefits in proportion to Committee's findings of inappropriate practice – whether directions of Determining Authority punitive rather than protective – whether full disqualification from receiving medicare benefits justified in the circumstances – whether full repayment of medicare benefits in proportion to findings of inappropriate practice justified where findings based on sample of services – whether Determining Authority failed to take into account mandatory relevant consideration by failing to consider whether partial disqualification or partial repayment would be sufficient to meet the objectives of the Professional Services Review Scheme HEALTH LAW – Health Insurance Act 1973 (Cth) inappropriate practice pursuant to s 82(1) – items 37, 597, 721, 5043 of Medicare Benefits Schedule – attendances on patients after hours – attendances on patients outside consulting rooms – entitlement to medicare benefit pursuant to s 10(1) – meaning of "adequate and contemporaneous record" pursuant to s 82(3) of the Health Insurance Act 1973 (Cth) and regs 5 and 6 of Health Insurance (Professional Services Review) Regulations 1999 (Cth) – whether there must be a clinical need for attendance after hours and/or outside consulting rooms – whether clinical need must be recorded in clinical records – whether clinical records must be electronic