In Director, Professional Services Review v Yoong [2025] FCAFC 95 the Court has ruled that complete clinical records were relevant to professional services reviews under the Health Insurance Act 1973 (Cth), validating the Director's notice requiring a general practitioner to produce complete clinical records for 76 patients, emphasizing that such records provide essential context for determining inappropriate practice.
In articulating reasons the Court states
This appeal arises from a review undertaken under Pt VAA of the Health Insurance Act 1973 (Cth) (HI Act) by the appellant, the Director of Professional Services Review, into the provision by the respondent, Dr Matthew Yoong, of services in respect of which medicare benefits were paid. The central question in the appeal concerns the validity of a notice issued by the Director under s 89B of the HI Act that required the respondent to produce “complete clinical records” in respect of a representative sample of his patients who had received services during the period covered by the review (the Notice). The respondent’s failure to comply with the Notice in turn led to a further notice being given by the Director under s 106ZPM of the HI Act which prevents medicare benefits being paid in respect of services rendered or initiated by the respondent.
The respondent brought a proceeding seeking judicial review of the Director’s decisions under ss 89B and 106ZPM of the HI Act. The primary judge upheld the respondent’s challenge to the validity of the Notice on the basis that it was not confined to seeking documents that were “relevant to the review”: Yoong v Director, Professional Services Review [2023] FCA 1186 (J). As a consequence, the primary judge also set aside the notice given to the respondent under s 106ZPM.
The Director submits that the primary judge erred in holding that the Notice was not authorised by s 89B of the HI Act and was therefore invalid. The grounds of appeal challenge the primary judge’s findings that the Notice was not confined to requiring the production of “relevant documents” within the meaning of s 89B(1) of the HI Act, and that the Notice was invalid on its face. The Director submits that these findings were based on a misconstruction or misapplication of the statutory definition of “relevant documents” and the requirements for a valid notice under s 89B.
We consider that the grounds of appeal should be upheld, for the reasons set out below. The documents required by the Notice to be produced, being complete clinical records for identified patients to whom the respondent provided services during the review period, were relevant to the review within the meaning of s 89B(1) of the HI Act, properly construed. It cannot be said that those documents have no conceivable relevance or no bearing whatever on the review of the provision of services by the respondent during the review period. The documents are likely to assist the Director in the performance of investigative functions under Pt VAA of the HI Act. Further, the form and content of the Notice were sufficient to comply with the requirements of s 89B. In particular, the documents sought were identified with sufficient clarity to enable the respondent to understand what he was required to produce in order to comply with the Notice, and to show that the Director was authorised to require the respondent to produce the documents.
