PSR Newsletter, April 2022

Welcome to the April 2022 edition of the quarterly PSR Panel Newsletter.

Agency activity summary for the quarter

In the period from 1 January 2022 to 31 March 2022 the Agency received 21 new requests (including 3 practitioners who had previously been referred). The Agency finalised 18 requests. This comprised:

• 11 effective section 92 agreements
• 5 effective final determinations
• 2 section 91 ‘no further action’ outcomes

A total of $5,184,799 in repayment directions were made from the finalised matters. Of the finalised matters, 14 involved some form of disqualification.

In this period 3 new peer review Committees were established and 11 practitioners were referred to AHPRA either due to significant patient safety concerns or non-compliance with professional standards.
 

Message from the Director

At the start of March I wrote to The Hon. Greg Hunt, Minister for Health and Aged Care to advise that in accordance with section 106ZC of the Health Insurance Act 1973 (the HIA), I would be stepping down from the role of Director of Professional Services Review with effect from close of business Friday, 15 July 2022.

I have now been Director for over 5 years, during which time I note the Agency has grown to handle increasingly complex matters including implementation of the review ofcorporate practices and the expansion of reviews of medical specialists and other health professionals. The Agency regularly handles more than double the historical annual workload.

In the 2021 Australian Public Service (APS) staff survey, PSR ranked 2nd of all 101 APS Departments and Agencies in overall scores and in staff innovation.

PSR were recently entrusted to expand compliance into hospital admission investigations in a collaborative arrangement between Health and the private health insurance groups, announced in the 2021 budget and with draft legislation being prepared.

The Agency has also enhanced transparency through website publication of outcomes, and we have been highly successful in defending Federal Court of Australia challenges. We also have underway an innovative review to assist the Agency to enhance transparency into s92 agreements. I hope to provide an update on this in the next newsletter.

Most importantly I have worked with some outstanding members of staff and Panel members who display the very best of the philosophy of being in the Australian public service by acting as a servant of the public to protect their health from the risks of inappropriate practice.

I am confident I leave PSR in excellent shape to continue its important role of protecting the integrity of the Medicare Benefits, Dental Benefits, and Pharmaceutical Benefits programs.

I will be assuming a new role on 18 July 2022 as Dean of Medicine, Biological Sciences, Pharmacy, and Radiation Sciences at Curtin University in Western Australia, returning to my academic heart to help teach the next generation of clinicians and promote healthcare research.

The Minister of Health and Aged Care will appoint a new Director in due course. If any Panel member is interested in applying then I would be happy to talk to them about the role. However, the appointment process itself will be managed by the Department of Health.

Professor Julie Quinlivan
Director
Professional Services Review
 

New appointments to the Professional Services Review Panel

The five-yearly PSR Panel and Deputy Director appointments renewal process has progressed and the instruments of appointment have been signed by the Minister. The Director is currently in the process of writing to all successful appointees.

Similarly, the Determining Authority renewal process has also concluded and the Cabinet Secretary and the Minister have approved these appointments. The Determining Authority members have been contacted by the Director and letters to these appointees are being drafted.
 

Concerns over the Pharmacy trial in Queensland

The President of the AMA, Dr Omar Khorshid, wrote to the Director expressing concerns about the lack of regulatory oversight of the North Queensland Pharmacy Scope of Practice Trial.

The Director of PSR conveyed concerns over compliance and regulation of the Queensland Pharmacy trial with the Commonwealth Department of Health at a meeting held on Thursday 10 February 2022. The Director raised concerns that the proposed pathway for pharmacy prescribing appears to have no external independent regulatory or compliance oversight that allows external evaluation of inappropriate practice in relation to prescribing. The trial is also inconsistent with Commonwealth legislation that identifies the clinicians that may prescribe medications, and this does not include pharmacists. These are two significant concerns.

There are clear regulatory and compliance pathways to review the activity of clinicians who currently prescribe under the PBS and these are discussed more in detail below.
 

Inappropriate practice in prescribing pharmaceutical benefits

Under Part VAA of the HIA, the Chief Executive Medicare may request the Director of Professional Services Review to review:

• the conduct of a practitioner in connection with prescribing under the Pharmaceutical Benefits Scheme (PBS); or
• the conduct of a person or legal entity who employs, or otherwise engages, practitioners who prescribe under the PBS.

Depending on the circumstances of each case, PSR Committees have made findings of inappropriate practice by practitioners in relation to prescribing under the PBS in many cases and on a number of grounds, including at least one or more of the following:

• Failing to adequately examine, or record the examination of, the patient in respect of the presenting complaint
• Failing to take, or record, an adequate history relevant to the presenting complaint or the medication being prescribed
• Failing to make, or record, an appropriate diagnosis or differential diagnoses
• Failing to advise, or adequately advise, the patient of relevant alternative treatment modalities, or make a record of that advice
• Failing to ask about, or record, the medication or other products or substances the patient is currently taking that might interact with the prescribed medication
• Failing to take into account or advise the patient of the effect of the medication on their employment circumstances, social interactions, and activities of daily living
• Failing to record an adequate indication for the prescription
• Failing to advise the usual treating general practitioner of the prescription (if the person under review is not the usual treating general practitioner)
• Failing to take adequate steps, or detail a plan, to limit or reduce the patient’s dependence on addictive medication
• Failing to adequately record the advice given regarding the mode, dose, frequency, circumstances, or time period in which the medication is to be taken
• Failing to meet the PBS requirements for prescribing the medication
• Failing to meet State or Territory regulatory requirements for prescribing the medication.

One or more of these grounds (usually multiple grounds) have also been a basis on which the Director, a PSR Committee, or the Determining Authority has made a referral of a practitioner to AHPRA or other relevant regulatory authority due to the risk to patient safety and/or failing to comply with professional standards.
 

Federal Court Outcomes

Amir v Director of Professional Services Review [2022] FCAFC 44

A Full Bench of the Federal Court has dismissed an appeal from the Federal Court judgment that was noted in the October 2021 PSR Panel Newsletter.

Section 94 of the HI Act requires the Director to dismiss, enter into an agreement, or refer a matter to a Committee within 12 months of deciding to conduct a review. If such action is not taken, the matter is deemed to have been dismissed. In describing the effect of this 12 month period, the Court called it the ‘temporal guillotine of the Scheme’.

Dr Amir submitted that the period had already expired before the Director referred him to a Committee because, he said the Director had made up her mind on 4 April 2019, as evidenced by an email to a PSR staff member on 4 April 2019, even though the Director wrote to him on 16 April 2019 stating “... today I have decided to undertake a review into your provision of those services...”.

The question before the Court was, in effect, whether the Director made the decision to commence an investigation on 4 April 2019 or 16 April 2019. The Full Federal Court held that the decision was made on 16 April 2019 and the subsequent referral of the matter to a Committee by the Director was validly done:

• ‘[66] … The primary judge was correct to find that the words “decide” and “decision” in s 88A(1) and s 94(1) do not focus on the Director’s mental state but rather on the external manifestation of that mental state in an irrevocable, or firm, way.
• [68] Read in context, the primary judge’s repeated use of the word “irrevocable” serves to emphasise that the manifestation of the Director’s “decision” must have the requisite character of conclusiveness, commitment or finality. The converse is that the “decision” must not be tentative, preliminary or subject to change. The Director must have decided, or be committed to a course, and not be in a state of flux or tentativeness about that course. The primary judge’s use of the descriptor “irrevocable” underscored that the decision required by s 88A must be of a firm, committed or final character …
• [76] Dr Amir has not demonstrated any error on the part of the primary judge. The appeal is dismissed with costs.’

Panel training dates for 2022

The PSR is planning the following Panel training dates for 2022:

Sydney - Saturday 7 May 2022
Melbourne – Saturday 14 May 2022.

PSR staff will be in contact to arrange travel and accommodation for appointees to attend training. Please make note of the relevant training date/s.

The Melbourne training session will be available to attend remotely via Microsoft Teams for those unable to attend either session in-person.
 

The work of PSR in 2022

PSR Committee hearings

With the opening of the WA border PSR has resumed all Committee activity. Face to face hearings are now occurring. PSR will retain the capacity for video hearings for some members and practitioners under review if appropriate.

Director meetings

In person Director meetings with practitioners under review have also recommenced. However, PSR will continue to offer video or telephone meetings if this is the preference of the practitioner under review. Telecommunication aided meetings will also continue to be offered as an alternative.

Dr Di Dio has been employed as PSR Medical Officer and will undertake general practitioner meetings in NSW and Queensland on behalf of the Director.
 

Corporate legislation

The Health Insurance Amendment (Medicare Compliance and Other Measures) Bill 2021 is currently before Parliament and has been referred to the Senate Community Affairs Committee, which is due to report on the Bill in April 2022.
 

Continuing Medical Education (CME)

Any Panel members or consultants who have completed work for PSR and require evidence for continuing medical education points, please contact Megan Kilby at megan.kilby@psr.gov.au
 

PSR Outcomes

PSR publishes a monthly summary of case outcomes on its website. Each summary provides some idea of the person under review's practice profile (in comparison to their peers) and this helps understand why they were referred to PSR for review. In addition, the summaries detail the items investigated, the findings (in the case of a Committee) or the agreement reached between the person under review and the Director (PSR), and the penalties applied.