PSR Newsletter, January 2022

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

Agency activity summary for the quarter

In the period from 1 October 2021 to 31 December 2021 the Agency received 28 new requests (including 4 practitioners who had previously been referred).

The Agency finalised 12 requests. This comprised:

• 9 effective section 92 agreements
• 1 effective final determinations
• 2 section 91 ‘no further action’ outcomes

A total of $1,813,999.00 in repayment directions were made from the finalised matters. Of the finalised matters, 6 involved some form of disqualification.

In this period 6 new peer review Committees were established and 2 practitioners were referred to AHPRA either due to significant patient safety concerns or non-compliance with professional standards.
 

New appointments to the PSR Panel

The five yearly PSR Panel renewal process is underway. In October to December the PSR shortlisted and interviewed nearly 150 potential PSR Panel, Deputy Director and Determining Authority applicants following advertising in national newspaper and government websites.

All interviewed applicants being progressed also were subject to a social media screenand we have written to the Australian Medical Association and all relevant professional organisations also seeking feedback.

We expect we will be able to collate all feedback by February 2022 and then forward appointments to the Minister and Cabinet as appropriate.

Two urgent appointments to the Determining Authority were approved in the last quarter by the Minister, and the process is underway to formally appoint these members.
 

2022 Training dates

The PSR is planning to provide face to face training for Panel members in 2022. Due to the ongoing COVID-19 situation it is also intended that these sessions will be available for participants to attend remotely.

PSR will be running profession specific training for our dentist, optometrist, chiropractor, nurse practitioner and midwife Panel members. We are inviting members of these professions to attend specified training sessions (identified below). Other Panel members will be invited to training based on geography.

The date and location of each Panel training session is:

7 May 2022 – Sydney

• Optometrists
• Chiropractors
• Medical Practitioners from ACT, NSW, QLD and NT

14 May 2022 – Melbourne

• Dentists
• Nurses
• Midwives
• Medical Practitioners from VIC, SA, WA and TAS

If you have any particular questions you would like to see addressed please email training@psr.gov.au

PSR staff will be in contact to arrange your travel and accommodation to attend training. Please put the relevant training date/s in your diary.

PSR may also arrange specific training for Deputy Directors. We will advise further once this is finalised.
 

The work of PSR in 2022

PSR Committee hearings

As borders have re-opened, PSR has been able to resume face to face Committee hearings. We have been able to remain flexible and have held both in person hearings and combined in person and telecommunication assisted hearings.

Director meetings

In person Director meetings with practitioners under review are intended to resume in 2022, if practitioners elect to exercise this option. Telecommunication aided meetings will also be offered as an alternative.
 

s92 agreement process review

Emeritus Professor Robin Creyke AO has been engaged by the Department of Health to conduct a review of how section 92 is being operationalised by PSR. Professor Creyke has interviewed the Director and PSR’s Executive Officer & General Counsel as part of her review.
 

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. Currently, the Director can enter into s 92 agreements only with persons under review who are practitioners.

The proposed amendments in that Bill would enable the Director to enter into agreements with any person under review who acknowledges inappropriate practice (including bodies corporate).

Currently, the only sanction applicable to a body corporate person under review who fails to respond to a notice to produce documents to the Director of PSR or to a PSR Committee is the full disqualification of all the practitioners whom they employ or engage. The Bill would also introduce new more appropriate sanctions for a person under review who is not a practitioner, including a civil penalty and referral to the Federal Court for an order to comply.
 

Director talks

In the last quarter, the Director facilitated the annual meeting with the Medical Defence Organisations. Attendance at this meeting was excellent, several topics were discussed, and feedback provided to PSR and the MDO’s.

The Director also spoke to the AMA QLD Council and to Fellows of the Royal Australian College of Surgeons.
 

Liaison Committee with the Royal Australian College of General Practitioners (RACGP)

Following an approach by the President of the RACGP, a meeting was held with the RACGP. It is planned that regular quarterly meetings will occur to update on issues.

 

PSR Annual Report 2020-21

The PSR Annual Report was tabled in Parliament. A copy of the Annual Report can be accessed here.
 

Federal Court Outcomes

Kew v Director of PSR [2021] FCA 1607

On 17 December 2021, the Federal Court dismissed a challenge from a radiologist to the findings of a PSR Committee that she had engaged in inappropriate practice inconnection with rendering MBS items 104, 105, 18216 and 18222. Dr Kew challenged the Committee’s interpretation of those items, suggested that the Committee had asked itself the wrong question, and alleged that the Committee had failed to have regard to relevant material. The Court dismissed each of these challenges.

The Court noted that the Committee had said in its Report that the legislative scheme did not preclude billing for item 104 or 105 in conjunction with a radiological service, and had said that where a consultation was a clinically relevant service, there was a valid referral and sufficient clinical input was provided into the service and this was recorded, it is appropriate and permissible for diagnostic imaging and consultation services to be concurrently billed. However, on the facts as found by the Committee, the circumstances in which such co-billing would be acceptable to the general body of radiologists were not met. The Court quoted from the Committee’s Final Report in which it said:

• “One of the aspects of MBS item 104, which is an overriding element, is that it is an item for ‘Specialist attendances to which no other item applies’. This means that if the things that were being done in the course of an attendance were, in fact, what the general body of radiologists would expect to be done as part of another MBS item, then those matters cannot be billed as an MBS item 104 service. Instead, they are part of the other MBS service that is being billed. For example, if the general body of radiologists expects that, in the course of rendering a particular radiological procedural service, the radiologist would examine the patient, discuss treatment options, obtain consent, perform the procedure itself, and provide advice regarding the after-effects of the procedure, then all of those matters would be part of what is expected to be done in rendering the procedural item, and cannot be billed as a separate attendance item.”

The Court held that the Committee’s approach was consistent with the definition of ‘clinically relevant service’ , which turns on whether the treatment rendered ‘is generally accepted in the [medical profession] as being necessary’, and that the treatment rendered that is an ‘essential element of’ or ‘part of’ a service performed and billed is not billable as a separate service.

Dr Kew’s submissions to the committee were to the effect that a majority of radiologists billed items 104 or 105 in association with a diagnostic imaging item and item 18222 was rendered in association with item 104 or 105 in almost A% of cases and item 18216 was rendered in association with item 104 or 105, B% of the time. Therefore, so it was said, the committee could not be satisfied that Dr Kew’s peers would consider the conduct unacceptable. But the Court said that whether co-billing was justified or not depended on the facts of each case. The Court quoted from the Committee’s Final Report, which stated:

• “It does not follow that simply because many other radiologists have a similar billing profile to Dr Kew, or that certain MBS items such as 104 and 105 are regularly billed with procedures such as MBS item 18222, that Dr Kew’s particular practice in billing these services would be deemed acceptable by her peers. The Committee’s review of the Referred Services is not based on statistics but is conducted with the benefit of the records and Dr Kew’s evidence about particular services.”

The Court held that the Committee was entitled to proceed on that basis, which His Honour described as ‘transparently rational’.

Dr Kew challenged the Committee’s findings in relation to inadequate record-keeping. His Honour said:

• “[156] First, the function of the regulations is to prescribe standards. But their content and application very much require an evaluative exercise that the committee was best placed to undertake with its expertise.
   
• [157] Second, s 82(3) focuses on the question of records concerning the rendering or initiation of the services. So, it is focusing on services rather than attendances per se. And this is a point that has been glossed over by Dr Kew. There must be a record of the service. In terms of the attendance, it is the attendance to provide the service. So, if there is an inadequate or no record of the service, then there is an absence of evidence for a meaningful attendance or consultation. Further, regs 5(b) and (c) in terms make it plain that the focus of record keeping concerns services.”

Dr Kew challenged the Committee’s interpretation of MBS items 18216 and 18222 in which the Committee found that Dr Kew had given an ‘injection’ rather than an ‘infusion’. The Court rejected the challenge, saying:

• [187] The committee explained its conclusion on those items as follows (at [191]): The Committee has applied the ordinary meaning of the word infusion when considering the meaning of the MBS item descriptors. The Committee considers the MBS describes a clearly identifiable clinical procedure in relation to both MBS items 18216 and 18222. The procedures performed by Dr Kew were not an infusion, but an injection...
   
• [188] That is an unremarkable example of the reasoning of an expert committee applying technical standards to factual findings within their field of expertise.

The Court dismissed the application and ordered Dr Kew to pay the Director’s costs.

National Home Doctor Service Pty Ltd v Director of PSR [2021] FCA 1381

On 10 November 2021, the Federal Court dismissed a challenge from National Home Doctor Service (NHDS) to the Director’s second decision to refer NHDS to a Committee under s 93 of the Health Insurance Act 1973, on the grounds that the second decision was not made within a ‘reasonable time’ and was therefore invalid.

The Federal Court found the Director did make her decision within a reasonable time, noting:

• [187] what constituted a ‘reasonable time’ depended on the circumstances of each case – it did not automatically mean 12 months from the resumption of the Director’s review (following the setting aside of the original referral); and
   
• [188] It was appropriate — and possibly legally necessary — for the Director to have reconsidered afresh the voluminous material (more than 2000 documents) put before the Director (including those that only became available after the first challenge to the Director’s original decision), and prudent for the Director to have proceeded cautiously.

The Federal Court determined that in any event, a failure to make a decision within a reasonable time would not result in a loss of jurisdiction.

Re Raiz and Professional Services Review [2021] AATA 4360

The Administrative Appeals Tribunal (AAT) decided an application by Dr Raiz who sought numerous documents relating to PSR Committee 1095, other documents relating to Dr Raiz, and various other documents. PSR had already provided many documents to Dr Raiz, and other documents had also been provided with redactions or not provided on the basis of exemptions from disclosure in the Freedom of Information Act 1982 (FOI Act). The AAT affirmed the decision under review in PSR favour with respect to documents remaining in dispute.

In relation to particular documents connected to the Director’s deliberations about matters that were not referred to the Committee, the AAT accepted PSR’s argument that it would be contrary to the public interest for them to be released. The Committee’s investigation was still ongoing and the AAT said:

• 'If the information about the Director’s review is revealed it could reasonably be expected to impede on the Committee review process which is structured to exclude involvement from the Director. This allows the PSR Committee to come to an independent decision, free from any ongoing influence from the Director. Further, it ensures that the matters under review are limited to those deemed serious enough for referral by the Director so that the review remains appropriately confined.’

In relation to documents relating to the Committee’s deliberations, the AAT said:

• '… there could be a serious and material negative impact on the PSR’s operations if the deliberations of the Committee were disclosed to Dr Raiz. Sections 106F(1) and 106ZR of the HI Act evince parliament’s intention that the protections in the PSR Scheme allow Committee members to openly discuss and consider whether a practitioner has engaged in inappropriate practice. If Committee members know that their private deliberations would be available to the person under review, even whilst a review process was ongoing, I consider that this could severely limit their willingness to openly engage in the review process and deliberate on sensitive and controversial matters...
   
• I am satisfied that there is a public interest in the information surrounding the Committee investigation remaining confidential. This is particularly the case whilst the investigations are still on foot. If the Committee members are aware that a person under review may have access to their deliberations and the information they seek in relation to their deliberations, this may fetter their ability to freely seek out information and explore different possible findings without concern of alerting the person under review. The HI Act has implemented statutory immunities for Committee members to ensure the proper functioning of the review scheme and that Committee members may effectively conduct reviews.’

Dr Raiz had sought documents containing the names of consultants whom the Director had engaged to assist her with her review. The AAT said:

• ‘I find that if the names of consultants could be released through an FOI process, this would, or could, have the substantial adverse impact of limiting the number of consultants willing to assist the Director. If the Director no longer has access to a wide pool of consultants, this would significantly prejudice her ability to make informed decisions in the initial referral stage and would therefore fetter the functions of the PSR scheme.’

Various documents were withheld on the basis of legal professional privilege. The AAT reviewed the documents in dispute, and noted that upon Dr Raiz’s FOI request, PSR’s General Counsel had reviewed all the documents that the PSR had claimed privilege over and released further documents where he determined that staff were not acting in their capacities as legal advisors. The AAT said:

• ‘I am satisfied that the remainder of documents that the PSR have claimed privilege involve documents for use in the judicial review proceedings brought by Dr Raiz or to provide legal advice about the PSR’s review of Dr Raiz’s medical practices. These communications are confidential and relate to independent legal advice provided by the in-house lawyers at the PSR.’

The AAT affirmed the decision under review with respect to the documents remaining in dispute.
 

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