PSR Newsletter, October 2021

Welcome to the October 2021 edition of the quarterly PSR Panel Newsletter.

Agency activity summary for the quarter

In the period from 1 July 2021 to 30 September 2021 the Agency received 23 new requests (including 3 practitioners who had previously been referred). The Agency finalised 23 requests. This comprised:

• 19 effective section 92 agreements 3 effective final determinations
• 1 section 91 ‘no further action’ outcome

A total of $6,566,852 in repayment directions were made from the finalised matters. Of the finalised matters, 17 involved some form of disqualification.

In this period 2 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 following appointments were made to the PSR Panel in the last quarter:

• Dr David Curnow
• Dr Andrew Gikas
• Ms Nikki Johnston
• Dr Errol Kilov
• Dr Caroline Melbourne
• Mr Christopher O'Donnell
• Associate Professor Chris Raftery
• Dr Martin Webb

The process is currently underway to appoint some additional panel members in new specialties.

Appointment interviews are currently being organised for members of the PSR Panel and Determining Authority whose appointments are due to expire in 2022.

PSR staff will be interviewing over 100 existing and prospective Panel members in late October and early December 2021. After completing interviews, we intend to look for any gaps in Panel representation and may conduct a further advertising round to fill identified gaps.
 

The work of PSR during COVID-19

PSR Committee hearings

As ongoing COVID-19 lockdowns continue to disrupt travel PSR Committees have been adopting innovative approaches to conduct hearings remotely. This has involved undertaking hearings via videoconference facilities where possible. PSR would like to thank the Committees involved for adopting these new approaches and engaging with the new technologies on offer.

While face-to-face hearings remain preferable, it is acknowledged that there has been a fundamental shift in the way activities such as PSR Committee hearings can be performed. If you are on a Committee with hearings scheduled (or delayed due to COVID-19) please raise any issues or discuss options for progressing your hearings with the PSR staff.

PSR Employees

Given the COVID-19 lockdown in Canberra, staff in PSR’s main office have been working remotely. As the public health orders are amended, it is intended staff will transition to return to the office over the coming months. If you need to contact any PSR staff they will continue to be available by ordinary means. The PSR office remains staffed to collect any deliveries. PSR will continue to contact you to arrange for the collection and secure destruction of materials at the end of each matter.
 

Director talks

In the last quarter the Director gave a talk on Medicare compliance to two medical organisations. Attendance at both meetings was excellent despite their virtual nature.
 

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

Following an approach by the President of the RACGP, we plan to arrange a quarterly meeting to update the College on PSR activities and promote stakeholder engagement.
 

PSR Annual Report

The Professional Services Review Annual Report 2020-21 was tabled in parliament this month. Click here to view the Annual Report

If you would like a hard copy, please send an email request.

The Annual Report for previous years can be found on the PSR website.
 

Federal Court outcomes in the last quarter

Amir v Director of PSR [2021] FCA 745

Dr Amir sought judicial review of the decision of the Director to set up and refer him to a Committee to investigate whether he engaged in inappropriate practice. The case centered around s 94 of the Act, which requires a decision to be made within 12 months from the date of decision to conduct a review. The 12 month period can be extended for a limited period if there has been a failure to comply with a notice to produce or there has been a court order staying operation of the Act. In this case, it was agreed that there had been a valid extension of the period by 9 days.

The focus of the case was to determine when a decision is made to conduct a review.

The Court held that while the Director might form a preliminary view whether to conduct a review, even a strongly held view, it is not until the Director has irrevocably decided whether or not to do so, that there is a ‘decision’. The wording, ‘today I have decided’, was a strong indication that a decision was not made until 16 April 2019, when that decision was notified outside of the PSR Agency to Dr Amir and the Chief Executive Medicare.

Dr Amir has lodged an appeal to the Full Court of the Federal Court in respect of this decision.

Karmakar v Minister of Health & Others [2021] FCA 916

The Federal Court comprehensively rejected Dr Karmakar’s challenges to each stage of the Professional Services Review (PSR) process, in which a PSR Committee found that she had engaged in inappropriate practice in providing Medicare services.

Dr Karmakar challenged a number of steps in the process leading up to, and throughout the PSR process, namely:

• the action of a delegate of the Chief Executive Medicare to request the Director of PSR to review Dr Karmakar’s provision of services
• the decision of the Director of PSR to review Dr Karmakar’s provision of services
• the decision of the Director of PSR to refer Dr Karmakar to a PSR Committee to investigate her conduct on connection with her provision of services
• the decision of the PSR Committee that Dr Karmakar had engaged in inappropriate practice in connection with the provision of services
• the final determination of Determining Authority imposing sanctions on Dr Karmakar.

Justice Logan found that at no stage was there any unfairness. His Honour endorsed the PSR Committee’s approach in investigating Dr Karmakar’s conduct in connection with providing services, in taking into account all the matters put to the Committee by Dr Karmakar, and in the assistance given to Dr Karmakar by PSR to help her understand the process.

In dismissing Dr Karmakar’s application, Justice Logan found no breaches of procedural fairness or any errors of law by the Chief Executive Medicare, the Director of PSR, the PSR Committee, or the Determining Authority.

Dr Karmakar also challenged the Constitutional validity of section 106ZR of the Act on the ground that it was invalid because it unreasonably burdens political communications.