12 October 2018
Judge backs GP reg in ‘denial of natural justice’ claim
A Federal Court judge has ordered the federal Minister for Health to respond to a GP registrar’s claim that doctors are denied natural justice by Medicare’s Professional Services Review (PSR).
Judge John Reeves made the ruling in the Federal Court in Brisbane on Wednesday, accepting that the claim brought by Dr Anchita Karmakar had merit under constitutional law and should proceed.
Defence counsel appearing for the minister had argued that there was no case to answer.
Dr Karmakar said she was “ecstatic” at the ruling, which paves the way for the first legal challenge by a member of the medical profession against the regulator on the principles of due process and natural justice.
“This is an ethical fight – for the fundamental rights of clinicians and the public to be afforded natural justice,” she told The Medical Republic.
In submissions, the Bond University medical graduate pointed to a lack of clear, published rules around the use of Medicare item numbers.
She said doctors were investigated on the basis of statistical anomalies in their billing compared with their peers – but even then they were not told what the anomalies or accepted standards were – and could not have legal representation during hearings.
Dr Karmakar also documented her loss of employment in 2016 and the cost to her health, including a heart attack in 2017, after she came to the PSR’s attention in 2015 over billing issues.
She said multiple requests to the RACGP for support and guidance were denied, and her medical defence organisation declined to represent her regarding issues of due process.
AMA delegates had accepted there were due process issues, “however they refused to get involved in individual cases due to conflict of interest as per their legislative obligations”, she said.
Addressing the court on Wednesday, Dr Karmakar said many other doctors were interested in joining the case against the PSR but were unable to do so because of “threats of costs to force me to discontinue this matter” made by representatives of the defence.
In Dr Karmakar’s PSR case, which has still not been resolved, formal hearings commenced in February 2018 and were conducted over six days for eight hours per day in a serviced office building.
She said she was asked to give oral evidence relying on memory regarding 30 medical records chosen at random for each item number under investigation, which had been subpoenaed from an after-hours service and a medical clinic where she had worked years before.
The doctors who had acted as her supervisors in those jobs, and had not noted irregularities in her billing, were not asked to appear, she said.
Dr Karmakar, who is now working as a hospital doctor while in her third year of a law degree, said she was not seeking any damages or compensation by bringing the case.
Nearly 900 doctors and others have signed a petition to the Health Minister in support of Dr Karmakar’s call for a more transparent and fair audit and regulatory system for doctors. The petition is at: https://bit.ly/2OjoJkN