A GP has lost a legal challenge over 80/20 breaches, with the court ruling it was up to the GP to prove there was a lack of alternative services
A Queensland GP has lost a legal challenge in which he claimed that a lack of alternative medical services for patients and heated demand at the height of the coal-mining boom led him to breach the “80/20 rule”.
A committee of Medicare’s Professional Services Review found that Dr Manukharan Nithianantha, a GP in the remote Queensland mining town of Blackwater, had engaged in inappropriate practice by exceeding the benchmark of 80 services on each of 28 days in a 12-month period and in his use of the urgent after-hours MBS item 597.
Dr Nithianantha challenged the PSR committee’s preliminary finding in the Federal Court, arguing that exceptional circumstances were in play during the review period in the year to April 2014.
In submissions to the PSR, the principal of the North Blackwater General Practice said it was significant that on 11 of the 28 days when he allegedly provided more than 80 services, the total was pushed up by after-hours attendances.
He said he was the only doctor practising full-time at Blackwater in the review period. The town had a permanent population of 5500, with 2000-3000 fly-in fly-out workers and eight coal mines operating 24 hours a day.
Three other doctors were working in the town on a limited basis – two conditionally registered GPs at the Blackwater Health Care Centre and a locum on rotation at the Blackwater public hospital, which did not accept general practice patients.
Dr Nithianantha argued in part that it would be inappropriate to suggest that a practitioner should refuse to see a patient in order to avoid a breach of the 80/20 rule, or to hope that one of the other two GPs might be available, or that the area’s only ambulance would respond to a triple-zero call.
However, Justice Kathleen Farrell in the Federal Court said it was up to Dr Nithianantha to prove his contention that there was a lack of alternative services for his patients during the review period.
“The (PSR) committee was correct in its view that once the evidence establishes that the practitioner had rendered 80 or more attendance services on 20 or more days in a 12-month period, there is a practical onus on the practitioner to establish that there was an absence of alternative medical services for the practitioner’s patients on any of those days if that is the exception to the 80/20 rule relied on by the practitioner,” she said.
The judge said the committee, comprised of three GPs, had acknowledged evidence from Dr Nithianantha and a local councillor about the availability of alternatives.
However, it preferred evidence given by a practice manager that the Blackwater Health Care Centre was open from 8.30am to 5.30pm Monday to Friday and was generally staffed by two GPs. The manager said the practice had an after-hours answering machine that would direct callers to the hospital or a GP’s mobile phone.
PSR Director Professor Julie Quinlivan said the ruling, handed down on December 18, also upheld the committee’s understanding of the urgent after-hours item – that “urgency” is to be assessed by the medical practitioner only at the conclusion of their attendance on the patient.
“This ruling reinforces the message that a service should not be billed until it has been performed. After completing a service, then the practitioner will have a clear understanding of whether the need for the service was urgent,” Professor Quinlivan said.
The court also rejected Dr Nithianantha’s arguments concerning the debate over the use of item 597 at the time and incorrect advice that he said came from the Provider Services Branch of the Department of Human Services.
The matter is yet to return to the PSR for a final determination.
