27 July 2021

How can we make the system fairer on doctors?

KnowCents Medicare Medicolegal PSR

Almost every day I get a phone call from someone affected by a Medicare audit/PSR process or some other government investigations that we all inadvertently signed up for the day we became health professionals.

Often it seems, those who have gone through these processes realise that they are somewhat unfair, but have no idea how to help themselves let alone help others by changing the system. 

Over the years, we have all heard the stories of the regulators investigating rorting doctors or unethical practitioners. Many are warranted and good on them for prosecuting and finding fault in those who are in need of the kick.

But unfortunately, in more cases than we like, the heavy hand falls upon those who actually had no malicious intent and we see good and hardworking clinicians getting done over by these processes. 

In this week’s article, I will look at how one may instigate change – whether it’s around the PSR, AHPRA or something else, the basic principle is the same. 

There are various modalities of action at citizens’ disposal to hold the government accountable for their actions and decisions. I’m not talking about street marches or protests. I’m talking about the ones that require networking, political savvy and legal intelligence. 

One is the judicial pathway and the other is the legislative pathway. 

The judicial pathway

This is basically where the law is changed through precedents set by cases argued in the court.  There are many “grounds” or “errors in law” where these cases can be argued. 

A judicial review, which is the only way to challenge a PSR finding directly, is not to be confused with a merits review – something that often does not sit well with litigants. It is not a fact-finding mission where the judge will seek to find more information and see if the decision made was correct or not based on facts of the individual case. 

It is all a technical, legal argument about whether the process was in breach of various rules in the legal system. In recent cases of litigants going against the PSR, the following “grounds” have been used:

  1. Natural justice/procedural fairness:
    • trying to answer the question of whether the process has to in fact afford a person procedural fairness or not 
    • whether the person was given what is characterised as a “fair hearing”
    • whether there was any element of “bias”.
  1. Relevance:
    • were irrelevant issues taken into consideration and relevant issues ignored? That is, non-existent rules nowhere to be found in the legislation but created by peers/director
    • were expert opinions ignored that say the billing practice is completely acceptable? 
  1. Reasonableness:
    • would a reasonable person looking at the decision and process say it is extremely unreasonable? Examples: Is it reasonable to ask a GP registrar to pay back half-a-million dollars when they saw probably only a quarter of that money or less and was under the direct supervision of a training provider? 
    • is it reasonable to expect a semi-retired specialist to be smacked with million-dollar fines they never earned in the first place, virtually driving them into bankruptcy at the very end of their career?
  1. Implied Political Freedom:
    • is there vital information withheld from the general public that would influence the way people will vote for the government; that is, Section 106ZR secrecy clause?
    • would the general public feel uncomfortable knowing how their GPs are getting interrogated and prosecuted for essential services such as GP management plans and Team Care Arrangements and Mental Health Care plans? Is this political information that should be available to the general public? 

All these grounds above have been argued in some shape or other and some are now pending judgment. It sounds very straightforward on principle; however, there are years and years of precedent and procedural rules that your lawyers need to consider before any of this can be substantially argued. 

This is one of the reasons timing is everything in these types of cases. It is never an easy or quick type of litigation. It takes years and it takes a whole heap of money and grit to make these types of cases happen.

It also means that one must choose the right time to take these to court; if one takes this prematurely, the simple judgment will be that there is nothing really to argue. 

Often, more than we like to see it, people do need to proceed through the various stages of litigation with the right legal support and advice before lodging these claims. The other difficulty we have is that the current laws giving powers to these organisations itself have flaws in them, and unfortunately the judicial system is bound by these laws unless there are errors that can actually change the laws themselves. This is why the next process is so important to consider for real change. 

The legislative process

This is completely different from the royal commissions and the Senate inquiries. The primary and most important difference being: a properly drafted “bill” passed through parliament will change the law. 

Senate inquiries and royal commissions can happen, the government can spend lots and lots of money interrogating their own processes, and amazing compelling findings can be found, but at the end of the day, there is nothing in the legislation governing these processes that would force or order change. 

So, simply put, although it may “look” bad, the government has the power to completely ignore it. Both AHPRA and PSR have had Senate inquiries into their processes and some things may have changed, but not much. 

The legislative process is divided into seven stages: 

  1. Presentation, explanatory speech and first reading
  2. Committee consideration
  3. Committee report
  4. Second reading
  5. Consideration-in-detail
  6. Third reading
  7. Royal Assent

Once we hit stage seven, the proposal or bill becomes a piece of law.

How do we do this?  We contact one or two MPs (federal) in each state and territory, preferably a mix of opposition and ones in power. We give them a draft bill that we create after input from aggrieved individuals and advice from our legal team. Then these MPs will, once convinced, proceed through these stages for us and fight to get this tabled into the parliament. 

For example, if I was drafting change for the PSR process, I would say things such as:

  1. Amend or invalidate section 106ZR so that all clinicians can have access to the standards set by the peers on the PSR panel. We can amend the legislation so that the privacy factor is maintained and yet doctors can have access to what the committee members are saying and finding to learn and make sure we are compliant with the expected standards. 
  2. Allow proper legal representation so that individuals can choose to have their lawyers appear on their behalf, instead of medical professionals being forced to brush up on their cross-examination skills during a committee hearing.
  3. Require full disclosure regarding who is giving advice to the Director of the PSR and what material this person is relying on to make decisions such as inappropriate billing in the early stages of the process.
  4. Review and amend the statistical processes taken during the initial identification process so things such as statistical profiling can be taken into consideration. 
  5. Propose a better way of fining individuals, such as being charged to pay back only the amount you have actually earned and not the whole amount, including taxes and services fees that never hit your bank account. 
  6. Amend the laws to ensure the process is more educational than punitive, so that doctors who are innately good will continue to do a good job, rather than be driven into clinical depression and, in some cases, leaving the job altogether.

What is the next step? We need a united a front to create these changes. Join AHPAS today and email info@ahpas.com.au to help us create this change. You can join as a standard member for free, or pay a nominal fee towards your membership that will be used to fund and run these lobbying activities. 

Judicial litigation may take a lot of money and time, but collegial lobbying and advocacy run by professionals does not. It is always a better and preferred way, so let’s make it happen! 

All it takes is a bunch of colleagues with intelligence and grit. If that is you, I need you to contact me. It’s an isolating path to be on, so any help would be appreciated as I draft these bills and find the right MPs. 

On a side note, my judgment is still pending. I promise that you all will be the first to know, good or bad – many of you have supported me and helped me fund this case, so as soon as I know, it will be published here at The Medical Republic!

Dr Karmakar is the founder and CEO of AHPAS (Australian Health Practitioners Advisory Solutions).

If you can, please help me raise funds for low-income families during Malaysia’s covid crisis.

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