25 March 2021

Justice calls PSR a ‘Star Chamber’

General practice PSR TheHill

Doctors pursued by the Professional Services Review are facing an arbitrary, secret and oppressive judiciary process, according to one Federal Court judge.

The Honourable Justice Logan RFD, presiding over Dr Anchita Karmakar’s case against Health Minister Greg Hunt, compared the PSR to a “Star Chamber” yesterday, TMR has been told.

The hearing in Brisbane lasted three days, and the parties now await a final judgment by Justice Logan.

(TMR did not attend the hearing, and our questions to Mr Hunt’s office have not yet received any response.)

Dr Karmakar was represented at trial by a legal team led by high-profile human rights barrister Julian Burnside QC and solicitor David Gardner, with barristers Rachel De Luchi and Benedict Coyne.

The trial comes almost four years after Dr Karmakar came to PSR attention for her billing while working as a GP registrar on the Gold Coast.

Dr Karmakar claims she was denied procedural fairness throughout the PSR process and was unable to have legal representation (the Health Insurance Act allows a lawyer to be present to advise but not to cross-examine, making it a waste of money to hire one).

In court this week, Ms De Luchi argued for Karmakar’s side that the secrecy clause in the Health Insurance Act means doctors have no access to previous case findings or deliberations by the PSR.

When the 106ZR clause is breached – such as when subjects of the PSR discuss their case with others ­– they may be subject to a penalty of 12 months’ imprisonment.

The secrecy clause was originally introduced for patient privacy; but, Dr Karmakar’s legal team argued, hiding personal information could be achieved by a method of simple redaction, with full concealment of files not necessary. 

And while the clause doesn’t stop a doctor from discussing their PSR case with a lawyer, Dr Karmakar’s legal team argued that the clause should be overturned so that doctors are able to see the standards by which the system is finding clinicians guilty.

Dr Karmakar, talking to TMR after the hearing, said doctors who were unable to see the standards and benchmarks of previous PSR cases were being denied natural justice.

“If we win on the matter of the secrecy clause, it doesn’t necessarily mean that I will get exonerated [for my own PSR case] but it is still is a very big win for the entire profession,” she said.

Another matter raised in trial was the strike rate of the PSR.

The agency now has a two year record of finding 100% of the individuals who went before a PSR committee guilty of “inappropriate practice”.

And in the agency’s 2019-20 annual report, the PSR saw a 45% increase in the number of medical professionals being referred to them by the Department of Health for unusual billing or prescribing patterns, compared to the previous year.

Despite the results of her trial still pending, Dr Karmakar said her case getting so far was owed to the support of the medical profession and her legal team, who had chosen to represent her despite no guarantee of payment.

Dr Karmakar has crowd funded about $47,000 toward her legal campaign, but hopes to double those donations in the coming months.

“It was amazing just witnessing the legal profession standing up for us and having the medical profession come together in solidarity, to fight for our rights.”

And the passion was certainly present for Mr Burnside, who was admitted to hospital on Tuesday evening after having attended the first two days in court with his health deteriorating.

He is now in a stable condition, having spent the third day offering his expertise remotely to his team from his hospital bed. 

“He deserves a very special mention because he literally compromised his health to push through the day, giving advice by phone – I just think it’s extraordinary what he has done for the medical profession,” said Dr Karmakar.

The trial was attended by several GPs, including her longtime supporter, former AMA president Dr Mukesh Haikerwal.

“I would say this is a remarkable culmination of many years of anguish for Dr Karmakar,” he told TMR.

“She was extraordinarily brave and forthright to put herself in this position to change a system that the judge characterised as being a ‘star chamber for doctors’, which is a fairly interesting reflection.”

Dr Haikerwal said that the PSR was a piece of compliance that affected every medical practitioner across the country, no matter their discipline.

“There are so many layers of compliance that we have to adhere to and PSR is one that really needs to be revised,” he said.

He said cases like Dr Karmakar’s were working to overhaul that system significantly.

Dr Haikerwal compared the PSR process to a train that doctors “can’t get off until the other end – when they’re found guilty”.

“There’s something basically wrong with a system that does that,” he said.

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8 Comments on "Justice calls PSR a ‘Star Chamber’"

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Anchita Karmakar
Member
Anchita Karmakar
1 month 15 days ago

Thanks to everyone and their kind words. If you click on the crowd funding words in the article, that will take you to the fundraiser however here is the link:

gf.me/u/vukvpj

AHPAS will also be putting an Expression of Interest out shortly for looking at all clinicians effected by this current Director with the prospect of lodging multiple pre-trial discovery applications in the Federal Court questioning whether there was an element of maleficence.

Feel free to email me for more details and thank you so much for all your support!

Sincerely,

Dr. Anchita Karmakar
CEO
AHPAS
info@ahpas.com.au

Ima Nonymous
Guest
Ima Nonymous
1 month 15 days ago

I think all former and currently practising GPs should contribute to crowd funding this and be prepared to do the same for future legal responses to PSR purges. Talk about lack of appreciation of natural justice – in some cases even administrative incompetence on Medicare’s part is not addressed (such as happened when the Medicare computers deemed patients not eligible for a 2715 yet would have been eligible for a 2717 but for insufficient time spent). I would appreciate an address to contribute to the crowd funding (or is giving notice or contributing illegal too!)

Janice Sheringham
Member
Janice Sheringham
1 month 15 days ago

Please check the Facebook page for APHAS for the funding info – this is a great initiative for all health professionals affected by both AHPRA & PSR decisions and their aggressive pursuits of many HPs!

Anchita Karmakar
Member
Anchita Karmakar
1 month 15 days ago

Thanks for the kind words! https://gofund.me/598f9608

Joe Kosterich
Guest
1 month 15 days ago

Justice Logan is correct in his description.

Dr Matthew Kiln
Guest
Dr Matthew Kiln
1 month 15 days ago
Fully support that system needs quite a bit of changing. From my personal experience, the information the State Regulators use, is not always collected correctly and analysed appropriately. One is not allowed to question this data even if one accepts some of it, agree to one’s errors and appreciate that one must amend some of one’s processes in work. The State Regulators are likely to find Drs appear worse than they really are because as far as my experience has shown me, they do not take any of the context of these ‘errors’ in to their assimilation. This is then… Read more »
Peter Bradley
Member
Peter Bradley
1 month 16 days ago
All credit to the god Dr Karmakar for taking it up to the PSR and its processes. Kudos to those making themselves available to support her, and basically pro bono. It has always appeared to be contrary to the normal rules of natural justice that it (the PSR) was able to prosecute, (tempted to use the word persecute) Drs, with so much secrecy, lack of opportunity to access information on past similar cases and outcomes, and to seek help. Especially the embargo on the defendant being able to receive the kind of legal representation and advice normally available in any… Read more »
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