14 June 2018

PSR is facing a High Court challenge

Medicolegal Mental Health

The High Court will be asked to consider the justness of the PSR system for doctors and its possible impact on patient care

A GP registrar is preparing a High Court challenge alleging procedural unfairness and lack of transparency for doctors at the hands of the Professional Services Review.

Dr Anchita Karmakar – whose case has still not been determined three years after she learned she was being investigated – is preparing an application for “declaratory relief”, with support from prominent Melbourne barrister Julian Burnside QC.

The Bond University graduate, who is now working as a Queensland hospital doctor while completing a law degree, is also being advised by Adelaide practice management consultant David Dahm.

The application will contend, in part, that many Australian doctors are living in a state of “audit anxiety” due to the complexity and lack of clarity in the use of Medicare item numbers.

Secondly, it would describe how doctors subjected to PSR disciplinary proceedings, usually for perceived MBS billing irregularities, suffered adverse consequences in their careers and their personal lives “even when no wrongdoing is ultimately found”, Dr Karmakar said.

The doctors found themselves in a “David and Goliath situation” with a regulatory body whose processes were “opaque and inconsistent”.

But they were forbidden under non-disclosure rules from discussing evidence or findings on pain of a penalty of 12 months’ imprisonment, she said.

The Japan-raised doctor said she still had not been told why she came to Medicare’s attention.  That was in 2015, when she had already completed the first of her RACGP fellowship exams.

She suspects it may have been because, as a native-level speaker of Japanese, she had attracted a large and loyal following of elderly Japanese patients living on the Gold Coast.

“I was managing a lot of chronic disease issues for a specific minority group,” she told The Medical Republic.  “I did a lot of longer consultations, also a lot of after-hours work.”

Equally, she might have aroused suspicion for working extremely long hours while on two independent fellowship pathways: Approved Medical Deputising Services and the Special Approved Placement Program.

Dr Karmakar was able to explain her heavy work schedule, however.

She could not, on a basic GP registrar’s salary, afford to pay legal bills and other costs to retrieve her daughter, who had been abducted as an eight-year-old from Brisbane by her former husband in 2012.

She had also found solace in caring for her patients during an emotionally difficult time.

Her training supervisors in two jobs had not noted any irregularities in her billing practices, but her employment was terminated abruptly in 2016 as the PSR investigation was ongoing, she said.

In deciding to go to the High Court, Dr Karmakar said she was not seeking compensation or any personal gain.

She wanted the High Court to consider the justness of the system for doctors and its possible impact on patient care, and hoped, ultimately, for a court-ordered review to improve it.

According to a summary of her arguments, posted on Facebook, the “onerous and intimidating” process of lengthy, formal (PSR) hearings could pressure doctors into admitting fault where there was no breach, for fear of further repercussions.

Typically, if a matter went to a PSR committee, a practitioner must answer detailed questions on 25 sample cases taken from their patient files, based on which the committee would decide whether the practitioner could keep their Medicare billing rights.

“The key shortcomings of these hearings are that practitioners are not afforded legal counsel, the deliberations and findings are not disclosed to the public, no peers can be present, even though they could present the norms of the practitioner’s chosen specialty,” the summary says.

“PSRC is a very powerful body. There are very serious consequences to it not being subject to public scrutiny.

“It has an unbridled capacity to destroy careers, reputations and professional respect without being accountable to the doctors they admonish or the public they claim to protect.”

The application will also take issue with the nature of PSR committees, which are appointed by the PSR director, the health minister and the AMA, in consultation with relevant colleges.

Dr Karmakar says this could affect the support practitioners get from professional associations and colleagues. She also alleges the AMA’s role in ensuring due process is at odds with the fact that it also appoints PSR committee members.

She is asking doctors to respond to survey questions on Medicare rules and PSR processes on her Facebook page.

Mr Dahm, a chartered accountant and CEO of the Health and Life consultancy, is a proponent of a transparent, international standards and ethics board, which would publish agreed, clinical standards for providers and patients.

Dr Karmakar’s summary and links to the survey questions are at: https://bit.ly/2JECqo3

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3 Comments on "PSR is facing a High Court challenge"

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Peter Bradley
Peter Bradley
3 years 10 months ago

From personal knowledge of what is happening to a colleague it is frighteningly clear that this body claims and uses powers that defy all common understanding of the concept of natural justice, and it is only possible because of the cloak of intimidatory secrecy it operates under.

Hein Vandenbergh
Hein Vandenbergh
3 years 11 months ago

As an administrative, not a juicial body, the rules of admin law, in particular those of natural justice, need to be adhered to in the strictest manner. Where judicial functions are exercised by the faceless PSR members, our legal system has an obligation to allow the accused legal and/or peer representation, and a presumption of innocence must exist at all times until a final verdict is reached on fair, objective and equitable grounds. If not, who is to say which other aspect of our legal system may not be conducted along Stalinist lines in future?

William Bay
William Bay
3 years 11 months ago

Thank you for being this information to my attention Julie and good on you Anchita for sacrificing so much of your time and money to pursue justice for us all. I hope for a Just and fair outcome!