The temporary absence of a committee member during an anaesthetist’s PSR hearing meant that its subsequent investigation was unlawful, appeal judgement finds.
An ACT doctor has won an appeal against the Professional Services Review (PSR) today, with the Federal Court of Australia ruling that the committee which investigated him was not lawfully constituted.
The win has put fresh wind into the sails of peer support group Australian Health Practitioners Advisory Solutions (AHPAS), which is encouraging all health professionals who feel they have been denied natural justice by the PSR or AHPRA to get in contact.
The anaesthetist was referred to the PSR in 2017, with concerns about the time claimed for the provision of services and his record-keeping of Schedule 4 and 8 drugs in the previous year.
He met with the PSR director at the time, Dr Julie Quinlivan, in December of that year.
Following that meeting, she opted to push the matter to a review committee.
Doctors who face a PSR panel are nearly always found to have engaged in inappropriate practice.
The committee didn’t commence hearings until June 2019, but the chairperson was unexpectedly unavailable for the first three days of the five-day hearing.
Hearings continued anyway and the absent committee member was provided with transcriptions of the days they missed.
Ultimately, the committee found that the anaesthetist had practised inappropriately. This decision was not handed down until September 2021.
The anaesthetist took the case to federal court, where it was dismissed.
He appealed the dismissal and won on the grounds that the Act that governs the PSR is very proscriptive in relation to the composition of the review committees.
Because the chairperson was absent, the committee was technically not constituted in accordance with the law and therefore lacked jurisdiction to investigate the anaesthetist, essentially invalidating its findings.
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The PSR now has three options. It can either re-form the same committee to re-investigate the anaesthetist, form a new committee to re-investigate the anaesthetist or it can walk away entirely given that it’s been close to a decade since the period in question.
Solicitor David Gardner, who takes a close interest in matters relating to the PSR and AHPRA, told The Medical Republic that it was unlikely the PSR will simply walk away.
“They’re not known for letting things go,” he said.
His prediction was that a fresh committee would be appointed to avoid prejudice.
“It’s a pretty limited win,” Mr Gardner said.
“[For the anaesthetist], it’s obviously great, but I think the wider impact is somewhat limited in that it really turns on the fact that one of the members of the committee wasn’t at the hearing for several days.”
AHPAS chair Associate Professor Gino Pecoraro told TMR that the flawed committee hearing was a “symptom of the disease that we are currently seeing in how health practitioners are being treated in this country”.
He said the organisation was also keen to challenge AHPRA’s new power to name practitioners still under investigation in cases where it feels a public warning is necessary.
“It’s a denial of natural justice and a removal of the presumption of innocence which every other citizen in Australia – apparently apart from healthcare professionals – can enjoy,” Professor Pecoraro said.
“We’ve pointed out to the federal government … that their own data says greater than 60% of notifications get thrown out without a negative finding against the person being investigated.
“But in the meantime, they destroy careers and lives.”
The law allowing AHPRA to name practitioners under investigation has been in place since May 2023, but has not been used to date.
