Veiled and spurious threats of prison for reporting on committee proceedings do nothing for this agency’s image.
This week TMR’s editor rang me to ask an unusual question.
“Know any lawyers that can tell us with reasonable accuracy whether we really might go to jail or not if we do this?”
Her journo had asked some questions of the PSR and been sent a very polite but also very clear letter from its lawyers, outlining that we might want to pause on what we were doing or face the prospect of 12 months’ prison time.
Not your usual reply to a query of the Department of Health for sure (they’re usually reasonably helpful).
Here’s an excerpt from the letter:
I cannot tell you what was put to Dr XXXXXX by the Committee because to do so may tend to disclose the deliberations of the Committee and thereby constitute a criminal offence.
I draw your attention to section 106ZR of the Health Insurance Act 1973, which provides:
106ZR Disclosure of Committee deliberations etc.
(1) A person must not disclose to another person:
(a) any of the deliberations or findings of a Committee; or
(b) any information or evidence given to the Committee in the course of its deliberations;
unless the disclosure is required or permitted under this Act or the Dental Benefits Act 2008 or is necessary in connection with the performance of the first-mentioned person’s functions or duties under this Act or the Dental Benefits Act 2008.
Penalty: Imprisonment for 12 months.
You could read that as the writer fearing for themselves, or as a veiled threat to us that if we reveal committee deliberations (which have been provided to us separately) that it’s us facing a stretch.
For what it is worth, I think the sender of this letter may actually have been thinking, at least in part, of our wellbeing.
But in any communication like this there is the intent of the sender and the message actually interpreted by the receiver. As the receiver, we felt threatened.
And even though we had reason to believe that 106ZR didn’t apply in this case, we felt nervous enough to spend a decent chunk (for us) of money asking a lawyer whether we might actually get sent to jail for trying to do what we felt was the right thing: reveal some of the inner workings of an established government agency process that seems to be highly secretive and unfair and which seems to be warping how we practice healthcare in Australia in a manner that is not good for patients (I’ll come to underbilling in a minute).
We got this letter on Wednesday this week, which is six months after the materials in question formed part of a Federal Court case in which a judgement was made against the PSR. There were no suppression orders^, which means the materials were in the public domain, and therefore 106ZR didn’t apply.
^TUESDAY UPDATE: We have just learned, via the doctor’s lawyers, that a confidentiality order was in fact applied to the transcripts at the time. Given this, we can’t risk publishing details of the committee proceedings as that would be, not a 106ZR violation, but contempt of court. This story has been updated to reflect this new information.
The court moreover found that the PSR proceedings (which resulted in an adverse finding against the doctor, as usual) were invalid, because the case had been referred incorrectly in the first place by the then PSR director, Professor Julie Quinlivan. So invoking 106ZR was dubious again.
Did the PSR know all this when they sent us their letter?
If so, the letter would not have been just a friendly warning. It would have been sent with some intent to throw us off the scent of exposing some pretty weird PSR practices.
What had Professor Quinlivan done wrong, according to the Judge, to have any PSR proceedings ruled invalid? According to court documents, she spent only 17 minutes to assess 96 pages and 200 attachments of explanation from the doctor as to why he shouldn’t be referred.
The judge didn’t think that was reasonable on her part.
In all, it is estimated that with the attachments, there was about 500 pages of material to assess, which, if correct, is about two seconds of assessment per page of the materials she would have needed to assess.
Dr Anchita Karmakar pointed out in this article last year that Professor Quinlivan had omitted to mention this Federal Court finding in her director’s updates, despite it being probably one of the most significant in recent PSR history.
Is it OK to update everyone on how the PSR is going by highlighting all your wins and the doctors taken down, but fail to mention such a significant loss and the reasons for it?
Leave aside whether this is trying to bend the narrative in some way with the doctor community and the public, it’s naïve and poor management for an already highly controversial government agency to be biasing its reporting in such a manner (deliberately or otherwise) when it is so easy to be caught out doing it.
Obviously people would eventually start asking why the PSR sees the need to try to keep such a significant case out of the view of doctors and the public.
According to the Department of Health, 106ZR is there to protect “those practitioners who are not found to have engaged in inappropriate practice and to ensure that patient information is protected”.
In this case, the doctor in the firing line was found not to be engaging in inappropriate practice by a Federal Court judge [CORRECTION: The above is incorrect – findings of inappropriate practice were not in the scope of these court proceedings] and wants all the information to be public so he can expose the issues that he faced with the PSR process so everyone else can make a better informed judgement of what went on.
Notwithstanding that protecting the doctor is clearly not in play in this case, simple redaction procedures can protect a patient or a doctor from any privacy issues, so the reason given for secrecy of PSR proceedings and the notorious 106ZR clause just don’t add up.
The reason why so many doctors want the proceedings to be publicly available is very sensible and simple, by the way: they want to know better what not to do.
If you publish all the PSR proceedings, appropriately redacted to protect privacy, over time, you are going to have an increasingly good sense of what not to do.
Eventually someone will produce a manual that can be regularly updated of what not to do – a rule book for doctors and MBS billing. This happens a lot in other professional industry sectors.
Would that not be good for all sides here?
Apparently not.
What if the NSW roads authority suddenly decided that a better way to keep everyone safe was not to publish the road rules and let the public guess what they are. And then, when someone didn’t guess right, they fine them and tell them if they let anyone else know what they got fined for, they’d be sent to jail.
My guess is that a lot of people would start driving at 20-30km per hour less in NSW than what they thought the speed limit might be to make sure they didn’t get caught in this strange Kafkaesque net. The productivity of the whole state would drop immediately because transport would slow down everywhere.
Hence, the very real problem we almost certainly now have with underbilling as opposed to the consumer media narrative we’ve had in the last few weeks of rorting (note: everyone knows there is leakage but at what level no one has attempted to properly calculate in these weeks of mayhem).
The problem of underbilling was extensively surveyed in the last week by the RACGP and by HealthEd* (the largest medical educator of GPs outside the RACGP).
Of the 1324 GPs surveyed in the RACGP survey 97% reported a that a proportion of their income was lost due to not claiming available rebates. Nearly 50% said that the sum of their loss was in the realm of 20% or more.
When the 346 GPs surveyed in the Healthed survey were asked how often they undercharged for a clinical service for fear of triggering a Medicare audit, 64% said they did so at least once on a typical work day and 48% doing said they did it two to five times a day.
Work done by Sydney University researchers on stats developed by BEACH a few years back, which are even more comprehensive on the possible extent underbilling, estimates that underbilling amounts to about $1.3 billion per year.
Unlike the ridiculous situation we had with Nine newspapers and the ABC where a figure of $8 billion was being touted but no one had done any calculations based on any data or even logic to arrive at this number, this Sydney Uni work has an algorithm, data and logic to support it (we will be reporting it in more detail this week).
We know there is MBS leakage, but just how much isn’t clear because even in Dr Margaret Faux’s now notorious PhD, her 5-15% estimate of leakage is not given a basis in logic (that notoriety is unfortunate because the PhD has a lot of very good information in it to inform debate around what is wrong and right with the MBS).
Between rhetoric from the DoH on MBS leakage – they are the ones with the data and the best chance of knowing – the ill-informed Nine and ABC $8 billion scare stories, and the international literature on the nature of leakage in government funding systems like Medicare, we’re not about to make an estimate of what leakage due to MBS confusion actually might be.
But whatever it is, the logic for subtracting at least a billion due to underbilling has some real data and informed work to back it up.
Which leaves us where?
Well, it’s a mess at the moment and the way the PSR is operating is not helping when it should be.
We need the PSR to have credibility because if it doesn’t, organisations like Nine and the ABC can get away with absolute rubbish journalism and have the public believe it.
The idea of the PSR is fine: you need to monitor compliance in government programs like Medicare.
But it’s becoming obvious and surely embarrassing that the way the PSR operates is fundamentally flawed and needs to be reviewed urgently.
Without credibility the PSR is toothless and useless surely.
We’ve mentioned a couple of giant failings of the PSR here but a shortlist of the major problems that need to be urgently reviewed and changed, include:
- Getting rid of 106ZR so that doctors get a look at what the PSR is actually pinging doctors for, and in time, building up a rule book based on this body of precedents that doctors can use to help them bill
- Moving the PSR process to be one based on objective rules and published standards (a road rules book)
- Ditching the peer-review system except in very grey cases that need further interpretation (peer review is fraught with possible conflict, has high potential for error and variable outcome, and does not employ hard data, rules or standards based assessment – a problem that has plagued the scientific research community for decades)
- Fixing the obvious problems with the PSR’s robo-outlier-identification software by overlaying context, and making this software’s operation wholly transparent
- Allowing doctors to have proper legal representation when they get into a PSR committee process – currently they can have a lawyer to talk to but the lawyer can’t talk
- Start teaching MBS billing and the Health Insurance Act in medical school based on an objective rules-based system and then embed the same ongoing learning in CPD for all doctors throughout their careers (maybe make it a compulsory part of our new 50-hour CPD system)
- Stop threatening to send people to jail! It’s a real vibe killer and everyone knows that in management, honey and carrots works much better than vinegar and sticks
A lot of this list is consistent with ideas and demands put to the government by Australian Health Practitioners Advisory Solutions (AHPAS), whose founder, Dr Karmakar, has a lot of experience in the PSR wringer.
If any reasonable person stepped back and compared the above vision for a PSR system with the one we have now it’s hard to see what objection there could possibly be.
It feels like we’ve just buried ourselves down a very deep rabbit hole of outdated and inappropriate legislation and regulation and wandered way off mission objectives.
Is this sensible and reasonable stuff really not doable?
The more the PSR starts looking like a very ugly shag on a particularly isolated rock, as it is and will be more and more with cases like the one in this article, the more the government is doing itself, the doctor community and ultimately patients a great disservice.
* Healthed is a 10% shareholder of The Medical Republic.
