The Professional Services Review was created to review misconduct of health professionals in a Medicare context, commonly invoked where there are allegations of over-servicing or Medicare fraud.
This Committee seems to be a law unto itself.
Dr Di Dio confirmed that there is no appeal process from conclusions of the Committee based on Merit. The only appeals available are based on errors of law that would include taking into account evidence that was not relevant or excluding evidence that was relevant. Lawyer Mr Topperwein confirmed that the weight to be placed on evidence was that which the Committee chose to give. He said that the Committee was both the investigator and the judge of the facts with no appeal on merit.
Mr Topperwein could provide no explanation as to why there were no lawyers on the Committee, to ensure the processes were fair and just, stating that the committee comprises practitioner peers.
The concerns about the Review Scheme being a law unto itself seem to be valid, it looks like we need some serious reform in this area.
Transcript
Chair: I welcome the acting director of the Professional Services Review, Dr Antonio Di Dio. Senator Roberts, is it one block of questions here?
Senator ROBERTS: Yes, hopefully we should get through it in one block.
Chair: Dr Di Dio, do you have an opening statement?
Dr Di Dio: No, thank you.
Chair: Alright. Senator Roberts.
Senator ROBERTS: Thank you, Dr Di Dio, for being here again. During the last estimates hearings I asked some questions, and your answers left me confused. Regarding what you gave me, I was feeling somewhat
misled, potentially, because I reviewed it afterwards. I was concerned by a number of submissions made to me about the lack of fairness of the structure by which this review scheme investigates allegations of misconduct by health professionals in a Medicare context. I’ve since done further research into this area and looked over the transcript closely. Just to start with the transcript, the Professional Services Review scheme was set up to review misconduct of health professionals in a Medicare context, commonly invoked where there are allegations of overservicing or Medicare fraud. Isn’t it true that the committee’s conclusions cannot be challenged on merit as to the accuracy or completeness of the basis for the evidence?
Dr Di Dio: The committee’s conclusions are made after an exhaustive and highly respectful process in which the practitioner under review gives evidence and responses in relation to potential concerns about potential
inappropriate practice, whether it is in the billing of Medicare item numbers or whether it is in conduct in association with the billing. The committee process occurs after an earlier process in which the director, firstly,
decides whether a matter will be reviewed; secondly, undertakes a non-compulsory interview with the practitioner involved; and thirdly, decides whether to take no further action under section 91, or a negotiated agreement or a referral to a committee. At each of those steps the practitioner under review is invited to make their submissions, give their evidence and respond to any preliminary concerns, to potentially make those concerns go away with the additional information that comes from the practitioner’s individual responses to each of those preliminary concerns.
So, even before the committee occurs, the practitioner has ample opportunity to respond. But at the committee stage itself, when the practitioner is reviewed by their peers, the practitioner has a great deal of opportunity to respond in as much detail as they wish about those particular concerns.
Senator ROBERTS: Thank you for that long answer. There were a lot of words there—exhaustive evidence and so on. But the fact is that you did not answer my question. My question said: isn’t it true that the committee’s conclusions cannot be challenged on merit—meaning as to the accuracy or completeness of the basis of the conclusions.
Dr Di Dio: Well, the committee is bound by its own obligations to the act—
Senator ROBERTS: Can the doctor challenge the accuracy or completeness of the evidence presented?
Dr Di Dio: Well, the evidence is presented by the doctor in response to those questions. I think perhaps your question is, can the practitioner challenge the evidence that the committee has before it? Is that what you mean?
Senator ROBERTS: Yes.
Dr Di Dio: The committee issues what’s called a notice to produce to the practitioner to ask the practitioner to produce documents, most typically the medical records of the patients who are being reviewed, for whom the particular services may be of concern. So, that evidence comes from the practitioner.
Senator ROBERTS: And I’ll say it again. The committee’s conclusions cannot be challenged on merit.
Dr Di Dio: I’ll refer you to my legal counsel, Mr Topperwien.
Mr Topperwien: It’s quite right that once a committee has gone through the whole process of providing a draft report and then a final report then any challenge to the findings in that final report must be limited to a
question of law, which includes whether they have taken into account irrelevant considerations or have not taken into account relevant considerations and have held a fair hearing. Those are all questions of law. And a challenge can be made to a committee’s findings on the question of law only. There isn’t an appeal to a merits review body.
Senator ROBERTS: Thank you. So, they cannot be challenged on merit, just on the points of law. What weight is placed on the evidence of witnesses called by the doctor under investigation to challenge the case being
made by the committee?
Mr Topperwien: The weight that a committee will give to any evidence depends on the nature of that evidence and how credible it is, and they are matters for the committee to determine.
Dr Di Dio: I would add to that that the practitioner under review is encouraged very much to bring legal representation, and support persons and witnesses are welcome.
Senator ROBERTS: Isn’t it true that the committee takes the role of both prosecutor and decider of facts that make the conclusions and recommendations of the committee?
Mr Topperwien: That is not true. The committee is not a prosecutor. It is an investigatory body. It investigates.
Senator ROBERTS: And once it’s finished its investigation, who does the prosecution of the case?
Mr Topperwien: There is no prosecution of the case.
Senator ROBERTS: Who makes the decision?
Mr Topperwien: There are findings of fact made—whether or not a practitioner engaged in inappropriate practice. And that is the sole duty of the PSR committee—to make a finding as to whether or not the practitioner engaged in inappropriate practice. The consequence of that finding is not a matter for the committee. It is a matter for a separate body called the determining authority.
Senator ROBERTS: I’m of the understanding that the investigation is done by the committee—
Mr Topperwien: Yes.
Senator ROBERTS: and then it decides.
Mr Topperwien: Yes. It decides whether or not the practitioner engaged in inappropriate practice.
Senator ROBERTS: Right. So, it decides. It does the investigation, and then it makes the verdict on its investigation.
Mr Topperwien: Yes.
Senator ROBERTS: So, it’s investigator, policeman—
Mr Topperwien: No—
Senator ROBERTS: It’s also judge.
Mr Topperwien: No. It’s an investigator in that it is charged with looking at whether or not the practitioner engaged in inappropriate practice. Clearly, if that’s its task then it has to investigate and obtain all the evidence
necessary to determine that question which it’s charged with answering.
Senator ROBERTS: So it does an investigation, then it makes the judgement and there can be no appeal or challenge on the merits of the case.
Mr Topperwien: That’s right, because it is an expert body that parliament has given the role of making those sorts of findings.
Senator ROBERTS: We’ll get to that matter of whether it’s expert or not. Isn’t it true that committee members undergo a training course in prosecution and investigation?
Mr Topperwien: They are not given any training in prosecution. They are given some training in relation to how to fulfil their task of investigating in the context of holding hearings when they question the person under review and take evidence.
Dr Di Dio: They are given further training in asking questions respectfully and appropriately.
Senator ROBERTS: Sounds good. Are they provided training in decision-making and natural justice principles.
Mr Topperwien: Yes, they are.
Senator ROBERTS: They are?
Mr Topperwien: Yes.
Senator ROBERTS: Is there any section of the Health Insurance Act 1973 where cross-examination of the committee’s case is prescribed?
Mr Topperwien: The Health Insurance Act does not mention at any point cross-examination.
Senator ROBERTS: How can the strength of the committee’s case be tested without substantial questioning given that the committee determines its own outcomes based on its own prepared case?
Mr Topperwien: At the hearings that the committees hold, the person under review is entitled to question any witnesses. They are able to present whatever evidence they wish to present to the committee.
Senator ROBERTS: Isn’t it true that any appeals from the committee’s decision are limited to procedural issues and merit review is not allowed? I think you’ve already answered that question.
Mr Topperwien: I’ve answered that question.
Senator ROBERTS: Why is there no senior lawyer or judge as part of the committee to ensure fairness of process?
Mr Topperwien: The reality is the committee is made up of the practitioner’s peers. They are all practitioners but at the committee hearing there are always two lawyers from PSR who are very experienced in administrative law, the rules of natural justice, to ensure that the committee hearing is conducted fairly, and the PUR—the person under review—is encouraged to engaged their own lawyer to be with them throughout the whole process.
Senator ROBERTS: I’ll just come to GPs, for example. There is such a wide range of GP services and, if you like, specialties. They’re not specialists—
Mr Topperwien: They are specialists in being general practitioners, yes.
Senator ROBERTS: Okay, but they focus on a particular area, niche, within—
Mr Topperwien: Some do; that’s right.
Senator ROBERTS: And some GPs cannot understand another GP’s work because they haven’t had the experience or the qualifications, particularly the experience.
Mr Topperwien: We try very hard to ensure that the members who are put onto committees have the relevant experience. As closely as we are able to do from the general practitioners who we have on the PSR panel from whom we can choose members to put on committees, we try very hard to ensure that their experience is such that they can well understand the circumstances and context and the type of services that the person under review provides.
Dr Di Dio: To clarify, you’re quite correct: there are general practitioners who have subspecialties, but we try very clearly to match the subspecialties as much as within reason, through the membership of our panel, to those particular practitioners. Most notably a lot of general practitioners do skin work, and we try to match our panel
Senator ROBERTS: Why is there no independent review process, apart from a limited formal appeal process?
Mr Topperwien: The make-up of the PSR COO committees is such that we have the best practitioners in their specialty appointed to the committees and to the PSR panel in order that we have the practitioners most
appropriate and who we have consulted with the relative colleges in their appointment to ensure that the colleges are confident that these practitioners are ones appropriate to assess the conduct of other practitioners.
Senator ROBERTS: So a GP who could be one of the leaders in the country in his or her field could be swamped with work because hardly anyone else is doing it. There wouldn’t be someone who was capable of
understanding that complete picture?
Dr Di Dio: GPs are generally not stupid. GPs are capable of understanding the work of other GPs. Should a GP be practising in a highly specialised area, we do the best that we can to match our panel of expertise with the relevant practitioner. Further, sometimes GPs may be involved in subspecialist activity where, at a stage even earlier than the committee stage, we might get a specialist in that field to review a case in addition to having a GP review the case. We try as hard as we can to match those skills.
Senator ROBERTS: If the committee refuses to give sufficient weight to exculpatory evidence clear on fault or guilt, where does that leave the doctor if they cannot appeal on merit?
Mr Topperwien: The committee hearings are intended to give the practitioner every opportunity to put whatever evidence they want to give to the committee and the COO. The committee then looks at that in detail
and asks probing questions in relation to that evidence. One can’t satisfy everybody that everybody will agree on an outcome. There will always be people who are not happy with whatever outcome there is. But the process is a very fair process. It gets scrutinised by the courts regularly. The courts time and again have upheld how fair the process has been for the person under review.
Senator ROBERTS: I’d like to learn more about that.
Dr Di Dio: Could I add a supplementary answer to that?
CHAIR: You can in a moment. I remind you that there are a lot of senators waiting to move to the next outcome, so if you could be courteous in the promptness of your questions.
Dr Di Dio: I will be brief. After a committee, the practitioner under review has the right to tender further information and evidence should they wish.
Senator ROBERTS: But not appeal the decision.
Dr Di Dio: No, but tender as much further evidence as they wish. Furthermore, there is a draft report issued, to which the practitioner, with their legal representative, of course, can make any response they wish. After that, a final report is issued, to which the practitioner can again make as many submissions as they wish. Over and over the practitioner can provide further evidence and submissions to further parts of the process.
Senator ROBERTS: Wouldn’t it be a better process for a judge to be advised by doctors, as is the case before QCAT, VCAT and a similar structure used in the Medicare Participation Review Committee? Contrary to
previous suggestions, I’d submit that having a judge to chair review proceedings would enhance rather than detract from the fairness of the process.
Mr Topperwien: All I can say is that’s not what the law currently provides. But, from my experience, both as a legal adviser who has assisted with committees and having observed many committee hearings, the process is remarkably fair. The usually three lawyers in the hearing room ensure that it is a fair process.
Senator ROBERTS: My last question. In 2011 there was an inquiry held by the Legal and Constitutional Affairs References Committee into the Professional Services Review scheme. Supplementary comments by
senators Eric Abetz and Bridget McKenzie included that the processes of the Professional Services Review scheme were deficient and led to unjust outcomes. Senator Abetz’s view was that merit review would be a
mandatory requirement for the system to be considered fair and just. This flies in the face of your own view, that merit review is unnecessary. Minister, when will the structure of the Professional Services Review scheme be reconsidered?
Senator McCarthy: I will take that question on notice.
Senator ROBERTS: Thank you.
