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Wednesday, 23 June 1999
Page: 7260

Ms MACKLIN (10:00 AM) —The Health Insurance Amendment (Professional Services Review) Bill 1999 makes a number of amendments to the Health Insurance Act 1973 to tighten up the professional supervision of doctors in relation to inappropriate Medicare claims or prescribing patterns. It is intended to make the existing scheme for peer review of medical practitioners a more effective one. The opposition supports this intention and supports the bill as a further step towards the goal of an efficient and accountable medical profession. These amendments follow the failure of the first case taken to the Federal Court known as Anthony Adams v. Steven Yung. It generally follows the recommendations of the review committee of the Professional Services Review Scheme, but—and I will come to this in a minute—it does fall short of what had been recommended in a number of important ways.

The current arrangements within the Health Insurance Commission for review of overservicing and inappropriate prescribing are based on a branch headed by the Director of Professional Services Review. There have been operational problems with this approach and problems with ensuring natural fairness for doctors with a case to answer. This bill will increase the investigation, case preparation and negotiation powers of the director. It also provides for the peer review committees and the person under review to be provided with upgraded legal support.

The bill establishes a determining panel to replace the current single person determining authority. The professional services review tribunals are abolished, while retaining the right of review on points of law. The new amendments include various procedural requirements that preserve natural justice while removing the lack of clarity in the level of activity that exceeds reasonable standards. This standard will be detailed in regulations through a deeming provision. This will state that a practitioner who provides more than 80 services a day on more than 20 days a year will be deemed to be practising unprofessionally. The onus will then be on the doctor under review to demonstrate exceptional circumstances to justify why their level of claiming is not unprofessional. I will return to this issue in a bit more detail shortly.

These amendments may remedy some of the problems in the current scheme, which has proved to be unenforceable. However, they do not appear to go far enough to really ensure quality care for patients, and may only partly defend the public purse against those who would seek to drain it by subterfuge. The opposition does support the principle of professional review based on peer review. It is the most appropriate way to ensure that the decisions and actions of doctors are assessed by other trained medical practitioners and that the determination of what is appropriate or excessive is based on clear clinical knowledge.

Our concerns about the bill, however, are threefold. Firstly, the issue of quality care should underpin the notion of professional service review, and this has not been given adequate status. Secondly, the deemed level of 80 services a day for up to 20 days a year is very high. Relying on regulations to set the level that is deemed to be excessive also carries with it an obligation to ensure that any subsequent change to the regulations is widely notified. Thirdly, the provisions in relation to the requirement to maintain adequate and contemporaneous records fall short of what the Professional Services Review recommended.

The most significant issue is about professional accountability. This, of course, goes to the heart of why doctors enjoy such a special status in our community. The public rely on doctors very much for care and advice. They—the public—want to trust doctors; they want to know that they will always be receiving care in accordance with best practice and based on the best knowledge available. To achieve this the medical profession needs to have its own mechanisms to ensure the right training and peer review. It also needs to have the right accountability mechanisms in place when things go wrong and ways to pick up behaviour which is inappropriate—and that, of course, is part of being in a profession.

Unfortunately, as we all know—and doctors would be the first to say this—medicine is an inexact science, and with the best skills and resources it is not always possible to get the hoped-for care outcome. For this reason, quality has become a central pillar of modern medicine. To reduce the chance of an adverse event, it is vital to have protocols in place and feedback to pick up the cause of errors when they occur. We have, of course, known the extent of adverse events in the Australian health system since the landmark 1995 report on compensation and professional indemnity in health care. It is the case that the new Australian health care agreements between the Commonwealth and the states provide for quality improvement programs, but I would have to say that we are still waiting for national leadership from this government to make sure that these programs are implemented and the frequency of adverse events reduced.

The way ahead is well known to this government and depends on the following: making safety and quality a national priority from the minister down; giving consumers more information so that they can make more informed choices to create a direct incentive for hospitals, doctors and other health professionals to improve their performance; going beyond quality committees to ensure that everyone in the health system is involved in identifying why adverse events occur and how they can be prevented from occurring; using information technology much more than we do to provide access to detailed information to enable people in the care process to check whether they are doing the right thing and whether they are doing what they are meant to do and making sure that standards are met; and overcoming—and I think this is very important—the fear that admitting mistakes will lead to litigation. If the cause of errors is discussed and the errors are removed, it is likely that there will be fewer mistakes in the long term and far less cause for litigation.

To achieve a professional service, we need to embed this principle of quality care in how we manage the health system. This bill goes a little way by giving some substance to the peer review process but we need to encourage doctors to take the issue further as part of the development of the profession.

In terms of the specifics of this bill, the most significant measure contained within it is the provision that establishes a legislative definition of what is deemed to be an inappropriate level of service. The only example of a deemed limit is that proposed for general practitioners, which will be 80 services a day on more than 20 days a year. This has been arrived at by negotiation with the AMA and, from our point of view, is too high. The limit captures only the 100 most active doctors who each average around 16,000 consultations a year. To put this into perspective, this number of level B consultations would generate an income of over $400,000 per annum for a single doctor practice. To see 80 patients a day and spend 10 minutes with each one would require the doctor to work for 13 hours continuously without breaks for lunch or dinner. This is not simply a one-off situation. To break the limit it would be necessary to work in this way for over 20 days a year.

In my view, the government could have negotiated a more responsible level. To allow doctors to work extreme workloads on a consistent basis seems to me to be unreasonable from the viewpoint of the patients, the cost to the government and, of course, the doctor's own health. Clearly, those who are managing to put in 16,000 claims a year are not doing it by giving their patients the same attention that the vast bulk of general practitioners are doing.

It is interesting to look at other professions where a strict limit is applied to the amount of work that can safely be carried out, particularly where other people's lives depend on that person in question. A reasonable parallel is with airline pilots who, like doctors, undergo years of training and make life and death decisions which affect those who depend on them. Under Civil Aviation Authority regulations, there are strict rules about how much time a commercial airline pilot may fly. Currently the limit is seven hours in any day and 90 hours in any 30-day period with various additional rules about rest times between flights. There are many other professions where limits such as these apply.

It is the case—and we understand this—that the working conditions of doctors are different and on some occasions, for practical reasons, doctors must put in long hours to see their patients, maybe during a flu epidemic or when a partner is away and a locum cannot be found. However, these circumstances should be the exception rather than the rule. It is not credible that a doctor can regularly see 80 patients a day and dispense sound and effective medicine. I sincerely doubt that most doctors would endorse a regular pattern of work at anything like that level.

From my point of view, it would be more realistic if a peak workload for doctors were defined to be more of the order of 60 consultations per doctor per day, equating to 10 hours of continuous work. This is a level that some doctors do reach on a peak day. It is a more realistic benchmark of what a `busy doctor' might be expected to accomplish and there should be serious questions asked about those doctors who are operating consistently above this level.

The bill accommodates the variability of a doctor's workload by two mechanisms. Firstly, a high level of servicing is only deemed to be excessive if the standard is exceeded on more than 20 days. Secondly, the doctor does have the opportunity to demonstrate the exceptional circumstances which resulted in the standard being exceeded over a longer period of time. These two safeguards, from my point of view, do make sure that this level of 80 services a day is regarded as excessive. However, I note that the deemed level could be progressively tightened over time, as will be set out in the regulations.

I understand it is the government's intention to start with the 100 doctors who currently exceed the standard set by this legislation. The weakness of this approach is that the few people who are abusing the system and those who are overservicing in an unsafe fashion could easily amend their behaviour to stay within what I think is a fairly lenient standard. If the Health Insurance Commission is serious about curbing overservicing and poor quality care, it should at least aim its counselling and education programs at the larger group of `very active' doctors who fall short of the proposed target.

In looking at this bill, I was alerted to a concern that there was a possibility that setting the deemed level of overservicing by regulation might be ineffective at law. The minister has subsequently provided advice to me from the Australian Government Solicitor that, provided the regulations were carefully drafted, a determination would not be vulnerable to legal challenge. I accept that advice and hope these arrangements work effectively to achieve their goal. It would be a great waste of effort if this bill were to be knocked out in the courts by those who profit from the abuse of Medicare through overservicing.

While the higher limit of 80 consultations on more than 20 days may provide a basis for a prosecution of the worst offenders, it is unlikely to catch the really bad apples who are manipulating the system. They will continue, unfortunately, with a slight modification of their current activities. So I am concerned that the Health Insurance Commission continues to pursue both Medicare fraud and overservicing with equal vigour. At present, I understand it adopts separate strategies in relation to these two problems. The consequence of being found to overservice is still relatively benign. Peer review may lead to counselling and, in very few cases, to prosecution.

It should not be the case that those who set out to deliberately defraud Medicare should be able to disguise their behaviour as overservicing. It also should not be the case that the procedures used in overservicing cases can be exploited to defer effective action or to avoid serious penalty from those who are exploiting Medicare to maximise their income without regard to patient care. The bottom line, of course, must always be maintaining the quality of care for patients.

Doctors with abnormally high throughputs should not be able to take short cuts. They should not fail, for example, to keep correct records, and haste in processing records should be no excuse for practices that amount to fraud of Medicare. The rules need to remove any incentives to increase turnover at the expense of quality medicine. This bill provides for a definition of what constitutes adequate and contemporaneous records and allows the panel considering a case to determine whether proper medical records have been kept. This will certainly help to distinguish a genuine hardworking doctor from someone taking advantage of the Medicare system. Nevertheless, from my point of view, it is a half-baked measure which does not go far enough.

The consistent absence of records should be sufficient to draw a conclusion that the practice in question is not being carried out to a professional standard of quality. The explanatory memorandum says that items 8 and 27, which contain this amendment, give effect to recommendation 45 of the professional services review. In fact, it falls far short. The review recommendations say that maintenance of adequate and contemporaneous records should be a legislative requirement. In fact, all it has done in this bill is to allow the committee to have regard to whether adequate records had been kept in determining whether the practitioner's conduct is inadequate. This falls a long way short of saying that a doctor is required by legislation to keep adequate records.

As we all know, the structure of Medicare is founded on the view that medical practitioners are professionals who act responsibly and ethically both as individuals and as a group. The royal colleges, the state medical boards and the health complaints commissioners all provide a framework of accountability and training which continues to work well.

The privilege that comes with the professional status accorded medical practitioners is something that the sector should protect with great care. It is the basis of the doctor-patient relationship and it is the basis of the financial arrangements between governments and the profession. Anything that dents the reputation of the sector or damages public trust is directly against the interests of doctors. It is, therefore, very much in the profession's interest to ensure that the professional services review process works and that abuse of Medicare is stamped out as actively as they stamp out abuse of patients.

The medical profession should be in the front line of the campaign to deter overservicing and stamp out fraud of Medicare. The profession should be arguing as strongly as anyone in the community for improved quality of health care and disincentives to assembly line medicine. Doctors themselves should recognise the importance of getting these things right. If a few doctors abuse the system by overcharging or making an excessive number of claims it is other doctors who will pay the penalty. It is time the message got through that the responsibility being shown at a profession-wide level needs to be demonstrated individually.

It is in the doctors' interest that there is a system in place to discourage a minority of doctors taking an overly large slice of the pie. Ultimately, there need to be teeth in the Health Insurance Commission's professional services review process if this message is to stick.

The opposition welcomes this step forward that we are debating today, but I have indicated that we have some concerns about how effective it will be and a concern that the limiting on overservicing will not deliver quality care. In summary I would say that the bill is a step forward but still a fairly timid one. I call on the Minister for Health and Aged Care today to agree to review in 12 months time the progress made as a result of this measure. The professional services review recommended a review of this legislation after three years, but that, too, is not included in the bill today.

In any event, from my point of view, three years is too long, given the risk to Medicare, to the budget and to patients. Well before three years, we should be examining whether the bill has been effective in meeting its objectives, whether the Health Insurance Commission has been given the teeth that it currently lacks and whether the promotion of a quality culture within the profession has driven out those few who seek to exploit the system. The review should also look at how effective the deemed limit of 80 services a day has been. If, as I have argued here today, this limit turns out to be ineffective against any but the most outrageous overservicing, then I hope the minister will agree to tighten it and to establish some stronger standards to underpin patient care. I do hope the minister will agree to this proposal for a review in 12 months time, as it would give a signal that he is committed to ensuring that the professional services review process will be both effective and fair. If there is not a clear signal, then those who manipulate the system will feel free to continue their current practices with perhaps just a small adjustment to stay within the current rules.