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Monday, 23 November 2009
Page: 8586


Senator SIEWERT (5:36 PM) —I, likewise, will try to keep my comments on Health Insurance Amendment (Compliance) Bill 2009 brief. However, I will note that this is an important bill. We have had a Senate inquiry into it and there are important issues here which need to be discussed. The Greens have signalled in their minority report that we will be circulating amendments. These issues need sufficient discussion. I am concerned that the privacy issues may not be thoroughly discussed here because of the need to deal with this bill in an expedient and quick manner. The Greens do support the need to ensure the integrity of public revenue expended on Medicare services. Expenditure on the Medicare scheme was over $14 billion in 2008-09 and has grown by more than $1 billion per annum over the past two years.

The Greens believe that compliance audits are necessary checks to confirm that a medical practitioner has been eligible to provide a Medicare service, that the service was actually provided and that the service met the requirements of the Medicare item paid in respect of the service. We understand that, at present, many practitioners voluntarily cooperate with Medicare Australia during such compliance audits. However, on average, 20 per cent of practitioners requested either do not respond to or refuse to cooperate with a request for documents—which, I must say, we find unacceptable. When this occurs, Medicare Australia does not have the authority to require the production of relevant documents and cannot confirm that the Medicare payment is correct.

The Greens believe that health reform has to be underpinned by a greater understanding of our health needs, and we have called for payments to be monitored and measured by the relevance to the patient’s needs, not just the provider and the number of the services that they are willing or able to perform. In 2007-08, 81,224 providers generated nearly 280 million MBS services. New groups of practitioners, such as allied health professionals, are also now able to provide Medicare eligible services. It does not seem unreasonable for the taxpayer to want to be sure that the services being paid for are in fact audited.

In 1996-97 the Australian National Audit Office found that non-compliant MBS payments equated to around 1.3 to 2.3 per cent of expenditure. According to the Australian National Audit Office, this suggests that current levels of annual non-compliant payments could be as much as $170 million to $300 million per annum. Of course, the Greens would much rather that money be spent on our very important public health system, where we know resources are constantly strapped.

The Greens believe that requiring providers to verify their claims when there are specific concerns about the claims is a reasonable and responsible way of protecting the public purse. We agree with Medicare Australia’s view that:

The consequence of not having a penalty system for ‘non-criminal’ acts resulting in incorrect claims is that providers can repeatedly make incorrect claims with little or no adverse outcome, other than possibly having to repay monies that are specifically identified as being incorrectly received.

Similarly, the Greens accept the view of the Department of Health and Ageing, who have argued that ‘key risks to the integrity of the Medicare scheme’ need to be addressed ‘by establishing a simple, cost effective administrative mechanism to deal with incorrect Medicare payments which constitute a substantial risk to Medicare expenditure’.

The debate here is about potentially competing public interest principles. They are the interests of Medicare consumers in the maintenance and integrity of the health system and the public interest in the confidentiality of communications in the doctor-patient relationship and the medical records of patients. The Public Interest Advocacy Centre suggested that with some amendments, the proposed changes and the existing privacy protections ‘appropriately balance’ the public interest in the integrity of Medicare and the public interest in the maintenance of patient confidentiality and privacy of health records.

The Greens have put forward amendments that reflect the initiatives proposed by the Public Interest Advocacy Centre in a submission to the committee inquiry on this bill. We have proposed a two-stage process to minimise the need to access clinical records in the audit process by, first, introducing a mandatory electronic data collection mechanism as part of every patient consultation, which would not only aid this data collection but also aid the doctors or medical practitioners; and, second, outlining a process to determine when clinical records must be accessed and provide maximum protection for patient confidentiality once it is determined and access is necessary.

The first-stage measure would enable the provision of more accurate detail of patient consultations as a matter of course. This would require doctors to complete an electronic form for each consultation, which would provide the basic relevant details to the Medicare audit process, such as length of time, process, referral et cetera, in a very simple ‘tick box’ format. This would be completed online during the consultation as a matter of course. The second-stage measure would be a multi-stage review process—and we have set this review process out in our amendments. This process ensures that any decision to assess clinical information is made separately from the routine audit process and follows a number of steps to ensure sensitive information is handled with due care and confidentiality.

The Greens understand that Medicare Australia is working on guidelines to look at sensitivities around privacy. The Greens welcome this but we are not satisfied. We believe that, unless amendments are made, the privacy of patient records will still not be sufficiently protected. The Greens are pleased to see the government include a provision that medical advisers should have oversight of all audits. However, we do not believe it is appropriate that senior officers inside Medicare who may not be medical advisers but are in fact bureaucrats—and I do not in any way mean to have a go at bureaucrats; it is just that they are not medical advisers—should have a role to play in auditing patient records. The Greens believe that, if it is decided that reasonable concern exists, a privacy impact assessment should be made to justify accessing patient records, including that there is no other way to obtain the necessary information and that the investigation is in the public interest. We believe that the privacy impact assessment should include assessment of whether the necessary information can be gained by de-identified records without undermining the integrity of the audit process.

Finally, the Greens believe that the patients or their authorised decision maker should be advised that their personal health record is to be accessed for the purpose of a compliance audit. We believe that, if the patient or the authorised decision makers object to the use of their personal medical records and provide reasons, the decision to access information should be subject to an internal review and the patient should be provided with written reasons for the decision. The Greens hope that the Senate sees the wisdom of these amendments, as we believe they improve this important piece of legislation.