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Community Affairs References Committee - 23/09/2011 - Professional Services Review Scheme

COOTE, Dr William, Acting Director, Professional Services Review

RADFORD, Dr Nicolas, Chairman, Determining Authority

RUSE, Dr Warwick Henry, Former Deputy Director, Professional Services Review

TWYFORD, Mr Luke, Acting Executive Officer, Professional Services Review

[14:14]

CHAIR: I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you.

CHAIR: Thank you. We have your submissions. They are numbered 24, 1 and 11. I remind witnesses that evidence should address the terms of reference and that misleading the committee may constitute a contempt. We ask that witnesses avoid making adverse comment against other parties and that such reflections may prompt the committee to suspend proceedings. The committee may decide to take evidence in camera at any stage; likewise, witnesses may also ask to have evidence taken in camera.

A transcript of some of this morning's evidence has been provided to you, the reason being that it makes comments about the PSR. I invite you to respond now or to respond in writing if you would rather consider it. I now invite you to make an opening statement.

Dr Coote : I will make a brief opening statement. Dr Ruse will then make a brief statement focusing on his experience as a committee chair. Then Dr Radford in his more independent role as chair of the determining authority will also make a brief statement.

Thank you for this opportunity to appear before the committee. From my personal point of view as someone who has just been appointed as acting director of the PSR, in one sense this committee is a very useful process for airing a lot of issues around the system. Starting from the very basics, Medicare and the PBS amount now to $25 billion a year in programs. Medicare is an open-ended, fee-for-service system. It is inevitable with such a program that there must be some process for assessing suspected inappropriate behaviour. I will make five brief points.

The first is that PSR receives referrals from Medicare, and Medicare refers practitioners to PSR when it has concerns that the practitioner may be practising inappropriately. I am not here to explain how Medicare go about their business, but I think there may have been a little misunderstanding this morning about Medicare's processes, and I am sure that they are much more sophisticated than has been implied. As I say, I am not here to go into or explain those in detail, but we did find a section of a submission to this committee in 2009 when you were looking at the new audit process. It reads:

Medicare Australia uses sophisticated technology to compare factors including total benefits, services, patient demographics and prescribing of pharmaceuticals. The profiling system is adaptive and takes into account factors such as number of days worked and area of practice.

So I think that it is more complicated than may have been implied in some of the submissions you heard this morning.

The second issue is that, again stating the obvious, PSR is a peer review process, and this peer review is at the very core of the PSR system. The system provides practitioners with an opportunity to discuss with a committee of peers those aspects of their practice which led to the referral. I am not a lawyer, but it is unfortunate to hear terms such as 'charges', 'convicted' and 'crimes' and things—it is a professional review system where professionals are given the opportunity to explain their practice to a committee of peers. Medicine is a very rapidly changing field, and the demand for medical services in the population grows and grows. Sitting listening to the evidence this morning, I reflected on that point that there are processes in Australia outside of PSR for assessing claims for new specialties. People can go to the Australian Medical Council, have their continuing education activities assessed and be recognised as a college, as it were—the new Medical Board of Australia recognises 83 distinct medical specialties. It is a very rapidly evolving field. But some of the groups who have spoken today—and I am in no way reflecting on what they do; they offer extremely valuable services—do not have that formal recognition. I am just making the technical point that it makes PSR's job a little bit complex.

Senator ABETZ: That was 83—

Dr Coote : Yes, 83 specialties. The final point I will make on that is that there are processes established whereby groups can liaise with the federal health department in regard to the Medicare schedule and have items developed that reflect their style of practice. So I am simply making the point that it is not PSR's role primarily to make determinations on what is and what is not a specialty. Having said that, obviously PSR does have some flexibility in the construction of a panel and in its ability to engage consultants.

The third point overall is that, during the Medicare PSR process, a practitioner has eight opportunities to make submissions and explain their practice, and those are listed in our submission. Briefly, they are interviewed by Medicare; the PSR director meets with them; they make written submissions on the PSR 89C report—the 89C refers to the act; they can make written submissions prior to a committee hearing; they appear before a committee and can make verbal and written submissions at the committee hearing; they are allowed to make written submissions on a committee's draft report; they are able to make submissions on the committee's final report that goes to the determining authority; and they are able to make submissions on the determining authority's draft determinations. So the practitioners under review have these multiple opportunities to comment as the process proceeds.

The fourth point is that practitioners appearing before PSR do have access to legal advice—PSR actually advises practitioners to obtain legal advice. Around 80 per cent of the correspondence that goes out of PSR to a practitioner under review is conducted through a legal adviser to the practitioner. At PSR committee hearings, practitioners are able to be accompanied by and advised by their legal adviser. So practitioners under review do have legal advice.

The final point—and this was pointed out briefly this morning—is that, under the act, a committee may refer a practitioner to the Medical Board if the committee has concerns that the practitioner may be practising in ways that constitute, as the act says, a significant 'threat to the life or health of any person'. A review of the PSR records shows that around 15 per cent of completed cases lead to identification of concerns requiring referral to a medical board.

I conclude by saying that I think that everybody involved with PSR realises that it is a challenging role. The legislation is set up in such a way that it inevitably is balancing a whole lot of factors. While I am the acting director, one of the things that we will be trying to do is to look at the processes and see if they can be improved. We realise that it inevitably must be a stressful process because in a sense it is challenging not just a practitioners economic status but also, potentially, their public reputation. So it is inevitably a stressful process, and we are aware of that.

Dr Ruse : Thanks for allowing me to appear. I make clear that I am appearing in a private capacity as one of Dr Hambleton's original badge-of-honour men. I will happily speak to my original submission 11, which I hope you have had a chance to read, and answer questions. Like everyone else, I have had a chance to read the other submissions that have appeared online and are still available. I have also been following with interest the online debates on these matters on the medical websites. I would therefore like to take this opportunity to flag to the inquiry a few new points which I think are important.

Half a score and seven years ago, this parliament brought forth in legislation an innovative peer review mechanism in the form of the PSR. It is yours and it is the consumers'; it is not mine. It is has had several major reviews. I am sure you have all read Robin Bell's scholarly legal paper written in 2005 on how legal misperception of the intentions of parliament at that time have required multiple legal challenges to be heard, principles to be established and, occasionally, legislation to be changed. All the major institutional bodies continue to support peer review as the basis of the PSR. The MIPS and AMA submissions—Senator Abetz commented on them—commented on perceptions within the profession; the RACGP's submission states 'facts' that might better be described as perceptions which it has received from its members; and the websites I have been on are awash with perceptions. I think it is important that these perceptions be briefly identified and flagged for you, because I believe that some of them are erroneous.

The first popular misconception is that at the committee level doctors are being judged somehow purely on solely on their place in what is a very skewed distribution. This is a technical point and I am not a statistician, but we are not dealing with the bell curve, which is the Gaussian curve; we are dealing with a very skewed distribution. They are not judged in that distribution, which can be of services, total services per patient, prescriptions or dollars in rebates.. The Avant submission states as a fact—or perception—that almost all its members who have appeared before the committees believed that their case was prejudged. As one of the judges, I am disturbed about that. It suggests that there has been a formal debriefing process by Avant, a database and statistical analysis. If that is true, I would encourage you to seek it out; otherwise, it is just an unsubstantiated allegation.

More importantly from my perspective, both arms of this non-bell-shaped-curve misperception are just not true. At the committee level we engage, as Dr Coote just said, in peer review of individual services which have been randomly selected by completely different—and, we are told, unbiased—statistical methods. The doctor explains to his peers on the committee, as called for in the legislation, what his conduct was in providing that service—the conduct is what he did. A peer review judgment is then passed in each case on whether or not the conduct is thought to be inappropriate. What has not been heard cannot be prejudged. If there are peer judgments of inappropriate behaviour—and let us say that is a raw score of 10 out of 25 services—it is then corrected downwards in the doctor's favour, through the miracle of statistics, by another legislative statistical procedure, and it is only if the corrected inappropriate judgment score is greater than 10 per cent that the determining authority may take it into account in getting back pro rata rebates. But I point out that the raw score of inappropriate individual services, depending on the size of the total number of services provided in that group in the year, has to be seven out of 25 or eight out of 25 before it is called 10 per cent—which is two and a bit.

The second marketplace misperception, in my opinion, is that the panel members themselves—the committees—are driven purely to recover Medicare's dollars. This has never been institutional policy that I have been informed of or made to follow. It has never been the express purpose of any of my committee members or me, and I point out that, having found inappropriate practice if it exists, we have no say in setting the recovery amounts; that is the job of my learned friend on my right. The joint skin colleges submission, which is open, on page 3 in point 6 states:

… there is alarming evidence demonstrating that PSR staff obtain performance bonus commensurate with the

number of doctors who enter into a Negotiated Settlement.

This is aimed purely at Dr Webber, and it is under parliamentary privilege. I am told that it is just not so, and I would ask that you press the authors of that for the evidence before you consider it at all.

The third misperception is that the PSR committee level is overly scrupulous in some way about medical records. I have covered this at some length in my original submission. The RACGP fourth edition guidelines for accreditation are quite specific on what they believe the record should contain to be accredited, and they actually expand on the Medicare requirement, which has been extant since 1999, for adequate and contemporaneous records. The RACGP spells out quite clearly that the record must contain the name, the date, the patients presenting a complaint, relevant clinical findings and then—quite separately—a diagnosis and then, separately again, a management plan including medication. A record which consists of, say, three days of bronchitis Amoxil is just not acceptable even from a super doctor on a very busy day—and we do not judge by the gold standard or by the Silver standard but by the lead standard. It is only when records fall below what would be considered the lead standard that we consider them in themselves to be inappropriate. The fourth misperception, we have heard before, is that charges must be laid and known before a committee hearing. The concept of peer review retains the support of almost all the institutional submissions you have received. It is disappointing to see Avant, the single biggest medical insurer, complaining that the nature of the case against the doctor under review is not known. That is the point of this peer review process—we are allowed to look and see what their conduct was in delivering services to consumers, who believe they are above the lead standard.

In the matter of the transfer to AHPRA, if I may use a small analogy: we all break the speed limit at times; we know that it is set statistically; we accept it. There is a concept of dangerous driving, which hopefully we do not do, and it often does not lead to misadventure. Medical boards—old or now under AHPRA—deal with 'dangerous driving' that has led to people being killed. There is no way, in my opinion, that AHPRA want to plough through all the stuff we see on the odd chance that they may catch a bit of dangerous driving.

The RACGP, once again, in spite of supporting peer review also recommends that allegations regarding breaches of the act be clearly set out. I think I have covered in my submission that we are not looking at statutory crimes under an act; we are permitted by an act of this parliament to engage in peer review.

Fifth: some minor annoyances—and then, you will be pleased to hear, I am finished. The Avant submission feels that inappropriate practice is in some way a legal test and therefore should only be applied by a legally qualified chair. All doctors recognise, and welcome, legal tests like the McNaughton test for mental unsoundness as a defence and they welcome the expert application of such legal tests by judges. But this is different. Parliament—yourselves, your predecessors—made a law that inappropriate conduct is a test to be judged by medical peers. To call it a legal test, somehow needing a legal technician, is to my mind erroneous.

It is disappointing after 17 years that the medical defence organisations in some way object to that part of the process which involves lengthy and repetitive questioning and that invites comment from the PUR for further information about the conduct of each service—this is there in writing. That is what we are charged to do, and there is a reason. Because of the possibility that, if more than 10 per cent of services in a large group are found to be inappropriate, there may be recovery of money, each item we are looking at is carrying a statistical weight of probably tens of thousands of dollars. I am surprised that the medical defence organisations do not want each of those 25 statistical weight-bearing points explored in great detail.

The suggestion, which has been made in several places, that the PUR is somehow intimidated by not being allowed sufficient breaks is just not true. We have secretarial staff, we have our own lawyers, we have three doctors who know that they are peer reviewing a fellow human being. We often suggest to a doctor that they might like a break and, if you want to get into the mechanics of the committee hearing later, certainly in my committees we call a break of about 10 minutes in every hour so we can do our own business.

You will be pleased to hear I am finished. I would welcome questions.

CHAIR: Dr Radford.

Dr Radford : Thank you for giving me the opportunity to speak here. I have been associated with the Professional Services Review in its various incarnations, and with its predecessors, since the 1970s, when the problem of what was then called 'overservicing' came to light in a report of the parliament and produced a scheme of Medical Services Committees of Inquiry, under the auspices of the then Department of Health, to inquire into matters of overservicing.

This scheme has evolved ever since. I have been a member of an MSCI and chairman of an MSCI, and then, when the PSR was established, I became a deputy director of the Professional Services Review for Victoria. Later I was made a member of the Professional Services Review Tribunal, about which I would be pleased to answer questions later, because it may go to one of the submissions made by Avant. Then, when the determining officer was replaced by the determining authority on the basis of the minister's review committee of the Professional Services Review scheme of 1999—which I am sure you have—the Professional Services Review Tribunal was abolished. I became chairman of the determining authority and have been chairman of the determining authority ever since.

I know that the system, the parliament, the AMA and the profession in general have gone through a very long learning curve in this, with the help of the courts, which have pointed out what parliament really meant by the legislation it has made and what could be done to improve and to act according to law in respect of how practitioners under review, or PURs, are treated by the whole system. The result of that has been a system where, as Dr Ruse said, there are multiple steps in which a doctor is afforded the greatest possible opportunity to state his or her case with the help of suitable advisers. The doctor is enabled to have legal advice, to call evidence and witnesses et cetera.

That is all in the past from the point of view of my present duties. I am now the chairman of the determining authority, which includes me because the act says the chairperson has to be a medical practitioner. Then there is another medical practitioner or a member of the group to which the practitioner whose report comes before us belongs—it might be a chiropractor or an optometrist, for instance. Then there is one non-medical member who is appointed by the minister. They are appointed not by PSR but by the minister. I am appointed by the minister and the other two members are appointed by the minister. We have certain powers under the legislation. There are two main areas. We ratify or reject agreements that the director has come to with regard to section 92 agreements, which are agreements under the legislation where a practitioner has admitted inappropriate practice and has come to an agreement with the director, almost always with advice, to be reprimanded or counselled, to repay some benefits or to accept a period of disqualification.

The other main part of our work is that we receive reports of the committee. We are given the report of the committee and the background of it—in other words, the Medicare referral to the director. We have to then determine what sanctions we might apply given the very strictly limited powers that we have. It must be emphasised here that we are not a judicial body. I am not judicially appointed. If we were to try to do anything which would be construed by the courts as being a judicial act, we would be acting totally improperly and our findings would be struck down. We are charged with making a determination which has to contain one of several things: a reprimand, counselling, repayment of benefits, a period of disqualification and/or a disqualification from what is called the part VII authority, which is the authority given to a medical practitioner to prescribe medications under the Pharmaceutical Benefits Scheme. Like the directors, we also have our education system. We have our own legal advisers, who are appointed as separate legal advisers from the legal advisers to the PSR, and we have had education sessions. Our lawyers are always pointing out to us and helping us in applying the proper legal principles—although not making our decisions for us—which we must follow in determining the sanctions we apply and, in particular, deciding the cases on their merits.

The committee has to report to us on whether there was inappropriate action with regard to medical benefits and then identify those benefits which they feel were inappropriate. That might give us a number of dollars, but that is not what we might apply. We take into account the submissions which the practitioner might give to us—and practically always does, but sometimes does not. These submissions may go to many things other than what is in the report. They may contain submissions about the practitioner's age and cultural background, their general mode of practice, their health, their financial situation, their family situation—101 things. Sometimes they can be very helpful for us in deciding what sanctions we should apply. Sometimes that may result in a major reduction in the amount that we ask to be repaid.

There is only one other thing I might say with regard to an item which the committee might feel it would like to address, and that is the matter of the part VII authority. At the moment, the matter of drug prescribing is only usually handled as part of the spectrum of inappropriate practice with regard to clinical services. If, say, we had a doctor who was prescribing vast amounts of opiates improperly, it is not open to us to disqualify that practitioner from prescribing certain drugs. We can only revoke the authority to prescribe all drugs as pharmaceutical benefits, and that is a very, very blunt and heavy instrument, so blunt that—I would have to research it, but I think it has been seldom if ever applied.

CHAIR: Thank you very much.

Senator MOORE: If I raise issues, other people may want to jump in, too, because I think we have similar questions. I think, Mr Twyford, this will come to you. How detailed are the records of PSR? We have had a number of claims made about the impact of PSR processes and the kinds of practitioners that have been affected. Do your records indicate what the issues were and what the outcome was?

Mr Twyford : We have a case management system that records the key dates and timings, and the identity of the practitioner under review. We also run a records management system that would contain the draft and final reports and the draft and final determinations in each matter.

Senator MOORE: So how public are they? Are those kinds of records protected by privacy?

Mr Twyford : Absolutely.

Senator MOORE: I ask because we have heard a number of claims, and I am just wanting to know how we verify some of the claims. There were things such as: the system focuses on rural, hardworking, popular and innovative doctors. Dr Ruse, I wish I totally understood your evidence. I am going to read it again. We looked at the graph thing there, and I would like to have a look at that because there has been a lot of discussion about the bell curve and allegations about the bell curve. I really have to read that. What I am trying to find out are a couple of specific things. We had, as has been mentioned a couple of times, women's health clinics being closed down because women practitioners were closed down by the PSR for having done too many pap smears. That has been put on the public record a number of times. I would like to know whether there is any way we can find out whether that is true or not. So I am putting that to your organisation to see if there is any way by which we can find out whether there have been, as a result of the PSR process, specific investigations into women's health, women's practitioners and their services being closed down.

Dr Coote : We will respond to that in writing.

Senator MOORE: That would be fine. I understand that.

Dr Coote : I can say that the whole issue of the different things is right outside of any issue to do with PSR. The issue of women having a different pattern of practice from that of male GPs is for part of a general discussion in the general practice world. It has been part of the discussion for years. There are any number of studies and statistical reports available demonstrating—

Senator MOORE: But I am particularly interested, Dr Coote, in the issue that, as a result of the PSR process, we have lost services because—as the allegation was— of overservicing.

Dr Coote : Overservicing in relation to?

Senator MOORE: Pap smears. There has been a specific allegation and I would like to follow up on it.

Dr Coote : We will search the records and get back to you.

Senator MOORE: That would be useful.

CHAIR: If I may clarify that a little bit, my understanding of it is that it is overservicing because there is not profiling done. You have heard the discussions about the profiling and that, as I am using the terminology that the witnesses are using, they pop out at the top end of the bell curve. That is why they pop out.

Dr Coote : I am going to repeat the sentence I read out earlier—and, as I said, I am not here to talk about Medicare's processes—from that previous submission to the committee in 2009. The sentence I read out was:

Medicare Australia uses sophisticated technology to compare factors including total benefits, services, patient demographics and prescribing of pharmaceuticals.

I am sure their systems do take account of—

Senator MOORE: We will be asking Medicare about their processes. I think that when claims are made we need to follow them up.

Dr Radford : I know that Dr Coote has said that he is going to research the matter, but I cannot recall one case in which my authority has applied any sanctions with regard to gynaecological services at all. The next thing is, I think, the idea about profiling. From the documents that are sent to my committee for reports and for section 92 agreements there is so much data applied to so many different parameters that, in fact, there is a profile and there are the bread rolls that are in there. Say you see a practitioner who says that they deal with complex chronic diseases and then their profile says that they have practically no referrals to specialist surgeons or specialist oncologists or specialist physicians or specialist psychiatrists. It might be considered that there is something odd there, given that they say they are dealing with serious conditions but actually they may not be. That is the kind of thing that it is right and proper for a committee to then inquire into.

Senator MOORE: Thank you, Dr Radford, and so if someone could look into that. Unsurprisingly, that was one that jumped out. There are lots of other issues but I had to follow up on that one.

CHAIR: Dr Ruse, you had your hand up.

Dr Ruse : Yes. It is about another unsubstantiated perception in this debate. From my experience of process, it is extremely unlikely that a practitioner in a recognised women's health clinic or practice—and I am not talking about someone with an interest within a practice—would not be able to convince the Medicare adviser that 'this is where I am'—and they do go out and visit them and walk through the door that says, 'Special Women's Health Clinic'. It is unlikely it would not be able to picked up by the directors, all of whom are doctors who are aware that special areas of interest can generate peculiar profiles. And if they got to any committee and were able to show all and everything else—and the reason I do say this is that you mentioned Pap smears and they are the bread rolls of this practice—I firmly believe it would be found, if it were a matter of Pap smears, that they had no case to answer.

Senator MOORE: I am just wanting to check it out.

Dr Ruse : I understand. The other thing is the 80/20 rule. It has received a fair bit of going over in the submissions and the evidence. I have asked the AMA to give me some information on it. I know that you do not determine the rule, that Medicare does the profiling and sends it to you, but, from the PSR perspective, how is the concept of the 80/20 handled?

Dr Coote : In what respect?

Senator MOORE: In terms of it being reviewed under the PSR process. I know that there is the guideline about 80/20 over so many days in a year as being something to raise awareness of but we have had some evidence that it has caused great stress, particularly to hardworking doctors, who are caught out in this process.

Dr Coote : Mr Twyford might like to say something but, historically, that so-called deeming provision was not part of the PSR scheme when it was originally set up in 1994. It was introduced after the 1999 review and it is a requirement in the regulations that flow from the act. There was, at the time it was introduced, a defence of exceptional circumstances, and I think if you go back to that committee report, that was to deal with epidemics or a situation where they may have been two doctors in a town and one left.

Mr Twyford : That was essentially what I was going to say. It is set out in the regulations that 80 professional attendances on 20 or more days within a calendar year is deemed to constitute inappropriate practice. That is a very different type of case to what the PSR normally sees. Looking back over time—and I could get you an exact figure—

Senator MOORE: That would lovely.

Mr Twyford : something like only five 80/20 matters in the last five years—

Senator MOORE: Only five?

Mr Twyford : have been referred to the PSR. In that situation the committee is required to accept or not accept the practitioner's proposition that there were exceptional circumstances so, again, it is a reversal of the onus in terms of how the committee functions.

Senator MOORE: So, are such circumstances as an epidemic in the community or a shortage of doctors in a rural area the kinds of things that constitute exceptional circumstances for the doctor to put forward?

Mr Twyford : Yes. The regulations state it as being an unusual occurrence, which would be an epidemic type of situation or an absence of other medical services for patients of the person under review during the relevant period. The point I was going to make was that when the provision was introduced it was done with the agreement and acceptance of the Royal Australian College of General Practitioners and the AMA's own Council of General Practice. They endorsed the concept of the 80/20 rule. In fact, when there was a review in 2005 there was debate around changing it to a 70/30 ruling but that was not picked up.

Dr Ruse : It is one of the speed limit things. Coming back to the exceptional circumstances, some doctors do believe that they are very busy, very effective and cannot change this, and they ask to be excised from the experience of everybody else. I am sure there are very good pilots who believe they could fly 20 hours a day, but after due consideration by their professional organisation and health experts it has been decreed that they shall only fly whatever hours it is before a break of so many hours. Obviously, if they are flying to evacuate Australians from Egypt or something, an exception might be made, and I think it was that sort of thinking that went into setting the exceptions. My son had to break the speed limit to take his wife who was in labour to Melbourne recently, but we would not encourage him to make a habit of it. It really was a speed limit sort of thing. It is accepted that there will be busy days. The 80 is the number of services and the 20 is how many days in a year we would accept it as part of any busy practice. It is only when the individual practitioner has had 80-plus, 20-plus that questions start to be raised.

Senator MOORE: Doctor Ruse, you actually mentioned in your statement that people raise issues and put perceptions. One of the things that have come out—and it has come out about a whole range of issues and I am sure the other senators will want to be involved in this—is about you, Dr Radford, Dr Coote and Mr Twyford going through the process as it is set out. The allegation from the people who have come to us is that it does not matter what the rules are; the way they have been implemented has actually led to poor practice and a sense of bullying and fear amongst the doctors. On that particular point, there is a view that it did not matter whether they could bring witnesses, have evidence or provide statements—no-one cared and the end result was going to be that they would be found guilty. That is what the evidence has said. I am seeking from you, as the people in the PSR and working in the area, what can be done to respond to people who have that view. We have had evidence of surveys of doctors. We have had concerns that have come through from groups, and I would think that would be a fair assessment of the process and would like to hear your response to that.

Dr Ruse : Firstly, as to the surveys, there is quite a science to surveys. Self-reported surveys such as 'Do you feel hard done by?' will undoubtedly get the numerator but the question is the denominator. It is interesting that even in the 209 or 212 persons in Dr Masters's survey they did not have 100 per cent who felt hard done by. Some of them had what I would consider a positive opinion about the PSR. These perceptions worry me. As I said, I consider myself a badge-of-honour man. I do lie awake at night during individual hearings, agonising over these things. I do not have a heart of stone. But once these perceptions have been raised, to be put to bed once, I think someone has to pay the money for a proper scientific survey which goes out and asks everybody—not just those who feel hard done by—firstly, 'Are you aware of the PSR process? Were you part of it?' There probably could be two surveys: one for the however many hundreds who have been through the PSR process and one for those who have not.

Since everyone is allowed to strap their own wounds, I have had one PSR person come and shake me by the hand at the end of it. I am not saying that he was grovelling, but he appreciated the way we did it. I had a second person who did not bring legal counsel and on the first day he asked permission to turn on his recorder so he could have his own transcript. On the second day I said, 'Do you want to turn your recorder on, Doctor?' and he said, 'No, after the first day I am quite happy that it is fair.' These are only anecdotes too. Obviously I believe I have never bullied anybody. In fact, if anything, our legal people say, 'You are bending over backwards.' It is perception against perception; misperception against misperception.

CHAIR: Dr Coote or Mr Twyford, do you want to add to the comments that Dr Ruse just made?

Dr Coote : I would like to. Just in a more general sense, I was pleased when I turned up at PSR a few weeks ago and found that a lot of effort has gone in over the last year, particularly driven by the advisory committee comprising the department, Medicare, PSR and the AMA—and I think Mr Sullivan may have mentioned this this morning—to better explain the process. There has been a resource guide published, which I think was attached to our submission but we can provide hard copies of if you like. There have been changes agreed with the previous director, which I will certainly follow, to make the initial meeting with the person under review less confronting in the way the proposal for the meeting goes out. There is further work in train. There is work on finalising guidelines on selecting members to a specific committee to give the director some guidance in selecting from the panel for a particular committee. There is further work which should be finished in the next couple of months. There are further guidelines in regard to the director meeting with persons under review. There are a whole lot of things happening to try and improve the process in response to what are obviously a lot of genuine concerns that people are expressing.

Senator ABETZ: Dr Coote, that is heart warming to hear, because it seemed, up until that stage of the submission, that everything was hunky-dory, and I was going to traverse with you all the changes that seem to be happening, like the documentation we have been given. There seems to have been a lot of movement in the last 12 months—would that be fair?

Dr Coote : Most of that work that I detailed has all happened in the last 12 months; that is right.

Senator ABETZ: And how long has PSR been going for?

Dr Coote : Since 1994.

Senator ABETZ: Yes, since 1994. Given that the PSR itself is now engaged in a lot of good work—which I congratulate you on—can you understand that, possibly, in the period before the last 12 months at least, there has been genuine concern about how things have been occurring with the PSR?

Dr Coote : I do not think there is any doubt there have been concerns. We are seen those expressed in some of the submissions and evidence.

Senator ABETZ: It is not only concerns—people can have concerns—but are they valid concerns about the PSR itself now engaging in modifying a lot of its practices?

Dr Coote : That is happening. Obviously, my role only started a couple of weeks ago, so I can only comment on what has happened since then and reflect on the excellent work that was done earlier in the year and it is now—

Senator ABETZ: Yes, in about the last 12 months. Can we go right to the beginning. Have you ever liaised with Medicare about their auditing methodology?

Dr Coote : Me personally?

Senator ABETZ: Or anybody in the PSR. As I understand it, it is Medicare that drops it in your lap, sort of like pass the parcel: if the music stops, you have got it and you have to deal with it. Have you ever had reservations about the methodology that throws these cases up to you, when, on investigation, you say, 'The auditing methodology is not as flash as it might be'?

Dr Coote : It is an enormous challenge for Medicare. If I can go back to a previous role I had when I worked at the AMA in the 1990s, I was closely involved with the then Medical Director of Medicare, Dr Neros. He developed, within Medicare, artificial intelligence processes and a neural network process for trying to better refine how they searched this enormous database they have. I do not know what the number is now but—

Senator ABETZ: I can understand that all that is happening, but time is very short. Has PSR ever gone back to Medicare to say, 'You're throwing up a few too many of these cases where, when we look at them, we find the complaint has no merit, and therefore you should look at your systems'?

Dr Coote : In the process, if the director dismisses case, he is required to give reasons back to Medicare. That is one point. I understand, and Luke may know better than I do, that there have been regular meetings, I think every quarter, with Medicare—certainly since the review.

Senator ABETZ: Yes, but do you specifically talk about the audit methodology? It is either yes or no, I would have thought.

Dr Coote : In my own case, I have been there two weeks and, yes, I have talked to the deputy—

Senator ABETZ: About the methodology?

Dr Coote : about the methodology—

Senator ABETZ: All right. Thank you.

Dr Coote : and I have made a separate visit to talk to the senior medical adviser.

Senator ABETZ: How far back to you reach in relation to a doctor's medical records?

Dr Coote : At Medicare?

Senator ABETZ: At Medicare for the purpose of the audit, which then comes to you.

Mr Twyford : Senator, Medicare's referral nominates a review period that constrains Professional Services Review investigations.

Senator ABETZ: For how long?

Mr Twyford : The legislation sets a maximum of two years.

Senator ABETZ: A maximum of two years reach-back?

Mr Twyford : From the day—

Senator ABETZ: Thank you.

CHAIR: Can I just clarify that they do not always specify that—is that right?

Mr Twyford : That is correct. It could be shorter.

CHAIR: Dr Ruse, you had something to say.

Dr Ruse : Although we are charged to only look at the services within a certain calendar period, in my experience, if it is someone that the doctor has had for a long time, we invite him—should he and his lawyer wish to, because they have the records in front of them—to go back more than two or three years to see if they can find evidence such as, 'Here's a specialist letter saying what I did was right,' or, 'Here's my summary.' I am not sure if that was the thrust of your question.

Senator ABETZ: No. It was about how far back the doctor's recall needed to be in relation to a particular entry, and what I am being told is two years. Is that right?

Dr Ruse : It is around two years—from memory.

Senator ABETZ: Thank you. Paragraph 31 tells us, if I am right, that 33 per cent of completed matters are dismissed. That is after the doctor has been alerted—is that correct?

Mr Twyford : The section 91 dismissal is—

Senator ABETZ: No, I am referring to paragraph 31 of your submission. We are told that 33 per cent of completed matters are dismissed as not being of concern. At what stage are they dismissed? I could not quite get—

Mr Twyford : That would be a section 91 dismissal, which occurs after the director of PSR has conducted their review, produced a section 89C report containing their findings and received submissions.

Senator ABETZ: Would that involve the doctor in any expense and loss of time?

Mr Twyford : Certainly they would have had to produce the medical records for the director and attend a review meeting if requested and accepted.

Senator ABETZ: Thank you for that. I take you to paragraph 53. In relation to your panel members, there are 92 panel members—is that right?

Mr Twyford : There were at that time. There are currently no panel members

Senator ABETZ: Sorry—there were, because we do not have any at the moment. I understand. So there were 92 panel members and it is from that panel that the peer review committees are established—or not?

Mr Twyford : That is correct.

Senator ABETZ: So we have 92 people from whom you can draw for the purposes of the three-person peer review.

Dr Coote : That is broadly correct, but there is provision in the act for appointments to the panel to be made at any time. So, if a particular subspecialist is referred—anecdotally, the first referral that came while I was there was from a practitioner in a subspecialty—and it does go ahead and there is a panel established, obviously peers of that practitioner will have to be appointed. So there is a dynamic process. There is no point appointing multiple people from all those 83 specialties who may never get called.

Senator BACK: Just as a supplement—you can either take this on notice or provide the information—how many occasions have there been when outside experts, in a sense, have been called on to be added to a panel?

Dr Coote : We would have to take that on notice.

Senator BACK: From the experience of others—perhaps Dr Ruse or Dr Radford—

Dr Ruse : Do you mean actually called to sit on the panel?

Senator BACK: Yes.

Dr Ruse : I would say zero.

CHAIR: On the panel or on the committee?

Dr Ruse : On the committee—sorry. Do you mean on the committee?

Senator BACK: Yes, on the committee reviewing somebody under review.

Dr Ruse : I think that was Dr Coote's point: that you have the 93 people, most of whom are experienced GPs, for the standard non-subspecialty GP. If your question was, 'Have you called a supplementary member for an actual committee with expertise?'—

Senator BACK: Yes.

Dr Ruse : The answer would be no, off the top of my head. We will take that on notice.

Senator BACK: So the 93 are deemed to have the expertise necessary? If you have not had to call outside expertise then presumably those amongst the 93 are deemed to have that necessary expertise.

Dr Ruse : To sit on that committee, yes.

Senator ABETZ: I think Dr Coote pre-empted this. If we have 92—I think it is 92—panel members but 83 specialty fields, that does suggest that it might be difficult to fill a full panel with people in that specialty field. If one were to assume that there are 83 out of the 92, you would have only nine people left over. So how do you constitute a full panel?

Mr Twyford : The 92 was at a point in time; I think it was 1 January 2010. There are comings and goings from the panel as appointments expire and new people are appointed. The guidelines recently agreed with the Australian Medical Association have included a special category or a special process for what we call 'just in time' appointments. If the director does receive a referral from a unique specialty or one of those 83 that we have not seen before then a 'just in time' appointment to the panel would be undertaken.

Senator ABETZ: But that is once again something of relatively recent occurrence?

Mr Twyford : The guidelines are a recent occurrence. The just-in-time appointment process I would assume has been used in the past.

CHAIR: Could you take on notice to tell us how long that process has been used and whether it was used prior to the guideline being put in place.

Mr Twyford : The just-in-time appointment process?

CHAIR: Yes.

Mr Twyford : Certainly.

Senator ABETZ: Thanks for that, Chair. Being a simpleton, if there are 83 fields and you need three people on a committee, if my maths is right one would assume you would need 249 people for three people in each specialty. Clearly you do not have that many people, so that is where I want to ascertain the extent of expertise.

Mr Twyford : Certainly. And can I just add that there is only really on average 13 to 15 committees established each year. That is the other quantum to take into account.

Dr Coote : Not to confuse the issue too much, but there is a separate provision in the act for the director to appoint a consultant in a specialty area on an occasion, say, when an optometrist is referred.

Senator ABETZ: We know there is that provision. We want to know whether the director found within himself that his expertise was not sufficient to avail himself of that opportunity. In relation to paragraphs 133 and 134, there are training sessions and we are told that panel members and deputy directors are expected to attend training sessions. It appears that it is not of a necessity; it is not mandatory, but it is just expected of them but it is not enforced. Is that correct?

Mr Twyford : I am unaware of the last training session. I was not at the agency at the time. Those paragraphs are referring to an annual training process. PSR administrative staff or the case secretariat run on-the-day training at pre-hearings prior to each hearing. So, any member who sits on a committee will have received that training prior to—

Senator ABETZ: Some training, but not that other training?

Mr Twyford : I could not answer that.

Senator ABETZ: There has been no commentary in your opening submission about some of the court cases that have made findings about the PSR that have seen the whole panel system being taken apart, if I can use that term, and put you in a state of flux. Do you have any observations to make about those court findings?

Mr Twyford : The Kutlu matter is currently before the courts. They have special leave for appeal. That is being managed by the Department of Health and Ageing on behalf of the Commonwealth. I would assume that they could answer.

Senator ABETZ: And, is it Tisdall?

Mr Twyford : Tisdall.

Senator ABETZ: Do you have any observations to make on that case.

Mr Twyford : PSR has accepted the findings of the court in that matter. We will be looking at future 80/20 matters and how we provide correct training to committee members and the level of detail they put into their reports in relation to their reasoning.

CHAIR: We have some more questions. You are obviously an important witness to the inquiry, so, with your concurrence, I intend to go to 3.30 with you.

Unidentified speaker: Yes.

CHAIR: We are supposed to go to 3.15, but as you can see there is a lot of interest and there are a lot of questions to ask.

Senator BACK: Dr Radford, I think you told us in your evidence that you had been the deputy director of PSR in Victoria prior to your current position. From the Victorian experience—perhaps you could guide me with the words, because when Dr Coote spoke earlier there was reference to the term 'guilt' et cetera—could you tell us the term you would prefer us to use that relates to somebody who has been found in default or whatever of the process once they are a person under review. What term would you prefer us to use?

Dr Radford : We always preferred that the strict wording of the act be used: 'The matter which the committee inquires about is inappropriate behaviour with respect to the provision of Medicare benefits.' I may not be quoting exactly. It is an inquiry into that—no charge.

Senator BACK: In relation to your time as deputy director, what proportion of cases were actually found to be inappropriate under the act, or what proportion were found to be not inappropriate?

Dr Radford : I would not be able to tell you that. All I can say is that there were a significant number where the committee found that there was no inappropriate behaviour, and I still see reports that say there is no inappropriate behaviour, or a very small amount. But I could not give figures.

Dr Ruse : I know my figures: 20 per cent of the committees I chaired ended with a finding of 'no inappropriate practice'.

Senator BACK: So 80 per cent inappropriate.

Dr Ruse : Eighty per cent were found to be inappropriate.

Mr Twyford : Since 1994, 27 committee matters have made a finding of 'no inappropriate practice'.

CHAIR: Out of how many?

Mr Twyford : A total of 177. It equates to about 15 per cent.

CHAIR: So 27 out of 177 have been found to be 'no inappropriate practice'.

Senator BACK: And 85 per cent have. In terms of the determining authority, I think you mentioned earlier in your opening evidence that it is the minister who appoints the chair of that position. Is there a staff who report to you?

Dr Radford : The act provides that the director of PSR has to furnish us with administrative services.

Senator BACK: Are they PSR staff or staff who report directly to the authority?

Dr Radford : They are PSR staff, but they are separate from other staff in PSR. For the exact fine details of administrative services I would have to ask Mr Twyford. But we have always understood and believe, and it is our experience and it is in the act, that our services must be separate. Also, staff who have acted on a matter that comes before us must not act as our support staff.

Senator BACK: In terms of independence and objectivity, from the perceptions of the wider community, are the staff physically located in the same building, Mr Twyford.

Mr Twyford : That is correct. There are currently—

Senator BACK: You would interact with each other on a day-to-day basis?

Mr Twyford : That is correct. There are currently 29 administrative staff reporting to me.

Senator BACK: How do you satisfy Dr Radford, as the chairman of the independent Determining Authority, of the fact that there would be no communication between the two parties: the PSR staff and the staff who undertake Dr Radford's work?

Mr Twyford : I do not understand what you mean.

Senator BACK: The Determining Authority process is independent, presumably, of the PSR process. It falls then to Dr Radford to consider matters raised by the director of PSR. I am trying to come to an understanding from you as to the arm's length independence and lack of communication and discussion over the coffee table of matters that will ultimately be determined by Dr Radford.

Mr Twyford : I think Dr Radford would say in answer to that that he and the Determining Authority base their decisions on the reports of the committees. Those reports are sent from the committee secretariat to the Determining Authority secretariat. Once they reach the Determining Authority secretariat they are stored in secure, restricted-access files and folders in their electronic records management system. But in terms of staff members talking to each other at lunch time, that certainly occurs.

Senator BACK: Dr Radford, to whom do you report in your capacity as the chairman? Do you report back to the minister or do you report to the director of PSR?

Dr Radford : I do not know that I report to anyone, except perhaps the minister in the sense that I can be dismissed for certain types of misconduct or if I become bankrupt. But we certainly furnish a report that goes into the PSR report. I think that is true.

Senator BACK: Certainly. So agreements from the committee level, as I understand it, are sent to you from the director?

Dr Radford : No, not agreements from the committee level. Section 92 agreements come from the director. They have not gone to a committee.

Senator BACK: Okay, thank you for clarifying that. In the time that you have been the chairman, how many times, if at all, have you overruled the director on an agreement he may have reached with a doctor?

Dr Radford : Rarely. I think there have been two or three.

Senator BACK: I think one of you was speaking about doctors who may be disqualified for periods of time or have their right to prescribe suspended. Would those agreements come to you for independent verification or determination?

Dr Radford : If the section 92 agreement contains an agreement that the practitioner will be disqualified in some circumstances—not necessarily totally disqualified—

Senator BACK: No, I understand that.

Dr Radford : just disqualified from some particular services—then, yes, he or she would be disqualified.

Senator BACK: In your role as chairman of the independent Determining Authority, have you ever had occasion to overrule the director's agreement with a doctor?

Dr Radford : Yes, as I said before in response to your previous question, there have been two or three. But we cannot remake the agreement. We either ratify it or reject it. It is as simple as that.

Senator BACK: I may have to put other questions on notice. Dr Ruse, we heard evidence earlier in the day about a process by which a doctor attempted to find information, especially related to descriptors. I think the description given to us was that they had approached Medicare and Medicare said 'no, we won't tell you'; they went to the AMA and the AMA said 'we're not able to'; so they went to the PSR. The way it was put to us, it was almost like asking, 'What are the speed limits?' and being told, 'We won't tell you.' 'I want to know do they change?' 'I won't tell you that.' 'I want to know how you determine that I'm speeding.' 'Not going to tell you that.' And so on. Dr Ruse, is that an accurate description? It seems to me as somebody sitting on this side of the table that it is almost setting somebody up to fail, and I am sure legislation and practice would not be directed at that.

Dr Ruse : I am not there when they ring Medicare, so I am not aware of the nature of their query. There are two sorts of descriptor. The old-fashioned one was delivery of a professional service as a physician, as a general practitioner, in which the doctor was trusted to do his medical job properly and deliver the goods. As the system evolved, Medicare, under pressure from the organised profession, began to come up with descriptors which were more for management plans of various sorts. And, in this, after the medical job had been done, the rebate included payment for or was just for the payment of the delivery of a plan that had been laid down: 'These are the components which must be seen.' I think that a lot of these calls to Medicare asking for elucidation are less a case of, 'I've just seen Warwick Ruse with a sore toe, but he took a long time to tell me, "Can I be a 23 or a 36?"' and more, 'Can the practice nurse do this and this before I write things into a plan.' It is for these more complicated management plans rather than for the old-fashioned, bread-and-butter patient to doctor consultation.

Senator BACK: Thank you.

CHAIR: Senator Adams.

Senator ADAMS: What percentage of doctors under review go to the director and what percentage go to the committee? Do you have a breakdown of that? Do doctors prefer to go straight to the director and do whatever they have to do, or do they opt to go on to the committee?

Mr Twyford : Perhaps it is worth noting the step before that, which is Medicare Australia's Practitioner Review Program. If you point questions to them about that, I think they will tell you that they consider around 200 to 400 practitioners as part of that program each year. Fifty are referred out of that program to the director. So all 50 referrals to PSR come to the director—I am talking broadly, in terms of averages across the years. We then find that the cases for between 30 and 33 per cent of practitioners are dismissed by the director; he or she looks at the medical records and determines that there is no case to answer. The remaining two-thirds have the opportunity to negotiate an agreement, and, if an agreement cannot be reached, they are then referred to a committee of peers. Recent statistics show that it is somewhere around a 30-30 split. So for a third there is no further action; a third, section 92 agreements; and a third, referred to a committee—although there are some fluctuations, and occasionally the section 92s can range up to 50 per cent.

Senator ADAMS: Thank you for that. I am interested in overseas trained doctors, once they have their provider number. Could you tell me what percentage they make up of those doctors that come before you or are doctors under review.

Dr Coote : I do not have that figure off the top of my head, but we can certainly—

Senator ADAMS: Could you take that on notice. I am very interested.

Dr Coote : So the percentage of the total number referred who are overseas trained doctors.

Senator ADAMS: Overseas trained doctors who have gone through what they have to to get their provider number. I am really looking at it from a rural perspective once again. My last question is, of course, on rural. I will ask Mr Twyford: how many qualified GPs that have really done a lot of practice in a rural area or an Aboriginal medical service are on your list of committee panel people? I know you have not got one at the moment.

Mr Twyford : That is a difficult question. We do not currently have a panel.

Senator ADAMS: On the old one, did you cater for anyone that would have come from either of those areas?

Mr Twyford : I am not sure if we would have kept a record or a statistic on how they identified themselves. We could potentially give you the postcode for each panel member and do an analysis.

Senator ADAMS: What I am looking at, really, is the expertise. We have been told that these panels have experts—and Senator Abetz said there are 83 or whatever—from each specialty. Being a GP in a rural area now is becoming a specialty, and, with the way the new health reforms are going—I have been on about this all day with Medicare Locals and primary health care, plus the Aboriginal medical services—I really would like to know: in the past, have you had people on these expert panels that could deal with it?

Mr Twyford : I do not have the data; we can get that for you. But I do know anecdotally that you have received submissions from Dr Bruce Harris from Dubbo and Dr Ingham from Daylesford, both of whom praise the scheme. They have acted on committees; they have been committee members. That is just anecdotal, but we will see what we can find in our data.

Senator ADAMS: Coming from Western Australia, it is a little bit different. Dr Harris comes from Dubbo. I am looking at somebody from the Kimberley—that area—where you have Aboriginal medical services, and in the Northern Territory as well. Dr Ruse might be able to help me: who do we have in WA that was on the committee as a nominee?

CHAIR: I am really worried about time.

Senator ADAMS: Yes, I know.

CHAIR: Could we take it on notice. I am not saying it is not an important issue but, Dr Ruse, can you keep your comment very short, because I still have Senator McKenzie to ask some questions.

Dr Ruse : There is one: Dr Ralph Chapman from Narrogin is on the panel.

Senator ADAMS: Ralph is living in Perth.

Dr Ruse : But he was—

Senator ADAMS: He was my doctor.

Dr Ruse : We need to look at the mechanics of underdoctored practices then providing someone from the Kimberley to come down to Perth for a hearing. It is four or five days plus travel time. It is important to have representative peers, but remember they are volunteers. If we want to go into the Athenian compulsory jury argument, I am happy to do it. But, as I say in my submission, these people are willing horses and you can only push them so far, particularly if their first loyalty, as is right, is to their rather isolated rural practice.

CHAIR: Okay, but we still want the numbers on notice if possible, please.

Senator McKENZIE: Given the time and our already extended thing, I might put my questions on notice. You make comments about the consultative approach about the descriptors and how they are developed and the item numbers. I wanted to know about the educative process around the descriptors and whether, with the 50 that end up with you at the end of the day, what role a lack of educative processes or the feed-in in the development of the item numbers and the descriptors plays in the number of people that are ending up at the PSR. I will put that on notice. I guess this is the one I would like you to answer. We have had some evidence that there has been an increase over the last five years in auditing or the vigorousness, I guess, of the auditing. I just wanted your comments on that and what you think the primary drivers of that increase might be.

Dr Coote : Are you referring to numbers of practitioners referred from Medicare to PSR? That number does fluctuate; there was one year when it shot up to over 100.

Senator ADAMS: It was 2001.

Dr Coote : But it has, on average, been around 40 to 50 per annum.

Senator McKENZIE: Yes, that is the average. However, I think the average over the last five years is significantly higher than in any other five-year period previously.

Dr Ruse : But the number of doctors in practice is steadily going up.

Senator McKENZIE: So as a relative proportion it is the same?

Dr Ruse : Even if it is the same proportion, one would presume that they would creep up. Presumably these questions should really be referred to Medicare.

Senator McKENZIE: I am just asking for your opinion. You have been in the game a while; you might have an opinion about it. With the pap smears—

Dr Ruse : The hypothetical pap smears.

Senator McKENZIE: The hypothetical pap smears. At a rural practice where there is one female GP in town—it is not identified as a women's clinic; it is the only clinic—that female GP would have every girl in town lining up for her pap smear.

CHAIR: Hopefully.

Senator McKENZIE: Hopefully, if we have done our education properly. At what point of the eight steps you outlined, Dr Coote, that people have to go through before they end up going through would she be identified and okayed?

Dr Coote : I would hope that the Medicare processes are sophisticated enough that, if they do get audited, it would be dealt with in Medicare's own process. The medical advisers do go out. Can I just make one final point. It goes back to that.

CHAIR: I have two follow-up things that I think you will need to take on notice, so it may not be your final point, but go for it.

Dr Coote : Around that whole issue of the items and people complaining that they are not sure where to place an item or how to itemise a particular consultation, there is a need for a little bit of realism here. Doctors are professionals; they have certain responsibilities put on them. The AMA Code of Ethics implores them to be a little bit sensible in their use of the community's resources. The new code of conduct produced by the Medical Board of Australia makes the same point even more strongly. I do not know that you can ever codify these things. Just in the GP domain, I think the total number is 120 million. There are 120 million interactions between a GP and an Australian each year, and if anyone can codify those unambiguously into four brief descriptions then good luck to them. So it falls back on the professional responsibility of the GP, and the system in the main does work effectively.

Senator ABETZ: Am I allowed a supplementary on that?

CHAIR: Yes.

Senator ABETZ: Thank you very much. It was what Senator Back wanted to ask as well. We had Professor Brazenor this morning. He said he sat in with a mate, and he is a specialist in an area. He thought that the CT scans that were ordered were all proper and all right, but the finding was against the GP. Do you want to offer a comment on that?

Dr Ruse : I was not there. These things are all secret.

Mr Twyford : I will just add something to that. It was a bit unclear whether that was a result by way of section 92 or by an actual peer review committee. I think the comments suggested that it was the director that made a finding.

Senator BACK: No, it was not, if I can correct that. He actually sat there with his associate just giving him support before a committee. But he is a neurosurgeon—that is his frustration. He was uniquely able to observe whether his colleague had done the right thing. He believed he had, and the committee said, 'No, you are in error; you are at fault.' That was his frustration. That is why he came.

Dr Coote : I simply do not know anything about that particular case.

CHAIR: Could you look at that particular piece of evidence. Could you take that on notice to look at it and give us a response, please. I appreciate that you were not here.

Dr Ruse : Can I just make a brief point about expert pieces of paper that are then sent, usually after a draft report. When I am trying to weigh them up I do not know what question the expert was asked—because I have been reviewing my notes—but often they are not related to the actual problem we saw in the practice. This is anecdotal. So, to say that I had expert evidence that was rejected, there is reference, for instance, in one of the submissions to a test—I am not sure what it was; it may have been cardiologic—in which three experts said the test was properly performed, which is important, but the committee may have been looking at what the reasons were for properly performing it. Was it on grounds that other members of the sub-specialty would have thought, 'Well, let's wait'? I will just drop that into the mix.

CHAIR: We are over time, so could I ask you to keep your comment brief.

Dr Radford : I thought you would like to hear a short comment on the matter of the review tribunal. There used to be the Professional Services Review Tribunal, which was two medical practitioners chaired by a retired judge. It was a merits review that in effect rendered the whole matter re-heard in a very legal environment. It was felt, in the report of 1999, that that had turned out not to be a good thing. It was much better to refer it back to a committee composed of peers, and, although the right to appeal to the Federal Court on matters of law should be retained, it was far better and produced a more equitable and rapid outcome for the practitioner to make it a final peer review scheme. If people want to, as Avant submitted, reinstitute a review tribunal I think they have to remember the words of Hillaire Belloc: '… always keep a-hold of nurse for fear of finding something worse.'

Senator ABETZ: Possibly that happened in 1999!

CHAIR: I have two questions for you to take on notice. When we were talking about calling experts you, Dr Coote, made a comment about calling consultants. Is that something different from an expert, or are we using two words for the same thing.

Dr Coote : They are the same thing.

CHAIR: Dr Ruse, in answer to your question to Senator Back, I am still not convinced of the argument, or maybe I did not follow it, in terms of the comment made to us, both in submissions and this morning, that people who come before the committee—and I will not use the word 'charges'—as I understand it do not know what the issue is. Could you take on notice a request for a further explanation about what the circumstances are where somebody cannot be told earlier about what the specific issues are. I accept that you are saying they are not charges, but there are obviously issues that have brought them before the committee. Why is it they cannot be told earlier? Please take that on notice.

Dr Ruse : Absolutely.

CHAIR: Thank you for your evidence. We have gone over time because you are key witnesses and we had a lot of questions. We have given you a lot of question on notice. If we could have those back by next Thursday that would be appreciated.