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Wednesday, 13 May 1970

Dr FORBES (Barker) (Minister for Health) - I would like to say immediately that the impression that the honourable member for Prospect (Dr Klugman) had about what is done in respect of the reduction of payments is not correct. The committee has to find that particular medical services should not have been claimed for, not that they should not have been performed. The amount that the doctor has to refund is directly related to the views of the committee about the degree of overvisiting. In other words, if the committee felt that a doctor should have seen a patient only 30 times and the doctor saw that patient 50 times, the amount to be refunded would be the amount of the vouchers he submitted for 20 visits, that is, the difference between 50 and 30.

Dr Klugman - ls this a change that has come in?

Dr FORBES - Not that I am aware of, although there was a court finding a number of years ago - I forget the names of the doctors involved in the case - which made it necessary for the committees to present their findings in a different way. What the honourable gentleman was referring to may have related to that. But let me say that there are few matters for which I have been responsible as Minister for Health which have troubled me and my Department more than this question. 1 have had many discussions with the medical profession and many discussions with my colleague the Attorney-General (Mr Hughes) in an endeavour to find some appropriate form of appeal to a court in these cases. We have not yet succeeded in doing so. One of the reasons is thai the original inquiry set up is so beneficial lo the doctor.

I would like to tell the Committee how these committees are composed. They are composed of 5 medical practitioners. Four of them arc nominated by the Australian Medical Association in the State concerned and one of them, who is also a doctor, is nominated by the Commonwealth Minister for Health. The 4 nominated by the AMA are always people who have had experience of the pensioner medical services themselves. The hearings are traditionally conducted on an informal doctor to doctor basis, the committee endeavouring to ascertain the reasons for the doctor's high attendance rate and to determine whether the attendances were necessary, having regard to the circumstances of the case. Normally a doctor does not have legal representation, but if he wants lo have it he can, and in that case an officer of the AttorneyGeneral's Department assists the committee.

The reasons for the difficulties in providing an avenue of appeal - and 1 would like to place this on the record - is that the committee system itself, as 1 have explained, provides for the examination of the conduct of a medical practitioner by his peers, and it is considered that this is the system most favoured by the profession generally. The provision of a right of appeal to a court would involve, as I said, both legal and practical difficulties. If I could take first the legal aspects, it must be kept in mind that a judge could not make any judgment on the correctness of the committee's recommendation, or on the decision of the Minister to disallow or reduce claims in accordance with the report of the committee, without calling expert witnesses to give evidence as to the necessity or otherwise of the visits made to the pensioner patients. There is the undesirable feature that particular cases would be examined and pensioners could and probably would be called on to give evidence. In both cases there could be a serious intrusion into the privacy of the doctor-patient relationship.

Dr Klugman - Does this not also apply to the appeal which is provided for at present following a report from the committee of inquiry?

Dr FORBES - Yes, but this is a much higher degree of seriousness and something which in this case it is probably appropriate to accept. As I say, if the decision of the Minister is based on the committee's assessment of the level of services necessary for the medical needs of the patient, a court would not decide an appeal without calling expert witnesses to inform it. The most important practical considerations, as compared with legal ones, involved in providing an appeal to a court are: Firstly, if an appeal to a court were provided it would be difficult to get suitable medical practitioners to serve on the committee. A medical practitioner would be unwilling to serve if he knew that the judgment of the committee could be examined and questioned in open court. This is partly the answer to the honourable member's interjection. In very few cases is the agreement terminated. Since the pensioner medical service was introduced there have been 12 cases, which represents 1 % of the total. The effect of that proportion of cases going to court will probably not discourage medical practitioners from serving on the committee, but if this became the rule rather than the exception I am quite certain that it would discourage them.

It may be equally difficult lo obtain expert witnesses to testify in open court against fellow practitioners who were willing to serve on a committee. In any case the criterion laid down in the proposed amendment, that the court should consider whether the medical practitioner has been guilty of failure to discharge conscientiously his obligations under the agreement entered into with the Director-General, is inappropriate and inadequate. I am so advised bv the Government's legal advisers. The committee may recommend disallowance of a claim on the basis that a doctor was being over-conscientious in providing more services than were necessary for the medical needs of the patient. The Slate branches of the AMA did nol unanimously support the concept of appeals against decisions based on the committee's recommendations. The only State branch of the AMA which has had very, much to say about this matter at all is the New South Wales branch. It is understandable that the honourable member for Prospect is interested in this as he comes from New South Wales.

The debate on this Bill, concerned as it is with the major changes to the medical benefits arrangements, does not seem to me to be the appropriate time to consider the complex question of appeals against decisions made in relation to the pensioner medical service. Nevertheless, it could well be possible to develop a system of appeals to an administrative tribunal or to the proposed Commonwealth Superior Court. A committee known as the Commonwealth Administrative Review Committee has been established with terms of reference which include consideration of the jurisdiction to be given to the proposed Superior Court to review administrative decisions. The report of this committee may well express views concerning administrative appeals other than to a court. In the Government's view it would therefore be advisable to await the report of the committee. The Government must reject the amendment, but it sympathises with the objective sought and will certainly, after it receives the report of the Administrative Review Committee, give further consideration to the question as to whether it is practicable to find a form of appeal to a court or, alternatively, to an administrative tribunal in this case.

Proposed new clause negatived.

Clause 20 agreed to.

Proposed new clause 20a.

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