Legal Support for Professional Services Review Committees

The Senate Committee noted concerns expressed by MDA National that “consideration should be given to having the PSR Committees chaired by a legally qualified person with experience in administrative review proceedings.”

Another medical defence organisation, Avant, made a similar proposal. The Senate Committee was not persuaded, however, that chairpersons required legal qualifications, and strongly supported the concept that the PSR Committee members be peers of the practitioner under review, noting “that all submitters appear to support the PSR process: that it is a peer review scheme, not a court” (4.29).

Nevertheless, PSR has taken notice of this issue raised by MDA National, and is now providing PSR Committees with expert legal assistance throughout the process. PSR has engaged, on a full-time basis, both a General Counsel and a Corporate Solicitor. In addition, it uses the services of major law firms to engage other expert administrative lawyers to assist in its work and in training PSR Panel members.

PSR’s General Counsel attends the committee hearings to help the committee understand the law and ensure that the practitioner under review gets a fair hearing. PSR is committed to ensuring that any concerns a committee might have regarding a practitioner’s conduct are clearly raised in the hearing so that the practitioner has a real opportunity to give evidence and address those concerns.

PSR’s Corporate Solicitor oversees the teams that manage the cases throughout the PSR process. By having PSR lawyers involved at all stages, the legal advisers who assist practitioners can more effectively engage with PSR to ensure the process runs efficiently and fairly.

It is pleasing to note that since PSR has implemented this enhanced level of legal assistance to committees, there have not been any Federal Court challenges to PSR processes or decisions. While legal challenges are unlikely to be eliminated, PSR is confident that practitioners who come before PSR should find the process fair and reasonable.

These enhancements have been made necessary in part by the growth in complexity of the Medicare Benefits Schedule (MBS) since the PSR Scheme was established in 1994. The MBS now includes Items for chronic disease management and health assessments. These Items provide scope for less scrupulous practitioners to populate the clinical record of an attendance with copious “generic” material often of little relevance to the particular patient. This process in turn has been facilitated by the widespread adoption of electronic health records. In the early days of PSR, peer-review committees often had to assess clinical records comprising scant, illegible scribble. Committees must now frequently assess copious, legible notes often of little relevance to the particular patient.