Determining Authority

Determining Authority – Division 5 of Part VAA of the Health Insurance Act 1973

The Determining Authority is an independent body within the Professional Services Review Scheme and is established by section 106Q of the Health Insurance Act 1973 (the Act). It has two main roles.

• The first is to decide whether or not to ratify agreements reached between the Director of PSR and a person under review on the sanctions to apply where both parties agree that inappropriate practice has occurred.

• The second is to determine the sanctions to apply whenever practitioners have been found by a Professional Services Review Committee to have engaged in inappropriate practice.

The Determining Authority comprises a permanent chair (medical practitioner), a permanent lay person and a member who represents the profession of the PUR (section 106ZPA). The Minister for Health and Ageing appoints the Chair and members after consultation with the Australian Medical Association and the relevant professions.

The sanctions, or directions, which the Determining Authority may impose or ratify are set out in section 106U of the Act. These include:

• a reprimand by the Director of PSR or the Director’s nominee (section 106U(1)(a));

• counselling by the Director of PSR or the Director’s nominee (section 106U(1)(b);

• repayment of the whole or part of any Medicare benefit in respect of which the person under review has been found to have engaged in inappropriate practice (section 106U(1)(ca);

• revocation or suspension of the authority to prescribe or dispense where the person under review has been found to have engaged in inappropriate practice involving prescribing or dispensing a pharmaceutical benefit (section 106U(1)(f)); and

• full or partial disqualification from Medicare for periods of up to three years (section 106U(1)(g).

Upon receipt of an agreement between the Director of PSR and a person under review, the Determining Authority has one month to either ratify or refuse to ratify that agreement (section 106R(1). Failure to make a decision within this time period results in the agreement automatically being ratified (section 106R(2).

When the Determining Authority receives a PSR Committee report containing a finding of inappropriate practice, within a month it will provide the person under review with a written invitation to make written submissions about the directions the Determining Authority should make as a result of the report (section 106SA). The Determining Authority then has a further month in which to make a draft determination and give copies of that draft determination to the person under review and the Director of PSR (section 106T(1). In giving the draft determination to the person under review, the Determining Authority must offer the person under review the opportunity to make written submissions, within a period of 14 days after receiving the draft determination, suggesting changes to the directions contained in the draft determination (section 106T(2)).

The Determining Authority must take any submissions received into account in making its final determination which must be made within one month after the end of the 14 day period allowed (section 106TA(1)). However, failure by the Determining Authority to comply with these time limits does not affect the validity of either draft or final determinations (sections 106T(4) and 106TA(2)).

Should the Determining Authority develop concerns that a practitioner’s referred conduct may either constitute a significant threat to the life or health of a person or not comply with the professional standards of that profession, it may refer those concerns to the Director of Professional Services Review (sections 106XA and 106XB) for forwarding to the appropriate body.

Although the Director of Professional Services Review provides administrative and other support services to the Determining Authority, the Authority remains totally independent of the Director in performing its statutory functions.

Any enquiries about the Determining Authority may be directed to the Manager on telephone (02) 6120 9155 or facsimile (02) 6120 9180.