2. Report on performance
Professional Services Review Tribunal cases
Full copies of PSR Tribunal decisions are available on the PSR web site at www.psr.gov.au.
Dr John Howard Grey, General Practitioner of Frankston, Vic. (PSR 126)
The Commission referred Dr Grey in November 1997 because it was concerned he could not maintain an appropriate level of clinical input at his high servicing (24 774) rate on a regular and continuing basis. The period referred was 1 January 1996 to 31 December 1996.
In October 2000 the committee provided Dr Grey with a draft report for comment. Dr Grey instituted
(ultimately unsuccessful) proceedings in the Federal Court that culminated in a refusal of special leave by the High Court in February 2003. The Full Court of the Federal Court decision was of particular importance for the PSR scheme as it returned the focus to investigation of inappropriate practice safeguarded by procedural fairness. Details were provided in the Annual Reports for 2000–2001, 2001–2002 and 2002–2003.
The committee reported in May 2003 that Dr Grey had engaged in inappropriate practice in connection with rendering MBS item 36 and 44 services. In all cases examined, there was insufficient clinical input to meet the needs of the patient and/or warrant use of the item. Other issues included provision of some consultations by a nurse rather than Dr Grey personally, initiation of unnecessary screening tests, and inappropriate prescribing or treatment.
In November 2003, the Determining Officer directed that Dr Grey be reprimanded and counselled, repay Medicare benefits totalling $16 132, be fully disqualified from Medicare for three months and partially disqualified for six months. Dr Grey sought review by the PSR Tribunal.
On 1 July 2004 the Tribunal affirmed the determination. With respect to the period of disqualification the Tribunal stated that no useful analogy, as suggested by Dr Grey, could be drawn between the circumstances to which guidelines issued for Medicare Participation Review Committees relate and the circumstances that give rise to the questions before the Tribunal.
It further stated that the PSR committee’s findings disclose a systematic departure by Dr Grey from standards that would be acceptable to the general body of general practitioners and they disclose matters of serious concern. The Tribunal also stated that it agreed with the committee’s comments that it ‘considers that the accreditation of the practice in which Dr Grey works has no relevance to the consideration of his conduct in respect of services rendered during the referral period.
The Tribunal took the lengthy period elapsed since the referral period into account, but noted the absence of evidence that Dr Grey had since made his style of practice more acceptable. Dr Grey did not appeal the Tribunal decision.
Dr Nicholas Sevdalis, Medical Practitioner of Fairfield, Vic. (PSR 120/120A)
The Commission referred Dr Sevdalis in November 1997 for his high average number of services per patient, high level of long consultations, prolonged consultations and home visits, and high level of prescribing.
A committee was established and held a hearing, but one member resigned before it reported. Dr Sevdalis preferred a new committee to be established, rather than the two remaining members completing the report. As Dr Sevdalis failed to produce medical records to this second committee he was disqualified from Medicare arrangements until, in 2002, he agreed to provide the second committee with copies of records originally provided to the first committee.
The second committee reported in September 2003 that Dr Sevdalis had engaged in inappropriate practice in rendering certain MBS item 57 and 65 services. It found that his prescribing was not based on clinical indications or scientific evidence, excessive doses were prescribed, some prescribing did not comply with PBS requirements, and some issues could have been dealt with in less than the time required for these MBS items. Although no formal finding was made in this regard, poor medical records were also a concern to the committee.
In February 2004, the Determining Officer directed that Dr Sevdalis be reprimanded, counselled, and fully disqualified from Medicare for one month. Dr Sevdalis sought review by the PSR Tribunal.
On 1 July 2004 the Tribunal made a fresh determination that Dr Sevdalis be reprimanded and counselled. The Tribunal had regard to the circumstances of the disqualification of Dr Sevdalis for failing to produce records to the committee, the nature of the conduct criticised by the committee, the investigation of only 20 services, lack of evidence that these were representative of his general standard of practice, and the length of time elapsed.
The Tribunal nevertheless indicated that it took a serious view of the applicant’s conduct, particularly regarding prescribing. It strongly recommended that, after the counselling and unless the Commission was convinced Dr Sevdalis had changed his pattern of practice to accord with what would be acceptable to the general body of general practitioners, a more extensive investigation be undertaken to reassess his practice. Dr Sevdalis did not appeal the Tribunal decision.
Dr Peter Tisdall, General Practitioner, Kyabram, Vic. (PSR 106)
Dr Tisdall was referred because the Commission was concerned about his high total services, services per patient, and prescribing. The committee hearings were punctuated by the Federal Court litigation noted in the Director’s 2002–03 and 2003–04 reports.
The committee found he had engaged in inappropriate practice in rendering a sample of item 23 services, largely because of inadequate clinical input and inadequate management of specific problems. Dr Tisdall’s management of specific problems (such as asthma) was clinically inadequate and there was concern about his use of drugs, especially broad-spectrum antibiotics. The committee also found his records to be seriously deficient in important, often critical, information, particularly clinical findings.
The Determining Officer directed that Dr Tisdall be reprimanded and counselled, repay Medicare benefits totalling $141 086.85, and be fully disqualified for one year and partially disqualified for two years. On 12 July 2004 Dr Tisdall requested a review by a Professional Services Review Tribunal. On 23 December 2004, the Tribunal upheld the determination except for a small reduction in the Medicare repayment.
The Court had previously rebutted Dr Tisdall’s argument that the committee had not been fair when it did not give him notice of reasons for rejecting certain affidavit evidence from specialists, saying the committee was entitled to rely on its own expertise without declaring it. The Tribunal rejected a similar argument that the committee should, for procedural fairness, have told Dr Tisdall why the affidavits were regarded as insufficient to displace its tentative findings in the draft report or afforded him yet another opportunity to put further material before it.
The Tribunal agreed with the committee that Dr Tisdall’s clinical notes were totally inadequate—one possible explanation was the pressure of time resulting from the applicant rendering such a high number of services per day. Nevertheless, the quality of the records did not dominate the committee’s decisions. The Tribunal was also satisfied:
- with the committee’s findings that Dr Tisdall misunderstood the clinical input necessary to satisfy the differing requirements of the levels of MBS surgery consultations
- that the committee had given appropriate weight to Dr Tisdall’s evidence of his ‘usual practice’ where he had not adequately recorded and could not remember a consultation
- that, for a range of reasons, the specialist affidavits were of limited use in assessing the committee’s findings
- with the committee’s concern about prescription of antibiotics for uncomplicated upper respiratory tract infections was not clinically indicated.
The Tribunal said the findings of inappropriate practice reflected very serious concerns as to Dr Tisdall’s conduct but he had not generally accepted the findings. He failed to acknowledge any shortcomings in his clinical input, in his prescription of drugs, or any deficiencies in his clinical notes. The Tribunal regarded this as a very important factor militating against any reduction in the periods of disqualification in the absence of any evidence that Dr Tisdall had made significant changes to his pattern of practice. There was also no commitment to change his style of practice in the future. Nothing had convinced the Tribunal that it should vary the periods of disqualification.
The Tribunal did, however, consider that the committee had incorrectly found one service unacceptable and a small reduction in the repayment of Medicare benefits resulted.
The Tribunal was so concerned about Dr Tisdall that it strongly recommended the Commission undertake a further inquiry (after a suitable interval) to re-assess and evaluate his conduct and content of his practice.
Dr Tisdall has appealed the Tribunal decision to the Full Federal Court. (A hearing on the appeal was held on 10 August 2005 before Justices Heerey, Sundberg and North with the Court reserving its decision.)