Appendix 3 - Legislative overview
The PSR scheme was established by the Health Legislation (Professional Services Review) Amendment Act 1993 which amended the Health Insurance Act 1973, and came into effect from 1 July 1994.
The Act was substantially amended in 1999 following a comprehensive review of the scheme. An adverse decision by the Federal Court in November 2001 (Pradhan v Holmes & Others) raised concerns that the 1999 amendments to the Act may not have the effect intended. The Full Court of the Federal Court in May 2002 handed down a decision (Health Insurance Commission v Grey), which substantially agreed with the way PSR characterises its role. However, further amendment to the Act was needed to address the Federal Court's concerns.
Parliament passed the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 in December 2002. The majority of the amendments came into effect on 1 January 2003 with the remainder upon Royal Assent on 18 December 2002. This new Act makes a number of amendments to the existing Act, specifically to:
- clarify the roles and responsibilities of Medicare Australia, the Director of PSR and PSR committees
- enhance procedural fairness processes
- validate a number of referrals (that may otherwise have been found to be invalid on the basis of the Pradhan decision) which were currently before committees.
The Act was developed in consultation with the Director of PSR, Medicare Australia, the AMA and the Department of Health and Ageing.
The Director
The Minister for Health and Ageing appointed Dr Anthony David Webber Director of Professional Services Review from 14 February 2005 for a three-year period.
At 30 June 2006, there were 165 members appointed by the Minister as Panel members to serve on committees. Of these, 23 were also appointed as Deputy Directors of PSR to serve as chairpersons. The Minister appointed eight new members during the year.
Background
The legislation was developed with the aim of providing an effective peer review mechanism to deal quickly and fairly with concerns about possible inappropriate practice.
The essential features of the review structure are:
- a Director of PSR, who is a medical practitioner, appointed ministerially and able to engage staff and consultants
- a PSR Panel, comprising medical and other health related practitioners, who are appointed ministerially
- committees, comprising practitioners from the PSR Panel appointed by the Director on a case-by-case basis to consider the conduct of practitioners referred by the Director for investigation
- a Determining Authority comprising a medical practitioner as Chair, a lay person and a member of the relevant profession. The Determining Authority's role is to decide on the sanctions for practitioners found by committees to have engaged in inappropriate practice and to consider whether to ratify agreements entered into by the Director and the person under review.
Inappropriate practice
A practitioner engages in inappropriate practice if the practitioner's conduct, in connection with rendering or initiating services, is such that a committee of his or her peers could reasonably conclude that:
- in the case of a medical practitioner- the conduct would be unacceptable to the general body of the members of the group (that is, general practitioner, specialist or consultant physician) in which the practitioner was practicing when he or she rendered or initiated the services, or
- in the case of a dental practitioner, optometrist, chiropractor, physiotherapist, osteopath or podiatrist-the conduct would be unacceptable to the general body of the members of the profession in which the practitioner was practicing when he or she rendered or initiated the services.
A person (including a practitioner) who is an officer of a body corporate engages in inappropriate practice if the person knowingly, recklessly or negligently causes or permits, a practitioner employed by the person or body corporate to engage in conduct that constitutes inappropriate practice by the practitioner.
Benefits of the PSR scheme
The PSR scheme gives health professionals substantial autonomy in reaching findings on inappropriate practice. At the same time, proper care has been taken to ensure the practitioner under review receives natural justice. At every major point in the review process the practitioner is given the opportunity to make submissions that could influence the review process and outcome.
The scheme provides for separation of the three elements of the decision-making processes that are:
- review of a request from Medicare Australia
- committee hearings and findings
- determination of any sanction.