Professor Julie Quinlivan’s legal team has filed a notice of appeal in an ongoing case against a Queensland ophthalmologist.
Dr David Kitchen’s December win against a former Professional Services Review director may prove to be short-lived, stalling plans for a potential class action.
Former PSR director Professor Julie Quinlivan’s legal team has signalled that it intends to appeal Justice Rebecca Treston’s finding that its client committed misfeasance in public office when she made a referral to establish a PSR Committee looking into the conduct of Dr Kitchen back in 2018.
In a Supreme Court of Queensland ruling last month, Justice Treston ordered that Professor Quinlivan pay damages of close to $2 million.
Dr Kitchen, a specialist ophthalmologist working central Queensland, has long argued that Professor Quinlivan – who served as PSR director between 2017 and 2022 – did not fully consider a detailed, 96-page submission he had made before she decided to refer him to a committee.
Professor Quinlivan has refuted this claim.
Ultimately, Justice Treston was “comfortably satisfied, based on the whole of the evidence” that Professor Quinlivan did not take into account Dr Kitchen’s full submission prior to referring him to a committee, something which she was obliged to have done under section 89C(2) of the Health Insurance Act 1973.
This constitutes an abuse of process, per Justice Treston.
In a notice of appeal filed 15 January, Professor Quinlivan’s legal team allege that Justice Treston failed to apply the correct test as to whether Professor Quinlivan was recklessly indifferent to the harm that Dr Kitchen would suffer by being referred to committee.
It also alleges that the judge erred in finding that Professor Quinlivan’s referral to a committee to investigate potential inappropriate practice was capable of amounting to harm.
A PSR review has several stages.
First, Medicare requests the agency to review the provision of services by a certain practitioner over a certain period of time; often, this will be providers who are bulk billing an item significantly more than their peers.
The director can either decide to take no further action or decide that there is enough evidence to show that some inappropriate billing has likely taken place.
If it’s the former, the practitioner is simply dismissed and can go back to practising as normal. But if it’s the latter, the PSR director will offer a section 92 agreement.
Under a section 92 agreement, the practitioner must acknowledge that they engaged in inappropriate practice and may have to repay an amount of money or be disqualified from billing Medicare for a certain amount of time.
But if a practitioner does not agree to a section 92 agreement, the PSR director can elect to refer them to a committee of their peers.
This is the stage of the process that Dr Kitchen’s suit is focussed on.
It is worth noting that, once a case goes to committee, the practitioner is almost always found to have engaged in inappropriate practice.
Related
Between 2008 and June 2024, 171 out of the 173 cases which went to the committee stage resulted in a successful prosecution for the PSR.
This fact may potentially be relevant in determining whether Justice Treston erred in finding that Professor Quinlivan’s referral to a committee was capable of amounting to harm.
If Professor Quinlivan’s appeal fails and Justice Treston’s December findings stand, it may open the way for other doctors reviewed under Professor Quinlivan’s tenure to challenge the findings made against them.
Should that happen, the PSR could find itself in hot water.
When asked directly whether it was financially supporting Professor Quinlivan’s case, the PSR declined to comment.
