No, Professor Quinlivan, the PSR IS like a Star Chamber

21 minute read

The Karmakar judgment confirms that PSR coercion will continue until the law governing it is challenged on the basis of public interest.

On Tuesday this week at 4.09pm a press release lobbed into my inbox from a sender I’d never seen before.

Usually with press releases you have to opt in to be on a list and you know where they are coming from.

This one was sent directly to me from the PSR by its Executive Officer and General Counsel (SES Band 1), Bruce Topperwien.

You don’t usually get sent press releases directly from SES Band 1 public sector employees. It’s an activity that’s normally way below their pay grade.

This release had no title and the email didn’t have a subject line. It just had a huge OFFICIAL marked at the top in angry red capital letters, as if I were in some sort of trouble with the tax office.

But having checked the sender, it was an easy guess what it might be about: the PSR win in the case of Karmakar vs Minister for Health this past week.

The PSR seemed to be making sure that everyone understood the enormity and finality of their win, I guess.

They need not have bothered. Everyone already knew they’d won hands down. We’d already written the story. I almost didn’t even read the release.

But then the second paragraph caught my eye :

“The Director of PSR, Professor Julie Quinlivan, said, ‘It is especially encouraging to note that the content of Justice Logan’s detailed judgment contradicted recent Medical Republic articles, which had taken him out of context comparing PSR to a ‘Star Chamber’. Justice Logan put that comparison to Counsel for the Minister, who rejected the comparison, to which His Honour immediately responded, “And I would have to accept that, in all fairness.” Medical Republic did not seek comments from PSR before publishing their recent articles about PSR.’”


The PSR is singling us out for a public shaming now?

I wondered momentarily if we had done what Quinlivan seemed to be signalling to our constituency so publicly: practised poor and sloppy journalism, perhaps in search of some cheap point scoring.

I doubted it. The journalist that did the story is very thorough, and her editor more so.

Here is the actual and whole transcript of the exchange in court which Ms Quinlivan is referring to in the PSR press release, with emphasis added, at a point in the hearing when the secrecy around committee findings was being discussed:

HIS HONOUR: Ever since the mid-seventeenth century when they decided to execute a king, there has been an antipathy for star chambers in systems of government of British heritage. It’s just axiomatic, isn’t it? And if one had to pick a description of this committee, it’s a star chamber for the medical profession, isn’t it?

[Counsel for Health Minister] MR DEL VILLAR: With respect, your Honour, I wouldn’t accept that. It’s a strange star chamber in which one is given the right to respond to submissions and so on.

HIS HONOUR: It has got much more benign trappings than James I gave to his body of inquisitors. That’s what you’re putting.


HIS HONOUR: And I would have to accept that, in all fairness. But it’s still – the antipathy is for closed inquisitorial forums.

This event is described in a bit more detail and more eloquently by our editor in a separate piece. I’m not a journo, but she is and a good one who used to work for The National Broadsheet. She wasn’t impressed with Ms Quinlivan’s comments at all.

But at least she is polite in her account of how Ms Quinlivan somehow removed parts of the exchange and ended up doing what she was accusing us of doing: taking a judge out of context in some sort of banal point-scoring exercise.

I’m not going to be quite so polite because the comment, the implied intent in making it, and what a dumb mistake has been made here by the PSR, goes some way to articulating what GPs are up against whenever they try to take on the PSR.

It’s an organisation that wields a lot of power under law and with that power it makes examples of people as a part of its modus operandi.

This press release felt a little like we had suddenly been swept up in this dynamic.

Except in this case, my assessment would be that the PSR is actually on the wrong side of the law. If you are going to manipulate the meaning of a judge’s comments to make someone look bad, and then broadcast that manipulation via shooting out a press release far and wide to a community that might believe your manipulation, you might be dancing close to defaming the journalist whose reputation you are playing with.

Oh well, I guess we just wear it like everyone else does, and move on.

Alas, I’m not in a world any more where I can recklessly spend a global corporation’s excess cash to skite over the PSR making a pretty dumb mistake.

These days I’m more in a world that approximates that of many GPs: a small business that has to watch the pennies, and has to be as careful as it can to avoid accidently upsetting large organisations that are prone to bullying, and are far more fiscally and politically powerful  than we are, in case we get suddenly crushed by said power, influence and money.

We do get things wrong sometimes, mind you. But this shouldn’t make the PSR feel any better. It tends to happen because delivering reasonably sound journalism day after day is an expensive and difficult game these days, we don’t have a tonne of money to do it, and when you trying so hard to keep institutions accountable, you just miss sometimes.

But our intention is right, and when we do stuff up, as the PSR has here, we apologise, make every attempt to fix up the problem if we can, and then we try to learn from our mistake.

I wonder if Ms Quinlivan will apologise and learn anything here.

That the PSR saw fit to swing a baseball bat at our reputation as a sort of casual “add on” to their Federal Court win against Dr Anchita Karmakar goes to the hubris of the organisation and to its significant lack of understanding of what is actually going on with this case and its outcome.

What the case puts to rest, forever probably, is that, as far as the law goes, Dr Karmakar and nearly everyone before her trying to take on the PSR have been on the wrong side. The PSR is empowered by pretty watertight legislation. Stop trying to find holes in that legislation.

What the PSR doesn’t get in any way when it skites about its win in its press release is that this doesn’t make what they are doing justifiable or right.

Laws are laws until society recognises how bad they are, or they have become, and changes them.

The laws that form the parts of the Health Insurance Act that are empowering the PSR are bad.

If you read the judgment you see something you don’t see a lot these days in cases such as these: the judge is sending a clear signal that, while entirely within the letter of the law, the PSR process is quite possibly questionable in the context of overall public interest, and that Dr Karmakar lost because the points she and her defence team were trying to make needed to be made in another domain, a political one, not a court of law, if she really wanted to effect some sort of change.

In other words, the judge was suggesting that the problem in the Karmarkar case might be that while the PSR – which he very clearly did liken to a modern form of a Star Chamber –  was operating within the law, maybe the law needs to be looked at a bit more carefully.

To be clear, this an interpretation of the judgment, not what the judge is actually pointing out anywhere in bold type. But it does seem like the judge is talking directly to GPs in a sort of professional “judgment-speak” and saying something that translates along the lines of:

“Geez, how the hell did we come up with a law that institutionalises a modern Star Chamber in our process of governing the medical probity of our doctors?

“What a weird law that allows this PSR to exist and wield such obviously one-sided power in keeping doctors in line in a way that suits the government.

“OK everyone, listen up. You can’t kill a bad law by challenging the PSR in court because the law is the law, so please stop wasting your time and money. You need to challenge the law itself by taking it to the politicians and policy makers, and making the case that perhaps this law is not in the public interest.”

In other words, the PSR, in all the hubris of its win and press release celebration, is entirely missing the point.

It isn’t an organisation that should feel justified in its existence because it won another court case.

The way the law is constructed, it can’t lose.

That’s not something to be boasting about in a press release unless you are wanting to stamp that little bit more fear into the GP community about your near ubiquitous power to ruin a GP if they come into your purview, and perhaps skite a little over your omnipotence.

Here’s a fun fact from our interview with Dr Karmakar’s solicitor David Gardner that should wipe any smugness off the PSR’s face.

He told our reporter: “There’s estimates that suggest there is $1.5 billion a year of incorrect billings under Medicare. The [PSR] nets between $20 and $30 million a year. So, it picks up about 1.5% of incorrectly billed items. As a first step, it’s just not doing the job.

“Second, you have a very small number of people who are caused extreme pain by this system, when there are about 90,000 other practitioners that are not touched by it at all (only about 100 people a year go through the PSR).

“It’s not doing its job well, but when it does, it crucifies and destroys the 100 or so people.”

That’s damning, if true.

But maybe to be focusing here on the PSR isn’t right either.

We shouldn’t be directing any anger at them, or any of those who sail in her, other perhaps than when they do the more obviously nasty stuff such as composing a press release that manipulates the words of a judge in order to make a medical publication you aren’t happy with look stupid.

The PSR isn’t relevant and shouldn’t be the focus of anyone’s anger at the injustice here. The PSR, like the Star Chamber, is just an instrument of government. GPs need to fight the government, not the PSR, if they want to address this situation.

Having said this, you can understand why GPs have tried to win this war in court rather than take it to the politicians. Getting a law changed is many degrees of difficulty harder than winning a precedent in court (which is hard enough) that can quickly alter the application of a law.

But that is where the GP sector is with this law.

Where do you start with getting this law changed?

Public interest, as the judge in the Karmakar case suggests.

If, at the end of the day, a law is not demonstrably in the public interest, it can, and probably should, be changed.

Perhaps surprisingly, the public interest argument on the Health Insurance Act and how the PSR operates within it is reasonably straightforward:

  • The PSR operates in a manner that coerces GP behaviour by creating anxiety among a large proportion of the sector (see survey below). It creates anxiety because there are no rules or standards by which GPs can be guided in their practice so they don’t know where the line is they are not allowed to cross, but if they stray in a manner the government deems not in its interests, a GP can end up literally facing a modern star chamber, one they now know (see PSR press release) that they have no defence against. As well as losing a lot of money, the fear comes from the idea that they will be publicly and personally humiliated, which they often are. That’s how the PSR rolls.
  • There are a few problems with this GP anxiety as far as public interest goes:
    • There is no good evidence that the PSR is drawing their lines on GP behaviour based on optimal clinical practice in the interests of the public. If there were, the government might agree to setting guidelines and rules that were easy for GPs to follow. Or it might at least release the findings by peer committees from past cases, and the rationale behind the data analysis they do to find “outlying” GPs in the system.
    • There is evidence, on the other hand, that the DoH sets its boundaries based on managing the Medicare budget.
    • As result of this law, and the fear and power with which the PSR operates, GPs almost certainly do not practise in a manner that they feel is entirely optimal for their patients.
    • Anxious about ending up in a star chamber, they almost all put some buffer between themselves and what they think the government thinks is bad. They respond to the fear and alter their behaviour. Worse, they don’t actually even know where the line of good and bad practice is because the government won’t let them know. They’ll find out if they get caught up in the process. And when it’s made clear to them then (when they are in court), they aren’t allowed to make it clear to anyone else – it’s confidential.
    • The main result of this fear and guessing is the public gets a lesser standard of care, and the government has a control mechanism for keeping Medicare costs in check.

What the PSR and the government don’t appear to see coming is that this is not an issue of doctors and how they bill; it is an issue of whether patients are being serviced to the appropriate standard. Specifically, it is about whether that servicing is being hampered by a desire from the government to control costs in preference to allowing doctors to practise their best medicine.

This shouldn’t be surprising, nor necessarily that controversial.

The government has to manage the budget, after all. It needs some way of doing it. Nothing can be perfect. There will always need to be some weighing of cost versus clinical excellence.

It’s just that in the case of the PSR, it is representing that doctors are being held accountable for over-servicing, using as a defining argument  that GPs aren’t servicing in a  “clinically relevant” manner.  

The government is hiding behind an argument that it is protecting patients when there is strong reason to believe they are mainly just protecting the bottom line.

Ironically, if the government came clean and said “the public interest is served by us keeping the health budget in check as much or even more than assessing how clinically relevant a GP is being in his or servicing”, they might get away with it.

This is a point for public debate though, surely. At the moment, no one gets to have this debate, the way things are set up.

What is the balance between spending and treating patients in an optimal manner that is in the public interest?

The government isn’t  going to get away with an argument that says it is protecting the sanctity of clinical standards practiced by GPs on behalf of the public in the long run because it’s not going to be that hard for the GP community to prove it isn’t happening.

What the Karmakar judgment has done is underline this problem so well, it feels likely now  that GPs are going to get organised enough to start putting pressure on the government where it needs to be pressured.

Why are you wielding a star chamber over us to manage the budget and not giving due consideration to what that might do the health of your public?

There are some doctors who don’t see a problem with the PSR approach and defend the PSR process, citing that the PSR always uses a panel of three doctor peers in making their assessment about clinical relevance.

But if you look at how the PSR identifies potentially rogue doctors, the argument of clinical relevance falls over almost immediately.

Most doctors identified for a PSR review are identified by data analytics, not by an audit of their actual clinical practice. The analytics almost always suggest that a particular doctor is what they term as an “outlier” – a doctor who is servicing outside the statistical norm of his or her peers.

This is not a clinical measure – it’s a mathematical guess.

Who sets the parameters of an outlier? Data analysts inside Medicare, not doctors.

Who gives the data analysts guidance to be setting their parameters along clinical lines? Not doctors, that’s for sure. Economists are doing it. And by doing it they can keep the most expensive problems in Medicare under control.

Can you look at Medicare, identify areas where the budget is getting blown out and start setting your parameters to manage the clinical behaviour of doctors in order to save money?

Of course you can, and the government does.

Telehealth is a good recent example.

Telehealth was never going to be introduced to the MBS until it had to be as a result of a once-in-a-century pandemic. This is despite the fact that everyone knew that as far as the public interest is concerned, especially the public living remotely in Australia, rebating telehealth was always going to vastly improve the ability of doctors to service their patients.

Now we are stuck in a lot of debate about how long or short we will rebate telehealth and under what conditions we will demand video or not.

None of this is a primarily clinically led discussion. It’s all got baseline cost implications. It’s mainly a fiscal discussion.

Of course, we can’t go nuts and make our healthcare system perfect in every respect clinically. There will always need to be a trade-off between better healthcare all around for return on investment (cost).

But in the case of the PSR and the regime that surrounds it, it is an instrument of fear, used to direct the behaviour of GPs and other doctors, based more on economics than on clinical effectiveness. And it is impeding the effectiveness of GPs to do their jobs optimally.

The government has to influence behaviour somehow  in order to meet budgets in some way. But doing it the way it is now isn’t right. Although the judge in the Karmakar case can’t come clean and shout out what he really thinks, calling the PSR a modern version of a star chamber goes quite a way making the point that something isn’t right here.

Even if the PSR were about clinical governance and not managing the budget, and even if it was an effective system balancing both of these needs, it doesn’t make what it is doing right or effective.

Making the large majority of your coal-face professional healthcare workforce operate in a climate of fear and anxiety isn’t a good overall strategy for budget or clinical outcome. But this is our strategy.

The  government is eventually going to come unstuck on the fairly obvious issue that operating in this manner debilitates healthcare delivery to the public in an unacceptable manner.

Yes, control your budget as you politically choose. But don’t do it in such a personally damaging way and a way that clearly isn’t in the public’s best interest.

If you’re wondering how many GPs feel that the way the PSR is operating might be affecting their clinical decision making with their patients – it’s a lot.

A few surveys have already been conducted to gauge how widespread PSR anxiety is, and whether it does weigh on a GP’s decision making on how they deliver services.

The most recent is one we did with HealthEd PULSE in May this year, with more than 400 GPs take part. Statistically the survey is valid to a 95% interval of confidence, with a 5% error margin. It’s not a slam dunk but it’s very indicative of what GPs think, and next week we are sending the  survey out again to a much larger sample base.

In the last survey:

  • 74% of GPs felt that the methods used by the PSR were “counterproductive”
  • A staggering 91% of GPs said that getting a PSR letter or even the thought that they might get one makes them angry (23.5%), stressed (47.04%), demotivated (31.2%) or confused (27.67%). Only 9% of those surveyed didn’t see the letters or the threat of getting one as a problem.
  • 66% said that the letters or a threat of getting one probably affects their clinical decision-making processes, or that they aren’t sure but it might (nearly 40% said it did affect their decision making)

If this survey turns out to be a realistic representation of the feelings of our GP community, then in the long term the PSRs days surely are numbered.

The system is not in the public interest. The law should change. The government needs to work out a different way to keep wayward GPs in check. The collateral damage is way too bad for the greater goal of improved public health surely?

One argument I’ve heard is that while he PSR process might be unfair to GPs once they are identified and funnelled into the system, on balance, it is catching out more bad eggs than not, and it is acting to keep Medicare from blowing out.

It’s an argument that doesn’t fly.

You can’t underestimate how much long-term damage you might be doing to the public’s wellbeing if you continue to run your most important instruments of delivering care to the community – GPs – in a regime of fear and anger. It’s not productive in the end for anyone.

GPs aren’t exactly federal government employees, but for most GPs, most of their income is generated by Medicare, and that surely means the federal government does owe them some duty of care.

That, and GPs are forced to use Medicare for their income by the way the federal government manipulates how it reimburses the public. If the federal government allowed patients to be immediately reimbursed upon a visit to their GP, as technology now allows, then GPs wouldn’t require Medicare at all, and the government would have far less control over them: a GP would simply leave the fiscal relationship to one that is between a patient and the government, and if the government wished, the patient wouldn’t be charged the rebate at all or instantly reimbursed at the GP debit machine before they left the practice.

While the government forces GPs to be far more in their sphere of influence via how they control the flow of the money between patients, doctors and themselves, it owes them a duty of care. Surely that duty extends beyond creating almost universal anxiety across the sector by wielding the instrument of fear that the PSR has become, under a law that looks a lot like it is not in the public’s interest.

Surely there is a better way to do it that is less stick and damage to  GPs, much more clinically effective for the public, less embarrassing for the government, and still manages to catch out the few bad eggs in this system.

Note: If you want to take part in the next PSR survey, it is part of HealthEd’s next clinical webinar series next Tuesday night at 7.30pm, AEST. You can register for that webinar HERE

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