Latest Updates
It is theoretically possible to have patient's access super for dental Treatment.
www.dentalegal.com.au/wp-content/uploads/2019/02/Patients-Accessing-Superannuation-Early-for-Heal...
MEDICARE REVIEWS - SOME OBSERVATIONS
After a few matters recently I thought I should make others aware of the process as I understand it.
It is probably important to know the powers of the PRP PSR and the PSR Committee and the legislation and there are a number of Acts that are relevant.
The most important one is a part of part VAA of the Health Insurance Act 1973 and this is called the Professional Services Review Scheme.
The powers of the Practitioner Review Program are only whether to refer or not to the Director of Medicare or the Director of the Professional Services Review Scheme .
Ultimately under section 80(10) if the Committee which has been formed by the Professional Services Review Scheme does indeed proceed to a hearing and if the Committee finds that the person under review, has engaged in inappropriate practice, the finding will be reported to a determining authority.
The determining authority is essentially a semi-permanent body of a medical practitioner and others who make decisions once a finding has been made of alleged inappropriate practice.
Dental practitioners are covered under the Definitions and a definition of inappropriate practice is found at s 82 (2) and this provides that a practitioner engages in inappropriate practice if the person knowingly, recklessly or negligently causes or knowingly recklessly or negligently permits a practitioner employed or otherwise engaged by the person to engage in conduct that constitutes inappropriate practice by the practitioner under subsection (1) or (1A).
Subsection (1) and (1)(a) of s 82 provides that a practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a committee could reasonably conclude that (d) if the practitioner who rendered or initiated the services is neither a general practitioner nor a specialist but as a member of a particular profession - the dental profession- the conduct would be unacceptable to the general body of the members of that profession.
Section 82(1)(a) provides that inappropriate practice can be comprised of rendering or initiating services during a particular period if the circumstances in which all or some of the services were rendered or initiated constitute a prescribed pattern of services.
Section 82(2)(b) provides that if a practitioner is an officer of a body corporate and knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed by the body corporate to engage in conduct that constitutes inappropriate practice by the practitioner under subsection (1) and (1)(a) then this can be inappropriate practice.
Section 82(3) provides that a Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.
There are a number of procedural aspects to how a committee might proceed but most importantly in considering its final determinations which are provided for at s 106U of the Health Insurance Act 1973, they can, put simply, reprimand, counsel, make payments, cease payments to be made, repay amounts to the Commonwealth, be disqualified from the provision of services in relation to certain services or could be fully disqualified for a specified period from receiving Medicare benefits and dental benefits in relation to services rendered or initiated by a practitioner.
Under s 106(X)(b) of the Health Insurance Act 1973, if in the course of the performance of functions or the exercise of powers under this Part, a Committee or the Determining Authority forms the opinion that a practitioner has failed to comply with professional standards, the Committee or the Authority must give to the Director a written statement of its concerns, together with the material on which its opinion was based and if the Director or the Determining Authority provides material upon which the Director forms an opinion that the practitioner has failed to comply with professional standards or receives advice from the Committee or the Determining Authority then the Director must prepare a statement of concerns and send it to the appropriate body which is the Dental Board of Australia (DBA) or send the Statement from the Committee or Authority to the DBA.
If you have any questions email me at info@dentalegal.com.au
CRIMINAL HISTORY - WHAT TO DO ?
With the raft of new provisions and responsibilities that came into place with the National Law in 2010, there are some areas that still remain poorly understood .
This occurred to me in recent weeks in my legal practice that assisting people understand their responsibilities can be done primarily by understanding the policy reasons and examples of how that might affect registrants when they are consumers of health services rather than providers.
The criminal history standard is an indicator of how AHPRA will deal with practitioners’ criminal histories and whether they are relevant to the purposes of their practice and whether conditions ought to be imposed.
These are readily available on the AHPRA website. However it is probably easier to understand the rationale behind this if one were to think that when you as a health consumer go to for example a general medical practitioner you would have an expectation that they are fit and proper person and that if they have a criminal history recent or otherwise, than the history should be disclosed to the regulator so that they can ensure that such practitioners with a criminal history are assessed as to whether the criminal history is not significant or insignificant.
Constantly I am dealing with practitioners both students and those with full registration who are criminally charged with an offence punishable by more than 12 months imprisonment. This could be violence, drug possession and dangerous driving and drink driving.
Often these practitioners are legally represented with counsel and solicitors but they still do not advert to their responsibility under section 130 of the National Law to notify of these events.
All that is required is that AHPRA (or more accurately the subject practitioner Board) are to be informed of charges or convictions so that they can apply the standard and decide what to do if anything about these charges.
If one were to think about this as the reasons why, it’s fairly straightforward that if one does not declare a criminal history the public cannot be protected because of the broad range of criminal charges and convictions that can be brought against people and indeed health practitioners.
When one makes such a declaration, the most important issue is that the declaration and notification is made in a timely manner. The National Law provides that after being charged criminally or indeed convicted criminally one has seven days to notify the regulator.
Whilst on occasion inadvertence might be considered to be a relevant consideration by the regulator practitioners, now some nine years into the regulatory framework, practitioners have a positive duty to be aware of this.
If one is aware or can be reasonably known to be aware of the responsibility and they still do not make a declaration, then the issue is one of candour. And a lack of candour or honesty can be problematic for health practitioner registrants.
In summary if a health practitioner is charged or convicted of a criminal offence punishable by more than 12 months imprisonment within seven days they must notify the regulator.
I am always willing to assist practitioners with this process if needs be and in most cases unless there is a degree of complexity this is done for no charge.
Brad Wright
Barrister