Is ‘consent’ the o-ring of Medicare audit?

This article was first published by the Medical Republic on 27th of August 2021.

There’s a tiny technical glitch underpinning the legal integrity of Medicare auditing that could one day blow the whole system up.

Medicare audit anxiety is a real thing that affects most doctors who provide (bulk-billed) “free care” to their patients.

Medicare rules keep changing with little notice or clarity.

Should the Medicare cops come knocking on their door, we know now that there is virtually nothing a GP can do about it but humbly pay it all back and wear any humiliation that accompanies the government default notice on their use of MBS items.

The way the current system works has been described as like getting a speeding ticket from a hidden camera when nobody will tell you the speed limit until you get caught.

Once you do get “caught” you have to pay back two years’ worth of speeding fines based on your gross income. It does not matter if you were actually in the car speeding.

According to two surveys, it looks like a large proportion of doctors are withholding services either regularly or from time to time for fear of a Medicare audit.

In The Medical Republic’s recent landmark national GP survey of more than 1,400 doctors conducted just a few weeks ago, it was found that over 84% of GPs, regularly, or from time to time, don’t perform certain services because of anxiety over the PSR.

But “Medicare audit anxiety ” is not a recent phenomena. The fear effects of Medicare audits on doctors practising behaviour can be traced back as far as the mid-1990s.

But “Medicare audit anxiety ” is not a recent phenomena. The fear effects of Medicare audits on doctors practising behaviour can be traced back as far as the mid-1990s.Back then I helped establish a Women’s Health clinic for a client (at a time where male doctors dominated the workforce). Within 12 months of the clinic’s commencement, the only dedicated female doctor clinic received a Medicare audit letter for “performing too many Pap smears”.

Karmakar vs Minister for Health

The recent Karmakar case informs much about how hard it has been for individual GPs to try to fight the system, and how little has changed in 25 years as far as the power of the system over an individual doctor.

Most commentary has that this case puts beyond doubt that the PSR and Medicare can’t be fought in court and that instead someone has to work on changing the law.

In some ways the government bought itself cover on this whole problem via the  2011 Federal Senate PSR Inquiry. Nothing came of it as far as GPs are concerned despite quite a bit of protest from the sector.

A High Court finding and a finding of this inquiry, that this legislation exists to protect the taxpayer, appears profoundly misguided in the context of TMR survey results, which suggest the law may well be systemically harming patient care.

In the absence of a provable counterargument, the High Court has deemed that a focus on how well taxpayers funds are spent must take priority on how optimally doctors treat their patients.

Importantly, while Justice Logan’s judgement in Dr Karmakar’s case was clear in terms of law, he took the trouble to point out that there may be a public interest issue worth pursuing outside the domain of the PSR and the law as it stands.

A faulty o-ring in a complex system?

But there may be a small legal loophole that has still not been explored in the legal domain.

One question in the TMR survey departs a little from the core anxiety topic to explore how much a typical GP understands about their requirement to get consent from a patient for each billing item in Medicare to transfer their rights to the bulk billing rebate over to the GP.

The answer to the question is quite revealing (see below).

Essentially, most GPs either don’t even know the requirement exists, or they make an assumption (one that has been has been pushed at them by the government) that their practice receptionist pushing ‘yes’ on the billing terminal, constitutes implied consent.

It’s a convenience for everyone. But it’s a potentially big issue for the government one day.

The government understands that it must have the consent transferred formally from the patient for Medicare bulk billing to the doctor, for bulk billing to be a legal transaction. But they also understand that asking every patient to sign a DB020 form, which is the only real legal manner in which this consent could be given, is highly impractical. So the government has suggested that a GP can obtain ‘implied consent’ for this transaction via getting a verbal OK from a patient or by the act of pressing ‘yes’ on a billing terminal.

No one wants the major form of consent tested legally. It wouldn’t stand up in court. And working out what to do after that could become very messy, for the government and GPs.

But the fact that 50% of GPs aren’t aware of the rule at all (and therefore we probably can assume don’t do anything regarding consent) and of the 50% that do understand the rule only 9% say they obtain proper consent via the signing of a DB020 form, suggests very strongly that the vast majority of all MBS claims made for bulk billing over the years have been done, technically, without proper legal consent.

Wouldn’t it be interesting to see this technicality tested by a GP one day in the Federal Court?

The problem is that it could end up backfiring on GPs, as it could force a change that would introduce a horrific new piece of red tape that the profession doesn’t need. But the concept that the government is winning all its cases based on an assumption that all the bulk billing transactions that a doctor has done have legally been transferred to the doctor from the patient, when they clearly haven’t, is an interesting one.