"Your privacy at risk" - President's introduction to Senate evidence
8 May 2009 - 6:00pm
Introductory remarks to the Senate Community Affairs Committee’s Inquiry into Compliance Audits on Medicare Benefits - Dr Rosanna Capolingua
Let me start by sincerely thanking you, this committee, for establishing this very important inquiry and taking our evidence today. I’d particularly like to register our gratitude to Senator Ludwig for opening this to examination by the Senate and for making draft legislation available prior to its introduction to Parliament.
Please let me assure you that these measures are highly deserving of your scrutiny and concern.
If passed, this legislation will have a dark and fundamental impact on the health of this nation, and will deliver very little in return at a great cost. This goes to the threshold issue of patient privacy.
The bold intention of this legislation is made plain in your terms of reference. Despite continued efforts to disguise the implications, this legislation aims to specifically empower administrative officers to gain access to confidential patient medical records.
This is the crucial point here. If the legislation did not specifically seek these powers, I doubt that any of us would even be here today. There wouldn’t be a problem.
Under these powers the requirements which compel doctors to release these records compels us to breach our oath and the trust of our patients and the consequences of this are detailed in the submission.
We believe that these are dire consequences.
Once patients know the privacy of their consultation with the doctor cannot be guaranteed, we fear they will withhold highly personal information and this will stop them receiving the care that they need.
But the authors of the legislation seek to disguise the intention to view patient notes, including labelling AMA objections as hysterical, and insisting that the information required is ‘administrative’.
Well if that is the case, the simple solution is to remove from the legislation provision to compel doctors under the requirements to provide records containing clinical details of patients. Do that and we could all go home.
The authors also suggest that the legislation is designed to protect those doctors who elect to hand over details from patient records to satisfy Medicare inquiries. Again I think this is a disguise and diversion.
Today doctors have a degree of discretion in what we can reasonably release from our records to meet Medicare needs, or other needs as you’ve referred too. The legislation replaces discretion with compulsion in this case. It means patients will know that no part of their discussion with the doctor can legally be protected from access by an administrative office.
Medicare desires this legislation because they claim that doctors hide behind the confidentiality of patient records to avoid scrutiny by auditors. They believe that doctors are doing wrong. They don’t actually wish to protect the doctors, or make the legalities clearer. They need access to the clinical information.
And we ask why? We have repeatedly asked for the evidence as to why this is necessary. As you will likely find in your own inquiries there really is no evidence forthcoming because, we strongly suspect, there is none.
The legislation seeks to strip patients of their privacy on a whim.
I’d respectfully ask this committee to quiz the authors of the legislation on the underlying assumptions of the numbers in the budget measure. You will quickly discover the truth – that this is all based pretty much on speculation. The only certainty is that it will cost $76.9 million, the projected savings of $147.2 million over four years are, by their own admission, a ‘best guess’. This effectively sells patient privacy for a ‘guestimate’ net gain of $17.6 million a year, about 0.13% of the Medicare budget - or about 80 cents per Australian per year. The legislation sells the privacy of all Australians for 80 cents. Makes privacy look pretty cheap.
And the real net gain is likely to be far less. The total cost of each audit is $9600 and each must recoup on average $18,400 to achieve this level of savings. We are now being flooded with calls from members complaining, not just about the heavy-handed approach they feel of Medicare auditors, but about the frustrating futility of the process. One doctor reported an excruciating 10-hour audit that recovered the princely sum of $78.05 – a far call from the $18,400 that is required to make this a viable budgetary measure.
So, like that audit, we believe that this process is really a fishing trip, a fishing expedition. It is a huge expensive net being dragged through the profession, but more importantly, through the intimate details of our patients, in the hopes it will dredge up some mistakes and, fingers crossed, perhaps a few real areas of concern.
All this when government already openly admits that the biggest hurdle to compliance is red tape. Helping doctors understand and comply with an increasingly complex system will deliver far greater long term benefits than sacrificing the privacy of all Australians to catch a handful of doctors and a few honest mistakes.
The profession has no time for those doctors who deliberately inappropriately use the MBS, and the present system is well equipped to deal with them. Where the gravity of the situation demands, patient records can be subpoenaed by courts and through the professional services review process.
The proposed legislation demands no such gravity – administrative staff will be able to compel access on a whim to material that has been previously afforded enormous respect and protection by our system.
I’d like to report that this assault on patient privacy is unprecedented, but in fact it is not. The bureaucracy tried for similar powers in 1993. Fortunately that bill was afforded the same scrutiny that it is receiving here today.
Following a Senate inquiry back then the government of the time not only removed the relevant clauses from the proposed bill, but actively legislated to preserve the sanctity of the health records of all Australians.
Doctors and patients are hoping the Parliament can once again protect them from a bureaucracy that is eager to sell their privacy for powers that are as extraordinary as they are, in fact, unnecessary.
Very soon I’m sure the officials will be in here claiming very certainly that they don’t understand the fuss. All they really want, they will say, is access to patient information relevant to their reasonable concerns about the proper use of an item number.
However much they attempt to characterise this as a harmless administrative activity, the reality is that they are asking Parliament to give administrative officers the power to read deeply personal, sensitive, and previously protected information about the health of any Australian.
They will also say that it is up to the doctor as to what information is provided. But in actual fact Medicare will have the general power to require practitioners to provide verifying documents during an audit, and the practical effect of this is the only documents that can do this will be the details in the patient record.
I’d be happy to take your questions.
Let me start by sincerely thanking you, this committee, for establishing this very important inquiry and taking our evidence today. I’d particularly like to register our gratitude to Senator Ludwig for opening this to examination by the Senate and for making draft legislation available prior to its introduction to Parliament.
Please let me assure you that these measures are highly deserving of your scrutiny and concern.
If passed, this legislation will have a dark and fundamental impact on the health of this nation, and will deliver very little in return at a great cost. This goes to the threshold issue of patient privacy.
The bold intention of this legislation is made plain in your terms of reference. Despite continued efforts to disguise the implications, this legislation aims to specifically empower administrative officers to gain access to confidential patient medical records.
This is the crucial point here. If the legislation did not specifically seek these powers, I doubt that any of us would even be here today. There wouldn’t be a problem.
Under these powers the requirements which compel doctors to release these records compels us to breach our oath and the trust of our patients and the consequences of this are detailed in the submission.
We believe that these are dire consequences.
Once patients know the privacy of their consultation with the doctor cannot be guaranteed, we fear they will withhold highly personal information and this will stop them receiving the care that they need.
But the authors of the legislation seek to disguise the intention to view patient notes, including labelling AMA objections as hysterical, and insisting that the information required is ‘administrative’.
Well if that is the case, the simple solution is to remove from the legislation provision to compel doctors under the requirements to provide records containing clinical details of patients. Do that and we could all go home.
The authors also suggest that the legislation is designed to protect those doctors who elect to hand over details from patient records to satisfy Medicare inquiries. Again I think this is a disguise and diversion.
Today doctors have a degree of discretion in what we can reasonably release from our records to meet Medicare needs, or other needs as you’ve referred too. The legislation replaces discretion with compulsion in this case. It means patients will know that no part of their discussion with the doctor can legally be protected from access by an administrative office.
Medicare desires this legislation because they claim that doctors hide behind the confidentiality of patient records to avoid scrutiny by auditors. They believe that doctors are doing wrong. They don’t actually wish to protect the doctors, or make the legalities clearer. They need access to the clinical information.
And we ask why? We have repeatedly asked for the evidence as to why this is necessary. As you will likely find in your own inquiries there really is no evidence forthcoming because, we strongly suspect, there is none.
The legislation seeks to strip patients of their privacy on a whim.
I’d respectfully ask this committee to quiz the authors of the legislation on the underlying assumptions of the numbers in the budget measure. You will quickly discover the truth – that this is all based pretty much on speculation. The only certainty is that it will cost $76.9 million, the projected savings of $147.2 million over four years are, by their own admission, a ‘best guess’. This effectively sells patient privacy for a ‘guestimate’ net gain of $17.6 million a year, about 0.13% of the Medicare budget - or about 80 cents per Australian per year. The legislation sells the privacy of all Australians for 80 cents. Makes privacy look pretty cheap.
And the real net gain is likely to be far less. The total cost of each audit is $9600 and each must recoup on average $18,400 to achieve this level of savings. We are now being flooded with calls from members complaining, not just about the heavy-handed approach they feel of Medicare auditors, but about the frustrating futility of the process. One doctor reported an excruciating 10-hour audit that recovered the princely sum of $78.05 – a far call from the $18,400 that is required to make this a viable budgetary measure.
So, like that audit, we believe that this process is really a fishing trip, a fishing expedition. It is a huge expensive net being dragged through the profession, but more importantly, through the intimate details of our patients, in the hopes it will dredge up some mistakes and, fingers crossed, perhaps a few real areas of concern.
All this when government already openly admits that the biggest hurdle to compliance is red tape. Helping doctors understand and comply with an increasingly complex system will deliver far greater long term benefits than sacrificing the privacy of all Australians to catch a handful of doctors and a few honest mistakes.
The profession has no time for those doctors who deliberately inappropriately use the MBS, and the present system is well equipped to deal with them. Where the gravity of the situation demands, patient records can be subpoenaed by courts and through the professional services review process.
The proposed legislation demands no such gravity – administrative staff will be able to compel access on a whim to material that has been previously afforded enormous respect and protection by our system.
I’d like to report that this assault on patient privacy is unprecedented, but in fact it is not. The bureaucracy tried for similar powers in 1993. Fortunately that bill was afforded the same scrutiny that it is receiving here today.
Following a Senate inquiry back then the government of the time not only removed the relevant clauses from the proposed bill, but actively legislated to preserve the sanctity of the health records of all Australians.
Doctors and patients are hoping the Parliament can once again protect them from a bureaucracy that is eager to sell their privacy for powers that are as extraordinary as they are, in fact, unnecessary.
Very soon I’m sure the officials will be in here claiming very certainly that they don’t understand the fuss. All they really want, they will say, is access to patient information relevant to their reasonable concerns about the proper use of an item number.
However much they attempt to characterise this as a harmless administrative activity, the reality is that they are asking Parliament to give administrative officers the power to read deeply personal, sensitive, and previously protected information about the health of any Australian.
They will also say that it is up to the doctor as to what information is provided. But in actual fact Medicare will have the general power to require practitioners to provide verifying documents during an audit, and the practical effect of this is the only documents that can do this will be the details in the patient record.
I’d be happy to take your questions.