The NSW Dr Winter 2024 - SIRA regulation changes

Significant regulations changes for doctors treating injured workers

FEATURE

Image: Unsplash

In 2022, without consultation with the AMA or other stakeholders, the then NSW Government amended the State Insurance and Care Governance 2015 (the Act) and the State Insurance and Care Governance Regulation 2021 to empower SIRA to regulate Health and Related Service Providers who do not comply with the legislation and relevant guidelines.

THE AMENDMENTS, AMONG OTHER THINGS, created a regulatory framework for doctors and other healthcare professionals providing services to injured workers and those injured in motor vehicle accidents.

Then SIRA CEO Adam Dent said “While most health service providers do the right thing, there are other providers who engage in poor practices like overcharging and overservicing. The new regulations that come into effect give SIRA the power to take action against these providers by issuing directions to make sure their practices are in line with the objectives of the workers compensation or motor accident legislation.”

The legislation followed a dubious series of inquiries and reviews and of course, the long and troubled history of iCare and workers compensation in NSW. AMA (NSW) immediately raised concerns with SIRA regarding the legislation and particularly the risks to doctors.

Ms Davies, AMA (NSW) CEO said “We have worked with SIRA and its previous iterations for many years. We have always been clear that doctors should practice appropriately in keeping with existing and robust professional standards set by independent regulators. So, to have a regulatory framework imposed without consultation or justification was disappointing” AMA (NSW) immediately wrote to SIRA to express concerns with the

legislation. SIRA agreed to delay the implementation of the legislation pending consultation with the AMA and other groups such as ASOS. On Friday 8 December 2023 SIRA issued the Guidelines for the Provision of Relevant Services (Health and Related Services).

“We’re also concerned that in some respects some of the decisions to be made by SIRA are without reference to what a peer might consider to be appropriate in a particular circumstance.”

Dominique Egan, AMA (NSW) Director, Workplace Relations

While AMA (NSW) secured some changes to the Guidelines during SIRA’s consultation processes, AMA (NSW) continues to have concerns for doctors providing services to injured persons.

The new powers allow SIRA to to provide directions to Relevant Service Providers and publish details

of service providers and directions provided to those providers on a public register.

Dominique Egan, AMA (NSW) Director Workplace Relations said “There are many problems with the legislation and the Guidelines. The first is that they assume doctors know that they are a relevant service provider and know of the Guidelines. Doctors do not opt in to the Workers Compensation or Motor Accidents Schemes, and most doctors provide services to patients under these schemes because the patient before them needs care or treatment just as any other patient.

Ms Egan conveyed this warning “The consequences for noncompliance with the requirements of the Regulatory Scheme are quite significant and can include excluding a practitioner from providing any services under the scheme, one of the schemes or both of the schemes and publishing the names and details of those practitioners on a public register.

“These are very serious consequences if they come to pass for a practitioner but while they’ve legislated powers for SIRA, they

WHO IS A RELEVANT SERVICE PROVIDER? A person, organisation or body providing a relevant service (with some exceptions) A relevant service includes medical services provided in connection with a claim under the workers compensation or motor accidents legislation.

amansw.com.au I 27

COLUMN

haven’t legislated any protections for medical practitioners. The concept of rights to be heard on the part of that practitioner are non-existent.

“We’re also concerned that in some respects some of the decisions to be made by SIRA are without reference to what a peer might consider to be appropriate in a particular circumstance.” Ms Egan said.

The directions that SIRA can issue to a medical practitioner are as follows: 1) The provision of information: a written direction provided to a medical practitioner, asking them to provide data to SIRA. This power is an administrative tool for SIRA to collect information from service providers.

2) The provision of services: a written direction to a medical practitioner requiring a medical practitioner to: • Take specified action or provide specified information regarding specified relevant services; • Requiring The medical practitioner to provide relevant services in a

specified way; • No longer provide certain, or any, relevant services.

Failure to comply with a written direction regarding the provision of services may result in the publication of the medical practitioner’s name and other information on a public register.

“What was and remains concerning is the power of SIRA to make a direction to a medical practitioner to provide specified medical services in a specified way.

This interferes with the medical practitioner’s independence.” Ms Egan said.

One of the fundamental professional obligations of a medical practitioner is to exercise their independent professional judgement to provide medical care in the best interest of that patient before them. The suggestion that somebody could come in and direct how that might be done really undermines that professional

“One of the fundamental professional obligations of a medical practitioner is to exercise their independent professional judgement to provide medical care in the best interest of that patient before them.”

Dominique Egan, AMA (NSW) Director, Workplace Relations

28 I THE NSW DOCTOR I WINTER 2024

“What was and remains concerning is the power of SIRA to make a direction to a medical practitioner to provide specified medical services in a specified way. This interferes with the medical practitioner’s independence’.”

Dominique Egan, AMA (NSW) Director Workplace Relations

independence of a practitioner.

When a direction is issued, it must set out certain information for the practitioner including: • the reasons why the direction is being made; • the effective date that the direction comes into play, and for how long it will be in place, • what action a medical practitioner might be required to take or refrain from taking as the case may be, • the fact that information is going to be published in the Public Register, • a statement that non-compliance may result in further penalty to the medical practitioner and • the medical practitioner has a right of review in relation to the decision of SIRA to issue the written direction.

SIRA has published guidelines on its website. In the materials, SIRA suggests relevant conduct that may result in the issuing of a written direction may include: • the provision of medical reports that don’t comply with the applicable guidelines • the delivery of services without the required pre-approval in place • billing of amounts more than the maximum fee provided by SIRA

COLUMN

practitioner is not qualified to provide.

SIRA says it will be mostly focused on matters when it’s provided with evidence of a pattern of non -compliance with the requirements of the schemes or where there are business models in place that aren’t serving the best interests of the injured people.

Dominique Egan said, “I don’t think that provides anybody with a lot of certainty as to who or what they’ll be looking into.”

There are limited rights for medical practitioners under the legislation if a written direction is issued.

Doctors should be aware that where they seek a review of a direction, the direction remains in place and whatever is on the Public Register remains in place until the internal review has been determined.

The possible outcomes from an internal review are confirmation of the original decision, revocation of the original decision or a variation of the original decision. If a medical practitioner is dissatisfied with an internal review, there is a right of review to the NSW Civil and Administrative Tribunal.

“I don’t think that provides anybody with a lot of certainty as to who or what they’ll be looking into.”

Image: Unsplash

Dominique Egan, AMA (NSW) Director, Workplace Relations

The above is provided for general information only. Please contact a member of the AMA(NSW) Workplace Relations Team for advice about your particular circumstances at workplace@ amansw.com.au or (02) 9439 8822.

MEMBERS HAVE THEIR SAY....

AMA (NSW) has heard from some members who have decided to no longer provide care for injured workers. Members who are concerned about the obligations of this legislation or who are seeking further advice are encouraged to contact the Workplace Relations Team at AMA (NSW). A few of the questions we have been asked are as follows.

Q: Do I have a right to decline to provide medical services to compensable patients under the workers compensation or motor accidents schemes?

A: Save for an emergency, medical practitioners are not obliged to accept any patient for care or treatment. As such, a medical practitioner is not obliged to provide medical services to a patient under the workers compensation or motor accidents scheme.

If you are minded not to provide medical services to compensable patients, you may wish to give consideration as to how you communicate this to individual patients and more generally.

Q: Can I immediately stop providing medical services to compensable patients currently under my care?

A: You do need to consider the effect it may have on the patient’s care and treatment, and whether it is your intention to bring the doctorpatient relationship to an end entirely or only in relation to workers compensation services (noting of course, the decision to cease providing workers compensation services may result in a choice by the patient to transfer all aspects of their care elsewhere).

Medical practitioners are reminded of their obligations under the Medical Board of Australia’s Code of Conduct, to take reasonable steps to transfer the care of the patient to another medical practitioner.

It is advisable to engage in discussion with the patient about why you have made your decision and provide them with an opportunity to ask any questions.

Q: If I work for NSW public hospitals in an emergency department or on-call, can I decline to provide medical services to compensable patients?

A: If you are engaged to provide emergency medical services at a NSW public hospital, you need to continue to provide those services, including to patients who may make a claim under the Workers Compensation scheme or Motor Accidents scheme.

AMA (NSW) is currently in discussions with the Ministry of Health regarding remuneration arrangements for these services.

Q: Can I continue to provide medical services to compensable patients but choose not to bill those services under the workers compensation or motor accidents scheme?

A: If a claim has been made and accepted under either scheme, you must bill for those services in accordance with the requirements of the relevant scheme. You must not directly bill the patient.

Q: What should I do if I receive a letter from SIRA about my compliance with the Guidelines?

A: Please seek advice from your professional association or medical defence organisation as soon as possible. dr. amansw.com.au I 29