Signing the script

Editor, I would like to commend Dr Nisselle and Australian Prescriber for the editorial 'Signing the script' (Aust Prescr 2004;27:108-9), which raised awareness of the responsibilities that medical practitioners assume when they prescribe on the Pharmaceutical Benefits Scheme (PBS). Unfortunately, the 1973 legislation Dr Nisselle quoted relates to Medicare rather than pharmaceutical benefits.

The relevant legislation is found in regulation 19B of the National Health (Pharmaceutical Benefits) Regulations 1960. This states that it is an offence to write a prescription bearing the letters 'PBS' when it is not a PBS prescription. A prescriber who prescribes a medication under the PBS for a condition which falls outside the PBS indications may be committing a criminal offence under the National Health Act 1953. The relevant legislation is found in Paragraph 103(5)(g) of the National Health Act 1953 and states that a person shall not:

by means of impersonation, a false or misleading statement or a fraudulent device, obtain, or by any of those means aid or abet another person to obtain, a pharmaceutical benefit or a payment in respect of the supply of a pharmaceutical benefit;

A prescriber acting in this manner may also be referred to a Professional Services Review Committee to determine whether or not they have engaged in inappropriate practice.

J. Trabinger
Manager
PBS Compliance Branch
Health Insurance Commission
Canberra

Editor, Dr Nisselle reminds us that a judge can imprison us, under current legislation, for making therapeutically effective and cost-effective treatment decisions.¹ There are instances with 'SPs' where deeming that as 'criminal fraud' is both irrational and unacceptable.

Experienced professionals tend not to respond to threatening behaviour, even when it originates from official bodies that accord themselves the status of 'authorities'. Some categories of rules, and laws, can only ever aspire to be guidelines. The proportions that are neither enforced, nor monitored, attest to that historical reality. The legislation has never been systematically enforced for many SPs during its 30-year existence. Draconian threats of imprisonment and fines are counter-productive and one suspects they have diminished respect for, and co-operation with, those 'authorities'. Few doctors in our town would be available for consultations if the regulations were enforced.

Education may change doctors' behaviour. Unfortunately the situation has evolved where an undue portion of doctors' knowledge about drugs emanates from drug companies. Authorities have lessened their funding and leadership roles; it might be preferable to balance the drug company billions spent on advertising with more non-partisan funding and leadership, rather than the threats in the legislation. Drug representatives take doctors to dinner, not to prison; they have (sadly) achieved greater influence over the profession.

Ken Gillman
Consultant
Pioneer Valley Private Hospital
Mackay, Qld

Dr P. Nisselle, author of the article, comments:

Though Dr Gillman may see the statutory sanctions as empty 'threats' (as, at least for 'SP' prescribing, they are rarely enforced), they are still law, and law made to place some discipline on the use of taxpayer funds. The PBS is the most rapidly growing component of the Commonwealth's funding of health care. While doctors hate the gate-keeper role that is thrust on them, for example, by restricted benefits, we also hate it when new medications are refused a PBS listing at all.

Those sections of the Act are to remind us of our responsibilities. We are not responsible for the Government's decision as to what drugs are, or are not, available under the PBS. Our responsibility is not to break the law. We give patients advice. If that advice is, that they take a medication which is not available to them as a PBS benefit, then we need to advise them of that fact and tell them of the cost. It is then a matter for them, whether they wish to pay that cost, or ask you to prescribe a cheaper alternative, or possibly be referred to an agency which will provide the medicine at no direct cost. It is not for us to make a social judgment that it is unfair for a particular patient to have to pay a full private fee for a particular medication and then, accordingly, ignore the law. If you feel strongly enough about it, lobby your local member, etc., to have the drug's classification changed. In the interim, don't 'bend' the law.