Health Care Complaints Commission v Flekser

THE COMPLAINT

1. The application filed by the HCCC comprised of two related complaints: Complaint 1 was that Dr Flekser was guilty of unsatisfactory professional conduct under Section 139B of the Health Practitioner Regulation National Law in that he had: (I) engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (II) engaged in improper or unethical conduct in the practice or purported practice of medicine.
2. The particulars of complaint one were as follows: 1. For the operations set out in Schedule A the practitioner claimed for, and received, fees for assistance at operations performed at St George Hospital knowing that he had not provided such assistance at operations. 2. For the operations set out in Schedule B the practitioner claimed for, and received, fees for assistance at operations performed at St George Private Hospital knowing that he had not provided such assistance at operations. 3. In late 2011 the practitioner submitted an application for a provider number for St George Hospital knowing that he did not hold a right of private practice at St George Hospital. 4. For the operations set out in Schedule C the practitioner claimed for, and received, fees for private patient operations performed at St George Hospital knowing that he did not hold a right of private practice at St George Hospital, in circumstances where: 1. The practitioner was employed as a Medical Officer (03REF04 Registrar); 2. The only medical practitioners at St George Hospital with rights of private practice were Staff Specialists or Visiting Medical Officers; 3. The practitioner was not a Staff Specialist nor a Visiting Medical Officer; 4. The Public Hospital Medical Officers (State) Award, under which the practitioner was employed, did not afford the practitioner with a right to private practice; 5. The practitioner had obtained and used a Medicare Benefit Schedule code to facilitate the making of such claims; and/or 6. The practitioner made claims for such services to private health funds. 1. Between March 2012 and January 2013, the practitioner failed to apply for leave without pay from St George Hospital during the times he was claiming for, and receiving, fees for assistance in operations set out in Schedule D, performed at St George Private Hospital. 2. Using the operations set out in Schedule E the practitioner knowingly made, or caused to be made, false entries of data into a word-based audit application that he knew would be submitted to the Board of Vascular Surgeons and the Royal Australian College of Surgeons in support of his accreditation as a Vascular Surgeon.
3. Complaint 2 was that Dr Flekser was guilty of professional misconduct under Section 139E of the National Law in that the practitioner had: (iii) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or (iv) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The particulars of this complaint were the particulars provided of Complaint 1 that were repeated and relied upon both individually and cumulatively.
4. In relation to Particular 1 of Complaint 1, Schedule A listed 27 procedures with a total charge invoiced at over $6,600 while the benefit was calculated at just under $4,000. In relation to Particular 2 of Complaint 1, Schedule B listed 110 procedures with a total charge of just over $22,000 and a benefit of just over $12,000. In relation to Particular 4 of Complaint 1, Schedule C listed 88 procedures with a charge invoice in total of nearly $27,000 and a benefit of close to $12,000. In relation to Particular 5 of Complaint 1, Schedule D listed 56 procedures with a total of charge just under $16,000 and a benefit of just over $8,700. In relation to Particular 6 of Complaint 1, Schedule E listed 99 procedures. At the beginning of the hearing, following apparent consideration of Dr Flekser's response to the complaint, the Schedules were amended to reduce the number of procedures identified in those documents. Eight deletions were made from Schedule A, a reduction in the number of procedures relied upon in Schedule E were also made, although there were no changes to Schedule C and D.

A PRELIMINARY ISSUE

1. 12 During the course of the hearing, the Tribunal requested the parties to provide submissions regarding the scope and nature of the allegations against Dr Flekser, having regard to manner in which they were drawn, namely, that he conducted himself in the ways particularised and "knowing" the specified circumstances. Particulars 1, 2, 3 and 4 used the term "knowing", while Particular 6 used the term "knowingly": neither of these terms were used in Particular 5. The parties responded in the course of oral submissions and agreed to file further written submissions in relation to this aspect of the case.
2. 13 Written submissions for the HCCC focussed on the Commonwealth Criminal Code and statutory definitions dealing with the fault element of "knowledge" and the lesser fault element of "recklessness". A number of judgments of the High Court were referred to as providing some guide to the meaning of the word "knowledge" as an element of criminal offences and how that element could be proved. The cases cited were : Giorgianni v The Queen (1985) 156 CLR 473; He Kaw Teh v The Queen (1985) 157 CLR 523; Kural v The Queen (1987) 162 CLR 502; and, Pereira v DPP (1988) 63 ALJR 1.
3. 14 The submission noted that there was no direct authority of the Tribunal on this point but suggested that assistance could be derived from the decision in HCCC v Fraser [2014] NSWCAT0D 29, a decision that dealt with the distinction to be drawn between knowledge and reckless indifference. In that case the complaint was drawn on the basis that the practitioner knew or was recklessly indifferent to the fact that another person was not registered.
4. 15 In dealing with the nature of alleged conduct that was "recklessly indifferent", the Tribunal concluded that the case was not to be determined in the same way as cases of deceit where actual knowledge or the state of the mind of the person was the crucial factual matter to be determined in order to establish fraud. Further, the Tribunal pointed out that if the complaint had alleged that the practitioner "knew, or ought to have known" that the other person was not registered, the test (as in the law of negligence) would be whether on an objective assessment of the evidence it was clear that the practitioner ignored or disregarded matters that would have put any reasonable person in the practitioner's position on notice that the other person was not registered. The particular in question, however, was not framed in this way.
5. 16 On the basis of these authorities, the HCCC submitted that the knowledge of the practitioner alleged in the particulars was established by his "awareness" of the particularised matters. His knowledge or awareness could be inferred from the circumstances where there was no direct evidence of it. The circumstances may include, where relevant, a combination of suspicious circumstances and a failure to make inquiry or in disregarding matters that would put a reasonable person on notice of the particular matter.
6. 17 Submissions for the practitioner cautioned against relying on criminal authorities in the context of a civil disciplinary matter, such as this case. The standard of proof in this case was that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336.
7. 18 Further, it was submitted that while it was open to the HCCC to draw the particulars by alleging that the practitioner knew or ought to have known of the specified matters or was recklessly indifferent in relation to them, it had not done so. Having adopted that approach to the particulars, the HCCC was required to demonstrate the practitioner's actual knowledge of the matters specified. Here, the practitioner's evidence should be accepted, namely, that he mistakenly believed he was present at certain procedures and that he did not know that he had no right of private practice.
8. 19 In support of that submission and the requirement to prove actual knowledge, the practitioner relied on the Tribunal's decision in Fraser. There is some support for that proposition to be found in the early part of the decision, however, in the extended examination of the evidence it appears that the Tribunal considered actual knowledge in the sense of what knowledge might be attributed to the practitioner from the relevant circumstances. This point is important where the particulars alleged knowledge or reckless indifference rather than that the practitioner "knew or ought to have known" of the relevant circumstances. The present case is different again.
9. 20 In considering the manner in which the particulars were drawn in this case, the Tribunal commences from the point that the terms "knowing" and "knowingly" were not drawn from an applicable statute or regulation. There is, therefore, no legislative context that might give the terms some special meaning. As an ordinary English word, "knowing" carries, as one of its meanings, something done in full awareness or consciousness. In determining whether or not the practitioner engaged in conduct knowing that he had not performed the procedures or knowing that he had no right of private practice, the Tribunal will apply the approach dictated by the judgments in Briginshaw and subsequent cases such as Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.
10. 21 In this case, the HCCC bears the burden of establishing the allegations as particularised, to the civil standard i.e., on the balance of probabilities. The Tribunal must be reasonably satisfied that the alleged conduct in fact occurred, here, having regard to the seriousness of those allegations and the possible consequences for the professional standing and livelihood of the practitioner. The Tribunal's reasonable satisfaction may not be produced by inexact proofs, indefinite testimony or indirect inferences. This is the task now undertaken by the Tribunal.

THE CREDIT ISSUE

1. At the directions hearing and at the commencement of the hearing in the Tribunal, all parties agreed that issues of credit would arise in the case. Counsel for the HCCC stated that the credit of Dr Flekser would be a major issue in the Applicant's case.
2. In view of the manner in which the case was developed before the Tribunal, It is convenient at this early stage, to examine some of the more significant contentions.
3. In addresses, counsel for the HCCC pointed to irregular and irreconcilable inconsistencies between submissions made for Dr Flekser before the Medical Council and the HCCC during the investigation into the allegations. Those apparent inconsistencies had also been raised with Dr Flekser by the Tribunal in the course of his evidence.
4. The conduct of Dr Flekser in relation to his billing practices arose during the course of his 12 month appointment to St George Public Hospital and his obligations to assist Visiting Medical Officers (VMOs) in St George Private Hospital.
5. Dr Lemech was an accredited VMO in vascular surgery at St George Public Hospital and was a member of the Board of Vascular Surgery of the Royal Australasian College of Surgeons. During 2012 he was Dr Flekser's training supervisor for the public hospital and was providing a clinical mentoring role. During the 12 month period between January 2012 and January 2013 there were three trainee surgeons in the Vascular Surgery Department of the public hospital, namely Dr Flekser who was a Vascular Surgery SET trainee, Dr Sunder Narasimhan, a Vascular Surgery Fellow (VSF) and Dr Ruben Cohen, a general surgery SET trainee. Dr Cohen was present only for the last 6 months of this one year term.
6. Dr Lemech gave evidence that as part of the training requirements of the Royal Australasian College of Surgeons, surgical registrars/trainee surgeons were required to keep a log book of all operations and procedures they performed and It was the trainee's duty to ensure that their log books were up to date and accurate. All vascular surgeons in Australia were members of the Australian and New Zealand Society for Vascular Surgery. One of the requirements of membership of that organisation was that surgeons were to complete an online audit tool called the Australian Vascular Audit (AVA). Trainees were required to enter all data from the operations they performed and in which they assisted or participated into the AVA data base which in turn automatically generated the trainee surgeon's logbook. Trainee registrars were required to allocate a number to identify themselves on the AVA, for example using the identifier "Registrar 1" or "Registrar 2", etc and where appropriate "Fellow". This allowed identification of the different trainee surgeons and allowed identification of operations or procedures in which they participated.
7. In a letter dated 10 January 2013 addressed to Dr Lemech, Dr Narasimhan raised a matter of "serious concern" relating to Dr Flekser. Dr Narasimhan complained that Dr Flekser had sent invoices to private health insurance companies for private hospital patients whom Dr Narasimhan had assisted and had been paid for surgical assistance to those patients although the procedures were performed by Dr Narasimhan. He stated that it was not a single isolated "stray incident by chance factor or ignorance." It was a "deliberate and intentional way" by which Dr Flekser had unethically obtained money. Dr Narasimhan had received messages from three different private health insurance companies confirming that they had paid surgical assistance fees to Dr Flekser for operations at which Dr Narasimhan had assisted that had been conducted by Dr Lemech and Dr Hanel. The letter stated Dr Narasimhan had questioned Dr Flekser about these fees but he initially denied being paid. It was only after Dr Hanel's secretary had confirmed that Dr Flekser had been paid these fees that Dr Flekser agreed that he had received the fee for only one operation, but totally denied that he had received the other assistance fees. Dr Narasimhan also stated that in completing the AVA audit that Dr Flekser was entered under the identifier of "Registrar 1" and had used his own identifier in the AVA in relation to operations in which Dr Narasimhan was involved and when Dr Flekser was not involved. Dr Narasimhan stated that he should have been entered on the AVA as "Fellow" but Dr Flekser did not adopt this form of identification.
8. Dr Lemech consequently investigated the issue and found a further 12 cases where Dr Flekser had submitted invoices to private health funds for assistance and operations where he had not been present. Most of the surgical assisting fees had already been paid to Dr Flekser.
9. Dr Lemech stated that during the 12 month term for registrar/trainees their progress was examined by the vascular consultants at meetings held three times during the term. At these meetings the logbook for each registrar/trainee would be formally considered and a training assessment completed for submission to the Board of Vascular Surgery. The final trainee meeting took place on 18 January 2013. As a result of the complaint made by Dr Narasimhan, Dr Lemech compiled information and data so he could discuss these billings with Dr Flekser at this final meeting with consultants. On 18 January 2013 Dr Flekser was required to submit his logbook and was required to verify that the logbook was accurate. Dr Lemech was concerned about some of the entries in Dr Flekser's logbook including those during a 2 week period when Dr Flekser was on leave from the public hospital but where he had listed operations that he said he had attended in the same period.
10. Dr Lemech stated that at the 18 January 2013 assessment meeting also present were Dr Hanel, Dr Farmer and Dr Iliopoulos. Dr Lemech informed Dr Flekser that Dr Narasimhan had made a complaint about his professional conduct and explained the allegations that had been made. He told Dr Flekser that he had informally investigated the complaint and had found 12 cases where Dr Flekser had claimed to have assisted in operations but had not been present in the operating theatre. He sought a response from Dr Flekser in relation to the allegations but said that Dr Flekser did not really have anything to say. Dr Flekser admitted he had incorrectly claimed for three patients that had been raised by Dr Narasimhan but said that it was an error and that he would pay back Dr Narasimhan. Dr Lemech advised Dr Flekser that his unethical behaviour would be referred to the Medical Council and the HCCC.
11. In his hand written complaint to the Australian Health Practitioner Regulation Agency (AHPRA), Dr Lemech recounted the allegations raised by Dr Narasimhan and the investigations he had undertaken disclosing 12 similar cases of incorrect billing by Dr Flekser. The complaint records that the results of the investigation and the complaint by Dr Narasimhan had been put to Dr Flekser at the meeting held on 18 January 2013 and that Dr Flekser had denied any wrongdoing and stated that there had been "an error". Dr Lemech's complaint then stated: "This appears to be a case of deliberate medical fraud…" Dr Lemech's complaint to AHPRA was dated 18 January 2013 and it appears that by approximately 8 February 2013 AHPRA had in turn referred the complaint to the Medical Council. In late May 2013 the Medical Council referred the complaint to the HCCC. The Medical Council had considered responses sent by TressCox Lawyers acting on behalf of Dr Flekser and had resolved that the complaint be referred to the HCCC for investigation.
12. It is worthy of note at this point in the chronology, that Dr Flekser made arrangements to consult Dr O. Thomas Stanley, psychiatrist, and did so on 22 January 2013. On 24 January 2013 Dr Flekser submitted a "voluntary acknowledgement of incorrect payments" to Medicare. By May 2014 Medicare advised Dr Flekser that nearly $18,000 was recoverable for all services that he had acknowledged to be claimed incorrectly.
13. A report from Dr O. Thomas Stanley dated 9 April 2013 concerning Dr Flekser was submitted by TressCox Solicitors to the HCCC and accompanied submissions made on behalf of Dr Flekser in a letter dated 15 April 2013. That report recorded the effect on Dr Flekser of allegations that he had inappropriately billed surgical payments. It was said that the issues had caused a major upheaval in his family resulting in a short separation from his wife and noted that the incident took place in the context of financial pressures in his domestic situation. It was said that he gave a clear and honest account of the history of the problems and was remorseful of the distress that had followed the allegations. Dr Flekser had been advised to continue to see Dr O. Thomas Stanley for support.
14. A summons directed to Dr O. Thomas Stanley produced not only a copy of the 9 April 2013 report, but also Dr O. Thomas Stanley's hand written notes dated 22 February 2013, 31 January 2013, another not clearly dated but apparently occurring in April 2013, the 16 April 2014 and 1 May 2014. Dr O. Thomas Stanley was made available but was not required for cross examined by counsel for the Respondent.
15. Also produced was a medical report addressed to "Whom it may concern" dated 22 January 2013 and carrying a hand written notation on the front page, "notes only not sent". In this report Dr O. Thomas Stanley says that he first assessed Dr Flekser on 22 January 2013 after he self-referred on the recommendation of his General Practitioner. The report then continues: "He informed me that he had defrauded Medicare whilst working as a surgical assistant in the Vascular Department at the Prince of Wales Hospital, Sydney. This had been occurring over 12 months and he estimated that the sum to be approximately $30,000. He used the money to support his family and the large mortgage he had taken out on the purchase of his house in Maroubra, Sydney. His income had been limited as a result of his decision to start training to be a Vascular Surgeon. The fraud was revealed by an Indian graduate on rotation from India in the same department who in turned informed the senior member of the Surgical Team. The Indian graduate has returned to India with no plans to return to Australia." … "He very much regrets his actions and attributes it to his tendency in the past to take shortcuts. There were considerable financial pressures and the need to work two jobs at times." … "There were social pressures to "keep up with the Joneses" in the Eastern Suburbs. They had a baby one year ago with those extra personal pressures. ……in 2008 he purchased a house and obtained a large mortgage which he found difficult to service.
16. At the conclusion of his report Dr O. Thomas Stanley, under the subheading "OPINION", stated as follow: "Dr Roger Flekser was psychiatrically well until recent years when he was under considerable financial pressure from the house mortgage. He defrauded Medicare to assist in paying debts. The financial pressure was compounded by other important factors. These included: Marital unhappiness Anxiety concerning the first child and cost pressures Recent separation of parents Need to "keep up with the Joneses" in the Eastern Suburbs of Sydney. He is genuinely ashamed and guilty over his illegal actions". The hand written notes of the same date more cryptically contain the entry "FRAUD 2008…800,000 mortgage…Medicare fraud (1 claimed when NOT-2011-2012…Dr Lemech…wife also KNOW…30,000 Total…shortcuts!!" The typed report repeated matters appearing in Dr Stanley's handwritten notes although there appears to be some confusion as to the hospital at which these events took place. The context makes it clear that this was St. George Private Hospital.
17. On 22 February 2013 Tress Cox Lawyers wrote to the HCCC concerning the complaint made by Dr Lemech against Dr Flekser. In this letter it was recorded that AHPRA had received a complaint from Dr Lemech and had referred the complaint to the HCCC. The letter continued: "We are instructed to provide the following response" The letter began by drawing attention to the fact that in 2008 Dr Flekser had taken on a "significant mortgage" to purchase a family home in Maroubra. The letter then stated that in late 2008 Dr Flekser had accepted a position at the Royal Brisbane Hospital for 2009 resulting in Dr Flekser paying the mortgage for his home in Sydney while also paying rent in Brisbane. His wife had remained in Sydney and he had travelled back to Sydney every other weekend. This was said to be understandably stressful both "emotionally and financially". Dr Flekser "took on extra work on weekends and nights at Greenslopes Private Hospital in order to meet his expenses". It was then stated that overwork and financial stress began to take their toll and Dr Flekser had begun looking for a position in Sydney so that he could return to his home and family. In 2010 he was offered and accepted a position at St Vincent's Hospital in Darlinghurst. In order to meet his "mounting financial commitments" he had taken a position at St George Private Hospital as a resident. In 2011 Dr Flekser took a position at the Prince of Wales Hospital in Randwick. At that time he continued to work at St George Private Hospital on weekends.
18. Later in the letter the following submission was made: "Dr Flekser, while not detracting from the inappropriateness of his actions, says that he has been assisting in surgery on a remunerative basis since 2010. He did not make any claims for surgery in which he was not involved until he was no longer able to cope with the emotional and financial pressures of his personal situation. … During his time at St George Public Hospital, Dr Flekser was under a great deal of personal and financial strain. Balancing the competing interests of a new baby, a full study load, and registrar positions at St George Public Hospital and St George Private Hospital resulted in Dr Flekser, both tired and stressed, engaging in uncharacteristic and unacceptable behaviour. Under the heading "conclusion" the submission from Mr Flekser's lawyers continued as follows: "Dr Flekser admits engaging in inappropriate billing at St George Private Hospital. He says that he did not admit to himself the inappropriateness of his conduct until he was confronted with it by Dr Lemech. Dr Flekser immediately admitted his mistake. Following the meeting on 18 January 2013, Dr Flekser consulted his General Practitioner and is now consulting a psychiatrist. He is encouraged that with his psychiatrist's help, he will not make the same mistakes in the future. He has also sought the support and guidance of a senior member of the profession and has admitted his conduct to his family. Dr Flekser is deeply upset about his failure to abide by the expected professional standards. While not diminishing the seriousness of the conduct, Dr Flekser attributes his lapse to the personal and financial stresses he was under. Dr Flekser wishes to understand why he has done as he did and what he needs to do to ensure it does not happen again, hence Dr Flekser is under the care of a psychiatrist and has sought mentoring from a senior member of the profession."
19. On 15 April 2013 TressCox Lawyers wrote to the Medical Council of NSW regarding Dr Flekser, attaching Dr Stanley's report and stating that they were instructed to make the following submissions on Dr Flekser's behalf for consideration by the Medical Council. The letter said that Dr Flekser relied on the submissions to the HCCC of 22 February 2013 and then continued as follows: "Dr Flekser admits that he did, during a defined period of time, engage in inappropriate billing practices. Dr Flekser's conduct in this regard was at odds with his usual behaviour. Dr Flekser is mindful of the need to abide by the highest professional standards and is embarrassed by his departure from those high standards. As soon as he was confronted by Dr Lemech about his billing practices, Dr Flekser admitted to the conduct. Dr Flekser was and is ashamed of his conduct. He has sought professional advice and treatment to understand his behaviour and to ensure he does not engage in such conduct again. Dr Flekser attributes his behaviour to the personal and financial pressures he was experiencing at the time. Dr Flekser recognises that he should have sought support and assistance from friends, family and colleagues rather than denying the pressures he was experiencing and failing to admit that he was struggling to cope. … Dr Flekser is under the care of a psychiatrist, Dr Stanley. A copy of Dr Stanley's report is enclosed. Dr Stanley opines that the inappropriate billing practices occurred in the context of financial pressures in his domestic situation, and that Dr Flekser provided a clear honest account of the history of the issues. He also notes Dr Flekser's remorse. … Dr Flekser does not diminish the seriousness of his conduct. He has made every effort to try to understand his behaviour and learn coping mechanisms to ensure he does not suffer another lapse in the future. He will continue to see Dr Stanley in this regard for as long as Dr Stanley considers it necessary and appropriate. Dr Flekser is fully cognisant of the consequences of his actions. The departure from expected standards of behaviour and the consequences of that behaviour on his colleagues, family, friends, as well as the personal toll on him, has caused Dr Flekser to stop and reflect. He has examined the reasons why he did as he did and also considered whether a career in vascular surgery is still what he wishes to pursue. He has decided it is indeed what he wishes to do and he appreciates the opportunities he has been given to date."
20. On 5 May 2014, TressCox Lawyers again wrote to HCCC concerning Dr Flekser. This letter responds to queries raised by the HCCC in correspondence sent in April 2014. Earlier in April the HCCC had indicated that evidence received indicated that while Dr Flekser was employed as a Vascular Surgical Registrar at St George Hospital his conduct was "improper and unethical in a number of respects". The Commission was proposing to refer the matter to the Director of Proceedings under Section 39 (1) of the Health Care Complaints Act 1993: the substance for the grounds of the proposed action were then set out. The first such ground referred to evidence that Dr Flekser was not present at 146 of the operations that he had claimed for and had received a total of more than $17,700 from Medicare and a further $9,500 from private health funds from these incorrect claims. It was noted that he had admitted that he had engaged in improper billing at St George Private Hospital. There were also claims that Dr Flekser had breached the NSW Health Code of Conduct by assisting in surgery at St George Private Hospital when he was rostered on duty and paid for his services at St George Public Hospital and had breached the Ramsay Health Care Code of conduct by obtaining a financial advantage and failing to be honest in financial matters. 89 claims had been inappropriately made for surgical assistance fees to Medicare and private health insurance funds for operations he had assisted in for private patients at the St George Public Hospital when he had no right of private practice and was not eligible to make the claims. It was stated that evidence from five consultant vascular surgeons contradicted Dr Flekser's version of events that they advised him that he could make these claims. Dr Flekser profited by over $11,600 from Medicare and claimed nearly $15,000 in addition from private health insurance funds from these inappropriate claims. There was also evidence that Dr Flekser had knowingly made an inaccurate record of operations he performed and assisted whilst at St George Hospital
21. Having regard to these matters raised by the HCCC, TressCox stated that they were instructed to make the following submissions on behalf of their client, Dr Flekser. Those submissions included the following: "In late 2008 Dr Flekser accept a position for 2009 at the Royal Brisbane Hospital. As a consequence, Dr Flekser found himself in the position of paying the mortgage for his home in Sydney while also paying to live in Brisbane. Dr Flekser's wife remained in Sydney and Dr Flekser travelled back to Sydney every other weekend. The circumstances were stressful for Dr Flekser both emotionally and financially. During this period Dr Flekser took on extra work at nights and on weekends at Greenslopes Private Hospital in order to meet his expenses. Overwork and financial stress took their toll and Dr Flekser commenced efforts to find a position in Sydney so he could return to live with his wife. In 2010 Dr Flekser was offered and accepted a position at St Vincent's Hospital in Darlinghurst. In order to meet his mounting financial commitments he took a position at St George Private Hospital as a resident. In 2011 Dr Flekser had a position at Prince of Wales Hospital and continued to work at St George Private Hospital on weekends. In January 2012 Dr Flekser was offered a position at St George Public Hospital. He commenced working there and remained there until January 2013. Dr Flekser continued to work at St George Private Hospital on the weekends. Dr Flekser also assisted with surgery at the private hospital during the week when asked to do so by the consultants with whom he was working in the public hospital. While not detracting from the seriousness of the conduct of claiming for services not provided, Dr Flekser had been assisting in surgery on a remunerative basis since 2010. It was not until 2012 when mounting financial and emotional pressures got the better of him, that he had made some claims for procedures for which he was not present. … Dr Flekser was deeply embarrassed by his conduct. He knows that it was wrong to claim for being in attendance for procedures at which he was not present. Dr Flekser has consulted with a psychiatrist so as to understand his conduct and to manage the stressors in his life to ensure that he does not engage in such conduct again. … Our client instructed us to submit to the Commission all the data collected during his time at St George Public Hospital. This data included operations at which he was present and operations at which he was not present. As submitted on 14 November 2013, Registrar 1 was Dr Flekser. Our client has not submitted at any time to the Commission or to the RACS that he was present at operations in the Public Hospital for procedures when this was not the case. … Dr Flekser has admitted that he engaged in improper billing at St George Hospital. Dr Flekser's admission is in relation to improper billing of approximately 50 patients. Dr Flekser denies that he has accessed patient health information for the purpose of submitting claims. The claims submitted by Dr Flekser were submitted on the basis of information provided to him by the consultants' secretaries. Dr Flekser acknowledges that he has submitted false and misleading claims to Medicare. Dr Flekser admits that he did work in the private hospital on occasions when he was rostered to work in the Public Hospital. If he did so, he did not claim in his logbook that he was in attendance for procedures performed in the Public Hospital at those times when he was at the Private Hospital. Dr Flekser admits that he has not been transparent and honest in his financial dealings with patients, his employers, Medicare and the private health insurance funds. … Our client has admitted that he has claimed inappropriately for assistance fees in the Public Hospital. Dr Flekser maintains that the consultants with whom he working were aware that he was making these claims, and indeed, it was the consultants who encouraged him to obtain a Medicare provider number for this purpose. … Our client admits that he: That he inappropriately claimed for services at St George Private Hospital. Dr Flekser claimed he assisted in some procedures when in fact he was not present. Dr Flekser does not have sufficient evidence to answer the allegations made by the Commission. … Dr Flekser did claim for assisting in surgery at St George Public Hospital. Dr Flekser is now aware that it was inappropriate to do so. …Dr Flekser did claim on the basis of advice provided to him by consultants with whom he was working and advice from Medicare. … Dr Flekser is cognisant of the improper and unethical nature of the conduct in which he engaged. Whilst not diminishing the seriousness, he does submit that such conduct is out of character and he attributes this to the stress he was experiencing at the time. He is aware that he needs to seek professional assistance to manage his stress and practice coping mechanisms so that there will be no further incidences of such behaviour in the future. …There have been no other times when Dr Flekser engaged in inappropriate billing practices before 2012 or since. … Whilst Dr Flekser's conduct in terms of his inappropriate billing practices is conduct that is not befitting a medical practitioner, it was isolated to a particular period in time and attributable to a time of significant personal stress for Dr Flekser.
22. In the course of the same letter TressCox Lawyers dealt with the Commission's assertion that there was evidence that Dr Flekser was not present at 146 of the operations he claimed for at St George Private Hospital and that he had received more than $17,700 from Medicare and over $19,500 from private health funds for these incorrect claims. It was also noted by the Commission that Dr Flekser had admitted that he had engaged in improper billing at St George Private Hospital. The following submission was then made to the Commission on behalf of Dr Flekser: "Dr Flekser has admitted that he engaged in improper billing at St George Private Hospital. Dr Flekser's admission is in relation to improper billing of approximately 50 patients.
23. These documents covering a period from late January 2013 to early May 2014 may then be considered in the context of how the HCCC framed it's allegations for the purposes of these proceedings in the Tribunal and the approach adopted by the parties in preparing their respective cases for hearing. The particulars for Complaint 1 have been set out earlier in this decision. In short they may be described as alleging conduct that Dr Flekser knew to be wrong: he claimed fees for assistance in operations knowing that he had not provided such assistance; he knew that he did not hold a right of private practice for St George Hospital, yet obtained a provider number and claimed fees for operations when he was not entitled to do so; and he submitted to the College a log containing entries he knew to be false.
24. In May 2015 the HCCC requested Dr Flekser to provide his bank records and tax returns and that request was complied with.
25. Dr Flekser was questioned by the Tribunal concerning the level of his income prior to and during his 12 month period (2012/13) at St George Hospital. Dr Flekser confirmed that the original loan for the purchase of his Maroubra home was $800,000. Bank records in evidence showed that in late December 2010 his mortgage was $376,000 while at 25 January 2013 the loan account showed a nil balance. Those records indicated that approximately $200,000 had been paid off the mortgage during 2012 and his mortgage obligation had been fully met by early 2013.
26. while working at St Vincent's Hospital the records showed while the great majority of his earnings came from that hospital there was also income from NSW Health Services and his income during this appointment totalled $176,000. His 2012 tax return indicated a total income of $299,000, most of that income being derived from NSW Health Services. While working at the Prince of Wales and St George Hospitals in 2011/12 financial year his salary and overtime yielded an income of nearly $272,000.
27. After having these financial records drawn to his attention Dr Flekser agreed that he had no financial problems over the period covered by the complaint. In earlier evidence he strongly asserted that during his appointment to St George Hospital for the 2012/13 year he had no financial problems and was experiencing no difficulty with his mortgage obligations. Contrary to the statement he had filed with the Tribunal in July 2015 where he stated that he was concerned about his mortgage debt and was concerned that his parents would have to pay for it as guarantors (citing that as a reason for seeking additional positions in late 2010 as a Career Medical Officer in St George Private Hospital) in cross examination Dr Flekser stated that during 2010 and later he was not struggling financially and that he and his wife were under no financial stress during the period in question. In 2009 his then partner was working as a medical registrar and after they married she became a specialist haematologist. Dr Flekser agreed that, having regard to the total household income, his immediate family were not under any financial strain.
28. St George Hospital records in evidence also showed that Dr Flekser had regularly made claims for overtime after 6pm although in earlier evidence he had stated that he claimed little overtime because he was in the public hospital system. If he did claim, it would only be until 6pm - after that time he thought it was appropriate that he perform his professional duties without further payment.
29. During the course of questioning in relation to his income and overtime claims Dr Flekser professed no detailed knowledge of his income during the periods under consideration nor the level of his mortgage. He merely looked at his bank records to make sure his pay was up to date otherwise he left financial matters to his accountants.
30. On 9 July 2015, Dr Flekser's legal representatives filed in the Tribunal his reply to the application for disciplinary findings together with a statement made by Dr Flekser. In the reply, Dr Flekser responded to each particular arising under Complaint 1. In relation to particular 1 he admitted that he claimed and was remunerated for the operations set out in Schedule A to the complaint, but stated he was present at the operation set out in that Schedule and assisted the principal surgeon. In relation particular 2 he admitted he claimed and was remunerated for the operations set out in Schedule B and accepted that he incorrectly made those claims believing that he had been at the operations. He did not admit particular 3 and stated that he did not know that he did not have a right of private practice at St George Hospital. In relation to particular 4 he admitted that he had claimed and was remunerated for operations performed on private patients at St George Hospital but stated that he was not aware that he did not hold a right of private practice for St George Hospital. In relation to particular 5 he stated that he did not apply for leave without pay from St George Hospital during the times he was claiming and being remunerated for assistance at operations at St George Private Hospital and was unaware that it was necessary for him to do so. He denied particular 6 and overall denied that his conduct amounted to unsatisfactory professional conduct or professional misconduct.
31. In paragraph [20] of his statement Dr Flekser said: "I was very concerned about my mortgage debts and was determined that my parents would not end up having to pay it. I therefore obtained an additional position in late 2010 at St George Private Hospital as a Career Medical Officer." … In paragraph [21] Dr Flekser stated: "In 2011 I commenced working at Prince of Wales Hospital as a SET IV. I was required to work the same hours as I had at St Vincent's. I retained my weekend employment at St George Private Hospital. …
32. The chronology set out above together with the lengthy extracts from submissions made on behalf of the Dr Flekser prior to proceedings being commenced in this Tribunal show that consistently he was a identifying the large mortgage he had undertaken to purchase his home in Maroubra and the burdens of his new child as placing him under financial stress. His lawyers were identifying financial stress and over-working to meet his financial obligations as the reason for his improper and unethical behaviour. During his evidence Dr Flekser conceded that he had read these letters sent to the Medical Council and the HCCC and accepted that they were written on his instructions. He was given numerous opportunities during the course of his evidence to explain how it was possible for these letters to be written, in these terms pointing to financial stress as the cause for his false claims for payments from Medicare and health funds, but at no stage was he able to give any explanation for those submissions and his evidence at the Tribunal that at no stage during the relevant period was he under financial stress. His financial records showed him to be enjoying an income well above the award for a registrar and in circumstances where his wife was also working as a specialist haematologist. He also had another position as a Career Medical officer on weekends. He was making regular and substantial claims for the payment of overtime. Indeed his $800,000 mortgage was paid off completely by the beginning of 2013 with approximately $200,000 of that mortgage being paid off in the 2012/13 term at St George Hospital.
33. Two further matters need to be kept in mind in analysing Dr Flekser's explanation for his misbehaviour prior to the proceedings being commenced in the Tribunal. Firstly, Dr Flekser and his legal representatives were initially responding to Dr Lemech's complaint to AHPRA that Dr Flekser's conduct appeared to be a case of "deliberate medical fraud". Dr Flekser's responses, through his legal representatives, appeared to accept the thrust of Dr Lemech's complaint (albeit with relatively minor exceptions). The "seriousness" of the conduct was accepted and he conceded that he was "engaging in uncharacteristic and unacceptable behaviour". That theme of acceptance of the conduct in the context of financial stress was continued in the three pieces of correspondence sent by his lawyers between February 2013 and May 2014. On their face those submissions were accepting that Dr Flekser had engaged in making fraudulent claims and was identifying the root cause of this behaviour to be understandable financial stress. It was pleaded on his behalf that his medical career should not be terminated and that steps were being taking now to address the effect of this financial stress on his conduct with assurances that such conduct was unlikely to occur in the future."
34. The second matter is connected with Dr Flekser's total inability to explain how he could have allowed these submissions, based on financial stress, to be made to the medical authorities and regulators when he knew at the time that those submissions were not just misleading but were totally false and did not reflect his true financial position. It was put to Dr Flekser that an inference may be available that it was not until the proceedings were commenced in the Tribunal in April 2015 and the May 2015 request by the HCCC for him to provide his bank records, that it then became clear to him that it would be totally futile to maintain his story about financial stress as the cause for his fraudulent behaviour because he knew his bank records would show a very different story. Dr Flekser accepted that inference was available but he made no attempt to explain in any other way how his reliance on financial stress prior to the commencement of proceedings in the Tribunal had been abandoned in the Tribunal. At no time was he able to give an explanation for this extraordinary about face. He was simply unable to offer any explanation.
35. Given the submissions made between February 2013 and May 2014 by Dr Flekser's lawyers it may well have been the case that the HCCC proceeded in the Tribunal on what was regarded as admissions made by Dr Flekser. The common thread running through the particulars, for the most part, is the allegation of Dr Flekser acting in a specified way such that he knowingly claimed and received fees for procedures when he had not provided assistance, had made charges for private patient operations knowing that he did not have a right of private practice and knowingly making false entries in the audit system.
36. In the Tribunal, Dr Flekser's case became that while he did make claims as alleged he did not know at the time that he had no right to make claims. Thus he asserted that where the evidence showed operation records that he was not present he simply asserted that his recollection was that indeed he was present, sometimes because of peculiarities of the entry using capitals which he identified as being his style and not anybody else's. He had made other claims using the operation list of VMOs assuming that he was present at all such procedures even though there were two other doctors participating in those procedures during the year, namely Dr Cohen and Dr Narasimhan. He stated that at the time he made those claims he was not aware that sometimes he was not present. Similarly, he thought he had a right to private practice but only after Dr Lemech made his complaint did he become aware that he had no right of private practice. He did not know that he had to apply for leave without pay or adjust his timesheets to reflect the time he was assisting in the private hospital and receiving fees for doing so. He did not know that the AVA audit system inflated the number of procedures he had undertaken because the three surgeons assisting had all entered their presence in the audit system as Registrar 1 where Registrar 1 was the identifier that Dr Flekser gave himself for the purpose of making entries in the audit system. He denied suggestions that he had told Dr Cohen and Dr Narasimhan that all entries in the data system were to be made under Registrar 1. In short, a number of the alleged facts set out in the particulars were correct but Dr Flekser claimed that at the relevant time he had no knowledge that his conduct was either unauthorised or his claims unwarranted. The high point of this approach was Dr Flekser's evidence that five senior surgeons at the hospital, had in various ways, approved or indicated that they had no objection to him claiming Medicare and private health benefits for assisting in operations on private patients in the public hospital. None of the five senior surgeons accepted that proposition.
37. During the lengthy period he was giving evidence in the Tribunal he frequently claimed he had a lack of memory or knowledge of matters put to him. As a senior registrar who had been working in the public and private hospitals system for a number of years prior to him coming to St George Hospital in 2012, Dr Flekser showed an astonishing lack of knowledge of that system.
38. Although he was working alongside a number of senior surgeons he had never heard the term "Visiting Medical Officer" or "VMO". He did not read his contract governing his appointment to St George Public Hospital for the term 2012/13. He was unaware of the fact that there was a person in hospital administration who was specifically designated to assist registrars with their queries or assist with the provision of information relating to their conditions of employment and associated matters. He was unaware of any obligations to make an allowance in his time sheets submitted to the public hospital for the time spent and paid for when assisting in the private hospital. He did not speak to other doctors, including registrars and the two other doctors working in the Vascular Surgery Department in relation to his rights and obligations concerning the work he was performing or how they were handling situations that were similar to his own.
39. In relation to his financial affairs he paid no attention to the rate at which his mortgage was being reduced and he paid little or no attention to the amounts of money he was earning apart from checking his bank statements to ensure that payment had been made for the current period of his employment. He, nevertheless, had sufficient concern about his financial position to take up a second position as Career Medical Officer, working at weekends prior to and while engaged at St George Public Hospital in 2012.
40. Having regard to the totality of his evidence the Tribunal is of the opinion that Dr Flekser was a most unsatisfactory witness. He lacked frankness on numerous occasions in the giving of his evidence and was continuously evasive in the answers he gave. His repeated resort to lack of memory in order to blunt probing questions reflected adversely on his credit. It is difficult for the Tribunal to accept Dr Flekser's description of his life as a vascular trainee at St George Hospital in 2012/13 year as being so busy that he had no time to familiarise himself with his obligations nor his entitlement including those arising from his contract of employment. He read nothing of those vital documents, spoke to virtually no one about those issues and never sought the assistance of hospital administration to ensure that he was complying with hospital requirements.
41. Another area where Dr Flekser's credit was in issue related to the circumstances in which he came to charge fees for assisting in operations conducted on private patients in St George Public Hospital. Prior to commencing his appointment at St George Hospital in 2012, Dr Flekser had applied for and had been granted a provider number allowing him to bill for assisting in operations on private patients in private hospital - in particular this occurred in 2010 at St Vincent's. This also occurred in 2011 when he worked at the Prince of Wales Hospital and another provider number was granted to him to enable him to claim for assisting with operations on private patients in the private hospital. In his statement filed in the Tribunal with his formal Reply in early July 2015 Dr Flekser stated that in 2011, while working at the Prince of Wales Hospital he had applied for a Medicare provider number for St George Hospital for investigations but also ticked the box for assisting, thinking he could use the same provider number at St George Private Hospital.
42. After commencing at St George, Dr Lemech told him that it was expected that Dr Flekser would assist Dr Lemech and other Vascular VMOs in relation to surgical procedures they performed at the St George Private Hospital. In one of the earliest discussions he had with Dr Lemech, he claimed Dr Lemech had informed him that he needed to apply for a provider number for the private hospital because he would have to assist at that hospital. In that conversation or another conversation Dr Flekser asked Dr Lemech if he could claim the assisting fees in relation to private patients operated on in the public hospital. He claimed Dr Lemech said that yes he could but he needed to check with Medicare and Dr Flekser said that he would do that. Soon after that discussion he rang Medicare and had a conversation with a person named "Leonie". He told her that he was a registrar operating on private patients in St George Public Hospital and asked if he could claim as an assistant. He said Leone told him that he could make the claims but he would need to fill out the appropriate forms which could be found online. He then asked about assisting patients at St George Private Hospital and Leone told him that he would need a separate provider number for those operations. On that basis he completed the form on the internet and only ticked the box for assisting for St George Private Hospital. In due course he was provided by Medicare with another provider number for St George Private Hospital.
43. In his statement filed with the Tribunal, Dr Lemech said that shortly after Dr Flekser commenced at St George Public Hospital he asked if he could bill for surgical assisting services provided to private patients undergoing surgery in the public hospital. He said he told Dr Flekser that he did not know and that it was not in his jurisdiction and recommended that Dr Flekser speak with Dr Martin Mackertich, the Director of Clinical Services at the Public Hospital as he would be able to advise whether or not he was able to bill. A few months later he recalled asking Dr Flekser if he had spoken to Dr Mackertich about this matter. Dr Flekser said words to the effect that it was fine and not to worry about it. Dr Lemech did not question Dr Flekser any further but presumed that Dr Mackertich must have said that it was alright to make such a charge. He denied ever telling Dr Flekser that he could bill the private patients in the public hospital.
44. In cross examination, Dr Lemech stated that he did not know the answer to Dr Flekser's question about being able to charge for assisting private patients operated on in the public hospital. That was probably why he told him to check with Medicare but he did also tell him to contact Dr Mackertich about the matter. His statement was his best recollection of what he would have done and he had no specific recollection of the conversation. He said a few months later he did ask Dr Flekser if had spoken to Dr Mackertich and he gave his best recollection of the effect of the words used then by Dr Flekser. The gist of the second conversation was that Dr Flekser had said do not worry, Dr Mackertich had approved his billing for private patients at the public hospital. This was the inference he drew from this conversation. He denied the suggestion that he had reconstructed these early recollections after the allegations were made in December 2012 by Dr Narasimhan.
45. In his statement filed in the Tribunal Dr Mackertich stated that as required by Medicare, registrars were not permitted to make claims on private health funds and/or Medicare for assisting in surgery conducted on private patients at St George Public Hospital. As salaried employees the registrars were not allowed to make claims of that nature. At no time did Dr Flekser raise that issue with him and in fact he had never spoken to or met Dr Flekser in person. In cross examination Dr Mackertich vaguely remembered Dr Lemech asking him in a meeting held in January 2013 whether Dr Flekser had asked him if it was permissible for Dr Flekser to bill for assisting private patients operated upon in the public hospital. Dr Mackertich said he vaguely remembered such a conversation and his best recollection was that the he told Dr Lemech that he had no such conversation with Dr Flekser. Dr Mackertich was aware at that time those claims could not be made by Dr Flekser.
46. In cross examination Dr Flekser said he did raise with Dr Lemech if he could make these charges but he denied that he was referred on to Dr Mackertich to check his capacity to make the charges at Dr Lemech's suggestion. He denied that Dr Hanel also told him to check with Dr Mackertich whether such claims could be made. Dr Flekser then stated that other doctors had told him that it was permissible to claim these charges on Medicare not only for private patients in the private hospital but also in relation to private patients in the public hospital. In cross examination Dr Flekser said that besides Dr Lemech, Dr Hanel, Dr Iliopoulos, Dr Farmer and Dr McMullen all told him that it was alright for him to charge for assisting in procedures performed on private patients operated upon in the Public Hospital.
47. In his statement to the Tribunal Dr Hanel distinctly remembered Dr Flekser telling him at the beginning of 2012 that he had come to an arrangement with the Public Hospital administration to charge assisting fees for private patients at the Public Hospital. Dr Flekser told him that he had a similar arrangement at the Prince of Wales Hospital the year before; Dr Hanel did not specifically question Dr Flekser about this matter. Dr Hanel denied giving Dr Flekser permission to charge assisting fees for private patients in the Public Hospital. He regarded that matter as being up to the Public Hospital administration to deal with. He said the matter was later discussed with Dr Mackertich who advised he knew nothing about any such arrangements with Dr Flekser.
48. In oral evidence Dr Hanel stated that in the first month or so of starting at St George Hospital, Dr Flekser told him that he had an arrangement to claim for assisting in procedures involving private patients operated on in the public hospitals. Dr Hanel said that he had not heard of this happening before and thought it was unusual. In cross examination he denied his memory was hazy and said he remembered this conversation because it was an unusual event and he remembered it "quite well". He denied the discussion concerned private patients operated upon in the private hospital. He firmly rejected the suggestion that Dr Flekser never told him that he had been given permission for this billing practice.
49. In his statement filed in the Tribunal Dr Farmer said he was an accredited VMO in vascular surgery at St George Private Hospital. During 2012 Dr Flekser had assisted him in operations in both private and public hospitals at St George. He stated that he did not advise Dr Flekser that Dr Flekser could claim from private health insurance funds or Medicare for assisting fees in relation to operations for private patients at the public hospital. He said he did not provide Dr Flekser with item numbers to generate invoices for such claims. He stated that Dr Flekser approached him at the beginning of 2012 and asked if he minded Dr Flekser claiming an assisting fee for Dr Farmer's private patients in St George Public Hospital. Dr Farmer said that he told Dr Flekser that no registrar had previously asked him that and that he thought that it was a matter between the doctor and medical administration. Dr Flekser then stated that he had permission from medical administration for such charging, specifically from Dr Martin Mackertich.
50. In cross examination Dr Farmer was asked whether the discussion that took place about billing with Dr Flekser early in 2012 was in fact regarding private patients in the private hospital, but Dr Farmer rejected that suggestion and said that he was clear that this conversation concerned operations in the public hospital. He remembered this because it was an unusual proposal by Dr Flekser. Dr Farmer was uncertain that he could make such claims and that is why he was told to go to administration as Dr Farmer could not give him such permission. Dr Farmer rejected the suggestion that he had never told Dr Flekser to check with the administration about his proposed billings for private patients in the public hospital. He stated that in his long career he had never seen a registrar claim for assisting procedures on private patients in the public hospital.
51. Dr Iliopoulos denied that in 2012 he had advised Dr Flekser that he could claim from private health insurance funds and/or Medicare for assisting fees for operations conducted on private patients at St George Public Hospital. Dr Iliopoulos was not called for cross examination.
52. Dr McMullen was a consulting VMO in the Vascular Unit at St George Public Hospital during 2012/2013. In a statement tendered in evidence Dr McMullen denied advising Dr Flekser that he could claim a private fee from private patients whilst working in the public hospital. There was no conversation on this issue with Dr Flekser at all. Dr McMullen was told by another member of the vascular team that Dr Flekser had obtained permission to claim private fees and the permission had been given by Dr Mackertich, the Director of Medical Services. While Dr McMullen thought that this was highly unusual, it was not questioned.
53. The claim by Dr Flekser that 5 senior surgeons had given him approval or knew that he was charging fees for assisting procedures conducted on private patients in the public hospital appears to have first arisen during the investigations carried out by the Medical Council and was specifically referred to in the May 2014 letter sent by Dr Flekser's lawyers to the HCCC. The investigation had apparently taken evidence from five consultant vascular surgeons who contradicted Dr Flekser's version of events that they had advised him that he could make these claims. In reply it was submitted on behalf of Dr Flekser that he maintained that the consultants with whom he was working were aware that he was making these claims and indeed it was the consultants who encouraged him to obtain a Medicare provider number for this purpose. The claim that five senior surgeons had given their approval for his billing practices was not, in terms, repeated in the statement Dr Flekser filed in the Tribunal in July 2015. That statement only mentioned a conversation with Dr Lemech: in this version Dr Lemech was said to have told Dr Flekser to check with Medicare about his ability to charge these fees. While in cross examination Dr Lemech was somewhat uncertain on some details he remained firm in his evidence that this subject was raised by Dr Flekser and that Dr Flekser was referred to Dr Mackertich for advice on the matter. Dr Mackertich's evidence was that he had not spoken to Dr Flekser nor giving him permission for this billing. According to Dr Farmer's evidence Dr Flekser had stated that he had permission for this billing specifically from Dr Mackertich.
54. Overall, the evidence from five senior surgeons, to the extent that they were cross examined upon it, was unshaken. None of the doctors were cross examined on the basis that they had some other or ulterior reason for denying Dr Flekser's version of events. Indeed the evidence was that during his term it was feared by the consultants that Dr Flekser was falling below the standard required to remain in the program and a good deal of effort was put in to the latter months of his term to ensure that he would progress to the next stage. At the end of the term the evidence suggests that Dr Flekser had met all the requirements of the program and it was only his unauthorised billing practices and unethical conduct that led to his removal from the program.
55. Having considered all the evidence on this matter the Tribunal is comfortably satisfied that none of the five senior surgeons gave explicit or implicit approval to Dr Flekser for this billing. The Tribunal concludes that Dr Flekser has not been honest in his evidence on this subject and rejects his version of events. This is particularly so in circumstances where it is now conceded by Dr Flekser that he had no right of private practice and the evidence of Dr Mackertich that salaried registrars were never able to charge fees for assisting operations on private patients in public hospitals.

The particulars

1. It is appropriate to now consider the allegations set out in the six Particulars. 1. The first particular concerns fees claimed and received for assistance in operations performed at St George Public Hospital in circumstances where Dr Flekser knew that he had not provided such assistance. 2. While Dr Flekser accepted that he was not entitled to bill for these operations he disputed the allegation that he was not present for the procedures. 3. The HCCC relied upon evidence contained in operation reports generated by the hospital. Those reports identified the doctor who authored those reports, listed the medical staff involved in the procedure and recorded a number of other matters. Under the heading of medical staff involved in the procedure were entries for the "Proceduralist". The report, under this heading, noted who was the Principal medical officer and also the assisting surgeons. Schedule A listed 27 procedures where there was no record of Dr Flekser being present. After consideration of Dr Flekser's response that number was reduced to 20 at the hearing.
2. At the hearing a statement from Dr Natalia Garibotto was tendered by the HCCC. Dr Garibotto had been asked to comment on some of the operation reports that she had been involved in that formed the Particulars raised against Dr Flekser. Dr Garibotto spoke about her usual procedure for recording who was present and how that was reflected in the operation reports. Having regard to her practice she had authored the operation report in relation to a particular patient and had no reason to believe from the records that Dr Flekser was present at this operation. In relation to a further patient Dr Garibotto recalled that at this time she was heavily pregnant and was moving house during the day and was very tired. She recalled that Dr Flekser had called her at about 8pm to ask her to take over his on call shift as previously arranged. There was to be an operation and she was to assist Dr Iliopolous. Dr Garibotto assisted in the operation and prepared the operation report noting as attendees those who were "scrubbed in". Her recollection was that Dr Flekser was not "scrubbed in" and that Dr Flekser was not present during this operation. In the course of the hearing Dr Flekser accepted that he was not present at one procedure recorded by Dr Garibotto and in cross examination conceded that he was not present at two other procedures. In total he conceded that he was not present at three procedures.
3. Dr Flekser's evidence in relation to this Particular was that these procedures were in the logbook that he compiled and/or that he had been the author of the operation report and/or that the use of capital letters in the report indicated he had participated in making the report because he was the only one to use that form of recording. He also had the view that there were other circumstances that made it appear to him that he would have been present such as the pregnancy of Dr Garibotto (a basis upon which he subsequently withdrew in light of Dr Garibotto's evidence).
4. A detailed analysis of the Schedule A procedures showed that five operations were in fact not included in Dr Flekser's own log and he was not listed in the operation report. There were four operations where Dr Cohen was shown as assisting in the operation report and those operations also appeared in Dr Cohen's log book. There was one occasion when the operation report listed Dr Cohen as assisting but that operation did not appear in Dr Flekser's log. Lastly there was one occasion where the operation was listed in Dr Flekser's logbook but on that day he was rostered off duty.
5. Together with the concessions made by Dr Flekser there clearly appear to be a total of 14 operations where Dr Flekser was not present yet he claimed for and was paid for assisting in those procedures. Having regard to the number of clear cases where the Tribunal is comfortably satisfied that Dr Flekser was not present it is unnecessary to attempt any further lengthy analysis of the remaining procedures. To this extent the allegations contained in Particular 1 are made out.
6. It is then necessary to deal with Dr Flekser's next argument, namely that in cases where he was not present, at the time he made the claims he did not know that he was not present. He admits to being reckless in the way in which he made his claims by assuming frequently that being the senior registrar he would have been present at all procedures. It is plain that Dr Flekser's proposition that he would always be present could not be true. There were two other doctors assisting in the Unit and other doctors involved in operations such as Dr Garibotto. Dr Flekser was with these doctors week in week out during his term and thus had to be aware of their participation in procedures.
7. From the earlier analysis of his financial position the Tribunal is comfortably satisfied that probably prior to but clearly during his 2012/13 term at St George Hospital he was driven to accumulate a very large amount of money in his role as a salaried registrar. It may well have been that he was principally concerned with reducing the large mortgage on his home, but he was able to achieve that spectacularly by paying off more than $200,000 of that mortgage in 2012/13. He continued to work on weekends in the second job. By using the identifier " Registrar 1 " in the AVA log, he had a backup for any investigation of how many procedures he had assisted in - Dr Cohen and Dr Narasimhan were told to and in fact recorded all their assistance in procedures as Registrar 1. This was a deliberate scheme contrived by Dr Flekser to assist him in claiming for attendance at all procedures whether or not he was present. It was in this way that he was able to claim and receive fees for assistance at operations performed at St George Private Hospital knowing that he had not provided such assistance.
8. Particular 2 alleged that Dr Flekser had claimed and received fees for assistance at operations performed at St George Private Hospital knowing that he had not provided such assistance at the operations. The number of operations were set out in Schedule B and totalled 110. Dr Flekser admitted that he had claimed and received fees for assistance in these operations and that fact was not in issue. Dr Flekser, however, stated that he claimed for each of these operations under the honest but mistaken belief that he had assisted in all of the operations. As the matter developed Dr Flekser made disclosures to Medicare and had repaid nearly $18,000 covering some of the operations listed in Schedule B and others that related to operations set out in Schedule C concerning Particular 4. The Tribunal also had in evidence a letter from Medicare dated late September 2015 that noted, as a result of information he had provided and during telephone calls in August on two occasions, that it was confirmed that a further amount of $8,670 was recoverable. Dr Flekser had acknowledged he claimed that amount incorrectly. This letter from Medicare related to nearly 70 procedures and the Tribunal was informed that Dr Flekser had not yet repaid this amount.
9. Dr Flekser, while admitting these were procedures he had not assisted in, nevertheless argued that at the time he made the claims he did not know that he was not entitled to make those claims. He had assumed he was present at all of Dr Hanel's operations because he was the only assistant and Dr Hanel had used him for all operations. He had not kept his own records and he did not check St George Private Hospital records. He had gone to Dr Hanel's administrative assistant and obtained details of each of the procedures carried out by Dr Hanel as well as the relevant item numbers and based on this information he submitted claims for assisting in the operations. Dr Flekser in addition, acknowledged the Hospital's operation reports relating to Schedule B showed that his name did not appear in any of those reports.
10. Counsel of the HCCC pointed out that the evidence was contrary to Dr Flekser's explanation. Dr Hanel had stated that during his Monday list one of two senior fellows assisted him, one of whom was Dr Flekser who did so for the first six months of the term and for the second six months of the term the other senior assisted. Dr Hanel's evidence was that for the second half of the year it was Dr Narasimhan who was the surgeon assisting him. It was submitted that the list of surgeries in Schedule B demonstrated not only that this issue was confined to Dr Hanel's surgery but further that Dr Hanel operated on his own or with other assistants besides Dr Flekser.
11. Medicare required that such claims were to be supported by a declaration to Medicare or the private health insurer that the claims were true and correct. The Tribunal accepts the submission from the HCCC that Dr Flekser could not have made these claims and given the required declarations without making appropriate enquiries. For reasons already set out in relation to Particular 1 the Tribunal concludes that Dr Flekser engaged in a deliberate scheme to claim for as many procedures as possible whether or not he had actually participated in those operations and in doing so he made those claims knowing that some of them were false. The second Particular is made out.
12. Particular 3 alleged that in late 2011 Dr Flekser submitted an application for a provider number for St George Hospital knowing that he did not hold a right of private practice at St George Hospital. The Particular is a little curious and seems to be missing an essential element having regarding to the evidence called in the case. The simple act of applying for a provider number knowing there was no right of private practice might be entirely understandable if there was a hope or even a desire to obtain in the future some right of private practice. Not surprisingly the legal representatives for both the applicant and respondent treated Particular 3 as either being part of Particular 4 or to be taken together with Particular 4. Having regarding to the terms of Particular 4 it appears that the evidence relating to the circumstances in which Dr Flekser obtained a provider number are an integral part of the allegations constituting Particular 4. In any event the limited terms of Particular 3 do not permit a separate or standalone finding of unsatisfactory professional conduct or professional misconduct in relation to this particular.
13. Particular 4 listed 88 operations in Schedule C and alleged that Dr Flekser claimed and received fees for these private patient operations performed at St George Public Hospital knowing that he did not hold a right of private practice at St George Public Hospital. This allegation is made in the context of: Dr Flekser was employed as a medical officer/registrar; the only medical practitioners at St George Hospital with rights of private practice were staff specialists and visiting medical officers; Dr Flekser was not a staff specialist nor a visiting medical officer; the terms of the Public Hospital Medical Officers (State Award), under which Dr Flekser was employed, did not afford him a right of private practice; Dr Flekser had obtained and used a Medicare Benefit Schedule code to facilitate the making of these claims; and/or Dr Flekser made claims for such services to private health funds.
14. Dr Flekser did not challenge the essential facts as pleaded in terms of his employment and the provisions of the award or that he had claimed these fees in relation to operations performed on private patients at the St George Hospital. Again he argued that at the time he made these claims he did not know that he had no right of private practice.
15. Another aspect of his defence was that his immediate supervisor, Dr Lemech, and four other senior surgeons had all approved or acknowledged his right to bill for assisting at operations on private patients conducted in the Public Hospital. Earlier in this decision the Tribunal considered the evidence in relation to the alleged approval of the five senior surgeons and has rejected Dr Flekser's evidence about obtaining authority in this way and has accepted the evidence of the five senior surgeons rebutting Dr Flekser's assertion. That finding is critical in determining Particular 4. It shows the utter contradiction in Dr Flekser's reply to the allegations. On the one hand Dr Flekser said he simply did not know that he did not have a right of private practice but importantly, on the other hand, asserts that he was justified in making the claims because five senior surgeons told him that he could do so. It is clear from the evidence that Dr Flekser did not rely on the conversation that he had with Dr Lemech early in the 2012 term where Dr Lemech allegedly told him to obtain a provider number because he would be assisting in operations. As pointed out by the HCCC the evidence shows that Dr Flekser did not wait until this alleged conversation in early 2012 with Dr Lemech to apply for a provider number as material produced under summons from Medicare confirmed that he made application for the provider number in November 2011, requesting a provider number that would enable him to refer, request investigations and assist in operations.
16. In submissions for the HCCC it was pointed out that Dr Flekser was repeatedly unable to adequately answer questions concerning his decision to apply for a provider number in 2011 and to start billing private patients in the public hospital. He was asked how did he ever raise with Dr Lemech the question of whether or not he could charge in those circumstances but replied that he could not remember because it was such a long time ago and that he could not remember the exact events.
17. It is also to be remembered that Dr Lemech told Dr Flekser to check with administration about his ability to make these claims. Dr Farmer had a similar conversation with Dr Flekser at the beginning of the 2012 term where Dr Flekser asked if he could claim assisting fees for private patients in the St George Public Hospital: Dr Farmer told him that it was a matter between him and medical administration but Dr Flekser replied that he already had permission from medical administration, namely Dr Mackertich. The evidence of the consultants has earlier been accepted by the Tribunal against the assertions of Dr Flekser.
18. Having been told by at least two senior surgeons to check with administration the evidence demonstrates that Dr Flekser did not do so and at no stage, for example, spoke to Dr Mackertich. He did not approach the person in administration designated to deal with the terms and conditions of registrars employed at the hospital and said he did not even know that such a position existed, but he had made no enquiries at all of the administration about his desire to charge these fees. He had not read the award or his contract of employment to determine whether he had a right of private practice and was thereby able to charge these fees. Dr Flekser, at no stage, was able to explain how he had a right of private practice apart from asserting that five consultants told him that he could charge these fees. He seems to have simply assumed a right of private practice. This was not a matter where he could identify a conversation or a document or any other matter whereby he had mistakenly come to the conclusion that he had been thereby provided with a right of private practice.
19. In this context it is to be recalled that Dr Flekser applied for a provider number supposedly for investigations at St George Hospital but also ticked the box for "assisting", thinking that this would cover St George Private Hospital. He had, however, been working as a CMO at the hospital for approximately one year beforehand and already had a provider number for that hospital. This appears to be further evidence that Dr Flekser deliberately applied for this provider number to enable him to claim fees for assisting in the public hospital for which he was not entitled.
20. Having regard to all of the evidence in relation to this Particular the Tribunal is comfortably satisfied that Dr Flekser knowingly claimed and received fees for private patient operations performed at St George Hospital knowing that he did not hold a right of private practice at St George Hospital. This Particular is made out against Dr Flekser.
21. Particular 5 alleged that during the 2012/13 term Dr Flekser failed to apply for leave without pay from St George Hospital during the times when he was claiming for and receiving fees for assisting operations set out in Schedule D, performed at St George Private Hospital. There were some 56 operations identified in Schedule D to the Particular.
22. Dr Flekser's reply stated that he was unaware of the necessity to make an application for leave without pay as set out in the Particular. He pointed to the fact that he had come late to St George Hospital and commenced surgery immediately and at no other time was provided with an induction or instruction at all and in particular concerning the necessity for an application for leave without pay in the circumstance specified. In submissions the HCCC agreed that there was no direct evidence that Dr Flekser was told of this requirement. Dr Mackertich was the Director of Clinical Services at St George Public Hospital and the Manager of Clinical Services. He spoke of the Hospital's policy that all surgical registrars were to be advised of this requirement when they commenced at the hospital but he could not nominate anyone who had spoken to Dr Flekser about that policy. Dr Hanel as head of the Vascular Unit understood that the requirement was part of policy. Dr Lemech was Dr Flekser's training supervisor and involved in clinical monitoring of Dr Flekser but he gave no evidence of a requirement for an application for leave without pay to cover periods when a training surgeon was claiming and receiving fees for assisting in operations conducted in the private hospital. Indeed Dr Mackertich's evidence was that there was no requirement for an "application" as such but registrars in these circumstances were to audit or adjust their timesheets to take account of the time spent in the private hospital. Dr Mackertich added that if a registrar was watching or participating in an interesting case there was no requirement for the timesheets to be adjusted to account for leave without pay. Dr Hanel said that Dr Flekser did not have to submit a leave without pay application but the registrars were to take their private hospital time off the public hospital timesheet. He commented that even this adjustment was offset, in any event, by the overtime paid to registrars. He also noted that there were "specific arrangements" in some departments, suggesting that there may have been variations to the so called requirement.
23. Ms Robinson from St George Public Hospital administration gave evidence regarding the requirements for registrars when claiming overtime. She made no reference to the policy when a registrar was working and being paid by the private hospital for assisting consultants nor did she comment on the need for a leave without pay application in such circumstances.
24. Dr Flekser nevertheless appears to have understood that there was a degree of double counting if he was paid in the private hospital and also paid under the award for the same time in the public hospital without any adjustment being made. He said that as a gesture, but not as recognition of any requirement, he did not claim overtime after 6.30pm although he would work well into the night. He did this in recognition of the work he performed in the private hospital while being paid by the public system. The records in evidence however showed that in fact Dr Flekser did regularly make overtime claims after 6.30 pm. Despite this misleading evidence, the HCCC was required to establish a requirement for Dr Flekser to submit an application for leave without pay when being paid for assisting in operations at the Private Hospital.
25. The Tribunal is satisfied that the allegation in Particular 5 has not been established against Dr Flekser. There was no evidence that Flekser was ever informed about the requirement to apply for leave without pay or even of the necessity to adjust his time record in the public hospital as an offset in recognition of time spent in the private hospital in which he was paid. There was no policy document in evidence that may have come to his attention in the ordinary course of practice and it was ultimately common ground that Dr Flekser was given no induction into the particular practices of St George Hospital. In determining this issue it is significant that Dr Hanel's evidence was that no application was necessary but merely an adjustment to the timesheets. It was also of significance that he recognised that there were different policies in operation in some departments. The Particular alleged that there was a failure to apply for leave without pay but the evidence falls far short of the establishing that fact. This particular is not made out.
26. Particular 6 alleged that in 99 operations set out in Schedule E, Dr Flekser knowingly made or caused to be made false entries of data into a web-based audit application that he knew would be submitted to the Board of Vascular Surgeons and the Royal Australian College of Surgeons in support of his accreditation as a vascular surgeon.
27. Submissions for the HCCC seemed to widen this Particular to involve a claim that the inaccuracies in the AVA were detrimental to the chances of Dr Cohen and Dr Narasimhan meeting College requirements. However, Dr Cohen kept his own logbook for this purpose and the evidence suggests Dr Narasimhan did not keep a log although the number of procedures he attended or assisted seemed to be of significance to him and his professional status. In any event these wider allegations fall outside the terms of Particular 6.
28. Mr Barry Beiles was Clinical Director and administrator of the AVA system. He provided statements dealing, in part, with the purpose of the log required to be submitted by trainee vascular surgeons. He stated that the logbook was "used purely by the Vascular Board to assess the workload performed by a trainee as part of their training requirements". This occurred every six months.
29. Dr Farmer was responsible for overseeing the work of the vascular trainees, including Dr Flekser, Dr Cohen and Dr Narasimhan. He stated that Dr Flekser had many more cases allocated to him than was usual for the St George term. He was satisfied, however, that Dr Flekser had met the College requirements by January 2013. In giving this evidence Dr Farmer was well aware of the false entries appearing in the AVA attributed to Dr Flekser.
30. Dr Hanel, Head of Vascular Surgery at St George Hospital, believed Dr Flekser's numbers "were fine", even though he too was aware of the false entries under Dr Flekser's name appearing in the AVA.
31. In cross examination Dr Lemech, who was supervising Dr Flekser, said that he believed that Dr Flekser was performing sufficient operations under the program and he could see no benefit to Dr Flekser by claiming these additional procedures in the AVA.
32. Although it was clear that there were many false entries in the AVA attributed to Dr Flekser there was no evidence that a particular number of attendances in a training term had been benchmarked as setting a minimum requirement to be reached by registrars/trainees. The evidence suggests that the AVA entries were used as evidence of the range and complexities of procedures in which the trainee had been involved during the 6 month period under review. Three senior surgeons, Dr Lemech, Dr Hanel and Dr Farmer, were satisfied that Dr Flekser had met the requirements of the College in this regard.
33. The terms of Particular 6 might be read to allege no more than that Dr Flekser's false entries in the AVA would knowingly be submitted to the Board and the College "in support of his accreditation as a Vascular surgeon" rather than an allegation that he intended to falsely inflate the number of attendances to meet College requirements. The Tribunal is unable to conclude that Dr Flekser intended to falsely inflate the number of attendances in order to meet College requirements: indeed, the evidence is to the contrary. Other evidence before the Tribunal indicated Dr Flekser had met all the requirements of the College but this achievement was overtaken by the conclusion that he had participated in deliberate medical fraud.
34. Associated with this particular is the allegation, pursued during the hearing, that Dr Flekser had told Dr Cohen and Dr Narasimhan that they were to record their attendances at operations in the AVA, under the identifier "Registrar 1". It was alleged that in this way all procedures recorded in the AVA were accredited to Dr Flekser as "Registrar 1" whether or not he had actually assisted in all procedures. Dr Flekser denied this allegation, stating that he told the two doctors only to ensure that when he was present, to record that fact by entering "Registrar 1" in the AVA.
35. Dr Cohen, in his written statement, made in December 2013, said that when he commenced at St George Hospital in July 2012 Dr Flekser told Dr Cohen that he was to complete the AVA for all vascular surgery he undertook. Dr Flekser told him to identify himself in the audit entry as "Registrar 1" and that everyone was "Registrar 1". In the following six months Dr Cohen recorded in the AVA all operations for himself, Dr Flekser and Dr Narasimhan as "Registrar 1". It was not until January 2013 that he found out that he should have identified himself as "Registrar 2".
36. In a further statement made in June 2015, Dr Cohen recounted the conversation he had with Dr Flekser in July 2012 when he was told to enter Registrar 1 in the AVA and that "everyone is Registrar 1". He stated that when he asked Dr Flekser how they would know who had performed the operations, Dr Flekser said that they would "sort that out later". That did not occur. Dr Cohen did not rely on AVA record as he was not training to be a vascular surgeon and so kept his own log book of operations in which he was involved.
37. Dr Cohen was cross examined and rejected the proposition that Dr Flekser had only asked that Dr Flekser's presence be noted as Registrar 1. It was argued for Dr Flekser that Dr Cohen conceded that he could have been mistaken about the terms of this conversation. While Dr Cohen did say that, he seemed to do so in the context that there was in theory such a possibility but that was not his understanding of the conversation - his memory was that Dr Flekser told him to enter everyone as Registrar 1 and to always use Registrar 1 in the AVA system. He followed that direction. Dr Cohen stated that Dr Flekser and Dr Narasimhan did most of the entries in the AVA system. The AVA records did show other entries apart from Registrar 1 but Dr Cohen suggested that he had not made such entries. He always entered Registrar 1 for all procedures undertaken.
38. In a letter of complaint to Dr Lemech in January 2013, Dr Narasimhan stated Dr Flekser entered Registrar 1 in the AVA and not "Fellow" in recognition of Dr Narasimhan's participation in surgical procedures. Dr Narasimhan was not able to be contacted for the purposes of giving evidence in these proceedings and his letter of complaint was received subject to submissions as to its weight.
39. Dr Narasimhan's letter supports Dr Cohen's version of the conversation with Dr Flekser. Prudence and fairness may lead to the untested evidence of Dr Narasimhan being given little or no weight, however, given the Tribunal's earlier adverse finding as to Dr Flekser's credit and the accepted evidence of Dr Cohen on this subject, the evidence of Dr Narasimhan does provide another basis for preferring Dr Cohen's evidence over that of Dr Flekser's.
40. It might also be noted that in the correspondence sent to the HCCC by his lawyers, Dr Flekser said that after he had spoken with Dr Narasimhan in September 2012 in relation to claims he had made for procedures that were in fact conducted by Dr Narasimhan, he had then checked the log and corrected it. In oral evidence Dr Flekser denied that he had ever checked the log in this way. This is just another example of inconsistency in the evidence given by Dr Flekser. Indeed, if Dr Flekser had checked the log in the light of Dr Narasimhan's complaint, many adjustments would have been necessary.
41. Earlier in this decision the Tribunal formed the view that Dr Flekser had used the system for having all entries in the AVA made under "Registrar 1" not to falsify the number of procedures for the purposes of meeting College requirements but as a support mechanism for the many false claims he had made for procedures he did not perform or did not attend upon. Nevertheless, the AVA had a role of significance in the training of registrars and Dr Flekser's conduct had the potential to compromise the audit system. It is only on this basis that Particular 6 is made out against Dr Flekser.
42. In summary the Tribunal has found that Particular 3 and Particular 5 have not been made out against Dr Flekser.
43. As discussed below, the National Law establishes a statutory test for unsatisfactory professional conduct and professional misconduct. In R v Byrne (1995) 193 CLR 501, it was held that conduct not in conformity with professional standards is improper conduct. A deliberate departure from those standards may constitute professional misconduct (Lucire v Health Care Complaints Commission [2011] NSWCA 99). These cases were considered and applied by the Tribunal in Fraser.
44. Particulars 1, 2, 4 and 6 have been made out. The Tribunal has found that Dr Flekser has engaged in a deliberate system of false claims and has received payments from Medicare and private health funds to which he was not entitled. The conduct found in relation to Particular 6 is properly treated as being at a much lower level of culpability.
45. In addition the Tribunal has concluded that Dr Flekser has not been honest in his evidence.
46. The National Law, in s 139B (1), defines unsatisfactory professional conduct to include any other improper or unethical practice of the practitioner's profession.
47. The Tribunal regards the conduct constituting Particulars 1, 2 and 4 amounts to improper and unethical practice, while Particular 6 amounts to unethical practice.
48. Professional misconduct is defined in the same section as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
49. The HCCC has sought a finding of unsatisfactory professional conduct in relation to the particularised conduct. The four particulars established more than adequately meet that definition. The most serious of the particulars establish a deliberate scheme to claim payment for procedures to which Dr Flekser was not entitled.
50. The same particulars are relied upon, individually and cumulatively, to constitute professional misconduct. The Tribunal regards the conduct of Dr Flekser, cumulatively, as constituting a very serious departure from expected professional stands, involving as it does a lack of honesty in making claims on Medicare and private health insurers. The seriousness of the conduct is compounded by what the Tribunal considers to be the untruthfulness of Dr Flekser in the giving of his evidence in these proceedings. The Tribunal concludes that, cumulatively, this conduct amounts to professional misconduct.
51. The Tribunal, in reaching its conclusions in this matter, has considered the credit of Dr Flekser and has separately evaluated the evidence relating to each of the 6 Particulars. This approach, however, should not leave out of consideration what the Tribunal considers to be clear admissions of fraudulent charging contained in the three submissions made on Dr Flekser's behalf by his lawyers between February 2013 and May 2014. All of the submissions were made in the context of Dr Lemech's complaint that Dr Flekser had made fraudulent claims for procedures not provided. The investigation by the Medical Council and the HCCC broadened the scope of the inquiry but never abandoned the fraudulent nature of Dr Flekser's claims.
52. It is to be recalled that not long before the first submission was made on 22 February 2013, Dr Flekser had made arrangements to consult Dr O. Thomas Stanley, psychiatrist. That consultation was arranged on 22 January 2013, and just four days after Dr Lemech made his complaint to AHPRA. On 24 January 2013 Dr Flekser submitted a voluntary acknowledgement of incorrect payments to Medicare. Against that background, the first submission repeatedly identified personal and financial stress arising from his large mortgage as the reason for Dr Flekser's conduct. After struggling with his mounting financial commitments he finally got to a position where he could no longer cope and began to make claims for surgery in which he was not involved. This was the first clear and unambiguous admission that Dr Flekser had engaged in fraudulent claims. In this submission there was no mention of an honest but mistaken claim for fees he thought he was entitled to. The submission refers to Dr Flekser being upset about his failure to abide by the expected professional standards and spoke of his "lapse" being due to personal and financial stresses. 1. The second submission was made in April 2013 and claimed that as soon as Dr Lemech "confronted" Dr Flekser, he admitted his conduct. Dr Lemech had raised fraudulent claims, not bungling, honest record keeping mistakes. Again there were repeated references to financial pressures. It was said that Dr Flekser was ashamed of his conduct and had sought professional advice and treatment. Dr Stanley's report was enclosed. The history taken by Dr Stanley does not deal with administrative incompetence or honest error but deals with Dr Flekser's admission to fraudulent conduct in relation to his billings. Again this conduct was said to arise because of financial pressures, keeping up with the Eastern Suburbs Joneses and problems servicing the large home mortgage. He was said to be genuinely ashamed and guilty over his illegal actions. The submission noted that Dr Stanley was of the view that Dr Flekser had provided a "clear honest account of the history of the issues". That history was one of fraudulent claims for procedures he had not performed. Even then, Dr Flekser was not honest about his real financial position: it seems obvious that he was simply setting up the best sympathetic story he could manufacture to cover his fraudulent conduct.
53. The third submission, made in May 2014, repeated the story of pressing personal and financial pressure as the reason for Dr Flekser's conduct. It was said that he acknowledged that he was submitting false and misleading claims to Medicare. He admitted to not being transparent and honest in his financial dealings with patients, his employers, Medicare and private health funds. He was cognisant of the improper and unethical nature of his conduct. He was consulting a psychiatrist so as to understand his conduct and to manage stressors in his life and to avoid engaging in similar conduct in the future. He was certainly not consulting a psychiatrist about honest mistakes in his claim for fees.
54. The case, as pleaded and conducted, involved a number of complex issues. The parties shall therefore be given an opportunity to consider these reasons and given the time of the year, a Directions Hearing shall be listed for 9.30 am on Tuesday 9 February 2016. At that time a timetable shall be established for the filing of any further evidence and submissions regarding the consequential orders that may be made in these proceedings. The parties are also asked to address the desirability of a further hearing or whether this aspect of the case can be appropriately dealt with on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 02 February 2016 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2016