Health Care Complaints Commission v Flekser - [2016] NSWCATOD 65 - NSWCATOD 2016 case summary — Zoe

Health Care Complaints Commission v Flekser - [2016] NSWCATOD 65 - NSWCATOD 2016 case summary — Zoe

In relation to procedures performed at St George Hospital there were 27 such procedures with a total charge invoiced at over $6,600 with a benefit calculated at just under $4,000. In relation to procedures performed at St George Private Hospital there were 110 such procedures with a total charge invoiced at just over $22,000 with a benefit of just over $12,000. In relation to procedures performed in the Public Hospital where he had no right of private practice there were 88 such procedures with a charge invoiced for nearly $27,000 and a benefit close to $12,000. In relation to the false entries made in the web based audit application there were 99 such entries.
Following the publication of the Tribunal's decision a directions hearing was conducted in February 2016 and a timetable established for the filing of evidence and submissions regarding the protective orders that might be made in this case. That timetable concluded in April 2016. Dr Flekser filed a statement dealing with the steps he had taken to make repayments to the funds and provided three references. The HCCC filed no further evidence. The parties indicated their preparedness for the protective orders to be decided by the Tribunal on the written submissions filed without a further hearing.
The HCCC filed detailed submissions. The submissions repeated numerous findings made by the Tribunal and contended that the professional misconduct of Dr Flekser was of such a serious nature that together with his lack of insight and remorse, his registration as a medical practitioner should be cancelled for a period of at least three years.
Submissions filed on behalf of Dr Flekser stated that he accepted that as a consequence of its findings the Tribunal would make an order, pursuant to s.149C of the National Law, that his registration be cancelled. He also accepted that the Tribunal would make an order that he pay the costs of the HCCC as agreed or assessed.
It was further submitted that Dr Flekser continued to correspond with private health funds concerning the repayment of claims he had made and that a "significant amount of money" had been repaid to Medicare. It was asserted that "in due course" all monies incorrectly paid to him would be repaid to the funds.
In view of these matters it was then submitted that the cancellation of Dr Flekser's registration should not be for a period longer than three years. This course was also said to be supported by the numerous cases cited by the HCCC.
As a consequence of the limited nature of the evidence filed by Dr Flekser, the Tribunal wrote to the parties pointing out that the submissions did not address the issues of contrition, acceptance of responsibility for his conduct nor was there evidence of steps taken by Dr Flekser to address his conduct and to ensure that it did not occur in the future. A timetable was provided to allow the parties to address these issues if so advised.
In due course submissions were received from Dr Flekser addressing these issues. It was pointed out that in its decision the Tribunal regarded the false entries in the AVA audit at a considerably lower level of culpability than the conduct involving the making of claims for assisting at various procedures. It was also submitted that it was difficult if not impossible to address issues of contrition, acceptance and responsibility for this conduct given that Dr Flekser denied the factual matters particularised that the Tribunal had found established.
In relation to the claims for assisting at various procedures it was submitted that Dr Flekser accepted responsibility for making incorrect claims and that he should have made enquiries to satisfy himself that he was in fact present on the occasions for which he claimed. It was said to be implicit in accepting responsibility for that conduct that Dr Flekser had expressed contrition.
The submission pointed to the fact that Dr Flekser was repaying claimed benefits to Medicare and had been in ongoing communication with private health funds regarding repayment of benefits claimed. Correspondence was provided to the Tribunal to demonstrate that Dr Flekser would soon be in a position to approach the private health funds and finalise repayment to them. These actions were said to amount to "a tangible expression of contrition" in relation to these matters.
Finally, it was said that Dr Flekser accepted the Tribunal's findings and "was doing everything" he could to accept responsibility for his actions. In this endeavor he was being supported by his family, although his wife had left him, and that he was "seeking further professional help". Dr Flekser continued to work regularly in an assisting medical role with medical professionals who were said to "support him professionally". He had made a concerted effort to ensure claims he was now making for assisting were correct. He kept a log book of cases, was self auditing his cases and was auditing the claims made with the consultant surgeon involved.
In the statement filed regarding this stage of the proceedings, Dr Flekser recorded that on three occasions between August 2004 and February 2016 he had repaid a total of $27,262 to Medicare. Between September 2014 and January 2015 he had repaid to private funds a total of $2007. He estimated that approximately $19,500 was still owed to health funds. He had experienced difficulties in identifying amounts owed to the private funds and the means by which they could be paid.
The three references spoke well of Dr Flekser. The referees had read the decision of the Tribunal. Professor Lane was a vascular surgeon at Royal North Shore Hospital and had been responsible for the training and continuing education of many trainee vascular surgeons for more than 30 years. He regarded Dr Flesker's character as "of the highest order" and had no reason to doubt his honesty and integrity on a day to day basis. While he had made errors of judgment it would be a miscarriage of justice to not allow Dr Flesker to practise. It was more than enough punishment that he would not be allowed to practise vascular surgery. Professor Lane did not believe that he would perform inappropriately in the future. To avoid a waste of knowledge and skill he thought it appropriate to offer Dr Flekser a place in vascular research and to join his PhD students or to consider a masters degree at Macquarie University. The Professor would support such an application.
Dr Englund was a consultant at the Prince of Wales Hospital in 2012 during which time Dr Flekser was his accredited vascular Fellow. There was no evidence of problems with Dr Flekser's attitude or behaviour. He worked long hours, was attentive to his duties and performed very well in the management of his patients and in the running of the unit.
Following this period Dr Englund acted "in some degree" as Dr Flekser's mentor as he worked through the emotional difficulty in dealing with the issues that arose as a result of his time at St George Hospital. His assessment was that Dr Flekser's behavior reflected some degree of immaturity but he had learnt significant lessons from his recent tribulations. While Dr Flekser had recognised that some of the things he had done were not correct he had made significant redress in relation to some of the issues. He wished to move forward more positively and to improve himself as a result of learning from the errors he had made. It was Dr Englund's view that Dr Flekser was more likely to function as a good medical practitioner as a result of the salutary events and experience gained from his past behaviour.
Dr Mohabbat provided a reference in July 2015 and therefore prior to the decision of the Tribunal. He was a vascular surgeon at Royal North Shore Hospital and a VMO at Macquarie University Hospital and the Sydney Adventist Hospital. He had known Dr Flekser for two and a half years : during this time Dr Flekser was his vascular surgery fellow and later his primary assistant in vascular surgery. He spoke highly of Dr Flekser's professional skills and found him to be honest in all his dealings with Dr Mohabbat. He felt that Dr Flekser had learnt a great deal from his experience at St George Hospital. He had no hesitation in continuing to work with Dr Flekser and to provide any support required.
In March 2016 Dr Mohabbat reviewed his earlier reference in light of the decision published by the Tribunal in early 2016. He noted that he had known Dr Flekser since he worked as a vascular surgery fellow at Royal North Shore Hospital where he was a good surgical assistant. Dr Mohabbat did not have any financial dealings with Dr Flekser and had not experienced any similar issues during this time as had been raised by the HCCC in these proceedings.
While the references present a somewhat benign picture of Dr Flekser, based as they are on professional competence and diligence, none attempted to explain the deliberate and protracted behavior whereby he systematically claimed fees for which he was not entitled. Indeed, although given numerous opportunities to do so, Dr Flekser himself was unable to explain his conduct in this regard. Astonishingly, his first response to his legal advisors was that he was under severe financial strain because of a large mortgage and new family responsibilities. This explanation was relied upon by Dr Flekser in a number of representations made to the Medical Council and others by his solicitors. It was his initial response to this Tribunal. Dr Flekser accepted that these representations were made on his instructions. It was only after his bank records were required to be produced on summons that he changed his story and admitted that at the relevant time he was under no financial stress.
Dr Flekser was also unable to explain why he had told his psychiatrist, shortly after these allegations were raised with him by senior surgeons at St George Hospital, that he had been involved in making fraudulent claims for fees because of the financial strain he was under. His case in the Tribunal became that he had made a mistake in making these claims but he had not knowingly made claims for fees to which he was not entitled.
Dr Flekser did stand by his claim 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. All five surgeons rejected that account. The Tribunal concluded that Dr Flekser was not honest in giving his evidence in relation to this matter.
There were a number of other adverse findings made against Dr Flekser by the Tribunal. Among them was the finding that he had deliberately contrived a scheme whereby two other assisting doctors were told to record their presence and assistance at procedures using an identifier that was, in fact, Dr Flekser's identifier. In this way only Dr Flekser was recorded as assisting. He was found to be a most unsatisfactory witness who lacked frankness on numerous occasions and was continuously evasive in the answers he gave. It was noted that his repeated resort to lack of memory in order to blunt probing questions reflected adversely on his credit.
The Tribunal concluded that the conduct of Dr Flekser, cumulatively, constituted a very serious departure from expected professional standards, involving as it did a lack of honesty in making claims on Medicare and private health insurers. The seriousness of the conduct was found to be compounded by what the Tribunal considered to be his untruthfulness in the giving of his evidence in the proceedings.
In submissions filed by the HCCC attention was drawn to numerous cases where medical insurance fraud had been considered. These cases were decided between 1979 and 2004 and involved a variety of amounts. While the significance of the amounts involved have been affected by the effluxion of time the cases demonstrated the seriousness with which such professional breaches were considered and the likelihood of deregistration. In only a few cases were suspension or reprimand considered appropriate but in these cases there were special or particular circumstances that were held to justify such an approach.
A case of some similarity to the present matter is the judgment of the Court of Appeal in Desai v Rodgers (CA 282 of 1980, unreported decision of 29 July 1981). In this case a medical practitioner had been convicted on 27 charges of presenting medical assignment forms that were false in a material manner and thereby capable of being used to support payments under health insurance legislation. The Court sat on appeal from a decision of the Medical Tribunal that the seriousness of the matters proved against the practitioner required that her name be removed from the register.
While the offences did not amount to a large monetary sum the Court was moved to state: The appellant's fraudulent abuse of the system was limited in time and extent, but it stopped only upon discovery, and was quite inconsistent with and involved a repudiation of her responsibility as a medical practitioner. Medical benefits schemes depend upon the integrity of medical practitioners. Without that integrity, the schemes must fail or become a burden upon the community. Moreover it is critical that members of the medical profession should be aware of the need for and importance of that integrity. We have therefore concluded that the proper order is that her name should be removed from the register.
The approach in the case of Dr Desai was adopted by the Court of Appeal in Dr Patel v New South Wales Medical Board (196 of 1982, unreported decision 18 November 1982). In the present case the written submission for Dr Flekser accepted that on the findings made by the Tribunal an order would be made that his registration be cancelled. Quite independently of that concession the Tribunal is satisfied that Dr Flekser's misconduct is so serious that his registration should be cancelled pursuant to the provisions of s.149C of the National Law.
In reaching this conclusion the Tribunal considered the references and submissions made on behalf of Dr Flekser. The references were regarded as limited in their assistance and provided no indication of how, in any meaningful way, Dr Flekser had accepted the seriousness of his conduct or how he had impressed upon the referees the way in which things would change in the future.
There were similar deficiencies in the written submissions. While it is accepted that Dr Flekser appears to have embarked upon a program of repaying fees improperly obtained from Medicare and private health funds, that action is also consistent with his defence to the detailed allegations, namely that he had mistakenly claimed the fees believing that he was in fact entitled to them. Further, it was submitted that he was "doing everything he can to accept responsibility for his actions", yet there was no evidence indicating precisely what he was doing in this regard, It was also submitted that he was seeking further professional help, but there was no evidence of the nature of that assistance or whether or not it was addressing the fraudulent conduct in which he had been engaged whilst a registrar at St George Hospital. There was no evidence as to his present role or the billing system applicable to this work such as would assist an assessment of the doctor taking responsibility for his conduct.
In view of the inadequacy of the evidence on these issues the Tribunal finds itself in the position of not being able to make an assessment of the period of deregistration before it would be appropriate to allow Dr Flekser to apply for a review pursuant to the provisions of s.149C (7) of the National Law. In Health Care Complaints Commission v Khan [2016] NSWCATOD 32 at [114], the Tribunal noted that at times there were very good reasons to make an order under s.149C (7), including the need to reflect the seriousness with which the Tribunal views the practitioner's conduct and to ensure the safety of the public by precluding the practitioner from practising for a defined period. It was noted that the making of such an order was a matter of discretion. In that case the Tribunal found it neither necessary nor appropriate to make an order under s.149C (7).
In this case the HCCC has suggested that an order should be made prohibiting Dr Flekser from seeking a review of his deregistration before the expiration of a period of three years. The written submissions for Dr Flekser suggested that an order should be made that the cancellation of his registration "should not be for a period any longer than three years." Such an order appears to be beyond jurisdiction in so far as it contemplates that registration should automatically be restored at the expiration of three years. The scheme of the National Law requires a medical practitioner who is deregistered to make an application for a review of that order and to seek a reinstatement order under s. 163 B.
In this case, as in Khan, no submission was made as to why three years, or some other period, would be an appropriate restraint on the practitioner applying to the Tribunal. In all the circumstances the Tribunal is not prepared to simply endorse a period of three years before an application can be made by Dr Flekser for review. In taking this approach it should not be assumed that the Tribunal would approve of some period shorter than three years. It will be necessary for Dr Flekser to establish a case for registration if and when such an application is made.
Lastly, the parties were in agreement that Dr Flekser should pay the costs of the HCCC as agreed or as assessed. Such an order would be the norm absent strong reasons to the contrary. The Tribunal will therefore make an order that Dr Flekser pay the costs of and incidental to the proceedings of the HCCC as agreed or as assessed.