Health Care Complaints Commission v Milanovic

NCAT Occupational|2024-10-02|Before: Dr J

Introduction

The Health Care Complaints Commission ("HCCC" or "the Commission") seeks findings and "protective orders" against the Respondent, Dr Ivana Milanovic, in respect of her making a number of false claims on Medicare, involving multiple patients over a three year period, 2016 to 2019.
Her conduct has resulted in criminal proceedings against her, a Medicare Participation Review of her entitlement to claim Medicare benefits, and these disciplinary proceedings.
On the eve of the hearing in this Tribunal, Dr Milanovic sought termination of the HCCC complaint against her, on the basis that these present proceedings served no purpose, and would be "unfair, unjust and unreasonable", in view of (1) the sentence imposed in the criminal proceedings, (2) the adverse publicity, loss of income, and community reaction that followed them, and (3) her recent decision to surrender her registration and relocate to Europe. (Her solicitor, Sara Wallace, deposed (par 13) that Dr Milanovic does "not intend to resume medical practice".)
The Tribunal heard and dismissed the termination application on day one of the hearing, with reasons deferred, and proceeded to hear both Stages One and Two of the HCCC complaint on day two. Day three was agreed not to be required.
The HCCC filed voluminous material, but Dr Milanovic filed only an affidavit by her solicitor. The appropriate legal principles concerning the substantive proceedings were not in contention. No witnesses were called by either party, and Dr Milanovic did not attend the hearing, even by AVL. Both parties were represented by Counsel - the HCCC by Mr Kunal Sharma, and Dr Milanovic by Mr Anthony Britt.
The key Tribunal documents were the HCCC's "Further Amended Application" of 30 September 2024, its "Amended Complaint" dated 12 August 2024, Dr Milanovic's "Amended Reply" dated 11 September 2024, and her formal Application for Termination, filed 24 September 2024.
The Tribunal was assisted by comprehensive written and oral submissions from both counsel, on both the termination application and the substantive matter.

Relief Sought by the HCCC

The HCCC's original application dated 23 September 2023, and/or its first amended version, dated 12 August 2024, sought cancellation of Dr Milanovic's registration, a reprimand, a non-review period of one to two years, and an order for costs. They alleged both "unsatisfactory professional conduct", and/or "professional misconduct", but the professional misconduct claim was not carried forward to the "Further Amended Application", which sought, in terms: "(1) A direction that the name and address of the witnesses listed in the Schedule to the attached Complaint not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("the National Law") / an order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under s 64 of the Civil and Administrative Tribunal Act 2013; (2) An order under s 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled her registration pursuant to s 149C(1)(c) of the National Law; (3) An order under s 149C(4)(b) of the National Law that the practitioner is disqualified from being registered for a period of one year; (4) An order under s 149C(4)(c) of the National Law that the National Board record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board; (5) … (6) Pursuant to s 149C(7) of the National Law, an application for review of orders (2) and (3) may not be made until one year from the date of these orders. (7) An order that the Respondent pay the Commission's costs, as agreed or assessed under clause 13 of Schedule 5D of the National Law." and continued: "In the event that only some of the particulars of the Complaint are proved, the Applicant may seek alternative protective orders under s 149A (caution, reprimand, counsel etc), s 149B (fine), and/or s 149C (suspension) of the National Law."
The Amended Complaint, omitting formal parts, was in these terms: Background to Complaint One The practitioner was born in Serbia on 16 November 1954 (sic). In 1989 the practitioner completed a Bachelor of Medicine at the University of Nis in Serbia. The practitioner was first registered as a doctor in Australia on 4 November 2009. The practitioner is the owner and sole General Practitioner (GP) at the Dr Ivana Milanovic Family Practice in Albury which she founded in 2012. Complaint One Pursuant to s 144(a) of the National Law, the practitioner has been convicted of criminal offences in NSW. Particulars of Complaint One (1) On 23 November 2021, at Sydney Downing Centre Local Court, the practitioner entered a plea of guilty and was convicted of the offence of Obtain Financial Advantage by Deception between 1 January 2016 and 27 September 2019 at Albury contrary to s 134.2(1) of the Criminal Code Act 1995. … Complaint Three The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the purported practice of Medicine. Particulars of Complaint Three (1) Between 2016 and 2019, the practitioner created false and/or misleading medical records in relation to appointments with patients which did not take place and medical services which the practitioner did not provide contrary to guideline 8.4 of the "Good Medical Practice: A Code of Conduct for Doctors in Australia" (2014).
The names of the relevant patients have been supressed during these proceedings, but Schedule A to the Amended Complaint nominated patients "A" to "Y", and Schedule B to the original Complaint specified occasions in relation to those patients where Dr Milanovic had, inappropriately, made claims, and been paid, Medicare benefits.
Dr Milanovic's Reply was in these terms. As to the background to Complaint One In answer to the background to Complaint One, the former Practitioner: (a) admits that she was born in Serbia on 16 November 1964; (b) admits that in 1989, she completed a Bachelor of Medicine at the University of Nis in Serbia; (c) admits that she was first registered as a doctor in Australia on 4 November 2009; (d) says that she has substantial specialist training in psychiatry; (e) says that between 1993 and 2006 she worked as a Senior House Officer in psychiatry, Medical Officer of Special Scale in psychiatry and general practitioner in New Zealand; (f) says that she has extensive experience in chronic disease management, preventative health actions and counselling; (g) admits that she is the owner and formerly the sole general practitioner at the Dr Ivana Milanovic Family Practice in Albury which she founded in 2012; (h) says that she has now closed the Dr Ivana Milanovic Family Practice in Albury; (i) says that she surrendered her registration to AHPRA [the Australian Health Practitioner Regulation Agency] on 26 August 2024 stating that she does not intend to resume medical practice; and (j) says that on 29 August 2024 she received confirmation that her registration as a Medical Practitioner with general registration has been removed from the national register of health professionals. As to Complaint One The former Practitioner admits that pursuant to s 144(a) of the National Law, she has been convicted of a criminal offence in NSW. As to the Particulars of Complaint One (1) In answer to Particular (1), the former Practitioner: (a) admits paragraph 1; (b) says that she was charged with 25 sequences of a single offence pursuant to s 134.2(1) of the Criminal Code; (c) says the total amount alleged to have been fraudulently claimed was just over $26,000; (d) says that she entered a plea of guilty to a single sequence; (e) says that the balance of the sequences were withdrawn and dismissed; (f) says that she received a fine of $5,000 with a restitution order under s 21B in the amount of $10,558.45 as a result of her willingness to repay the money; (g) says that, in the course of the criminal proceedings, she admitted that her conduct was reckless; and (h) says that, in the course of the criminal proceedings, there was no finding or judicial determination that her conduct was deliberate. As to Complaint Three The former Practitioner denies that she has engaged in improper or unethical conduct relating to the practice or purported practice of Medicine. As to the Particulars of Complaint Three (1) In answer to Particular (1), the former Practitioner denies that she created "false and/or misleading medical records in relation to appointments with patients which did not take place and medical services which the Practitioner did not provide contrary to guideline 8.4 of the "Good Medical Practice: A Code of Conduct for Doctors in Australia" (2014). (2) The Respondent also refers to the correspondence attached as Attachment A.
Attachment A was a letter from her current solicitors dated 16 August 2024 arguing against the use of the term "and/or" in the particulars of Complaint Three. The letter concluded: "So that we are clear, we are not suggesting that our client did not, by way of reckless deception, dishonestly obtain a material financial advantage from the Commonwealth. However, that financial advantage was not obtained by the creation of a false medical record stored in her independent computing system. Rather, the conduct which constituted the offence related to the submission to Medicare of an assertion that services were provided in accordance with the Medicare Benefits Schedule in circumstances where our client was not sufficiently informed about the MBS requires (sic) (accepting that she ought to have known). That is conduct which is distinct from the making of a record in our client's own independent computing system, and even more distinct from the creation of a false record. Having regard to the foregoing, kindly let us know whether Complaint 3 is pressed in its terms. Otherwise, is there, in truth, any conduct which is relied upon other than that which emerges in the facts standing behind the conviction which sustains Complaint 1? If not, why is Complaint 3 pressed? What further public interest is advanced by the allegation?"
The 24 September 2024 Application for Termination, under Clause 12, Schedule 5D of the National Law, cited the following grounds: (1) The person about whom the complaint is made has ceased to be a registered health practitioner. Dr Milanovic's registration was surrendered on 29 August 2024. (2) It is not in the public interest for the inquiry to continue. With respect to the prosecution of this matter, the regulatory system has already responded. On 23 November 2021, Dr Milanovic was convicted of the offence to obtain financial advantage by deception contrary to s 134.2(1) of the Criminal Code Act 1995. As a consequence of the public prosecution and her conviction, Dr Milanovic was publicly shamed via the media. Dr Milanovic also was the subject of a Department of Health investigation in relation to the issue before the Tribunal.

The Evidence

The HCCC relied on five volumes of material (Ex H1), and Mr Britt on an affidavit by his instructing solicitor, Sara Wallace.
Mr Britt also helpfully tendered (as Ex R1) the 2014 version of the "Good Medical Practice" Code of Conduct, which applied at the relevant time (rather than the 2020 version included in HCCC material). Section 8.4 of the 2014 Code provided: "8.4 Medical Records Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners. ... 8.4.5 Making records at the time of the events, or as soon as possible afterwards..."
We will refer to the HCCC material in Ex H1 by volume and page numbers, noting that volumes 2 and 3 comprise 2,165 pages of patient records, and volume 5 provides (pp 4-6) a guide to where records relevant to Complaint Three and patients A to Y might be found among them.

Termination Application

Given that Dr Milanovic has ceased to be registered, Mr Britt submitted that the Tribunal should exercise its discretion not to proceed with this matter (Health Care Complaints Commission Act 1993, s 90C), especially given that her records were not "false" regarding medical matters, but only regarding attendance of patients when she claimed she conducted reviews of relevant "plans" for them (submissions 30 September 2024, par 37), and that no order is now sought under s 149A(1) (those submissions, par 47).
We do not accept the Respondent's assertion, in par (2) of her Termination Application (see [13] above), that "the regulatory system has already responded". Each of the three processes imposed upon Dr Milanovic in respect of her offending conduct - criminal proceedings, a regulatory Medicare hearing, and these disciplinary proceedings - serves a discrete public purpose, and each takes place in a different context (Sharma submissions, 30 September 2024, pars 4, and 32-52).
Several issues raised in the present proceedings, in regard to Dr Milanovic's conduct, were not resolved at all, in either the criminal proceedings or the Medicare review, and we came to the firm view that these proceedings should be allowed to continue.
Part of Dr Milanovic's argument in favour of their termination was that she had thought that the criminal proceedings would see the end of the matter. However, she was clearly on notice that that was not the case (see her counsel's submission at the sentencing hearing, at Vol 1, p 360, Ll 28-39, as well as the HCCC letter to her then solicitor, dated 7 July 2021, at Vol 1, pp 35-36).
All these issues were well canvassed in Mr Sharma's submissions against the application for termination, and we found his arguments far more cogent than the case put by Mr Britt, which was, in essence, that Dr Milanovic "had been punished enough and, in any event, had now left the profession and the jurisdiction". We accept Mr Sharma's submissions and reject Mr Britt's: see Health Care Complaints Commission v Duggan [2015] NSWCATOD 142.
Accordingly, the Tribunal resolved to dismiss Dr Milanovic's termination application, on the basis that the "protective" function of these present proceedings was not part of the other two processes - the criminal proceedings are "punitive" in character, and the Medicare proceedings are concerned with the right of a doctor to claim on the public purse for services rendered - and there is, therefore, an enduring "public interest" in these disciplinary proceedings running their course.

A Survey of the Evidence

Dr Milanovic (see her CV at Vol 1, pp 45-46) was born in Serbia on 16 November 1964 (not 1954 as stated in the original HCCC Complaint - see Vol 1, p 7 cf p 23).
She graduated "top of the year" in Medicine, while in her home country, in 1989.
She migrated to New Zealand in 1993, practised as a General Practitioner ("GP"), became a citizen, and developed some acknowledged expertise in psychiatry.
She returned to Serbia from 2006 to 2009, before migrating to Australia, where she was first registered in NSW on 11 April 2009 (Vol 5, p 8), and as a GP on 4 November 2009 (Vol 5, p 9).
She established her own practice in Albury NSW in May 2012, but surrendered her registration, effective 29 August 2024 (Vol 5, p 9).
She is a single mother with two sons, one apparently still dependent upon her. She is multi-lingual, and a classical singer and musician of some note, and suffers from arthritis of the feet. Apart from matters involved in the present proceedings, she has no criminal history before or since, and she has been continually legally represented throughout these matters, firstly by Avant Law, then in the criminal stage by Moray & Agnew, and now by Makinson d'Apice.

The Doctor is Charged

On 21 January 2020 (Vol 4, p 18), the Australian Department of Health invited her to be "voluntarily interviewed" about some three hundred-plus claims that she had made for Medicare benefits, between 30 January 2015 and 23 August 2019, totalling some $26,000, and she participated in a "Record of Interview" (ROI) on 20 March 2020 (Vol 1, pp 199-222).
The Department of Health made a formal finding on 29 April 2020, and she was then charged with 25 sequences of "obtain financial advantage by deception", by the Commonwealth Director of Public Prosecutions (DPP), on 11 February 2021 (see the "CAN" at Vol 1, pp 25-32 - Commonwealth Criminal Code 1995, s 134.2(1)).
She self-notified AHPRA on 18/19 February 2021 (Vol 1, pp 22-24), and the matter was referred on to the Medical Council of New South Wales (p 21).
She eventually appeared at Deniliquin Local Court on 15 November 2021 (transcript at Vol 1, pp 348-353, and Vol 4, pp 3-8), where she entered a negotiated "rolled-up" plea of guilty to one offence under s 134.2(1), involving a total of $10,558 ("sequence 26", Vol 1, pp 344-5, and see pp 346-353, especially p 351, Ll 7-15; see also Vol 4, p 6) covering a period of two years nine months, 2016 to 2019, and "some but not all" of the original 25 sequences, which were then withdrawn and dismissed by consent (Vol 1, p 351 and Vol 4, p 6, Ll 26-7).
Dr Milanovic's sentencing was stood over to the Downing Centre Local Court in Sydney, to be dealt with on 19 November 2021, with the benefit of a Statement of Agreed Facts (SAF - Vol 1, pp 185-198) and a (duty) Sentencing Assessment Report (Vol 1, pp 354-5).
It should be noted that at the Tribunal hearing, both parties relied upon that SAF, which relevantly includes the following (Vol 1, pp 185-6): "3 Between 2016 and 2019 the offender submitted Medicare benefits schedule (MBS) claims against different patients containing false information namely that the patients attended the practice for the purpose of services on the specified day and she was reckless as to her falsity of the content of the claims. As a result she received MBS payments from Services Australia (Medicare) (Medicare) that she was not entitled to. … 13 A GP Mental Health Treatment Plan (MHTP) is a written plan that includes an assessment of a patient's mental disorder, a formulation of the disorder, treatment goals with which the patient agrees, actions to be undertaken by the patient, a crisis and/or relapse plan, referral and treatment options and arrangements to review the plan. 14 GP mental health treatment, GP Management Plans and Team Care Arrangements may be reviewed periodically. In order to bill a review of a relevant plan the offender was required to have had a personal attendance with the patient. 15 In relation to each of the instances outlined in Annexure A the offender did not have an in person consultation on the specified date. As a result of the offender submitting a MBS claim for the creation of or reviews of a GPMP, TCA and MHTP for items where she did not have in person attendances she received MBS benefit payments to which she was not entailed (sic - entitled)." (Note that Annexure A to the SAF appears in Vol 1, pp 188-198).
On 23 November 2021, Magistrate Hoskings (transcript at Vol 1, pp 356-374) placed Dr Milanovic on (effectively) "a good behaviour bond for two years with a conviction record", ordered her to repay some $10,558 in Medicare benefits, and to pay a $5,000 fine. Dr Milanovic so advised AHPRA on 21 November 2021 (Vol 1, p 34, and formal sentencing orders appear at pp 375-6 of Vol 1).
In sentencing Dr Milanovic, Magistrate Hoskings said, inter alia (transcript, Vol 1, p 371, Ll 32-39) "… You own the practice and you operated on your own. Between 2016 and 2019 you submitted Medicare benefit schedule claims against a number of different patients and these claims contain false information, namely that the patients attended the practice for the purpose of services on a specified day and you were reckless to the falsity of the content of the claims. As a result, you received MBS payments from Medicare that you were not entitled to. The total amount obtained by you, as a result of these fraudulent claims, was $10,558.25." Later, Her Honour said (p 372, Ll 34-44): "…I think I can make the general statement that there could have been harm suffered in this circumstance to individual patients. While there is no evidence before me in relation to actual harm suffered, but (sic) there is a loss of funds to the public purse and had there not been a reason or a trigger point for investigation this may well have continued for the rest of your practising career. I also have to consider the degree to which you have shown contrition for the offence. I note there is a plea of guilty, but it was at a later stage and the submission was that it was after all this evidence is received. It is a strict liability offence…"
In essence, the Commonwealth had accepted Dr Milanovic's representations that (1) her offending was not intentional, but "reckless"; (2) she was unaware of the regime which Medicare established; and (3) she had no financial motivation to defraud.
It would appear that an appeal to the District Court of NSW was lodged, but not pursued, and the Magistrate's penalties were formally confirmed on 3 March 2022 (Vol 1, p 377 - a Certificate of Conviction issued on 24 May 2022 (pp 378-380)).

Medicare Review

On 11 January 2022, the Federal Minister for Health and Aged Care caused the Medicare Participation Review Committee to convene a hearing to consider Dr Milanovic's conviction.
Makinson d'Apice unsuccessfully submitted on Dr Milanovic's behalf on 22 April 2022 (vol 4, pp 29-34) that the Committee should take no further action, and the Review hearing eventually took place on 30 June 2022, in Melbourne.
Dr Milanovic was represented by counsel (Brendan Lim), and gave oral evidence.
Various sanctions were available to the Committee, including disqualification from billing for a discretionary period ranging from six months to three years. Her solicitors were later to observe (letter 28 February 2023 at Vol 1, p 90) that: "The Committee was ultimately comforted by the degree of insight that Dr Milanovic demonstrated in her oral evidence. She demonstrated an acceptance of her wrongdoing, engaged in critical reflection of what went wrong and displayed a genuine willingness to implement measures to avoid further transgressions. … Dr Milanovic has at no time made any excuses for her conduct. The Committee recognised Dr Milanovic's ownership by remarking that she has taken full responsibility for the failings of her billing practices. The Committee ultimately considered that to impose a period of disqualification on Dr Milanovic, while possible, would have been punitive in all the circumstances. And that their decision was ultimately made taking into account the nature of offending, the level of insight demonstrated by Dr Milanovic and the detrimental effect that disqualification would have had on her patients, some of whom are elderly and long-term chronic care patients who are most vulnerable. The Committee in that regard did not consider that disqualification from billing under Medicare (notwithstanding her guilty plea and conviction) was appropriate. Rather, they considered that it was appropriate that Dr Milanovic's patients continue to have access to her for the services she provides, at the cost of the Commonwealth."
The Committee's report dated 26 August 2022 is before the Tribunal (Vol 4, pp 19-28). It noted (pp 23f, pars 27-30): "27 Dr Milanovic characterised her offending to be a mistake induced by her lack of understanding of the Medicare billing rules. It was so submitted that her conduct was reckless and not an intentional breach designed to fraudulently obtain money for personal gain. 28 It has been put to the Committee that the amount defrauded is a relatively small amount. Whilst we see the basis of that submission, the Committee regards any acts of fraud on the Commonwealth to be noteworthy. The stealing of in excess of $10,500 of public funds is a crime upon the community and a breach of trust conferred by the Government of Australia. This should not be understated. 29 It is of concern to this Committee that Dr Milanovic performed on numerous occasions General Practitioner Management Plans, Team Care Arrangements, and Mental Health Treatment Plans and reviews of all of these without the patient present. Dr Milanovic stated that she held a mistaken belief that this course of practice complied with the regulations. In this respect the doctor's professional judgement was lacking. 30 At all relevant times, Dr Milanovic possessed the full capacity and means to access the Medicare Benefit Schedule in order that she may clarify any doubts she may have held when billing to Medicare and yet she did not utilise this resource. Ignorance of the terms of any item descriptors is not to any doctor's credit when assessing culpability in such matters." (We respectfully agree with the Committee's comments regarding Dr Milanovic's claimed unawareness of the regime in place).
The Committee went on to note (pars 31-37) Dr Milanovic's attempts to improve her understanding and performance, the changes she had made in her practice, and the testimonials to her character and community effort, and was (par 38): "… comforted by the degree of insight that Dr Milanovic demonstrated in her oral evidence. She has demonstrated an acceptance of her wrongdoing, engaged in critical reflection of what went wrong and displayed a genuine willingness to implement measure to avoid further transgressions."
The Committee concluded (pars 40-41) that: "40 … to impose a period of disqualification which we did consider was possible would be punitive in all the circumstances. This decision is made taking into account the nature of offending, the level of insight demonstrated by Dr Milanovic and the detrimental effect that disqualification would have on her patients, some of whom are elderly and long-term chronic care patients who are most vulnerable. We therefore do not consider that such sanction is appropriate in the present case. Rather we do consider that it is appropriate that Dr Milanovic's patients continue to have access to her for the services she provides at the cost of the Commonwealth. 41 We do however consider that some action beyond that which has already been imposed on Dr Milanovic ought be imposed in the circumstances of this matter and the Committee has decided to make the following orders pursuant to sub-section 124F(2) of the Act in respect of Dr Milanovic: i Dr Milanovic must undertake all that education stipulated in her signed undertaking to complete an Avant Education Plan by 30 September 2022; and ii That Dr Milanovic be reprimanded".

The HCCC Investigates

Following the end of the criminal proceedings in March 2022, the HCCC "recommenced its investigation of the issues raised in [Dr Milanovic's] self-notification of 19 February 2021" (Vol 1, pp 37-40). It sought documents from her and, on 4 April 2022, invited her to respond, which she did with a detailed submission via her then new but now current solicitors, on 11 May 2022 (Vol 1, pp 41-44). She argued, inter alia (pp 42ff): "The Local Court also had regard to the sentencing assessment report, which indicated that the likelihood of reoffending is limited; in other words, I had learnt my lesson. I stress that prior to this matter, I held a "clean record" and there were no other offences to be taken into account. While the offences in this case involved a course of conduct in relation to an activity which was submitting Medicare claims for my own care plan reviews without seeing the patient, it was not part of a larger course of conduct in my practice or involving any other people ie it was a narrow, limited and confined set of circumstances. … Having gone through this process, I understand what I did was wrong. I believe I have been sufficiently punished by the Court for this wrongdoing, not to mention the damage to my reputation. However, I also received adverse media attention as a consequence of the charges… As a consequence of that media coverage, I experienced a toxic relationship with residents in the building in which I reside. In other words, there has been wide public dissemination of my conviction which, in my submission is sufficient for the purpose of general deterrence. … …I appreciate that at the conclusion of your investigation, the HCCC could opt to prosecute me and seek that my registration be cancelled for a period of time. As is demonstrated by the above submissions, cancelling my registration could only achieve what in the criminal law would be called a "crushing sentence". I respectfully submit that this should be avoided in circumstances where the objective of any sanction should be directed at improving the performance of the individual practitioner and not penalise his or her patients. The orders which are made pursuant to the… National Law are intended to be protective, and not punitive. In that respect, there is simply nothing more to be gained by flogging me publicly again. I have been punished. I have learned my lesson. I understand what is required of me. Others have seen the case in the press and there has already been a sufficient deterrent effect. It is unlikely that any further Tribunal proceeding will reach a wider audience than the media already has. In respect of performance, I have undertaken to make (or already made) changes to my practice of medicine, including enhancing my record keeping to ensure that there is good available evidence of what I am doing, clinically speaking. … I appreciate that I have a great personal responsibility to protect the Medicare system. And to make sure that it is not abused. This process has certainly highlighted areas for improvement for me personally. Needless to say, I never want to find myself in a situation again given the very public and regulatory scrutiny, not to mention damage to my reputation, which has been humiliating."
More documents were sought, on 31 May 2022 (pp 50-53), and Dr Milanovic provided some commentary on various patients (pp 54-74). Yet more documents were sought, on 26 June 2022 (pp 75-79).
The HCCC completed its investigation on 30 January 2023 (pp 80-85), and advised Dr Milanovic that it had decided to bring these proceedings on the basis of (1) the criminal conviction, and (2) "improper or unethical conduct in the practice of the profession of Medicine". Part of the second allegation (p 82) wrongly relied on the October 2020 version of Ex R1 (Vol 1, pp 381-407).
Makinson d'Apice responded at length on Dr Milanovic's behalf (under s 40), on 28 February 2023 (Vol 1, pp 86-93), submitting that the complaint against her should be terminated, or, in the alternative, that no prosecutorial action be taken against her, on the bases that: 1. Both the Commonwealth DPP and the Local Court accepted that her conduct was reckless and not deliberate, and she had "no scheme nor any intention to defraud"; 2. Dr Milanovic had practised in Albury as "a valued GP for at least ten years" and her services were widely appreciated and her practice has contributed substantially to the local economy; 3. She had no criminal history, no other offences were taken into account, and her sentencing report was favourable, finding that she had learnt her lesson and the likelihood of reoffending was "limited" - the risk was "very low to none"; 4. She had received adverse media attention (Vol 1, pp 160-163, and Wallace affidavit, pp 10-15) as a consequence of the charges, and a "toxic" response from neighbours, and her reputation and practice continued to suffer materially (her turnover allegedly fell from $600,000 pa to about $150,000 pa); 5. She had been poorly advised by the lawyers who acted for her in the criminal proceedings; 6. She had meanwhile been forced to endure the Medicare review hearing; and, 7. These Tribunal proceedings, if successful, would achieve a "crushing sentence" for her.
The 28 February 2023 submission concluded (p 92): "Although Dr Milanovic has made significant changes to her Practice she can only emphasise that it was never her intention at any time to deliberately or intentionally take advantage of the MBS system which is one that she greatly respects. Her competence has never been in question and while it was wrong to submit the MBS payment claims without meeting all of the Medicare criteria, she did not do so for financial reward but because she was undertaking reviews of patient files. While she should have checked to see if she was entitled to charge for that work, she nonetheless had her patients' interests at heart. Dr Milanovic appreciates that there are hardworking taxpayers in this country who every day pay from their own toil tax monies which are vital to the existence and to the health of Medicare. Dr Milanovic appreciates that she has a personal responsibility to protect that Medicare system. And to make sure that it is not abused. Again this process has certainly highlighted many areas for improvement for Dr Milanovic personally but also the seriousness with which this situation has been dealt with. Needless to say she never wants to find herself in this situation again, given the very public and regulatory scrutiny, not to mention damage to her reputation. Dr Milanovic will take any necessary steps to avoid putting herself in this situation again and to educate herself, her colleagues and staff around her of the importance of proper billing and medical administration practices, having learned a very important lesson in the context of her experience with this matter."
The materials before us also include the details of the Avant Education Plan Dr Milanovic undertook from March 2022 (pp 94-113), relevant character references (pp 116-122), an overview of her deteriorating finances over the financial years 2019 to 2021 (pp 123-152), and a schedule of Medicare records of services confirmed as not received, including statements by citizens verifying schedules of such items referring to each of them (pp 243-343).
Dr Milanovic surrendered her registration on 26 August 2024, and has apparently returned to Serbia. Her intentions in those regards were signalled by Ms Wallace in an email to the HCCC dated 14 August 2024, which sought withdrawal of the Tribunal application for findings and orders (Wallace affidavit, pp 19-20). The HCCC confirmed on 16 August 2024 that the matter would proceed (p 21). The withdrawal submission was renewed by email on 27 August 2024 (p 23), after her registration was surrendered; it was further reconsidered by the HCCC (p 24), and rejected on 28 August 2024 (p 26). Surrender of her registration was confirmed by email of 29 August 2024 (pp 27-28).
In her submission on 14 August 2024 in support of the withdrawal of the Complaint (Wallace affidavit, p 19), Dr Milanovic's solicitor asserted that the Medicare Committee "acknowledged the degree of insight that Dr Milanovic demonstrated when she gave evidence before the Committee" and "determined [only] to publicly reprimand [her] for her actions."

Discussion

Having determined that these complaint proceedings should continue, and having now summarised the evidence, the Tribunal turns to consider the subsisting complaints.
Dr Milanovic has admitted Complaint One - based on her conviction on a criminal charge - and we find that that complaint has also been independently established by evidence before us, namely the Magistrate's sentencing remarks (Vol 1, pp 371-4), and the orders of the Local Court, as formally sealed (p 375).
It must be remembered that the offence involved Dr Milanovic obtaining a financial advantage as a result of a "deception", and her having acted "dishonestly" (even if recklessly), in doing so.
As Mr Sharma submits (30 September 2024, par 13, and see Vol 1, p 365, Ll 31-35), Dr Milanovic was aware of a substantial risk that her Medicare claim documents were false, and she took that unjustifiable risk. He says (par 46): "…An admission of recklessness meant that Dr Milanovic acknowledged she was aware of a substantial risk that the documents were false, and it was unjustifiable for her to take that risk (see definition of recklessness in s 5.4 of the Criminal Code)."
He subsequently notes (par 48): "[Her conduct] was serious. It involved reckless interference with the proper functioning of the Medicare system". (He goes on to refer to several cases which have stressed the importance of medical practitioners acting with integrity in accessing Medicare: Health Care Complaints Commission v Liu [2016] NSWCATOD 133).
Complaint Three, based on Dr Milanovic having engaged in improper and unethical conduct, relies upon our being satisfied that she created records which wrongly claimed appointments which did not take place.
The HCCC has clearly articulated which records, among the many before us, are false and/or misleading (see the table in Vol 5, pp 3-6, and the schedule to Mr Sharma's submissions dated 1 October 2024).
There is evidence from relevant patients that they did not attend the appointments for which Dr Milanovic claimed benefits (Vol 1, pp 243-343), and there are specific admissions in the SAF (Vol 1, p 186, pars 11-14), that Dr Milanovic acknowledged that, to "bill a review of a relevant plan", she was required "to have had a personal attendance with the patient", and she had not.
As Mr Sharma submits (1 October 2024, pars 28, 29, 33 and 36): "28 The ordinary position is therefore that the services… require the presence of the patient. Once it is accepted that the patient was not present at the relevant appointments (as Dr Milanovic concedes), the corollary is that Dr Milanovic did not provide the relevant service to those patients. As the records represented that she had, those records were false and misleading. 29 Dr Milanovic argues that there's no evidence to conclude that she had not provided the relevant service in the absence of the patient. That argument is misconceived. The Commission does not have to adduce evidence of what Dr Milanovic was doing in the absence of a patient at the practice. The Commission's position is that the records would have represented to a reasonable reader (for example, another medical practitioner) that Dr Milanovic had provided that service in the ordinary way by consulting with a patient. … 33 Once it is found that the records were false or misleading in that they represented that appointments had taken place with patients (even though they had not) and services provided to them (even though they had), the irresistible conclusion is that those records were inaccurate in reporting the details of those patients' clinical history, investigations conducted in relation to them, information provided to them, and their management. In preparing them, Dr Milanovic acted contrary to clause 8.4 of the Code of Conduct. … 36 Dr Milanovic's conduct in creating records that were false or misleading was contrary to her obligations under the Code of Conduct as described above. It involved a lack of regard for maintaining accurate records and a failure to appreciate the consequences of maintaining inaccurate records… In those circumstances, it lacked the propriety expected of her and was not in conformity with professional standards. It was also unethical as it involved presenting as true records of consultations and services that had not in fact taken place."
Dr Milanovic did not take the opportunity to put on any evidence to answer this case, and we accept Mr Sharma's submissions in this regard.
Having satisfied ourselves that the two remaining complaints have been established, we turn to consider what orders might be appropriate.

What Orders Should be Made?

Dr Milanovic made numerous false claims for public monies, involving multiple patients, at least some of them vulnerable, over a period of some three years. She may well have continued this practice, but for the chance detection that she had infringed.
There are claims, but no evidence, that Dr Milanovic has developed or demonstrated "insight" in respect of the wrongfulness of her behaviour.
She has not sought to establish any "reformation" of her recklessness, or any contrition.
Her failure to give evidence of insight or contrition must be taken into account on the question of making protective orders: Health Care Complaints Commission v Ullah [2023] NSWCATOD 139, at [68].
Further, the media reports upon which she relies are neither specific nor adverse enough to satisfy the need for public disapproval of her conduct.
Accordingly, we are of the view that both general and specific deterrence are called for.
In respect of Complaint One, the HCCC submissions seek the following orders, protective in nature (1 October 2024, par 42): "(a) Pursuant to s 149C(4)(a) of the National Law, if Dr Milanovic were still registered the Tribunal would have cancelled her registration under s 149C(1)(c) of the National Law; (b) Pursuant to s 149C(4)(b) of the National Law, Dr Milanovic is disqualified from being registered for a period of one year; (c) Pursuant to s 149C(4)(c) of the National Law, the National Board record the fact that the Tribunal would have cancelled Dr Milanovic's registration in the National Register kept by the Board; (d) Pursuant to s 149C(7) of the National Law, an application for review of the cancellation and disqualification orders may not be made until one year from the date of these orders."
There is no evidence of any undertaking by Dr Milanovic not to reapply for registration, and we are, therefore, satisfied that those orders should be made.
In so deciding, we reject Mr Britt's submissions to the contrary, including his argument that she has in some way been the victim of a denial of procedural fairness. That submission was based on Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 ("Drakopoulos"), the circumstances of which case were very different from the present.
Dr Milanovic was always represented by experienced practitioners who would have seen her risk of cancellation once she admitted her offence, so we are satisfied that she was afforded procedural fairness at every stage of the proceedings.
We adopt the Tribunal's comments in Drakopoulos (at [32]) that: "It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice (sic). A failure to do so does not excuse non-compliance."
The conduct which is the subject of Complaint Three is also serious, and could have had harmful consequences for patients: For example, the preparation of a false Mental Health Care Plan could make it difficult for the patient involved to access a new plan when one was needed.
We are not satisfied that Dr Milanovic falsely recorded having reviewed the patients' plans, or writing letters etc, but we are satisfied that, as admitted, she falsely recorded doing so in consultation with her patients, and claimed for such work.
We find Complaint Three made out in this respect.
The HCCC certainly does not consider, nor argue, that all the notes in Volumes 2 and 3 are false, and the allegations upon which they argued this case, and the evidence cited in support, were very specific.
A reprimand for this pattern of behaviour would have been in order, but, as Dr Milanovic is no longer registered, that response is probably not available to us: Health Care Complaints Commission v Ruming [2024] NSWCATOD 77, at [107].
In those circumstances, the HCCC argues (1 October 2024, par 55), and we accept, that this Tribunal's adverse public findings "would have the intended effect of meeting the purposes of individual and general deterrence": Health Care Complaints Commission v Reyes [2023] NSWCATOD 57, at [122].

Costs

The HCCC seeks an order for its costs, but has agreed with counsel for Dr Milanovic that the question of costs should be reserved, pending the publication of these reasons.
Both parties should make their submissions on the question of costs within 28 days of the publication of these reasons, with a view to the issue being determined expeditiously, and hopefully "on the papers", if it cannot be agreed between the parties, in the meantime.

Orders

The Tribunal makes the following orders: 1. Pursuant to Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the names and addresses of all patients nominated in the Complaints are directed not to be disclosed; 2. The Respondent's application dated 24 September 2024 seeking an order terminating these proceedings, pursuant to Clause 12 of the aforesaid schedule to the National Law, is dismissed; 3. Pursuant to s 149C(4)(a) of the National Law, if Dr Milanovic were still registered the Tribunal would have cancelled her registration under s 149C(1)(c) of the National Law; 4. Pursuant to s 149C(4)(b) of the National Law, Dr Milanovic is disqualified from being registered for a period of one year; 5. Pursuant to s 149C(4)(c) of the National Law, the National Board record the fact that the Tribunal would have cancelled Dr Milanovic's registration in the National Register kept by the Board; 6. Pursuant to s 149C(7) of the National Law, an application for review of the cancellation and disqualification orders may not be made until one year from the date of these orders; 7. The costs of these proceedings are reserved and the parties are directed to make submissions to the Registrar, within 28 days of the publication of these reasons, with a view to the question of costs being determined by the Tribunal, on the papers, if not agreed between the parties.

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 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: 29 November 2024

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (6)