Administrative Appeals Tribunal of Australia|1996-06-07|Before: Dr J

The applicant referred to a steady growth in his practice and stated in examination in chief it averaged, he thought, about 350 to 400 consultations per month. He agreed in cross examination that the figure for 1995 could be 330 per month. Clearly the practice is not a busy general practice. The applicant's surgery is open for long hours: Monday 7 am to 5 pm; Tuesday to Thursday 8 am to 5 pm; Friday 7 am to 5 pm; Saturday 8 am to 10.30 am; and Sunday 8 am to 10 am. In addition, the applicant is on call all the time. Despite these long hours, the practice returns a taxable income of about $1,000 per week. The applicant's evidence is that if the practice were closed for a month a lot of patients would tend not to come back but would stay with whatever practice they had moved to.

It is clear from the evidence that the applicant has not given a great deal of thought to how the practice could be kept going if he were to remain disqualified from participation in the Medicare Scheme. He has not advertised the practice for lease but has spoken to Dr Scragg about it. Nor has he advertised for a locum. The applicant stated he would not be able to operate the practice for long if he practised effectively for nothing or for whatever anyone was prepared to pay, as he would still need to meet expenses.

Dr Scragg, who has worked for the applicant as a locum and works generally as a locum, gave evidence that the fee for city locums is about $1650 for 35 hours. Dr Scragg indicated that it was unlikely that he would be interested in leasing the practice, given the demand for his services elsewhere. He would want to be guaranteed about $1650 clear per week. He stated that to get a doctor from the city to go to the country to work would be more expensive, about $2,000 per week clear.

The expenses involved in leasing the practice or obtaining locums to maintain it are such that the income from the practice could not meet those expenses. Having regard to the applicant's evidence that if he were to operate without Medicare facilities for his patients, the need to meet expenses would limit how long he could operate in such a way, the Tribunal concludes that any substantial disqualification period would seriously affect the viability of the practice. Counsel for the applicant suggested that a four month disqualification period would be the most the practice could withstand.

It is apparent from Dr Scragg's evidence that the South Coast Hospital, of which he is the principal medical officer, could well use the services of a specialist surgeon like the applicant, particularly in emergency cases. However, it is unknown whether Medicare disqualification would make such an arrangement impracticable. In the circumstances and on the material before the Tribunal, little regard can be had to this possibility.

Counsel for the respondents acknowledged that the disqualification period imposed by the Committee would cause personal and financial hardship to the applicant. However, she submitted that this is the intention of such disqualification: '... It is, of course, meant to and does cause hardship'. She submitted that this hardship would be reduced as the applicant would be entitled to an age pension.

(c) The Tribunal is satisfied that Dr Markey's practice is the only practice in the Victor Harbor-Goolwa-Middleton area which currently bulk bills. The Tribunal is also satisfied, from the applicant's and from Dr Scragg's evidence, that bulk billing attracts patients to the applicant's practice. The Tribunal accepts Dr Scragg's evidence that a proportion of the population, both old and young, find it very difficult to pay the gap between the recommended fee and the Medicare rebate. The Tribunal also accepts the applicant's evidence on this topic. The Tribunal is also satisfied from the applicant's evidence that some patients find group practices unsatisfactory and particularly in country areas many patients prefer to see the same doctor regularly. The Tribunal is satisfied that some of the applicant's patients would be detrimentally affected in terms of financial hardship if his bulk billing practice were to cease to operate during a disqualification period and that many other patients would prefer not to have to go elsewhere where the gap between the recommended fee and the Medicare rebate would have to be paid by them. There is no statistical evidence before the Tribunal on the degree of financial hardship the applicant's patients would suffer, nor indeed any evidence from any of his patients as to the effect they would experience. It is fair to say that the area is not one commonly regarded as being economically deprived.

Although Dr Scragg was unsure about Victor Harbor, his evidence is that it is quite difficult to attract doctors to the area and that there is an increasing demand being placed on a small number of doctors. Dr Scragg's evidence is that, otherwise than in emergencies, patients generally have to wait one or two days to see a doctor, depending on the practice they approach. He stated that people expect to phone the surgery one day and see a doctor the next.

Counsel for the respondents indicated that the projected population for Victor Harbor in 1996 is 8029 and for the council areas of Port Elliot, Middleton, Goolwa (including Mount Compass) is 8175. Dr Scragg's evidence is that he believes there are 21 or 22 general practitioners, including three based at Normanville and three or four at Goolwa. Counsel for the respondents suggested a slightly higher figure but observed it was 'just a quibble in respect of a couple of numbers'. The Tribunal concludes that there are at least 17 general practitioners within 10 to 15 minutes drive of each other in the Victor Harbor-Middleton-Goolwa area and this is 'the community' in which the applicant practises.

Having considered all the material before it, the Tribunal is not satisfied that the applicant's disqualification from participation in the Medicare Scheme would have a serious effect on the applicant's patients or the community in which he practices. Whilst there would be some detriment due to the absence of a bulk billing practice in the area and a likely increase in the waiting time to see a doctor elsewhere in the area, the Tribunal is not satisfied that many patients or prospective patients or the community generally would be adversely affected to the extent that this should be a major factor in making a determination.

(d) The Tribunal considers it is appropriate to have regard to the fact that the applicant pleaded guilty to the offences charged. The Tribunal accepts that a complaint about the investigation was made by the applicant out of concern that his patients not be pressured or upset and that he cooperated with the investigation.

The Tribunal, having had the advantage of observing the applicant, is satisfied that he is remorseful. The Tribunal accepts that his statements to the Committee about having previously 'done a lot of work for nothing and ... [thinking] the amount of money that I am going to take out of this is not enough to cover even a little bit of this' (T9/68) were an attempt to explain how he had tried to justify his behaviour to himself at the time of committing the offences. If forced only to rely on the transcript of the Committee hearing and the applicant's later letter to the Committee (T11/73), the Tribunal would have little hesitation in reaching the same conclusions the Committee did (see particularly paras.18 and 20 of the Committee's reasons (T1/5)). The Tribunal has however had the advantage of hearing the applicant's oral evidence in person. He did not appear to the Tribunal to be anything other than honest in the evidence he gave. No doubt the applicant has had more time to prepare and consider his evidence to the Tribunal than when the Committee unexpectedly telephoned him at his surgery, at a time when he in fact had a patient with him. The Tribunal is however satisfied that the applicant was, quite ineffectually, trying to convey to the Committee how he had justified his immoral and criminal behaviour to himself in order to bring himself to do it, rather than putting forward any objective or subjective justification for his conduct.

Counsel for the respondents submitted that any expression of remorse had to be dragged from him by the Committee. The Tribunal's view is that the applicant is rather taciturn and not given to expansive explanations. The Tribunal is satisfied that the applicant's conduct in committing the offences was quite out of character.

There is not a great deal of character evidence before the Tribunal although the Tribunal has the evidence of Dr Scragg, which the Committee did not have, as well as the two references which were put before the Committee (T13/76-77). There is absolutely no suggestion that prior to the commission of the offences the applicant was disreputable or dishonest. Rather, his record was unblemished.

The applicant's evidence to the Committee (T9/66) and his letter to the Committee (T11/73) could certainly justify the conclusion that the applicant's view was there was no likelihood of him re-offending because his financial situation had improved. However the Tribunal, with a little hesitation on this point, is satisfied that it is in fact extremely unlikely that the applicant would re-offend even if by misfortune he was again placed in a situation of great financial need or some other very distressing personal situation.

The Tribunal does not consider it to be a relevant consideration that the applicant allegedly knew of other more effective ways to cheat Medicare and had failed to bring these to the attention of the Health Commission. The statement contained in his letter to the Committee (T11/73) was a silly statement and should not have any bearing on the decision to be made.

The Tribunal has carefully considered the authorities put before it and is grateful for the assistance they provide. The Tribunal endorses the words of counsel for the respondents that:

'so pivotal to the functioning of the Medicare system is the integrity of the people who are involved in the practice of it, and most importantly, that entails general practitioners. If there is no integrity and no honesty, then the system breaks down ...'.

The cases are all ones where the decisions made have imposed disqualification going beyond the presumptive minimum. The cases turn on their own facts. Nonetheless there is a common thread in all of them, namely the need to protect the integrity of the Medicare Scheme.

In Re Jemeleita, a Committee decision of 28 November 1994, Dr Jemeleita was disqualified for five years. The Committee concluded that:

'... the reality is that the Committee is satisfied that he is, through illness, incapable of appreciating and carrying out his responsibilities under the Health Insurance Act and that there is no evidence that any counselling or treatment will enable him to do so.'

In Re Coroneos, a Committee decision of 10 June 1994, Dr Coroneos was disqualified for 18 months. It appears from the Committee's decision that he was a brilliant doctor but showed substantial personality problems and was undergoing psychiatric care.

In Re Kowal, a Committee decision of 14 December 1993, Dr Kowal, who was in very ill health and no longer practising, had in the Committee's view no appreciation of how seriously a practitioner needs to take the administration of the Medicare Scheme. She was very cavalier in her approach and the behaviour involved in the fraud was eccentric. She was disqualified for five years.

In Re Tsioutis, a Committee decision of 22 December 1993, the Committee accepted that the amount involved in the offences committed was $1420.90. At the time Dr Tsioutis was earning about $350,000. He was disqualified from participation for nine months.

In Re Haddad, a Committee decided on 2 June 1994 that Dr Haddad should be disqualified for a period of 10 months. Although convicted of offences against Section 128A of the Act (which does not require proof of mens rea), the Committee found that the false statements were made with knowledge of their falsity and took this into account. This approach was upheld by the Federal Court in Haddad (supra). The Committee was concerned about Dr Haddad's livelihood but noted that at the time of its deliberations he was employed in a hospital and suggested he might be able to increase his involvement there. Dr Haddad was working extremely long hours at the time the offences were committed and there was medical and psychiatric evidence from which the Committee concluded it was unable to feel, with any confidence, that Dr Haddad would be able to continue to work at the rate he was without committing further offences.

In Re Summers and the Medicare Participation Review Committee and Minister for Community Services and Health (AAT decision No.6032, 19 October 1990), the Tribunal imposed a disqualification period of 18 weeks. The presumption that applied under the Guidelines in force at that time was that no disqualification period applied. The Tribunal commented that Dr Summers did not understand the principles behind the Medicare Schedule and vehemently disagreed with the approach taken in the Schedule. The Tribunal also found that Dr Summers had been dishonest in his evidence.

The Tribunal is of the view that the applicant's situation is unlike that of the practitioners in the cases referred to above. The Tribunal accepts the applicant's evidence that he is 'very much opposed' to the sort of conduct he engaged in and that he is genuinely remorseful. The Tribunal believes the applicant well understands his responsibilities under the Medicare Scheme. There is no suggestion of previous misconduct and the Tribunal is of the view that there is very little likelihood of him re-offending. This is not a case where the Tribunal fears that the applicant's attitude or mental state is conducive to re-offending. Nor is there any other factor present which in the Tribunal's view warrants a disqualification period in excess of the applicable presumption of six months.
The Tribunal is satisfied that a disqualification period is appropriate and notes that the applicant did not suggest otherwise. The Tribunal has carefully considered all the material before it and the helpful submissions of counsel. The Tribunal is not satisfied that there are circumstances present in this case which ought to displace the minimum presumptive period of disqualification provided for by Clause 8(3) of the Guidelines, namely disqualification for six months. Having regard to all the factors referred to in the Guidelines, including other factors the Tribunal considers relevant, and to s.124F of the Act, the Tribunal is satisfied that what might be called 'mitigating factors', most particularly in relation to the reason for the offences and the effect of a six month period of disqualification on the applicant, are insufficient to tilt the presumption in the applicant's favour.
Accordingly, the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is fully disqualified pursuant to s.124F(2)(e) of the Act for a period of 26 weeks.

I certify that this and the nineteen (19) preceding pages are a true copy of the decision and reasons for decision herein of Ms W Eyre (Senior Member), Dr JY Hancock and Ms U Dahl (Members)

Signed: ................. (Sgd) Frank Russo .................. Associate

Markey and Minister for Human Services and Health and Anor [1996] AATA 668 (7 June 1996)

Markey and Minister for Human Services and Health and Anor [1996] AATA 668 (7 June 1996)

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Cases Cited (1)

Markey and Minister for Human Services and Health and Anor [1996] AATA 668 (7 June 1996)