However, the Tribunal found that the practitioner had provided and charged for medical services for the patient which were not clinically indicated and which were not reasonably required for the patient's wellbeing. The practitioner could not produce clinical notes to explain the need for those services.

Further, the Tribunal found that the practitioner had charged Medicare Australia for those services when he was not entitled to do so.

The Tribunal also found that the practitioner should have, but did not, obtain the consent of the patient's administrator to the terms and conditions of the patient's treatment, even though the practitioner knew that the patient did not have the capacity to make those decisions himself. Further the Tribunal found that the practitioner had charged Medicare Australia for other services for which the practitioner was not entitled to charge.

The Tribunal considered that in so doing the practitioner's conduct fell substantially below the standards expected of doctors by their professional peers and the community.

The Tribunal therefore concluded that the practitioner was guilty of professional misconduct.

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Dekker v Medical Board of Australia [2014] WASCA 216

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Hewett v Medical Board of Australia [2004] WASCA 170

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Legal Profession Complaints Committee and Wells [2014] WASAT 112

Medical Board of Australia and Woollard [2012] WASAT 209

NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618

Qidwai v Brown [1984] 1 NSWLR 100

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

1 The Medical Board of Australia (Board) is established by s 31 of the Health Practitioner Regulation National Law (Western Australia), (National Law) which is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The Board has the functions referred to in s 35 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.

2 This matter comes before the Tribunal by way of an application by the Board filed on 28 May 2015 (Application). The Board then filed an amended application on 10 October 2016 (AA).

3 The respondent's response to the AA is dated 3 November 2016 (AR).

4 The application relates to the treatment by the respondent (practitioner) of KW, while KW was a patient at the Joondalup Health Campus (JHC). The Board alleges that the practitioner is guilty of professional misconduct as defined in the National Law.

5 The matters referred to the Tribunal are summarised in para 6 of the Board's written opening submissions dated 1 May 2017 (Applicant's Opening Submissions) as:

1. charging for services not provided;
2. charging excessively;

1. failure to keep records;
2. failure to obtain consent from the Public Trustee to the fees charged;
3. acting in a manner contrary to the Conduct Code (as defined later in these reasons); and
4. charging Medicare Australia for services for which he was not entitled to charge.

6 The matter proceeded to a number of directions hearings and was mediated on 29 October 2015 and 14 December 2015. The applicant filed its bundles of documents in April 2016, November 2016 and May 2017 and the respondent filed its bundle in November 2016. The parties also filed a number of witness statements, including the statement of the practitioner dated 28 February 2017.

7 The matter was heard between 15 and 19 May 2017 inclusive and then on a further two days on 19 and 20 June 2017. At the conclusion of the hearing on 20 June 2017, the Tribunal's decision was reserved.

8 The Board alleges that the practitioner has behaved in a way that constitutes professional misconduct as defined in s 5 of the National Law in that he has engaged in:

1. unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and/or
2. more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

9 In AA at para 23, the Board then sets out the particulars of the alleged professional misconduct. For ease of reference, in these reasons, we will refer to the allegations by the numbers one to seven as set out below.

10 The Board alleges that the provision of services to KW on 78 occasions (although the Board disputes, in Allegation Three, that the practitioner did in fact provide that number of services to KW) over an 87 day period (during which the practitioner was on leave for 14 days) was not clinically indicated, and so was excessive, unreasonable or otherwise not reasonably required for KW's wellbeing, in the circumstances which were that during this period:

1. it was clinically indicated and so necessary or reasonable for the practitioner to review or have consultations with KW no more than 2­3 times per week;
2. KW's condition was generally stable; and
3. KW was receiving comprehensive and regular medical and allied medical care from the JHC medical staff.

11 The Board alleges that the practitioner failed to keep any or any adequate records or contemporaneous records of the services provided by him to KW including the nature of those services (AA para 23(d)).

Allegation Three ­ charging for services not provided

12 The Board says in AA at para 23(e) that Allegation Three is in the alternative to Allegation Two.

13 The Board alleges that the practitioner charged KW for services that he did not provide to KW (AA para 23(e)).

14 The Board alleges that the practitioner charged KW excessively and in excess of the amounts in the Australian Medical Association (AMA) List of Medical Services and Fees for costing assistance and guidance for services (AMA List) during 27 November 2012 to 21 February 2013 inclusive, 87 days in total, when he did not have KW's consent (or the consent of the Public Trustee or Public Advocate from 22 January 2013) to being charged these amounts or amounts in excess of the amounts in the AMA List.

1. a total of $25,265.10 for services during 27 November 2012 to 21 February 2013 inclusive, when the amounts in the AMA List for those services totalled $11,135;
2. excessively for individual attendances;
3. so that he failed to adopt a 'step down' schedule of billing and charge a lower fee after an initial period in hospital.

Allegation Five ­ failure to obtain consent from the Public Trustee to the fees charged

16 The Board alleges that the practitioner failed to seek and obtain consent from the Public Trustee about the fees charged and to be charged by him for KW's medical treatment following the appointment of the Public Trustee as KW's plenary administrator of the estate of KW on 22 January 2013 (AA para 23(g)).

Allegation Six ­ acting in a manner contrary to the Conduct Code

17 The Board alleges that the practitioner acted in a manner contrary to Good Medical Practice: A Code of Conduct for Doctors in Australia published by the Board under s 39 of the National Law (Conduct Code) in that he failed to:

1. recognise the power imbalance in the doctor-patient relationship and not exploit KW financially (Conduct Code, clause 3.2.6);
2. inform KW and/or the Public Advocate of the nature of, and need for, all aspects of his clinical management, including examination and investigations, and giving him adequate opportunity to question or refuse intervention or treatment (Conduct Code, clause 3.3.3); and/or
3. ensure that KW and/or the Public Trustee were informed about his fees and charges (Conduct Code, clause 3.5.3).

Allegation Seven ­ charging Medicare Australia for services for which he was not entitled to charge

18 The Board alleges that the practitioner charged Medicare Australia under its Medicare Benefits Schedule (MBS) item numbers for services when he knew or ought to have known that he was not entitled to charge under those item numbers (AA para 23(k)).

19 As has been previously mentioned, the Board says in AA at para 23(e) that Allegation Three (charging for services not provided) is in the alternative to Allegation Two (failure to keep records). However, in the Applicant's Opening Submissions at para 7, the Board then says that Allegation Three (charging for services not provided) is '[t]he most serious ... and related to this the matters of charging excessively [Allegation Four] and excessive provision of services [Allegation One]'.

20 The Tribunal accordingly intends to disregard the statement in AA that Allegation Three is in the alternative to Allegation Two. The Tribunal will instead consider and find on Allegation Three, and if Allegation Three is not made out, then it will consider and find on Allegation One and Allegation Two together, followed by the other Allegations.

21 Also, in AA at para 23(h), the Board alleges that:

[The practitioner] failed to seek and obtain consent from the Public Trustee about the fees in excess of the amounts in the [AMA List] charged by him and to be charged by him for [KW's] medical treatment during 27 November 2012 to 21 February 2013 inclusive.

22 This allegation is not referred to in para 6 of the Applicant's Opening Submissions, nor in the Board's closing submissions filed on the final day of the hearing (Applicant's Closing Submissions). The Tribunal is of the view that this allegation should be considered as part of Allegation Five (failure to obtain consent from the Public Trustee to the fees charged) and will not consider it as a separate allegation.

23 Finally, the Board clarified at the start of the hearing that it is not alleging that KW should have been treated as a public patient. The Board's case is, in fact, that the practitioner was entitled to charge KW for the services provided as a private patient, but that the amount charged was excessive (T:18; 15.05.17).

24 The term 'professional misconduct' is defined in s 5 the National Law as conduct which includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]

25 The first and second limbs of that definition incorporate the term 'unprofessional conduct' which is defined in s 5 in the National Law as:

... professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes ­

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

(b) a contravention by the practitioner of ­

(i) a condition to which the practitioner's registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner;

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and

(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and

(e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and

(f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and

(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and

(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation;

26 The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [524] ­ [527]:

Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

'[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.'

The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

'... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence ...'

...

Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism". (Lucire v Health Care Complaints Commission [2011] NSWSC 99; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70).

27 The Board bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:

The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].

28 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at 362, Dixon J, as he then was, also observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony, or indirect inferences'.

29 On the standard of proof required in a civil case where serious allegations are made, in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ stated at 521 as follows:

The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved ...

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.

30 In NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [124], the Victorian Court of Appeal said:

... Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

31 On 15 June 2016, the parties were ordered to confer and file with the Tribunal a statement setting out the agreed issues and facts in this matter, noting any issues and facts which were not agreed. Due to a number of factors, including the substantial amendments made by the Board to its application in October 2016, the parties never in fact complied with that order.

32 However, the Board included in the Applicant's Opening Submissions a statement of the facts it considered were not in issue. Counsel for the practitioner submitted on the first day of the final hearing that that document contains some errors and omissions and handed up a brief response to that document dated 14 May 2015 (Response to facts not in issue). In the Applicant's Closing Submissions at para 3, the Board accepted the clarifications set out in that response.

33 The Tribunal therefore understands that the facts, to the extent that they are agreed by the parties, are as set out in the Applicant's Opening Submissions, subject to the practitioner's clarifications, and the Tribunal makes these findings of fact.

34 The practitioner was, at all material times, a registered health practitioner, specifically a medical practitioner with general registration and specialist registration in the field of 'physician ­ neurology'. In addition to clinical services provided by him at JHC, his private neurology clinic at Subiaco, the Neurosciences Unit of the Western Australian Department of Health and the Mid­West Country Neurology service, the practitioner is the founder and director of Neurodegenerative Disorders Research Pty Ltd, a not for profit research organization devoted to the understanding of neurodegenerative disorders. He also and supervises medical students at the University of Western Australia; AA para 2 and AR para 2.

35 The practitioner practises in adult neurology involving diagnosis, care and management of neurological disorders; AA para 3 and AR para 2.

36 On 5 July 2009, KW consulted the practitioner for an assessment of a tremor disorder. The practitioner diagnosed emerging extrapyramidal syndrome and possibly idiopathic Parkinson's disease. The practitioner recommended re­assessment in a further three to six months, together with further investigations including MRI scanning and screening and blood tests in the interim.

37 The practitioner consulted with KW as an in­patient in Mount Hospital, a private hospital, on 6, 7, 8 and 9 July 2009. KW was seen for clinical review with the practitioner on 8 December 2009, 22 June 2010, 26 August 2011 and 24 August 2012; AA para 4 and AR para 3.

38 While KW was an in-patient in Mount Hospital he paid a gap payment over and above the relevant health insurance and Medicare Australia contributions for the services rendered by the practitioner.

39 At the first clinical review on 8 December 2009, the practitioner provided to KW the practitioner's 'Patient Information Details' form, which the practitioner signed. The practitioner's 'Patient Information Details' form included the statement:

PLEASE NOTE: All private patients seen in these rooms will be charged fees that are in accordance with the recommendations of the Australian Medical Association. This will require a gap payment, payable on the day of consultation, a gap not covered by Medicare and your Private Health Fund.

(AA para 5 and AR para 4)

40 On 10 August 2012, the practitioner discussed KW's condition by telephone with Dr Peter Connaughton, a specialist in occupational and environmental medicine and on 20 August 2012, Dr Connaughton sent a follow up email to the practitioner stating:

A short email about [KW], whom we discussed recently. The reason for this email is that I am concerned about [KW's] worsening situation including his function, mobility and his capacity to cope generally. As you know he lives in Paraburdoo and is 77 years of age. He is booked for Cognitive testing this Wednesday 22nd and he will be flying down to Perth for that.

I have spoken with your secretary this morning - and she has very kindly put [KW] on a cancellation list if anyone is unable to attend this Friday. He does not have an appointment to see you until 28 September - and I would be very grateful if there is any way that you could arrange to see him sooner.

(AA para 7 and AR para 6)

41 At his review on 24 August 2012, the practitioner assessed that KW's general condition had deteriorated, including that KW's memory function was worse. The practitioner assessed that KW:

1. required re­evaluation of his extrapyramidal syndrome;
2. had probably emerging dementia;

1. had possible Parkinson's disease dementia complex;

1. had possible Lewy body disease; and/or
2. had possible Alzheimer's disease with Parkinson's disease.

42 The practitioner also noted that KW had increasing difficulty walking and had developed some dyskinesia. A subsequent FDG PET scan performed on 28 September 2012 supported the practitioner's conclusions, noting:

overall scan findings would support a diagnosis of Lewy Body dementia.

(AA para 8 and AR para 7)

43 In November 2012, Dr Connaughton and the practitioner spoke by telephone about KW's condition, in which they discussed the likelihood that KW was suffering Lewy body disease. The practitioner and Dr Connaughton decided that KW needed to be assessed to determine his capacity to make decisions in relation to his self­care and his property; AA para 9 and AR para 8.

44 On 26 November 2012, KW was accompanied by a registered nurse from his place of employment at Paraburdoo and admitted to the Emergency Department of JHC on the basis of a history of increasing falls and an inability to attend to activities of daily living skills; AA para 10 and AR para 9.

45 On 27 November 2012, KW was admitted to JHC under the care of the practitioner; AA para 11 and AR para 9.

46 KW was discharged from JHC on 21 February 2013; AA para 12 and AR para 9.

47 During 27 November 2012 to 21 February 2013 inclusive, when KW was an inpatient at JHC, he received medical care from the JHC staff including care by specialists in:

1. speech pathology;
2. occupational therapy; and
3. cognitive and psychological testing.

48 At the time of KW's admission, the practitioner was the only attending neurologist at JHC. The neurology service at JHC was supported by one registrar and two resident medical officers (resident or residents), who shared responsibilities with other medical departments, including cardiovascular medicine, respiratory medicine, gastroenterology and palliative care; AR para 10(b).

49 The registrar and two residents were within JHC on 10 week rotations only. Those rotations in each case had commenced at different times. None of these junior medical staff had any neurological training and all were expected to receive that training from the practitioner.

50 On 3 December 2012, the practitioner prepared a medical report for this Tribunal (exercising its jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act), informing the Tribunal that, in the practitioner's opinion, KW:

1. had Lewy body disease, which is a progressive neurodegenerative disorder with dementia and Parkinson's disease;
2. was dementing from Lewy body disease;

1. was incapable of making reasonable decisions in relation to personal healthcare, living situation and financial affairs;

1. did not have testamentary capacity because of his dementia;
2. was incapable of making an Enduring Power of Attorney; and
3. was likely to make a limited contribution to the relevant Tribunal hearing.

51 On 8 January 2013, the Tribunal ordered that KW's brother be appointed:

1. limited guardian of KW to decide KW's living arrangements and make treatment decisions for KW; and
2. plenary administrator of KW's estate.

52 On 12 January 2013, a registered nurse from JHC informed the practitioner that KW had accused his brother of taking his money and that KW was concerned about his property; AA para 16 and AR para 11.

53 By application filed with the Tribunal on 14 January 2013, the practitioner:

1. applied to the Tribunal for an urgent review of the guardianship and administration order made on 8 January 2013, on the basis of concern regarding KW's assets and property; and
2. sought an order that the Tribunal appoint an independent guardian and administrator.

54 The parties agree that, but for the conduct of KW's brother and his friend TB, KW could well have been moved from JHC to a nursing home, St Ives Murdoch, within days of 14 January 2013.

1. the Public Advocate be appointed the limited guardian of KW to decide KW's living arrangements and make treatment decisions for KW; and
2. the Public Trustee be appointed plenary administrator of KW's estate.

56 On 3 March 2013, the practitioner generated an invoice (Invoice) for 78 services provided to KW for the period 27 November 2012 to 21 February 2013 inclusive (a period of 87 days during which the practitioner was on leave for 14 days between 25 December 2012 and 7 January 2013) when KW was an inpatient at JHC, at a total cost of $25,265.10 as particularised in 'Annexure A' to the Application; AA para 19 and AR para 13.

1. The practitioner charged KW for services provided by him on 78 occasions; AA para 20(a) and AR para 14(a).
2. The fee in the AMA List for:
   1. MBS Item 116 was $134 and KW was charged $350 for this Item;
   2. MBS Item 133 was $255 and KW was charged $350 for this Item; and
   3. MBS Item 11000 was $320 and KW was charged $450 for this Item.

58 All of the appointed guardian, the practitioner and the medical team were working towards KW's discharge from JHC, and admission to a nursing home, St Ives Murdoch; AR para 14(d)(iii).

59 The attempts of the appointed guardian, the practitioner and the medical team to have JW discharged from JHC and admitted to a nursing home, St Ives Murdoch were frustrated by two gastroenteritis occurrences at St Ives; AR para 14(d)(iv).

60 The Invoice was issued on 3 March 2013 after KW's discharge from JHC on 21 February 2013, and after the appointment of the Public Advocate as limited guardian, and the Public Trustee as administrator of KW's estate on 22 January 2013; AA paras 14­18 and 20(e) and AR paras 11 and14(d)(vi).

61 The practitioner charged KW the sum of $350 for cognitive testing on 30 November 2012 and 4 December 2012 that he did not perform but which was performed under his direction; AA para 20(f) and AR para14(e).

1. $197.95 under MBS Item 132 for an initial assessment of an inpatient on 27 November 201; AA para 21(a) and AR para 15(a)(ii).
2. $99.10 under MBS Item 133 for a subsequent attendance on an inpatient on 28 November 2012. AA para 21(b) and AR para 15(a)(ii).

1. $56.65 on each occasion by reference to MBS Item 116, for the following services that did not come within the description of services under MBS Item 116 and, which according to the Invoice were provided by the practitioner on the following dates:

(i) telephone calls with nursing staff on 01/12/2012, 02/12/2012, 07/12/2012, 08/12/2012, 09/12/2012, 15/12/2012, 16/12/2012, 23/12/2012, 13/01/2013;

(ii) cognitive assessments performed by another practitioner on 30/11/12 and 04/12/2012;

(iv) a telephone call with the Registrar on 22/12/2012; and

63 Medicare Australia paid to the practitioner the sum of $1,033.50 under the MBS Item numbers referred to in the preceding paragraph; AA para 22 and AR para 16.

64 The parties agree that the practitioner was entitled to charge KW $350 for cognitive testing performed at his direction and under his supervision. It is also agreed by the parties that the practitioner was entitled to charge for telephone calls to staff and others concerning KW's wellbeing. The parties also agree that such charges should not have been given an MBS item number descriptor (Response to facts not in issue para 6).

1. there is no criticism of the quality of care provided to KW by the practitioner;
2. there is no suggestion that the practitioner was in any way responsible for the length of KW's stay at JHC or that the practitioner did anything other than use his best endeavours to protect KW and have him placed in an appropriate care facility as soon as this could be achieved; and

1. insofar as there is a demonstrated deficiency in the hospital notes, this deficiency was not relevant to and had no adverse effect upon KW's clinical care.

66 The exhibits tendered by the parties and marked are set out in the table below (we note below where exhibits were marked over objection of a party):

Document 7 in applicant's bundle (Volume 1of 2) (less documents 82, 197 and 198 which are marked separate exhibits

Joondalup Health Campus Clinical Records relating to KW

Document 9 (Volume 2 in applicant's bundle) pages 204 to

Medicare data of consultations by the Practitioner with KW

Document 10 (Volume 2 in applicant's bundle) pages 483 to 493

Applicant's supplementary bundle of documents, documents 13 to 17 from pages 85 to 149

Objection on the grounds of relevance (T:18; 15.05.17)

List of aged care rehabilitation physicians accredited at JHC

Document 18 in the applicant's supplementary bundle at page 150

The practitioner objects to the tendering of this document. (T:18; 15.05.17)

Witness statement of Dr Joon Qing Jason Tan dated 28 November 2016

Document 3 in the applicant's bundle of witness statements

Witness statement of Dr Sook Wei Ng dated 25 October 2016

Document 2 in the applicant's bundle of witness statements

Annexure A to the Board's Application - Invoice of Practitioner to KW

Document at pages 11 to 14 of the applicant's bundle (Volume 1)

Email from Patricia Castledine to Mr Stephen Dennis dated 19 August 2013

Document 16 at page 523 of the applicant's bundle (Volume 2)

Document at pages 517 to 522 of the applicant's bundle (Volume 2)

Witness statement of Stephen Dennis dated 3 August 2016

Document at tab1 of the applicant's bundle of witness statements

The Practitioner objects to paragraph 17 and the Board concedes it does not rely on the statement as a statement of truth (T:67; 15.05.17)

Email from HADCO to Stephen Dennis dated 27 September 2013

Document at pages 515 to 516 of the applicant's bundle (Volume 2)

Email from Stephen Dennis to Practitioner dated 8 October 2013

Document at page 512 of the applicant's bundle (Volume 2)

Email from Patricia Castledine to Stephen Dennis dated 22 October 2013 and patient information details sheet

Documents at page 510 and at 513 of the applicant's bundle (Volume 2)

Email exchange between Stephen Dennis and Patricia Castledine dated 22 ­ 23 October 2013

Document at page 509 of the applicant's bundle (Volume 2)

Email of Stephen Dennis to Moana Bennett dated 25 October 2013 at 10.46 am

Document at page 506 of the applicant's bundle (Volume 2)

Email and letter of 19 November 2013 from HADSCO to Stephen Dennis

Documents at pages 501 and 502 of the applicant's bundle (Volume 2)

Document at pages 494 to 500 of applicant's bundle (Volume 2)

Bundle of emails of Stephen Dennis and Patricia Castledine dated between March ­ June 2013

Witness statement of Dr Richards dated 23 February 2017

Document 3 in the respondent's book of witness statements

The Board objects to paragraph 17 as an expression of opinion without no probative value (T:127; 16.05.17)

Witness statement of Vanessa Faye Sheridan dated 18 April 2017

TheBoard objects to statements made at paragraph 4, 6 and 7 on the basis of hearsay and assumption (T:163; 16.05.11)

Witness statement of Cheryl Ann MacFarlane dated 14 May 2017

Notice of Patient Fees - Professor Peter K Panegyres

The Board objects of the ground of relevance (T:172; 16.05.17)

Statement of Patricia Anne Castledine dated 23 February 2017

Document 1 in Respondent's book of witness statements

The Board objects to paragraphs 4, 5, 6, 7, 11 and 12 on the ground of relevance (T:185; 16.05.17)

Account sent to KW in relation to stay at Mount Hospital dated 14 July 2009

Document at pages 199 to 201 of the applicant's Bundle (Volume 1)

Witness statement of Rosalba Palazzolo dated 23 February 2017

Document 2 in respondent's book of witness statements

The Board objects to paragraph 6, 7, 8, 9, 10, 11 on the ground of hearsay (T:210; 16.05.17)

Letter from Rosa Palazzolo to KW dated 24 June 2009

Document at page 82 of the applicant's bundle (Volume 1)

Report of Professor David Williams dated 17 July 2015

Supplementary report of Professor David Williams dated 19 July 2016

Supplementary report of Professor Brian Chambers dated 28 June 2016

Two expert reports of Professor JW Watson dated May and June 2016

Joint report of the expert witnesses filed 17 May 2017

Typed list of consultations with KW from practitioner's rooms

Document at pages 197 to 198 of the applicant's bundle (Volume 1)

Journal article by Freed and Allen - Variation in outpatient consultant physician fees in Australia by speciality and state and territory

Updated curriculum vitae of Professor Peter Panegyres submitted at hearing on 18 May 2017

Witness statement of Professor Peter Panegyres dated 28 Februaryف2017 and exhibits

Document 4 in the respondent's book of witness statements

Redacted billing accounts and census sheets of Professor Peter Panegyres

Admitted over strong objection from Board on the basis that it has no corroborative value (T:368; 18.05.17)

Documents 20 to 25 in the applicant's supplementary bundle

JHC standards for clinical documentation within the health record

Pages 16 and 17 of JHC's Guidelines for Medical Staff

Document 10 in the applicant's supplementary bundle

Documents 15, 16 and 17 in the applicant's supplementary bundle (pages 113 to 149 inclusive)

Documents 13 and 14 of the applicant's supplementary bundle

Miscellaneous correspondence December 2014 to November 2016

Document 19 in the applicant's supplementary bundle and respondent's bundle 26 to 28, 127 to 131 exchange of correspondence

Narrative of Professor Peter Panegyres dated 17 February 2016

Document at pages 3 to 17 of the respondent's bundle

The practitioner objects to the parts that were not the subject of cross­examination (T:631; 19.05.17)

Witness statement of Patricia Anne Castledine dated 19 May 2017

67 The practitioner provided a written statement of evidence (Exhibit 40) and also gave evidence orally at the hearing. He was cross­examined.

68 The relevant sections of the practitioner's witness statement dated 28 February 2017 are as follows:

69 At times relevant to these proceedings, JHC (or 'Hospital') was a 380­bed general hospital with a private ward located adjacent to public wards. It was an extremely busy facility and the major hospital for both public and private patients in the northern suburbs of Perth.

70 The private wing of JHC was a 48­bed ward at the western end of the hospital. The ward was adjacent to the practitioner's consulting rooms and to those of the other staff specialists.

71 As an accredited specialist, except when on leave, the practitioner is on call 24 hours per day, seven days per week for both public and private patients and he is also on call for any patients admitted to JHC's Emergency Department who present with neurological issues.

72 Accreditation as a practitioner at the Hospital was subject to the practitioner being prepared to abide by the policies and by-laws of JHC contained in the Hospital's Facility Rules (Rules).

1. comes within the classification of Specialist Practitioner identified at paragraph 41.7 of the Rules;
2. under paragraph 218.5 of the Rules, is required 'to attend patients as often as is necessary to ensure high quality patient care and to comply with accepted professional standards'; and

(c) under paragraph 220.2 of the Rules, as a Specialist Practitioner, is required to assume responsibility for the clinical care of patients admitted under his care.

74 The practitioner says that at all relevant times, there was no other neurological consultant at the Hospital or dedicated junior medical staff in neurological training. At the relevant times, the practitioner says he was supported by one registrar and two resident medical officers. The registrar was a general registrar not in specialist training and the registrar and resident medical officers had divided responsibilities, being also required to assist in cardiovascular medicine, respiratory medicine, gastroenterology and palliative care.

75 Each of the support medical staff, including the practitioner's registrar from time to time, was on rotation at the Hospital for a 10 week period. None of the junior medical staff had prior training or experience in neurology and it was part of the practitioner's role at the Hospital to teach each group of junior doctors as they rotated through.

76 The practitioner says that he maintains so far as possible a rigid schedule. His schedule at the relevant time was as follows.

Monday: On Monday mornings he attends the Mount Hospital to conduct ward rounds, then to his Subiaco clinic for research patients, and then travels in the afternoon to JHC to do nerve conduction studies, electromyography and botulinum toxin injections;

When the afternoon clinic is concluded, he conducts a ward round, examining and assessing both public and private patients. Because of problems with coordination and with the divided responsibilities of the junior medical staff, he says that often these ward rounds would be conducted without the 'Neurological Team'. The practitioner's consultation with each patient involves neurological assessment, review of drug charts and discussions with nursing staff about matters of concern. Because nursing staff change with each shift, as the consultant responsible, the practitioner believes it was important to ensure that instructions with respect to particular patients were clearly understood. If junior medical staff were not with him at the time of a ward round, the practitioner would contact them via their pagers or mobile phones to discuss relevant issues.

Tuesdays: On Tuesday mornings the practitioner is at JHC and remains there until late afternoon.

The practitioner would be involved in at least one ward round with junior medical staff and the ward round would include both public and private patients. Ward rounds always began in the public wards. When ward rounds are completed, the practitioner then conducts a private clinic at the JHC where he sees one new patient and one follow­up patient.

He then conducts an evening review clinic at his rooms in Subiaco. These clinics might continue until late evening and involved consultations with patients with conditions such as epilepsy, Parkinson's disease, stroke and dementia.

Wednesdays: On Wednesdays, the practitioner does not attend JHC until late in the evening after his clinic in Subiaco. During the day, and before his Subiaco clinic, he attends at the Neurosciences Unit. The Neurosciences Unit is part of a global network which facilitates the exchange of the latest information concerning new treatments, clinical trials and the like.

When the practitioner arrives at JHC on a Wednesday, first he reviews the results of EEGs done on unwell patients, some of whom are in intensive care. He then examines private patients and attends to any issues which might have occurred during the course of the day. The practitioner is not accompanied by junior medical or nursing staff and any issues arising were dealt with following communication directly with the nursing staff.

Thursdays: On Thursdays, the practitioner's routine is similar to Tuesdays. Ward rounds are organised and conducted with junior staff. Both public and private patients are seen. At the conclusion of the afternoon ward round, the practitioner then reviews patients in his clinic at JHC until late evening.

Fridays: Early on Fridays, there is what the practitioner refers to as an inter-Hospital neurology ward round. This is a professional development meeting of neurologists conducted in conference rooms in teaching hospitals within the Perth metropolitan area. Neurologists present patients with neurological disorders and this is followed by general discussion. The other participating hospitals at the time were Royal Perth Hospital, Fremantle Hospital, Sir Charles Gardner Hospital and Princess Margaret Hospital for Children.

The practitioner then attends his Subiaco clinic where he and others performed research on patients with neurological disorders and conducted clinical trials. This often generated research publications.

Late Friday mornings, the practitioner commences a review clinic. He sees about 10 patients and the clinic would finish late in the afternoon.

The practitioner then travels to JHC to assess acutely unwell neurological patients who need care. Ward rounds are performed with junior medical staff. The ward rounds continue until late evening.

Saturdays On Saturday mornings, the practitioner conducts a clinic in his Subiaco rooms where he assesses two or three new patients and finalises EEG reports. In the afternoons he liaises with his research assistant, works on research papers and deals with any outstanding matters from the week. If the practitioner has private patients in JHC or the practitioner has been asked to consult with respect to a new or existing patient, he would then travel to JHC.

Sundays: On Sundays if the practitioner has a private patient admitted in the Hospital or he is called in, he would travel to JHC.

77 During the relevant period, this schedule was adjusted to accommodate a two-week vacation period at Christmas and one Friday Geraldton clinic.

78 At the time of his admission, KW was aged 78 years. He was a bachelor whose only known relative was a brother, JW, who was living in California and who had had no contact with the patient for about 37 years.

79 KW had been working in Paraburdoo. The practitioner's first contact with him was on 5 July 2009 when KW flew down from Paraburdoo for an assessment of a tremor to investigate the possibility of an emerging extrapyramidal syndrome. He was assessed by the practitioner over a five­day interval as an inpatient at the Mount Hospital.

80 KW was subsequently seen in the practitioner's clinic for review on 8 December 2009, 22 June 2010, 26 August 2011 and 24 August 2012.

81 The consultation on 24 August 2012 had been prompted by a telephone conversation the practitioner had with Dr Peter Connaughton, an occupational physician. Dr Connaughton told the practitioner that KW's work colleagues had become worried about his deteriorating condition and were concerned, amongst other things, about KW's ability to 'cope generally'.

82 Following the practitioner's assessment on 24 August 2012, the practitioner says that there had been a deterioration in KW's cognitive function and in his movement disorder, suggesting the possibility of Lewy body disease.

83 The practitioner describes Lewy body disease as an uncommon dementia syndrome with Parkinsonian features. The disease is characterised, amongst other things, by fluctuating cognitive impairment and recurrent visual hallucinations. He says that it can be a difficult disorder to manage because of the significant fluctuation in cognitive capacity, the individual's response to hallucinations and the dangers associated with incorrect medications. A patient with Lewy body disease can be lucid in the morning but comatose in the afternoon. A patient may have an awareness of the unreality of hallucinations and be comfortable with them or may be troubled and anxious with behavioural difficulties arising from disorientation and confusion. A further characteristic of patients with dementia disorders, including Lewy body disease, is a tendency to wander. There is also a real concern as to the medications given to such patients, particularly with the respect to the use of anti­psychotics, which can lead to adverse reactions including death.

84 There were no locked medical wards in JHC at the time and, in the practitioner's view, any patient with a tendency to wander, including Lewy body disease, presented a risk to himself, to other patients and to staff.

85 On 9 November 2012, the practitioner was contacted again by Dr Connaughton, and following discussions with Dr Connaughton it was concluded that the best course was for KW to be admitted to JHC for an assessment of his deteriorating cognitive and motor functions in the context of the probable diagnosis of Lewy body disease. KW was admitted on 27 November 2012.

86 The practitioner says that in the ordinary course, it is hoped that a patient suffering a progressive and dementing disease or disorder could be assessed, stabilised and moved to an appropriate care facility within a period of between two and four weeks. In most cases, any delay in the discharge of such a patient will have been caused by difficulty in locating available space within an appropriate care facility. However, in KW's case, his problems were exacerbated by the fact that he had no partner, carer, child or existing guardian to look after his affairs. Complications with respect to the appointment of an appropriate guardian, the location of a suitable care facility and accessing the care facility once located, meant that his stay in the Hospital was much longer than expected or desirable.

87 On 3 December 2012, approximately one week after KW's admission, the practitioner prepared a medical report and the forms necessary for an application to the Tribunal under the GA Act for the appointment of a guardian. This was based on the practitioner's presumptive diagnosis of Lewy body disease. The practitioner says that he made this application because KW was unable to make reasonable decisions about his personal health care, living situation or financial affairs.

88 KW's brother, JW, was appointed plenary administrator and limited guardian (including the function of making treatment decisions for KW) on 8 January 2013.

89 The practitioner says the appointment of JW as guardian and administrator caused great distress to KW, which heightened the practitioner's sense of personal responsibility for KW's wellbeing. It led the practitioner to become personally involved in the application for the appointment of an independent guardian.

90 Whilst the subsequent appointment of an independent guardian and administrator was made by 22 January 2013, there were delays in the transfer of relevant papers and in other administrative steps. The practitioner says that this meant that an administrator did not make himself known to Hospital staff until approximately 5 February 2013.

91 By early February 2013, suitable care accommodation had again been located for KW in St Ives. The practitioner's recollection is that it had been his perception from about 5 February 2013 that KW was likely to be transferred to St Ives within days. Unexpectedly, his transfer to St Ives was then further delayed by an outbreak of gastric illness in St Ives and complications with respect to the continuing availability of a room.

92 With respect to the practitioner's consultations with and attendances upon KW whilst an inpatient, the practitioner says that:

1. he felt an added responsibility for KW, an existing patient with no one to look after him and the practitioner had a sense that he had to protect him from his brother and others who had identified themselves as friends;
2. both because of the Rules and because of the practitioner's awareness of the nature of Lewy body disease, he felt he had a greater responsibility for KW's wellbeing than any other staff member would feel;

1. it was the practitioner's practice for patients of KW's complexity to be seen every day, particularly given KW's unique circumstances, risk of sudden deterioration and potential medication complications;

1. problems arose as a result of KW wandering the wards, sometimes unclothed, and sometimes with aggressive response.

93 Even once KW had been assessed and his medications stabilised, the practitioner's continuing and overriding concerns arose from the fact that practitioner considered that JHC was an unsuitable place for his continued residence. Whilst KW remained in hospital, he constituted a risk both to himself and to other patients.

94 The practitioner says that he has not charged KW for a consultation that did not take place.

95 His first consultation with KW at JHC was on 27 November 2012. The practitioner saw him in the public ward C which is a medical ward when he was in room 151D. This consultation took place at about 9 am. He was then under the general medical team.

96 At this consultation, the practitioner reviewed KW's recent history and undertook a complete neurological examination. Following the consultation, the practitioner spoke to his registrar, Dr Tan. The practitioner was not present at the ward round undertaken by Dr Tan and recorded in the clinical notes; Exhibit 3 page 234. However, Dr Tan's notes record the prescription of medications and the undertaking of certain tests which he had already discussed with Dr Tan.

97 The practitioner says that the clinical notes record the practitioner's consultations with KW in ward rounds on Tuesdays, Thursdays and Friday afternoons.

98 Despite the absence of notations on Mondays and Wednesdays, the practitioner has absolutely no doubt that he consulted with KW on these days. He has a clear recollection with respect to some of the consultations which have been specifically queried, and notes:

1. On Monday, 3 December 2012, the practitioner had to see KW to complete the documentation necessary for an application for the appointment of a guardian. The practitioner then saw him later in the day for neurological review.
2. The practitioner saw KW on the ward round and then he authorised balance training for KW with the physiotherapist.

1. On 18 December, the practitioner saw KW, spoke to him, examined him, reviewed his observations, checked his medications and spoke to nurses and then to the speech therapist.

1. The practitioner saw KW on 24 December. This was the practitioner's last day at JHC before taking leave. The practitioner did a ward round of all his patients. KW had been wandering around the outpatient's area of the Hospital. It is noted that authorisation was given for a guard and for an increase in the dose of Seroquel. Only the practitioner was able to authorise both the guard and the increase in medication.
2. The practitioner saw KW on 7 January 2013. This was his first day back at JHC after a 2­week break and the practitioner did a ward round of all his patients.
3. The practitioner saw KW on 8 January 2013. This was the day on which KW was to leave the Hospital to go to the Tribunal. The practitioner was the only one authorised to clear him as fit to leave the Hospital and the practitioner had to see him, assess him and ensure that arrangements were appropriate for his leaving and return.
4. On 11 January 2013, the practitioner saw KW after his meeting with JW and TB. The practitioner took a neurological history, did an examination, reviewed his drug chart and observations, and spoke to the nurses. The practitioner also reassured KW concerning the nature of his discussion with his brother JW and TB.

99 Before August 2012 the practitioner says that his fee for hospital consultation with a private patient was $300. In August 2012, he increased this fee to $350.

100 While he was being treated as an outpatient, KW had signed a written consent with respect to projected fees. In 2009 he had also signed such a consent for in hospital consultations prior to being admitted to the Mount Hospital.

101 At the time of his admission to JHC on 27 November 2012, KW's condition had deteriorated to such an extent that further informed consent, whether it be to the treatment proposed or to the payment of the practitioner's fees, was not possible to obtain. The practitioner expected him to be leaving the Hospital within days, but due to a number of unexpected delays KW was not transferred to another facility until 21 February 2013.

102 The practitioner accepts that there were services provided by him to KW while he was an in­patient for which there is no adequate contemporaneous record in the Hospital notes.

103 The practitioner says that at the time of KW's admission, it was the practice at JHC for entries in the Hospital notes to be made by registrars, residents, nurses and other health care providers. Consultants or specialists were not expected themselves to make entries in the Hospital records when accompanied by junior staff and it was not the practitioner's practice so to do, or to ensure that junior staff had done so.

104 If the practitioner had occasion to refer to the notes of a patient, it was to only check for relevant clinical entries. He says that he did not concern himself with whether his attendance upon the patient was or was not recorded in those notes.

105 In the result, the notes might or might not refer to the practitioner's presence with variations even on the one ward round.

106 The practitioner says that the process is now different. Junior medical staff is now instructed to make, in addition to the usual notations concerning the patient's condition and management, a record of the date, time and persons in attendance at the time of the consultation. If the practitioner is on his own, the practitioner makes the appropriate recording.

107 The practitioner accepts that it is an error to refer to MBS Item 116 when submitting accounts for telephone consultations. The practitioner also accepts responsibility for the error. It was the practitioner's error. The practitioner would not expect his accounts staff to have appreciated the issue and to have corrected the error.

108 The practitioner considers that it was appropriate to charge KW for telephone consultations but he says that a patient is not entitled to seek a rebate from Medicare Australia for this service.

109 As with all of the practitioner's in­patients, no invoice was issued with respect to services performed for KW until KW had been discharged from JHC. The Invoice reflected what the practitioner believed to be his proper entitlement for the services rendered. He has no doubt that his records of services performed were accurate, because the records that are made for private patients are made by him each week.

110 While the practitioner renders invoices without discount, it is not his expectation that they will necessarily be paid in full. Patients sometimes have concerns based on financial difficulty by reason of illness or loss of employment and requests are often made for reduction in the practitioner's fees. When such a request is made, the practitioner invariably reduces his fees to a level where the patient and/or his family are content.

111 Because the practitioner has so little available time, he long ago delegated to his practice manager, Ms Castledine, the responsibility for dealing with any concerns with respect to the practitioner's fees and for negotiating an appropriate outcome.

112 Further, on occasions, some patients refuse to cooperate even by submitting claims to Medicare Australia and accounts have to be written off. The practitioner is told that at the date of his statement, the practitioner has accounts outstanding going back to 2013 in excess of $100,000.

113 In this case, if the administrator had any concerns, the practitioner would have expected him to contact the practitioner and to explain his concerns. He did not do so. Had he expressed concern as to the length of KW's stay at the hospital, the practitioner says that he would have explained how this had come about. If the administrator felt that some reduction in his fees was appropriate because of the length of KW's stay and the practitioner's familiarity with KW's condition, the practitioner, or his staff, would have attempted to negotiate an agreed outcome.

114 The only money the practitioner received for the services the practitioner provided to KW, was a payment of $4,638.15 from Medicare Australia and a payment of $1,528.05 from HBF.

115 These payments, the practitioner says, seem to be predicated on an acceptance by the administrator that some payment, albeit in a smaller amount, was appropriate for each occasion on which the practitioner consulted with KW. The administrator passed the account onto Medicare Australia and to KW's health fund apparently without any expressed concern.

116 The Public Trustee was appointed administrator of the estate of KW in January 2013.

117 Mr Stephen Dennis, a trust manager with the Office of the Public Trustee was the officer responsible for the day­to­day management of KW's estate. He gave written evidence in a witness statement dated 3 August 2016. His evidence as supplemented orally at the final hearing is as follows.

118 Prior to the appointment of the Public Trustee, KW's brother, JW, had been appointed to manage his affairs. However, Mr Dennis understands that the two brothers had a 'falling out', that JW had indicated that he no longer wanted to act in the role and that he had returned to America, where he was living.

119 Upon the Public Trustee's appointment, Mr Dennis, as the trust manager for KW's estate, was provided with information from the Tribunal regarding KW's assets and contact details of any relatives or friends. He did not speak with KW directly but he did speak with a friend of KW's, TB, who explained to him what had occurred with KW's brother.

120 He says that he was not contacted at any time following the Public Trustee's appointment to provide financial consent for the medical treatment being provided to KW, either by the practitioner or anyone from his rooms.

121 In or about March 2013, the Public Trustee received the Invoice from the practitioner in the sum of $25,265.10.

122 Of this amount, $1,528.05 had been paid by HBF, KW's private health insurer, and $4,638.15 by Medicare Australia. This left a balance of$19,098.90 payable by KW.

123 Mr Dennis noted from the Invoice that the practitioner had charged for seeing KW every day of his hospital admission, except for the period from 25 December 2012 to 6 January 2013. From 27 November 2012 to 21 February 2013, the practitioner billed KW for 78 consultations, including 2 consultations on 3 December 2012, being one in the morning and one in the afternoon. Mr Dennis considered this to be unusual and excessive. He also noted that the average cost of each of these consultations was around $350, which again appeared excessive to him.

124 Mr Dennis telephoned the practitioner's rooms in or about July 2013 to raise a query about the invoice. He was informed by the practitioner's Practice Manager, Ms Castledine, that this was standard care for a patient in a private hospital under a specialist.

125 Mr Dennis remained concerned about the amount of the Invoice. He says he considered that KW may have been taken advantage of and therefore he did not authorise payment.

126 On 19 August 2013 Mr Dennis received an email from Ms Castledine seeking payment of the outstanding amount; Applicant's Bundle page 523.

127 On or about 27 August 2013 Mr Dennis submitted an online complaint form to the Health and Disability Services Complaints Office (HaDSCO); Applicant's Bundle pages 517­522.

128 Mr Dennis received a response from HaDSCO; Applicant's Bundle page 515. He then emailed the practitioner on 8 October 2013 asking the particular questions that HaDSCO had recommended that he ask; Applicant's Bundle page 512.

129 On 22 October 2013 Mr Dennis received an email from Ms Castledine advising him that KW provided written financial consent in 2009 for treatment that required a gap payment. She provided him with a copy of the Patient Information Details form; Applicant's Bundle pages 510 and 513. She said that this was KW's written consent; Applicant's Bundle page 509.

130 Mr Dennis passed on this information to HaDSCO. He was subsequently advised by HaDSCO that his complaint regarding the practitioner had been discussed with AHPRA and they had accepted Mr Dennis' complaint; Applicant's Bundle pages 501 and 502.

131 Mr Dennis was subsequently contacted by AHPRA and asked to complete a formal notification form, which he did; Applicant's Bundle pages 494­500.

132 Ms Dennis says that the outstanding amount of $19,098.90 has still not been paid to the practitioner

133 Dr Ng, who was working at JHC as a resident at the relevant time, gave written evidence in a witness statement dated 25 October 2016. Her evidence, as supplemented orally at the final hearing, is set out below.

134 In November 2012, Dr Ng was employed by Sir Charles Gairdner Hospital (North Metropolitan Health Service) as a resident (or RMO). She was seconded to JHC from 5 November 2012 until 13 January 2013 inclusive.

135 During her secondment at JHC, Dr Ng was rostered as one of two RMOs for the neurology, respiratory and haematology teams, though her workload was primarily neurology and respiratory based.

136 Dr Ng's hours of employment at JHC were primarily from Monday to Friday, 0800hrs to 1700hrs. Most weeks, she would also work an 'after hours' shift where she covered different areas of the hospital such as the coronary care unit, orthopaedic ward, rehabilitation and radiology areas. On weekdays these 'after hours' shifts were from 1700hrs to 2200hrs. On weekends or public holidays they were from 0800hrs to 2200hrs.

137 She says that the neurology team at JHC consisted of the practitioner, a registrar and two RMOs, A and B. Dr Ng was RMO A and she remained with the neurology team for her full term at JHC. The position of RMO B seemed to her to be a relieving resident medical officer. As far as she can recall, there were three different RMO Bs during the term.

138 In the neurology team, Dr Ng worked under the direction of the practitioner, with the guidance of the registrar, Dr Joon Qing Jason Tan.

139 All treatment and care decisions taken in respect of the neurology patients were under the direct instruction and direction of the practitioner, although minor decisions may have been made by the registrar or the resident medical officers, including Dr Ng.

140 During Dr Ng's term at JHC, Dr Tan and she, as employees in the public health system, were required to see and attend every day to the public patients in neurological care.

141 According to the Medical Guidelines provided to junior medical staff at JHC prior to the commencement of the term (Exhibit 44) under the heading 'Responsibility for Private Patients':

Junior Medical Staff only have responsibility for private patients at the request of the admitting doctor when the patient gives permission, or in the case of a medical emergency.

It is not expected that the Junior Medical Staff undertake rounds in the private hospital as a matter of routine, but they may be included in visits for the purposes of teaching.

142 Despite this, Dr Ng says that she feels that it was expected that she would be quite involved in the care of the private patients, especially if unwell.

143 Dr Ng says that the practitioner had set days for his ward rounds each week, but she cannot now recall what days they were. She also does not recall if the practitioner came into the hospital on Saturdays to do ward rounds, though she believes he often telephoned about his patients.

144 The practitioner was typically at the hospital for ward rounds in the afternoons.

145 On most occasions before Dr Ng attended ward rounds with the practitioner, she received a message on her pager advising her of the time to meet the practitioner, at a designated meeting spot, to start the ward rounds with him.

146 Dr Ng usually attended the ward rounds with the practitioner, as part of the neurology team. However, she was also working across the respiratory and haematology teams, so there would be some occasions due to commitments with those teams when she was unable to make the practitioner's ward round.

147 Dr Ng recalls that she and her colleagues started each round with the public patients and then moved on to see all of the practitioner's private patients as well. The ward rounds with the practitioner were usually extended rounds. She says that the practitioner did a lot of teaching during these rounds.

148 Dr Ng says that she tries to keep contemporaneous records. She was taught to document the history of the presenting complaint for the patient, examination findings and issues/differential diagnoses identified as a result. The management plan including important investigations would also be documented.

149 She always writes the date, time and who is present (in order of seniority), the issues and then the plan. If she has time, she explains the reasons behind each issue diagnoses.

151 If she was the most junior person in the neurology team during ward rounds, she considered it her job to 'scribe' or take the notes.

152 If the practitioner was present during a ward round and she was responsible for scribing, then she always documented his presence by writing his name in her notes.

153 As the scribe, she wrote down what the practitioner said, the findings on his examinations, his impression of what the issues are and any further tests or investigations which may need to be undertaken.

154 If she did not include the practitioner's name in her notes then she says, this means that the practitioner was not present during that particular ward round. She considers that if a consultant is present at a ward round then it would be unusual not to name that consultant.

155 Sometimes during team ward rounds, the registrar, Dr Tan, would have the file and so he would take the notes. Occasionally one of the other residents may have been the scribe.

156 She does not recall ever seeing the practitioner writing his own notes for ward rounds although she believes that she has seen his handwriting in patients' notes before.

157 Sometimes Dr Ng attended to the practitioner's patients on her own, or just with Dr Tan, as part of the morning ward rounds.

158 When she attended patients on her own she had to write her notes whilst also examining the patient.

159 She would telephone the practitioner if there were any new issues or concerns with his patients.

Treatment provided by the practitioner to KW at JHC

160 Dr Ng recalls that KW was one of the practitioner's private patients. She assisted the practitioner with providing neurological care to KW.

161 She has referred to the JHC notes for KW, known as the 'Integrated Progress Notes', to refresh her memory of the treatment provided to KW and her recollection of the treatment provided to KW is based on the information documented in KW's Integrated Progress Notes.

162 Copies of these notes appear between pages 223 and 342 of the Applicant's Bundle.

163 The notes, Dr Ng says, indicate that on a number of ward rounds when Dr Ng was present, the practitioner was not present at the relevant ward round, but Dr Ng does not have any independent recollection as to whether the practitioner was or was not in fact present.

164 Dr Tan, who was working with the practitioner as a registrar at the relevant time, provided written evidence in a witness statement dated 28 November 2016. The relevant sections of his evidence are set out below. Dr Tan also supplemented his evidence orally at the final hearing.

165 In November 2012, Dr Tan was employed by Sir Charles Gairdner Hospital (North Metropolitan Health Service) as a registrar and he had been seconded to JHC. This was approximately his fourth term working as a registrar.

166 During his secondment at JHC he was rostered to work as the registrar in the neurology / respiratory / palliative care teams.

167 He worked under the direction of the practitioner who was the specialist consultant in the neurology team. To the best of his recollection, the practitioner was the only neurologist working at JHC at that time.

168 The neurology team undertook neurological care of both public and private patients, as instructed and directed by the practitioner.

169 Under the supervision of the practitioner, the rest of the neurology team generally comprised Dr Tan as the registrar, two residents and from time to time, relief residents.

170 The resident who was with Dr Tan for the majority of his term was Dr Ng.

171 As the registrar, when a patient was first admitted to neurology, it was Dr Tan's job to see the patient and assess them from a neurological point of view.

172 His days and hours of employment at JHC were 8.00 am to 5.00 pm, Monday to Friday. From time to time, he was also rostered on weekends by the medical administration staff who prepared the rosters. He usually worked every second or third Saturday.

173 At the commencement of Dr Tan's term at JHC, he recalls that as part of the general handover from the preceding registrar he was advised that he would need to review all the patients in the neurology and respiratory team, unless told otherwise.

174 Dr Tan says that he was never told by the practitioner while working at JHC not to see any of his private patients, so he proceeded on the basis that he should see and review them all, which he did.

175 Consequently, he saw and attended on all the patients at JHC under neurological care regardless of whether they were public or private.

176 Dr Tan attended on each of the practitioner's patients as part of his routine daily ward rounds.

177 Dr Tan says that the practitioner undertook formal ward rounds of his patients each week with the neurology team.

178 He says that Friday was generally one of the practitioner's regular days.

179 He cannot recall the other days on which the practitioner routinely undertook a ward round.

180 Dr Tan says that more often than not, the practitioner did his ward rounds in the afternoons.

181 When Dr Tan was at JHC, he always accompanied the practitioner when the practitioner did his ward rounds. The ward rounds with the practitioner started at the public wing and ended with the private patients.

182 A usual attendance on each patient during a ward round with the practitioner lasted, on average, 10 to 15 minutes.

183 A more complicated or comprehensive consult with the practitioner, when he undertook a full neurological assessment, lasted approximately 45 minutes to one hour.

184 Dr Tan says that on the occasions when ward rounds were undertaken as a team with the practitioner, it was usually, but not always, the most junior doctor who took the notes and the notes were made contemporaneously with the time of the ward round.

185 Dr Tan's practice is to record the surnames of all members of the medical team, present at the ward round, in order of seniority.

186 On any occasion when Dr Tan was accompanying the practitioner during a ward round, and Dr Tan was taking the notes, he always recorded the practitioner's presence by noting his name in his notes.

187 Given the practitioner's position and status, whenever he was present Dr Tan always noted the practitioner's name first in the patient notes.

188 He says that if he only recorded his own surname, that indicates that he attended to the patient on his own.

189 If the name of a member of the medical team is not written in his notes, he says that this indicates that this member of the medical team was not present at the time of the consultation.

190 Dr Tan does not usually make a note of a 'non medical' person such as a nurse who may also be present.

191 Usually if he does ward rounds on his own, he makes his notes on each particular patient at the end of the relevant consultation.

192 Less often, if he is very busy, he may sit down later to make his notes about the ward round.

193 If a resident was doing the ward round with him, then generally the resident wrote the entry in the medical record.

194 Dr Tan does not recall ever seeing the practitioner writing his own notes during his ward rounds, except on one occasion where he saw him writing on a radiology request form.

195 Dr Tan independently recalls the patient, KW. H has also reviewed the JHC medical records on KW. He says that KW was one of the practitioner's private patients. Dr Tan provided neurological care to KW under the instruction and direction of the practitioner during his term at JHC. He was very involved in KW's care. He took a particular interest in KW's case because it was the first case of Lewy body disease that he had seen in his medical career.

Treatment provided by the practitioner to KW at JHC

196 Dr Tan's notes in the medical records indicate that he saw KW almost daily. He says that it is clear from those notes that the practitioner was not present on all of those occasions.

197 If he saw KW on a Saturday, Dr Tan says that he telephoned the practitioner and reported to him that he had reviewed KW and he then explained his assessment of KW to him. He would subsequently ask the practitioner if he had any further instructions in relation to KW's treatment.

198 Dr Tan ended his term at JHC at the end of January 2013. Dr Tan had no further contact with KW or the practitioner.

199 Ms Castledine has been the practitioner's practice manager since approximately March 2011. Ms Castledine provided two witness statements dated respectively 23 February 2017 and 19 May 2017 and she supplemented her evidence orally at the final hearing.

200 Ms Castledine says that she oversees the running of the practitioner's entire practice which includes book­keeping and administration for his practices at Joondalup, West Perth and Subiaco.

201 As the practitioner's practice manager, she is responsible for preparing invoices for inpatient treatment and sending them to patients. The invoices contain a statement to the effect that the patient should claim from Medicare Australia and their private health fund first. Once payment is received from Medicare Australia and / or a private health fund, she follows up the patient for payment of any outstanding balance.

202 She is also responsible for the recovery of any outstanding fees, which are usually inpatient fees.

203 Ms Castledine says that the practitioner keeps a weekly record of his fees for work performed. At the conclusion of treatment or upon discharge from hospital she uses the practitioner's records to prepare his invoices. She says that it is her responsibility to deal with any issues and resolve those issues concerning the accounts.

204 She says that it has always been the policy of the practitioner to try to reduce an inpatient account if a patient cannot afford to pay following any Medicare and any private health fund rebate. If a patient advises that he or she cannot pay after rebate, due to, for example continuing illness, the fact that the patient is a pensioner, general financial circumstances or loss of employment, it is her practice to telephone the patient and try to reach a resolution.

205 Ms Castledine says that she has a very clear memory of KW from the time he first became a patient of the practice. Her opinion of him was that he was a very pleasant man and proud of his financial independence. She recalls telling him at one point that he needed a current referral from his general practitioner in order to be able to claim from Medicare Australia. He said to her that he did not want to get the referral because he could afford to pay for his own medical care and did not want 'to make a claim on the country'. She also recalls him telling her to 'keep the change' if he paid in cash (which she did not).

206 At the conclusion of KW's stay at JHC, Ms Castledine prepared and posted the Invoice to the Office of the Public Trustee.

207 She recalls that the relevant Public Trustee trust manager, Mr Dennis, contacted her, asking why the practitioner had felt it necessary to see KW as often as he did. She passed that query on to the practitioner who advised her how to respond, which she did by email.

208 To the best of her recollection, after the practice received a Medicare Australia and private health fund rebate for KW's account, she tried to contact the trust manager again regarding the outstanding balance, but had trouble getting in touch with him. When she finally reached him on the telephone, he told her words to the effect of someone else was dealing with the Invoice and that she would hear what the outcome was.

209 Apart from this correspondence, Ms Castledine says that there was no discussion initiated by anyone from the Office of the Public Trustee or KW's guardian concerning the outstanding balance of the invoice, including any request for a reduction in the amount of the invoice, or payment arrangement.

210 In Ms Castledine's further witness statement dated 19 May 2017, she says that on or about 20 or 21 December 2016, the practitioner asked that she review his electronic records of patient invoices and produce a list of all inpatients admitted under his care at the Mount Hospital between 27 November 2012 and 21 February 2013. She did so and produced the following table:

MOUNT HOSPITAL ADMISSIONS: 27/11/2012 TO 21/02/2013

211 Ms Palazzolo was the practitioner's medical secretary from February 2002 until February 2011. Ms Palazzolo provided a witness statement dated 23 February 2017 and supplemented her evidence orally at the hearing.

212 Ms Palazzolo says that she was based variously at the rooms at Mount Medical Centre, at the practitioner's Subiaco rooms and in the practitioner's private rooms at JHC.

213 Ms Palazzolo sets out what, from her own observations was the practitioner's routine at the relevant time. It largely accords with the practitioner's evidence on the same point.

214 In addition to his weekly routine, on any given day, if a private inpatient was in need or if there was an emergency, she says the practitioner would visit the patient in hospital up to twice a day outside of his regular routine, often very late at night.

215 Ms Palazzolo's view is that the practitioner is methodical and rarely deviates from the weekly routine he has established. Part of that routine was to see private inpatients who were admitted under his care each day the patient was in hospital, regardless of his workload.

216 Dr Stephen Richards is a medical practitioner and a general physician and a renal physician by specialty. He has been a consultant at JHC since 2001, and attends both public and private inpatients. Dr Richards provided a witness statement dated 22 February 2017, supplemented by oral testimony at the hearing.

217 Dr Richards has specialist consulting rooms within JHC and attends to both public and private inpatients. He says that he is at JHC almost every day and he sees the practitioner there almost every day, either in or around his consulting rooms (his rooms are across the corridor from the practitioner's rooms) or around the ward.

218 Dr Richards says that he usually provides cover for the practitioner when the practitioner takes leave. He says that the practitioner always provides a thorough patient handover before going on leave, and leaves little for him to organise during his leave periods.

219 He recalls taking over management of KW, from 25 December 2012 to 6 January 2013 inclusive.

220 During the period of the practitioner's leave, Dr Richards says that he did not need to formally review KW, as the practitioner had given him a thorough verbal handover regarding his diagnosis and treatment plan, and had organised his medication. He says that he only needed to continue the care set out by the practitioner.

221 In his statement, Dr Richards says that he used to see KW on ward rounds and recalls that he was causing disruption because of his confused mental state. He remembers on one occasion seeing him wandering out of his room with no clothes on.

222 However, at the hearing, Dr Richards clarified that his contact with KW during the relevant period was 'no more than a discussion one day with Dr Tan' about the Tribunal matter (T:26; 16.05.17) and that he 'at no stage had cause to physically examine' KW; T:38; 16.05.17.

223 As a consultant at JHC, Dr Richards says in his statement that his practice with respect to private patients is to see them every day if possible. His reasoning is that most private patients, paying as they do for private health cover, expect to see their specialist each day they are an in­patient. Secondly, consultants have primary responsibility for the patient's care so it is in the patient's best interests to see them every day in order to provide better care that follows their daily needs, leading to a faster discharge from hospital.

224 In the light of what Dr Richards told the Tribunal about the extent of his contact with KW, we take it that in this part of his statement he is referring to his own patients and not to the practitioner's patients.

225 Although consultants are supported by junior medical staff, junior staff working at JHC are rotated through different teams to broaden their experience and so necessarily have little experience in any particular field. At best some junior doctors are training to be specialists but those at JHC are not yet in subspecialist training programs so still have no particular expertise in any medical sub-speciality (such as neurology).

226 In his opinion, junior medical staff cannot provide optimal speciality management of patients due to their inexperience. For this reason, greater involvement and frequent consultations by the specialist assigned to the patient results in better patient care and management.

227 Ms MacFarlane is a research manager employed by Neurodegenerative Disorders Research Pty Ltd, a company of which the practitioner is the director. Ms MacFarlane has worked for the practitioner in various roles for over 20 years. Ms MacFarlane provided a witness statement dated 14 May 2017 and supplemented her evidence orally at the final hearing.

228 Ms MacFarlane says that in December 2016, Ms Casteldine asked her to assist her to access and print out copies of the practitioner's electronic Outlook calendars recording consultations between the practitioner and patients at his Subiaco and JHC rooms in 2012 and 2013.

229 She says that when she tried to access the calendars in Outlook, there was nothing in the calendars for the period they had been asked to access and print. She understood that the relevant entries had been automatically 'archived'.

230 In order to try to recreate what the calendars would have contained, Ms MacFarlane and Ms Casteldine examined the practitioner's billing records to confirm which patients had attended and paid for appointments on which days. Ms MacFarlane says that she then entered them in the JHC rooms calendar, and later for 2012 in the Subiaco clinic calendar. The billing records did not have consultation times on them so she just entered the consultations in the order they appeared each day in those records.

231 Whilst Ms MacFarlane says that she is confident that she put the correct patient names on the correct days in the calendars, she is not confident that the times of patients' attendances entered in the calendars are correct.

232 She says that it is possible that for any one day, patients are recorded in the calendar as being seen in the morning when they could have been seen by the practitioner in the afternoon, and vice versa.

233 Ms Sheridan provided a witness statement dated 18 April 2017. She did not provide oral evidence at the hearing

234 Ms Sheridan was employed as the practitioner's personal assistant from 23 May 2011 to 18 July 2014. She was based at the practitioner's private rooms in Subiaco. During her three years of employment, there were also times when she was asked to work in the practitioner's private rooms at JHC.

235 Ms Sheridan in her statement says that she has limited recollection of the practitioner's exact weekly routine during her time of employment. However, she provided a summary of her memory of the practitioner's routine, which, again, largely accords with the evidence on the same subject given by the practitioner and Ms Palazzolo.

237 The expert witnesses' reports which were tendered and marked as exhibits in this matter are as follows:

• a report of Professor David Williams dated 17 July 2015;
• a supplementary report of Professor David Williams dated 19 July 2016;
• a report of Professor Brian Chambers dated 23 July 2014;
• a supplementary report of Professor Brian Chambers dated 28 June 2016;
• a report of Professor John Watson dated 6 May 2016;
• a supplementary report of Professor John Watson dated 6 June 2016; and
• a conclave report dated 17 May 2017 submitted during the course of the final hearing.

238 Professor Williams' statement dated 17 July 2015 sets out his background and qualifications. He says that he is a registered medical specialist neurologist, practicing in Victoria. His medical qualifications were conferred by the Monash University in 1995 and specialist accreditation by the Royal Australasian College of Physicians in 2003. He was awarded a PhD for research in neurodegenerative disease by University College London in 2007. He is an Adjunct Associate Professor of Neurosciences at Monash University and a Director of the Movement Disorder Service at The Alfred Hospital in Melbourne, where he has worked in that capacity since 2007.

239 He has been involved in in­patient and out­patient management of patients with Parkinson's disease and dementia for more than 15 years, 12 years as a consultant. He has participated in various policy review boards and scientific advisory panels involved in the diagnosis, management and treatment of patients with Parkinson's disease. He is a visiting neurologist at Cabrini Health, including in the Movement Disorder Rehabilitation Program. His research interests include clinicopathological correlations in Parkinson's disease, disease measurement and management, and he has a number of clinical and research trials ongoing in the field, through Monash University and in collaboration with other specialists.

240 Professor Williams was asked a number of specific questions. His responses are based on his review of clinic records related to the case provided by JHC and the practitioner and billing data regarding the consultations to KW provided by Medicare Australia and the practitioner. To the extent that he answered the questions, those questions and his answers are as follows:

Was the frequency of the practitioner's attendances on KW between 27 November 2012 and 21 February 2013 reasonable and appropriate given KW's history and clinical condition and the care given by other health care providers to KW at JHC?

241 Professor Williams understands that 81 'consultations' occurred during the period of admission and one EEG report. He also understands that these consultations included 'cognitive assessments' that appear to him to have been performed in consultation rooms on two different days, 'phone consultations' on ten occasions, ward rounds, report writing, family meetings and 'consultations'.

242 Professor Williams is of the opinion that the frequency of attendances by the practitioner during KW's admission was excessive and unreasonable. He expressed his reasons for this opinion as follows:

1. The clinical notes indicate what he considers is an expected and typical evolution of symptoms of Parkinson's disease with dementia in a patient well known to the treating doctor and adequately managed on a day­to­day basis by nursing staff and junior medical staff. In this scenario, 81 attendances during the period in question is excessive.
2. There was so little change in the clinical status as documented daily by the junior neurology team during the admission that a consultant attendance every day was not needed.
3. Titration of quetiapine does not require daily consultant review given the expectation that benefits would take some time to emerge.
4. There is virtually no written evidence of the 81 consultations by the practitioner and an almost complete lack of documentation of changes in management for KW made as a result of any of those attendances.
5. There is little rationale for repeating cognitive tests five days apart in order to guide therapy, given the nature of the presentation.

Were the fees charged by the practitioner to KW (and the Public Trustee) for services provided between 27 November 2012 and 21 February 2013 reasonable and appropriate?

243 The fees charged by the practitioner, in Professor Williams' opinion, were not reasonable because he considers them to be excessive in the context of the care required, the care given and the usual fees charged by neurologists in the field. The fee for review consultations far exceed Medicare Australia's benefits, the fees paid by private health insurers and the AMA recommended fees.

244 The consultation fees charged were not appropriate, because most of the consultations were brief, uncomplicated and apparently only documented in the clinical notes by the junior medical staff, predominantly without specific reference to the practitioner's analysis, advice or management plan. He says that there was a distinct lack of a detailed plan for KW following the initial in­patient assessment, including an absence of documentation of a differential diagnosis and detailed management plan that is required to allow a fee under MBS Item 132.

Did the practitioner obtain KW's consent, and the consent of the Public Trustee from 22 January 2013, for fees to be charged to KW from 27 November 2012? If not, should he have?

245 Professor Williams says he does not believe that the practitioner obtained KW's consent for the fees charged for this admission, nor the consent of the Public Trustee from 22 January 2013, for the fees charged.

246 In his opinion, these consents should have been obtained.

Was it was reasonable to charge KW in excess of the AMA recommended fees for services between 27 November 2012 and 21 February 2013 given that he had not obtained the written consent of KW to do so?

247 Professor Williams considers that it was not reasonable to charge KW in excess of the AMA recommended fees for the services in the absence of documented financial consent for those specific fees. In addition, he says, it was not reasonable, in his view, to charge any out­of­pocket fee in the absence of written consent.

Were the Medicare Australia item numbers billed by the practitioner appropriate for the type of services provided?

248 The Medicare Australia report and the practitioner's report indicate that a charge under MBS Item 132 was made on admission. A 'consultant physician treatment and management plan' was not documented that included the standard requirements of a differential diagnosis, treatment options, interventions or recommendations for allied health care staff, which is a requirement for charging under MBS Item 132. However, Professor Williams accepts that in the hospital situation this information may be transferred verbally, and in­part documented by other staff. On this basis, he says he does not have an opinion as to whether the item was appropriate.

249 The Medicare Australia report and the practitioner's report indicate that a fee under MBS Item 116 was charged on almost all days during the admission, and twice on 30 November 2012 and on both 3 and 4 December 2012. Professor Williams' understands that a fee under MBS Item 116 cannot be charged for:

• a telephone discussion with a family member or patient
• phone consultations
• report writing without interaction with the patient
• family meeting without the patient
• cognitive assessments performed by another practitioner

250 Accordingly, it is Professor Williams' opinion that all consultations indicated in the practitioner's tabulated billing summary that pertain to telephone discussions, phone consultations, family meetings, cognitive assessments administered by others and report writing should not have been charged for under MBS Item 116.

251 Further, Profession Williams considers that if the practitioner did not see KW personally on any of the days that he claimed such a fee, that is, if only the junior staff reviewed KW, then claiming a fee under MBS Item 116 would not have been appropriate. Very few of the medical notes document the presence of the practitioner on the junior staff's ward rounds, thus suggesting to Professor Williams that the practitioner may not have been in attendance.

Were the practitioner's clinical records in respect of KW of an adequate standard?

252 Professor Williams considers that the clinical records of the medical team were adequate. His understanding is that the neurology junior staff was under instruction from the practitioner and acting on his behalf while conducting ward rounds. Their documentation precisely outlines the issues, treatment and progress during KW's hospitalisation.

253 However, Professor Williams says that the records do not disclose the contribution of the practitioner to KW's daily management. To that extent, he does not consider that the clinical notes are of an adequate standard.

254 Professor Williams accepts that the medical notes and documentation from the practitioner's consulting rooms are adequate in regards to his contributions to those matters.

255 Professor Williams concludes that the consultations charged to KW are excessive. While he accepts that any practitioner may charge whatever fees they feel necessary, he is not aware of any of his colleagues who charge anywhere near the same level for in­patients. He says that such excessive fees can only be justifiably charged if the explicit consent has been given in the context of a written quote that is amended as circumstances change.

256 Professor Williams does not consider that the clinical scenario under which KW was admitted was unusual or particularly unique and seemingly did not vary from the expected course for Parkinson's disease dementia during his stay at JHC. He says that there is no justification, from the clinical notes, for daily consultant reviews, except perhaps over the Christmas/New Year period following a fall and increased confusion. During this period of time the practitioner was not in attendance and KW was being treated by another doctor.

257 Finally, the lack of documentation of the practitioner's attendances and lack of documentation of his contribution to the daily management of KW calls into doubt, in Professor Williams' view, the value of his contribution.

258 In Professor Williams' supplementary statement dated 19 July 2016, he provided the following further evidence:

• KW had a long admission, with standard and expected clinical signs and symptoms requiring treatment entirely consistent with Parkinson's disease dementia, as diagnosed by the practitioner. The symptoms and their management are to be expected and in that regard he would not classify the admission as complicated.
• Behavioural and cognitive fluctuations and changes are expected in patients with Parkinson's disease dementia and necessarily patients require reasonably close medical oversight to treat these symptoms and minimise their impact. These changes may be unpredictable and it is important for doctors managing these patients to be available on­call to provide advice or a management plan for acutely agitated patients. A standard ward review between three and six times per week would be required and that urgent visits to the ward may be needed from time to time. There is no rationale for repeat cognitive testing to guide management.
• The junior medical team clearly documented on multiple occasions that KW was stable and no changes were needed. In this situation, consultant reviews would only be required three or four times per week as routine, with occasional urgent ward visits or phone calls on occasions. This would equate to between 48 and 60 ward consultations.
• It is the consultant's responsibility to ensure that any attendance is documented.
• It would have been reasonable for the practitioner to attempt to obtain consent from KW's guardian, once appointed.
• It would be usual to present an invoice for these services at the end of the admission or after discharge.

259 In Professor Chambers' statement dated 23 July 2014, he says that he is a neurologist with over 30 years clinical and research experience. Currently, he is in private practice, including providing expert opinions in a variety of medico­legal and insurance scenarios. He is head of neurovascular ultrasound at the Austin Hospital and a principal fellow of the University of Melbourne Department of Medicine. Previous appointments include President of the Stroke Society of Australasia and Associate Director of the National Stroke Research Institute. His research interests include management of carotid stenosis, carotid stenting, and neurosonology.

• Professor Chambers notes that the practitioner billed the Public Trustee for an initial prolonged consultation on 27 November 2012, which was not documented in the hospital file or the practitioner's notes, and then for daily review consultations, when the available records suggest to him that the practitioner visited KW only two to three times per week.
• Furthermore, the practitioner charged 'well above' AMA recommended rates, and certainly above MBS fees. Professor Chambers says that in Melbourne public hospitals, the usual convention is to charge private patients the MBS fee, which is fully reimbursed by Medicare and the private health fund, so the patient is not out of pocket.
• Given that KW was being attended almost daily by resident medical staff responsible for the day to day management of KW, Professor Chambers considers that consultations by the consultant two to three times weekly would generally be sufficient.
• Professor Chambers considered that it is generally regarded as sufficient that the resident medical staff make entries in progress notes, documenting which medical staff attended the patient and the key outcomes. He says that it would be unreasonable to expect the practitioner to personally make an entry in the progress notes every time he saw KW, except if he attended KW on his own.
• In the circumstances, where there was no available next of kin, and no guardianship order in place, Professor Chambers believes it was in the patient's best interests for the practitioner to arrange the admission to JHC.
• Consent should have been sought.
• Professor Chambers notes that the consent form which KW signed in 2009 stated that KW would be charged AMA recommended fees. He assumes that this was in reference to consultations undertaken in the consulting rooms. Accordingly, KW ought to have been 're­consented' when he was admitted to hospital in November 2012 if the practitioner intended to charge in excess of the MBS, leaving him out of pocket for inpatient treatment. Since KW was not 're­consented' in November 2012 then a new consent should have been obtained from the Public Trustee on 23 January 2013.

261 Professor Chambers' supplementary statement dated 28 June 2016 contains the following further evidence:

262 In Professor Chambers' opinion there was nothing particularly unusual or difficult concerning KW's case, with the exception of KW's family circumstances and guardianship issues.

263 He says that it is not unusual for patients with Lewy body disease to develop delirium in hospital, leading to a tendency to wander and visual hallucinations.

264 In Professor Chambers' opinion, the practitioner should only have charged for face to face consultations and not for services provided by resident medical staff or allied health workers, and nor for telephone calls, even those that were properly documented.

265 If the practitioner saw KW at a time separate to the documented registrar's ward round, it would be the practitioner's responsibility to document this attendance.

266 In Professor John Watson's statement dated 6 May 2016, he says he is a medical practitioner and holds, amongst other qualifications, a doctorate in philosophy from the University of Oxford for research in neuropsychology. Professor Watson also holds a Fellowship of the Royal Australasian College of Physicians, with specialist training in neurology. He is a Professor of Medicine at the University of Sydney. One of his current positions is Chair of the Fees Subcommittee of the Australia and New Zealand Association of Neurologists.

267 In his statement dated 6 May 2016, Professor Watson makes some general observations and then answers some specific questions:

268 Professor Watson notes that the Board refers to AMA's fees as 'recommended fees', but he is unclear why the Board takes this approach. He speculates that it may be because of the earlier written statement, signed by KW, acknowledging that in December 2009 the practitioner would charge fees 'in accordance with the recommendations of the Australian Medical Association'.

269 Professor Watson then makes a series of observations about the AMA List. He points out that the Foreword of the AMA List published on 1 November 2012 stated that the AMA List is provided 'for costing assistance and guidance only' [his emphasis]. The AMA specifically states '[a]s such, statements to the effect that fees charged are AMA recommended fees should not [their emphasis] be included in any accounts or accompanying patient information sheets'.

270 In the next paragraph, the AMA indicates that it had calculated the Fees as being fair, reasonable and appropriate for the services provided after careful study and investigation of practice costs and other relevant and material circumstances.

271 The AMA then says that '[a]ll members are, of course, and should at all times regard themselves as being free, and indeed duty bound, to make their own judgment as to what fees they will charge for any service. Members should satisfy themselves in each individual case as to a fair and reasonable fee having regard to their own cost experience and the particular circumstances of the case and the patient'.

272 The AMA also says that before a service is provided, the patient 'should be informed of the financial obligation that would be incurred, and if appropriate, any particular reasons for the gap'. However it goes on, '[t]he AMA recognises that there will be circumstances where this may not be possible'.

273 The next paragraph contains the AMA's recommendation that as a minimum requirement 'and wherever practicable, information about fees and charges for proposed inpatient medical services should be provided to patients in writing', and signed acknowledgement of consent obtained from the patient. This is considered best practice.

274 In the section entitled 'Billing' on page xv and in the subsection entitled Fees, the AMA writes that '[e]ach medical practitioner who participates in the care of a patient should be entitled to a fee from the patient commensurate with the services rendered (i.e. taking into account the effort, skill and resources associated with the provision of the service).'

275 The AMA writes in the section entitled 'Informed Financial Consent' that '[w]here practicable, prior to the provision of the medical service, medical practitioners should provide patients (or a financially responsible party such as a parent or guardian) with sufficient information regarding his or her likely fees ... so that the patient is able to make an informed financial decision'.

276 Professor Watson then says that the AMA wrote that '[f]or consultant physicians, consultant psychiatrists and specialists, under certain circumstances a discounted fee may be warranted for a telephone consultation, letters of advice and the issue of repeat prescriptions when the patient is not in attendance or there is no physical attendance of the medical practitioner upon the patient'. Consultant physicians also had a range of case conference items available in the AMA List as denoted in the subsequent paragraph, including face­to­face conferences, conferences by telephone or conferences by video link.

277 The AMA draws attention to certain regulative provisions about Medicare benefits being payable for medical services that are rendered by or on behalf of medical practitioner. Certain diagnostic services such as pathology and radiology carried out on behalf of a practitioner may qualify, but other services not actually rendered by, or directly on behalf of the medical practitioner, do not.

278 Turning to the keeping of adequate and contemporaneous records, he notes the AMA's understanding that an adequate record is one that was sufficient to contribute to the continuity and quality of care provided to the patient, is sufficiently clear and detailed so that another practitioner could safely and effectively undertake ongoing care of the patient on the basis of information in the record, and identifies the specific service provided or initiated. To be contemporaneous the record must be completed at the time of the service or as soon as practicable afterwards. Lastly, the AMA notes that hospital in­patient records were usually kept by the hospital 'and the practitioner could rely on these records to document in-patient care'.

279 Professor Watson observes that, for consultant physicians, the AMA List code for follow up consultations is 'AJ020', stated as the AMA equivalent of both MBS Items 116 and 119 (the two codes generally used for follow­up consultations; an MBS Item 116 is for a longer or more complex follow up consultation and an MBS Item 119 for a briefer and less complex consultation). The fee in the AMA List for an AJ020 was at the relevant time $134.

280 AJ046 is the AMA equivalent for MBS Item No. 132 and AJ047 is the AMA equivalent for MBS Item No. 133. The fee in the AMA List for AJ046 for an initial consultation of complexity was at that time $510 and the AJ047 was $255.

281 Professor Watson then turns to the specific questions that he was asked to address.

Were the services provided by the practitioner to KW excessive or otherwise not reasonably required having regard to KW's needs and the practitioner's obligations to KW?

282 In Professor Watson's opinion, clinical practice relating to private patients in private hospitals, especially those that lack exclusively assigned junior medical staff for a particular service, requires the responsible consultant to be even more assiduous in attending upon patients than in other sectors, particularly the well­staffed public health sector.

283 He points out that the Rules at JHC state that as a General Condition of Accreditation 'health professionals ... must attend patients as often as is necessary to ensure high quality patient care and to comply with accepted professional standards'.

284 He also notes that the Rules state that practitioners, including specialist practitioners 'must assume responsibility for the clinical care of patients admitted under their care'.

285 Professor Watson understands these requirements to represent a minimum, not a maximum, standard for frequency of attendance, based on his experience in a range of private and other health care facilities, and knowledge of their rules and practices.

286 By way of example and comparison, at Sydney Adventist Hospital the relevant By-Law assists by quantifying the requirement, in stating 'AMOs must visit their patients ... with reasonable frequency, as judged by the clinical needs of the case and to comply with professional standards. In most cases this will be at least [Professor Watson's emphasis] every second day'. At the Mater Misericordiae in North Sydney, the requirement is more broadly couched: 'Accredited Practitioners must ... visit patients with reasonable frequency having regard to each patient's clinical condition and needs'. Another large private hospital operator, Healthscope Ltd, 1 July 2012, has a By-Law [158] which states 'The frequency of attendance and review [of] a Patient is a matter for the Accredited Health Practitioner who is treating the Patient based on his or her assessment of the Patient's requirements'. As some further guidance Healthscope has By-Law [161] which provides that '[p]rogress notes must be written daily for critically ill patients and those where there is difficulty in the diagnosis or management of the clinical problems'.

287 Based on the information provided to Professor Watson, it appears to him that the practitioner did not have the benefit at the relevant time of other neurological consultants with whom to share the clinical load for KW. He did not have unfettered access to junior staff (registrars, residents and interns). In his opinion, there is evidence that KW presented considerable difficulties at medical, behavioural and logistical levels with hallucinations, attempts to escape at times and the requirement to be restrained/detained and nursed one­to­one. On top of this was the significant delay in the appointment of an appropriate guardian and trustee/administrator (and then appointing a person who immediately proved to be unsuitable for the role, to the extent that only a few days later the Tribunal decision was changed, as a result of the practitioner's actions).

288 As Professor Watson understands it, the practitioner has an extensive general neurological practice with particular expertise in the dementias. He is aware that there are few other Australian neurologists with such an abiding and extensive interest and expertise in this area. Accordingly he is of the opinion that it was entirely open to the practitioner to determine the appropriate consultation frequency, nature and duration required for KW's needs and care in numerous dimensions. Based on his own experience in similar health care settings in Sydney, four to five rounds per week would be the minimum, and often six rounds are done, comprising rounds at least every second day in the working week and rounds on at least one of the weekend days and often both, depending on the numbers, level and competence of junior medical officers for weekend cover, and the load upon them. Seeing some inpatients virtually every day would be reasonably required, both in the professional relationship with those patients and the expectations of those patients of a high level of specialist care and attention, and in the fulfilment of the health care facility's requirements concerning its appointed specialists.

Having regard to the services rendered and the fees normally charged by specialist neurologists, were the fees charged excessive?

289 Professor Watson says that he is aware of the level of fees charged by neurological colleagues in the private sector in New South Wales. He is also aware from the fee schedule explanation provided by the practitioner that in 2012 his private initial rooms consultation fee was $440 and the initial inpatient consultation fee was $450, in both cases below the then AMA List for an extended consultation. He notes that in 2012 a follow up consultation in his rooms was $180.

290 The practitioner's private hospital equivalent charge for subsequent consultations was $350. Professor Watson does not know the details of his practice patterns, overheads, approach to complexity, estimate of opportunity costs, distance and time travelled, and other factors that must be taken into account in determining inpatient fees. He is aware of the practitioner's experience which he considers should be taken into account in assessing the appropriate fee for consultation in the hospital.

291 Professor Watson is of the opinion that the rooms fees charged by the practitioner at the relevant time were likely to be below those of a considerable number of similarly qualified and experienced Australian neurologists and that his inpatient follow­up fees might be above the majority of contemporaries. However, he is of the opinion that these fees were not intrinsically excessive.

What might be the problems a neurologist faces in obtaining informed consent from a dementing patient and what are Professor Watson's views on the appropriateness or otherwise of the practitioner continuing to treat KW in February after an independent guardian had been appointed but without the prior approval of that guardian?

292 Professor Watson is unclear how a practitioner could obtain prior informed consent including financial consent from a patient with significant dementia in a situation such as this. It appears reasonable to him to conclude that KW was dementing significantly by the time the practitioner saw KW towards the end of 2012, such that he needed to be accompanied by a nurse 1,000 km from his home to Perth for admission.

293 A solution that would have been reasonable to follow (and was followed in this case) was for the practitioner to proceed on the assumption that he was still in charge of KW's care and that he had management and consultation duties owed directly to KW and via his appointment through the Rules at JHC. The practitioner could then render his account at the end of the hospital stay (evidently the practitioner's normal charging practice) and then the administrator, acting in the stead of an 'ordinary' patient in possession of full faculties, could decide whether to pay his fees in full, or whether to discuss the fees, negotiate, object or refuse. The administrator could then inform the practitioner of his decision and proposed course of action, just as one could expect an ordinary, reasonable patient to do.

Does Professor Watson consider the practitioner's record­keeping to be accurate and was it appropriate for him to rely on other staff to make and keep appropriate records?

294 Professor Watson says that hospital inpatient records, as usually kept by the hospital, could be relied upon by a practitioner to document inpatient care. He has reviewed other cases for other tribunals such as the NSW Supreme Court and has encountered, with respect to private patients managed by prominent physicians in one of Sydney's leading hospitals, similar record keeping (for similar patients in similar situations to KW), indeed in some cases less adequate.

295 This observation notwithstanding, he is of the opinion that the practitioner's record keeping may not necessarily always have been appropriate. However, he adds that on the balance of probabilities there would be many consultants with similar inpatient record keeping practices.

Was it appropriate for the practitioner to charge for services actually performed by his subordinates but under and subject to his supervision?

296 Professor Watson is of the opinion that a properly described service performed on behalf of the practitioner, and under his supervision, and interpreted by him could be appropriately charged for, but not in a way (using an MBS numerical identifier) that would lead to reimbursement by Medicare Australia. He is again of the opinion, however, that there are likely to be other practitioners who charge in the same manner as the practitioner in such circumstances, although he accepts that it would be difficult to determine the nature and extent of this practice.

297 Turning to the experts' report dated 17 May 2017:

1. all of the experts consider that a reasonable frequency of attendances by the admitting physician on a patient admitted to a private hospital is five to seven times per week;
2. after two weeks, Professor Chambers and Professor Williams consider that the frequency should be reduced to two to three times per week, whereas Professor Watson considers that four to five attendances per week is reasonable;

1. the experts all agree that, accepting that it was reasonable to assume that KW wanted to continue to be treated as a private patient upon his admission at JHC, it was reasonable for the practitioner to assume that KW's admission was on the basis that a gap fee could be charged;

1. Professor Chambers and Professor Williams both believe that KW's medical condition was never sufficiently dire to necessitate daily, sometimes twice daily consultations;
2. Professor Chambers considers that the amount charged by the practitioner for the health services provided to KW was excessive;
3. Professor Williams agrees with Professor Chambers on this point;
4. Professor Watson disagrees that on this point with both Professor Chambers and Professor Williams;
5. the experts all agree that there is no published guide as to how an admitting physician should continue to charge for his or her services at a time when informed financial consent cannot be obtained because of a patient's impairment;
6. Professor Chambers considers that in these circumstances KW should have been charged on the basis of a no gap fee;
7. Profession Williams agrees with Professor Chambers on this point;
8. Professor Watson on this point considers that there is a wide range of practices, although Professor Watson says that for elective private patients in public hospitals where he works by agreement with that hospital, he and his colleagues use the no gap fee schedules.

298 Because the Board says that Allegation Three is the most serious allegation against the practitioner, the Tribunal will consider this allegation first.

299 The Board alleges that the practitioner charged KW for services that he did not provide to KW.

300 The Board says that in making out the particulars of this allegation, it relies primarily on the application by the Tribunal of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel).

301 The Board also relies on the fact that there is no record of medical services which the practitioner says he provided to KW and charged KW for.

302 The rule in Jones v Dunkel is a rule of evidence and the Tribunal is not bound by the rules of evidence or the practices of courts except to the extent that it adopts those rules or practices.

303 Of course, the Tribunal accepts that there is a difference between not being bound by the rules of evidence and not having regard to those rules; Medical Board of Australia and Woollard [2012] WASAT 209 at [85]. The Tribunal is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms; State Administrative Tribunal Act 2004 (WA) s 32.

304 The Tribunal will take into consideration and apply the principles governing the operation of the rule in Jones v Dunkel, to the extent that those principles are relevant to the present circumstances.

305 In The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239, Owen J summarised at [1004] to [1022] those principles. His Honour explains that the rule is that '[t]he unexplained failure by a party to give evidence or to call a witness or to tender certain documents may (not 'must'; Hewett v Medical Board of Australia [2004] WASCA 170 (Hewett) at [203]), in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case'. However, the rule cannot fill gaps in the evidence or convert conjecture and suspicion into inference.

306 The principle can operate against the party who bears the burden of proof or against a party who does not bear the onus.

307 The significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.

308 There are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. A party may not be in a position to call a witness. The party may not be sufficiently aware of what the witness would say to warrant the inference that he feared to call him. The party may simply not know what the witness will say.

309 In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter. It is not enough to conclude that a party may have knowledge. Unless the Tribunal, on the balance of probabilities, concludes that the missing witness would have knowledge, there is no basis for an adverse inference from the failure to call the witness.

310 In some cases, the passage of time between the event in question and the trial, and the inability of various witnesses who do give evidence to recall relevant matters may support an inference that witnesses not called would not have been able to contribute evidence useful to the resolution of matters in issue.

311 So far as the Board is concerned, the relevance of the application of the rule in this case is stated by counsel for the Board in closing in the following terms:

Now, my learned friend made the observation that no witnesses had been identified that would satisfy the rule in Jones v Dunkel. The submission is that no witnesses have been called to corroborate his statement that the undocumented services were provided and there are numerous witnesses that could have been obviously been called by the respondent.

If he was really attending the hospitals - the hospital to do ward rounds at night it is - takes little imagination to see that the nurses and the night time rep medical team would remember something like that particularly the management nurses who are there and who had been asked to make notes or who were too busy to take notes etc.

It is still incomprehensible how not one single staff member from the hospital has come along to say, Yes, the respondent, Dr Panegyres - Professor Panegyres was always coming to the hospital late at night and doing ward rounds and we saw him doing it. It was - it is a clear Jones v Dunkel point in this case.

(T:40 and 41; 19.06.17)

312 The practitioner denies charging KW for a consultation that did not take place. The practitioner says that the case against him is based on an absence of direct reference to the practitioner in some of the JHC notes made by Doctors Tan and Ng over an eight week period. The practitioner, through counsel, says that while the Board maintains that Allegation Three is supported by the principle enunciated in Jones v Dunkel, the evidence said to be available to the practitioner and not to have been called, has not been identified; Respondent's Closing Submission at paras 72 ­ 74.

313 We agree with the practitioner that it is difficult to see who it is whose evidence the practitioner feared. We heard evidence from Dr Tan and from Dr Ng in regard to the practitioner's attendance or otherwise at what they referred to as the fixed ward rounds. We accept their evidence that, if the clinical notes made at the time do not name the practitioner as being in attendance, then he was not in attendance. In respect of the ward rounds which the practitioner says he conducted at other times, we do not believe that the practitioner failed to call nursing or other staff simply because they would not have assisted his case or he otherwise feared what they might say. We believe that the reason why the practitioner did not call these parties to give evidence is that it is unlikely that they would have a recollection of events of some four years previously and would more likely base their evidence on the regularity of the practitioner's routine at the time.

314 This would not have assisted the Tribunal. In any event, the practitioner says that on some visits to KW, no one else was present.

315 On the other hand, it was open to the Board to call the relevant persons to give evidence that the practitioner was not present in the Hospital at the times he claims to have been there. The Board did not do so.

316 Accordingly, we do not consider that there is a Jones v Dunkel inference to be drawn from the fact that the practitioner did not call any nursing or other JHC staff as witnesses to corroborate his assertion as to when and how often he saw KW.

317 It follows that the Board's case in respect of Allegation Three relies entirely on the lack of medical records or clinical notes of the medical services which the practitioner says that he provided to KW.

318 The practitioner's evidence is that on each and every occasion when he sees a patient, he conducts a neurological assessment of the patient and a review of the drug charts and holds discussions with nursing staff; T:83; 17.05.17.

319 Later in his oral testimony, the practitioner in respect of KW says that he went further. He said that KW, because of the nature of his condition and its complexity, required a full neurological assessment on each occasion when he was seen and that included a review of his medications, his blood pressure, his temperature and also his behaviour; T:115; 18.05.17.

320 On the practitioner's own evidence, some of the services provided by the practitioner to KW do not have corresponding clinical notes. Clearly, there are notes for some of the consultations, including the fixed ward rounds. Other ward rounds, particularly those of which are said to have occurred in the evenings, are not documented and there is no evidence as to what the nature and outcome of those consultations were, other than the practitioner's own testimony. The practitioner has no difficulty in describing these consultations. He says that his routine with his patients never varies.

321 The practitioner explains the absence of clinical notes by saying that on some occasions there were no nurses present. He said that sometimes the ward round would be conducted by him alone and whether or not a nurse was in attendance would depend on whether the nurse had an emergency on the ward or other commitments. He said that there was not always someone at the nursing station; T:14 and 15; 18.05.17.

322 When questioned about how the practitioner passed the results of his consultations to staff the following day when there were no notes, he said that he relied on his memory and that it was a 'verbal handover'. He observes that 'verbal communication is a strong foundation in the practice of medicine'; T:89 and 90; 18.05.17.

323 The Tribunal does not consider that it is necessary or appropriate to make a finding on the truthfulness or otherwise of the practitioner's testimony. While the practitioner is not assisted in his defence of this allegation by his failure to provide clinical notes corresponding to each consultation which he says occurred, he has provided an explanation for this failure, which the Tribunal considers to be plausible.

324 As Miller J in Hewett observed at [119]:

It may be tempting in disciplinary proceedings for a tribunal to look to see who is telling the truth and who is lying, but there is a danger in following this path. It overlooks the fact that the ultimate question for a tribunal in these circumstances is whether the tribunal of fact is persuaded on the balance of probability that the allegations contained within the Notice of Inquiry have been made out. In [Briginshaw], Dixon J (at 362 - 363) formulated the appropriate reasoning processes that are required of a tribunal of fact sitting as the Board was in this case. His Honour said:

'... Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ... It is often said that such an issue as fraud must be proved ''clearly'', ''unequivocally'', ''strictly'' or ''with certainty'' ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.'

325 It is not for the practitioner to prove his version of events. It is for the Board to prove to the requisite standard that the consultations described by the practitioner did not take place. We do not consider that the Board has discharged its onus of proof. The absence of notes alone does not satisfy the Tribunal to the requisite standard.

326 Allegation Three is tantamount to an allegation of dishonesty or fraud; Applicant's Opening Submissions para 49. It is undoubtedly a very serious allegation. Keeping in mind the comments of Dixon J in Briginshaw, we must feel an actual persuasion that the Board's allegation that the practitioner charged KW for services he did not provide to KW is made out. While we make no finding that the consultations as described by the practitioner did in fact occur, we are not persuaded to the requisite standard that they did not occur.

327 The Tribunal finds that the particulars of Allegation Three have not been made out.

328 We next turn to Allegation One. The Board alleges that, if contrary to its Allegation Three, the practitioner provided services to KW on 78 occasions over an 87 day period (during which the practitioner was on leave for 14 days), these were not all clinically indicated and so were excessive, unreasonable or otherwise not reasonably required for KW's well­being.

329 As will be mentioned again when we deal with Allegation Four, this is in fact the basis of the complaint made by Mr Dennis about the Invoice. Mr Dennis, in his notification or complaint to APHRA (Exhibit 19) raises as his concern the necessity for KW 'to be consulted every day', not the amount of the Invoice.

330 The Invoice discloses 'consultations' by the practitioner with KW every day between and including 27 November 2012 and 24 December 2012, and then between 7 January 2013 and 21 February 2013 inclusive. The period from 25 December 2012 to 6 January 2013 inclusive was the practitioner's period of leave.

331 These 'consultations' included telephone attendances and preparation of Tribunal reports for KW's guardianship and administration proceedings. It is the practitioner's claim that he saw KW in total 64 times or six days per week; Respondent's Closing Submissions para 54. The practitioner says that this was necessary because KW was 'a patient of concern'; Respondent's Closing Submissions para 57.

332 Assuming most favourably to the practitioner that during a period of 73 days (that is, the period of KW's admission but excluding the practitioner's leave of 14 days) he saw KW on 64 occasions, or six times per week, and on each occasion when he saw KW he conducted a full neurological assessment including a review of his medications, his blood pressure, his temperature and his behaviour, then the issue is whether or not consultations of this nature and frequency were clinically indicated and necessary or reasonable, given the fact that KW was also receiving regular medical care from other JHC medical staff.

333 The evidence of Professor Williams and Professor Chambers is that the circumstances of KW warranted attendances by the practitioner no more than two or three times per week, which both note is in fact the number of medically documented consultations which took place.

334 Professor Watson considers that it was open to the practitioner to make his own decision on the frequency of consultations, but in Professor Watson's own opinion a round every second day during the week and one during the weekend would be appropriate.

335 The three experts agree that five to seven consultations during the first two weeks of KW's admission, dropping to, in the view of Professor Chambers and Professor Williams, to two to three times per week and four to five times a week in the view of Professor Watson, would have been sufficient.

336 The Tribunal accepts the evidence of Professor Chambers and Professor Williams that it was not necessary or clinically indicated for the practitioner to see KW for a full neurological review any more than three times per week. While we note that Professor Watson considers that a greater frequency might be warranted, he qualifies that with the statement that this would depend on how often KW was seen by other medical staff. In that regard, it is Dr Tan's evidence that he saw KW on most weekdays and occasionally on a Saturday.

337 No issue was taken with the joint evidence of the experts being accepted by the Tribunal as setting a measure of what might be regarded as excessive, unnecessary or otherwise not reasonably required for KW's wellbeing.

338 Based on the experts' testimony, the Tribunal finds that the particulars of Allegation One have been made out.

339 The Board in opening says that the records kept by others and not the practitioner were sufficient to document the treatment and care of KW. The Board says that it only relies on this allegation to the extent that the practitioner failed to keep adequate and contemporaneous records or ensure that adequate and contemporaneous records were kept of the services for which he charged KW and to justify the amount that he charged KW.

340 The practitioner has admitted that he failed to keep records of the entirety of the medical services which he provided to KW. The particulars of this allegation have been made out.

341 The allegation is that the practitioner charged KW excessively and in excess of the amounts in the AMA List when he did not have KW's consent (or the consent of the Public Trustee or Public Advocate from 22 January 2013) to being charged these amounts or amounts in excess of the amounts in the AMA List.

342 The experts accept, and the Tribunal agrees, that in general the rates charged by any medical practitioner for services provided to a patient are entirely the decision of that medical practitioner. This is supported by the statement in the AMA List that all AMA members should make their own judgment as to what fees they will charge for any service, having regard to the particular circumstances of their own cost experience, the case and the patient.

343 The Tribunal considers that this statement is made with reference to competent patients. The experts do not offer an opinion on the existence or otherwise of a standard or direction to practitioners in circumstances where a patient lacks the capacity to make his or her own financial decisions. However, all of the experts seem to consider that something less than a full fee rate would be appropriate, although they differ as to how they or any colleagues known to them would deal with the same situation.

344 We are not satisfied to the requisite degree of proof that a standard exists as to the appropriate rate or level of charging in the circumstances of KW.

345 Had the Tribunal found that the practitioner's consultations on KW were all clinically indicated and necessary, then we do not consider that the quantum of the Invoice was excessive. We do not understand the Board to be alleging otherwise and it is also clear that the complaint by the Public Trustee about the Invoice concerned the frequency of the consultations, not the total amount of the Invoice.

346 Having found that the practitioner is guilty of providing services which were not reasonably required for KW's wellbeing, then it follows that any charges raised for those services, irrespective of the rate applied, will be excessive.

347 The particulars of Allegation Four are made out to the extent that the practitioner charged KW excessively by charging for consultations not required and for charging KW without the consent or concurrence of the Public Trustee.

Allegation Five ­ failure to obtain consent from the Public Trustee to the fees charged following the Public Trustee's appointment

348 The practitioner concedes, and it is not in any way in contest, that neither KW's brother nor the Public Trustee as KW's administrator were approached by the practitioner to consent to the fees being charged. The Tribunal's view is that, although it was reasonable for the practitioner to assume that KW would have wanted to be treated privately, that does not obviate the need for the practitioner to obtain proper informed financial consent prior to charging the fees that he did. The particulars of this allegation have been made out.

Allegation Six ­ acting in a manner contrary to the Conduct Code

349 The Conduct Code provides that a good doctor-patient partnership requires high standards of professional conduct, including recognising that there is a power imbalance in the doctor­patient relationship and not exploiting a patient financially; Conduct Code para 3.2.6. While the Tribunal accepts Professor Watson's statement that it may be necessary to see some in­patients virtually every day to maintain a professional relationship and to meet the expectations of those patients of a high level of attention, that does not lead us to the conclusion that on every such occasion a full examination is necessary and that every such consultation should be charged for. Seeing a patient for such a purpose may be no more than a brief visit, which would not warrant a consultation fee. The Tribunal has already concluded that the frequency of the practitioner's attendances on KW was not clinically indicated or reasonably required for KW's welfare. To charge for all of those attendances in circumstances where the practitioner himself had provided evidence to the Tribunal of KW's lack of competence and knew that KW had been declared by the Tribunal to be unfit to make personal or financial decisions is in the Tribunal's view exploiting KW financially, particularly in circumstances where the practitioner had expressed a view that KW was vulnerable to financial exploitation when initiating GA Act proceedings. The Tribunal considers that the practitioner has breached this provision of the Conduct Code.

350 The Conduct Code at para 3.3.3 also requires a doctor to recognise that an important part of the doctor­patient relationship is to inform patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.

351 Again the practitioner was aware of and actively involved in the appointment of a guardian for KW to make treatment decisions for KW due to KW's lack of capacity to make such decisions himself. We consider that the practitioner should have, but did not, consult and consider the views of KW's guardian, the Public Advocate, following the appointment of the Public Advocate about KW's on-going treatment needs. We consider that this constitutes a breach of the Conduct Code.

352 Under para 3.5.3 of the Conduct Code, a doctor is required to ensure that his or her patients are informed about the doctor's fees and charges. KW was an existing patient of the practitioner and we consider that it was reasonable for the practitioner to assume, prior to the appointment of the Public Trustee as administrator of KW's estate, that KW had consented to the practitioner continuing to apply his standard rate of fees. However, once the Public Trustee had been appointed, we consider that it was a failure of the practitioner not to obtain the Public Trustee's consent to that fee arrangement. The Tribunal considers that the practitioner has breached this aspect of the Conduct Code.

353 The Tribunal finds that the particulars of Allegation Six have been made out.

Allegation Seven ­ charging Medicare Australia for services for which the practitioner was not entitled to charge

354 The practitioner admits that he charged Medicare Australia for cognitive testing that he did not perform. The practitioner also admits that he billed Medicare Australia for telephone calls and the reports to the Tribunal under the GA Act by reference to the MBS Item 116.

355 Further, the practitioner billed Medicare Australia for every consultation with KW, even though, on the practitioner's own admission, there were no adequate contemporaneous notes of some of those consutations.

356 The practitioner admits that he was not entitled to bill Medicare Australia for these services.

Does the practitioner's conduct as found by the Tribunal constitute professional misconduct?

357 The Board has established and the Tribunal has found that the practitioner:

1. provided medical services to KW which were not all clinically indicated and were not all reasonably required for KW's wellbeing and charged KW for those services at the practitioner's standard rates applicable to his private patients;
2. failed to obtain the consent of KW's administrator to the ongoing treatment and fee arrangement for KW;

1. charged Medicare Australia for services for which he was not entitled to charge and charged Medicare Australia for services to KW which were not all clinically indicated or reasonably required for KW's wellbeing; and
2. failed to keep adequate and contemporaneous records of his treatment and care of KW sufficient to justify the amount that he charged KW.

358 The Board says that the practitioner's conduct constitutes professional misconduct as defined in s 5 of the National Law in that he engaged in:

1. unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and/or
2. more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

359 The Board does not elaborate on why the practitioner's conduct as found constitutes professional misconduct.

360 It is expected that, in cases where the Board alleges that a practitioner's conduct has fallen below, or substantially below the standard reasonably expected of that practitioner then the Board would first establish what that standard is. To use the words of Priestly JA in Qidwai v Brown [1984] 1 NSWLR 100 at 105, it is necessary to consider whether there has been a breach of the 'written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence ...'.

361 The question of whether there exists a generally accepted professional standard or duty, and its content, are questions of fact; Dekker v Medical Board of Australia [2014] WASCA 216 (Dekker) at [72].

362 In Dekker at [73] the Full Court went on to say that:

The conventional ways in which such facts would be proved ... would, generally speaking, involve, or include, the Medical Board calling expert evidence from a person of good repute and competence within the medical profession to attest to the existence of the generally accepted standard or duty and its content, or to tender any relevant professional conduct rules ... or to point to any applicable statutory regime governing the conduct in question.

363 Little of the expert evidence in this case dealt with a generally accepted standard that might be reasonably expected of a practitioner of an equivalent level of training or experience as adjudged by professional peers of good repute and competence.

364 There is no challenge to the expertise of the witnesses as peer equivalents of the practitioner of good repute and competence and with relevant professional knowledge applicable to this case. It is true that the experts expressed their individual opinions as to what might be regarded as acceptable conduct by the practitioner in the circumstances of the present case, but what is lacking, in the view of the Tribunal, is expert evidence specifically identifying a generally accepted standard that might be expected of a practitioner such as this practitioner by his professional peers of good repute and competence. In fairness to the witnesses, they were not in fact asked expressly to identify a generally accepted standard, neither in the questions asked of them in the hearing nor put to them for the preparation of their reports.

365 The Tribunal does however understand that there is agreement between the experts that it would not be acceptable for the practitioner to charge for any consultations that are excessive, unnecessary or otherwise not reasonably required for the person's well-being.

366 In any event, leaving aside the expert evidence, in the view of the Tribunal, it may rely on the Conduct Code as a clear statement of the written rules of the profession. As appears in its very first paragraph, the Conduct Code:

... sets out the principles that characterise good medical practice and mates makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community ... . It brings together, into a single Australian code, standards that have long been at the core of medical practice.

367 It is a codification of the minimum standards by which the practitioner's conduct may be judged.

368 The Tribunal has found that that the practitioner has provided medical services to KW which were not necessary or required and charged KW for those services, failed to inform and obtain the consent of KW's administrator to the ongoing treatment of KW and his fees and charges, charged Medicare Australia for those services and other services which he was not entitled to charge Medicare Australia for, all of which is in clear breach of the written rules of the profession, namely the Conduct Code. Specifically, the practitioner is in breach of:

1. 3.2.6 of the Conduct Code which requires that a doctor does not exploit a patient financially;
2. 3.3.3 of the Conduct Code which requires a doctor to inform patients (in this case, KW's administrator and guardian) of the nature of a need for all aspects of their clinical management and giving, again in this case KW's administrator and guardian, adequate opportunity to question or refuse treatment;

1. 3.5.3 of the Conduct Code which requires a doctor to ensure that, in this case KW's administrator, is informed about the practitioner's fees and charges; and

1. 5.2 of the Conduct Code which requires a doctor to use health care resources (in this case the resources of Medicare Australia) wisely and ensure that services provided are necessary and likely to benefit a patient.

369 A breach of the Conduct Code may constitute at least unprofessional conduct. Multiple instances of unprofessional conduct when considered together may amount to professional misconduct.

370 It is open to the Tribunal to look at the practitioner's conduct with respect to KW as a whole. In relation to Allegations 1, 2, 5, 6, and 7 the Tribunal considers that it is open to it to find that the conduct of the practitioner as found in the circumstances of this case is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience constitutes professional misconduct and it so finds.

371 The Tribunal concludes that the practitioner is guilty of professional misconduct as defined in s 5 of the National Law.

1. The respondent is guilty of professional misconduct in that, contrary to the provisions of 'Good Medical Practice: A Code of Conduct for Doctors in Australia' he:

(a) between 27 November 2012 and 21 February 2013, provided and charged for medical services to a patient, KW, which were not clinically indicated and were not all reasonably required for KW's wellbeing;

(b) failed to obtain the consent of KW's administrator to the ongoing treatment arrangements for KW;

(c) failed to keep adequate records or contemporaneous records of the services provided by him to KW including the nature of those services; and

(d) charged Medicare Australia for services for which he was not entitled to charge and charged Medicare Australia for services to KW which were not all clinically indicated or reasonably required for KW's wellbeing.

1. The application is otherwise dismissed.
2. The Tribunal will hear the parties as to penalty.

I certify that this and the preceding [371] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION : MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146 (S)

Vocational regulation - Medical practitioner - Disciplinary proceedings - Professional misconduct - Penalty - Costs

Guardianship and Administration Act 1990 (WA)

Health Insurance Act 1973, s 82, s 128A, s 128B

Health Practitioner Regulation National Law (WA) Act 2010

Health Practitioner Regulation National Law (Western Australia), s 196(1)(b)(iii), s 196(2), s 196(3)

State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)

Practitioner's registration suspended for six months

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Medical Board of Australia and Costley [2013] WASAT 2

Medical Board of Australia and Myers [2014] WASAT 137 (S)

Medical Board of Australia and Panegyres [2017] WASAT 146

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

Srna v The Medical Board of Western Australia [2004] WASCA 190

Stirling v Legal Services Commissioner [2013] VSCA 374

The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1. In Medical Board of Australia and Panegyres [2017] WASAT 146 (Panegyres), delivered on 21 November 2017, the Tribunal found that the respondent (Practitioner) was guilty of professional misconduct as defined in the Health Practitioner Regulation National Law (Western Australia) (National Law), which is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). Details of the Tribunal's findings in Panegyres are set out later in these reasons. However, in short, the Tribunal found the Practitioner:

(a) provided and charged for medical services for a patient, KW, which were not clinically indicated and which were not reasonably required for KW's wellbeing;

(b) failed to obtain the consent of KW's administrator to the ongoing treatment arrangements for KW;

(c) failed to keep adequate records or contemporaneous records of the services provided by him to KW;

(d) charged Medicare Australia for services when he was not entitled to do so; and

(e) breached certain provisions of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (Conduct Code).

1. The Tribunal in Panegyres ordered the parties to file submissions on penalty and costs. The Tribunal heard the parties on 26 June 2018.
2. The parties filed written submissions. The applicant (Board) also filed a letter from Dr Simon Wood dated 14 June 2018. The Practitioner also filed two personal affidavits, the first dated 7 May 2018, the second dated 1 June 2018, as well as an affidavit from Dr Stephen Paul Richards dated 20 June 2018.
3. Finally, the Practitioner filed a number of personal testimonials.

1. Section 196(1)(b)(iii) of the National Law provides that the Tribunal may decide that the Practitioner has behaved in a way that constitutes professional misconduct. Professional misconduct is defined in s 5 of the National Law.
2. If the Tribunal does so decide, it is then open to the Tribunal to make any of the orders described in s 196(2) of the National Law. Section 196(2) of the National Law provides:

If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following ­

(b) impose a condition on the practitioner's registration, including, for example ­

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

1. Section 196(3) provides that if the Tribunal decides to impose a condition on the Practitioner's registration, the Tribunal must also decide a review period for the condition.

1. It is well recognised and not in dispute between the parties that vocational disciplinary proceedings have the objects of protecting the public, maintaining the high standards and good reputation of the profession generally in the eyes of the community and the need to deter others who may be of a like mind to transgress in the future; Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) (Jemielita) at 141.
2. As Owen J said in Jemielita at 140 to 142:

The general principles which are applicable are not difficult to state. The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrong doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements: see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 201.

There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community: see Eiderman v General Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future: see Giordano v Medical Board (1983 ­ 84) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563:

'There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.'

There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly.

1. Similarly, in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Doyle CJ said at [43]­[48]:

Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage [referring to a passage in NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183] makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.

This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.

While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.

In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.

I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practise, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.

1. In Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [37], (concerning a legal practitioner, but nonetheless in the Tribunal's view equally relevant in the case of a medical practitioner) Buss P stated:

It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession.

1. Murphy and Beech JJA in Khosa at [188]-[195] further observed:

The court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.

The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct, as well as personal deterrence.

In New South Wales Bar Association v Hamman, Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2):

"Giles AJA described the basis of the court's jurisdiction: at 470­1. Citing Bannister and other cases, he referred to the protective function of general deterrence in the following terms (at 471):

'But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.'

These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.

In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.

Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.

A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.

A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.

Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.

1. The determination of the appropriate penalty is discretionary. In Khosa at [44] Buss P described the exercise of this discretion (referring to the decision at first instance) in the following way:

The determination of the appropriate penalty option or options was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle.

1. In Panegyes, the Tribunal made the following findings and concluded that those findings amounted to professional misconduct by the Practitioner.

1. In Panegyres, this is referred to as Allegation One. The allegation of the Board was that the Practitioner provided services to KW over a period of 73 days which were not all clinically indicated and so were excessive, unreasonable or otherwise not reasonably required for KW's well­being. Those services included full neurological assessments, reviews of KW's medication, his blood pressure, his temperature and his behaviour. This was in circumstances where a registrar was also seeing KW most weekdays and sometimes on a Saturday; Panegyres at [336].
2. Based on the testimony of three expert witnesses, the Tribunal found that the particulars of Allegation One had been made out.

1. In Panegyres, this is referred to as Allegation Two. The Board's allegation was that the Practitioner failed to keep adequate and contemporaneous records or ensure that adequate and contemporaneous records were kept of the services for which he charged KW and to justify the amount that he charged KW.
2. The Practitioner admitted that he failed to keep records of the entirety of the medical services which he provided to KW; Panegyres at [339]­[340]. The Tribunal found that this allegation had been made out.

1. In Panegyres, this is referred to as Allegation Three, which the Board says was the most serious allegation. The Board alleged that the Practitioner charged KW for services that he did not provide to KW. In support of this allegation, the Board relied upon, amongst other things, the fact that there is no record of medical services which the practitioner says he provided to KW and charged KW for.
2. The Tribunal found that the particulars of Allegation Three were not made out.

1. In Panegyres, this is referred to as Allegation Four. The Board's allegation was that the Practitioner charged KW excessively and in excess of the amounts in the Australian Medical Association List of Medical Services and Fees (AMA List) when he did not have KW's consent (or the consent of respectively KW's guardian and the administrator of his estate from 22 January 2013, the date of their appointment) to being charged these amounts or amounts in excess of the amounts in the AMA List.
2. The Tribunal found that Allegation Four had been made out to the extent that the Tribunal found that the Practitioner charged KW excessively by charging for consultations not required and for charging KW without the consent or concurrence of KW's administrator, the Public Trustee.

Failure to obtain consent from the Public Trustee to the fees charged following the Public Trustee's appointment

1. In Panegyres, this is referred to as Allegation Five. The Board alleged and the Tribunal found that the administrator of KW's estate was not approached by the Practitioner to consent to the fees being charged and did not so consent. The Tribunal found that Allegation Five had been made out.

Acting in a manner contrary to the Conduct Code

1. In Panegyres, this is referred to as Allegation Six. The Conduct Code provides that a good doctor-patient partnership requires high standards of professional conduct, including recognising that there is a power imbalance in the doctor­patient relationship and not exploiting a patient financially; Conduct Code para 3.2.6. The Tribunal had already concluded that the frequency of the Practitioner's attendances on KW was not clinically indicated or reasonably required for KW's welfare. The Tribunal found that the Practitioner has breached this provision of the Conduct Code.
2. The Conduct Code at para 3.3.3 also requires a doctor to recognise that an important part of the doctor­patient relationship is to inform patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving the patient adequate opportunity to question or refuse intervention and treatment.
3. The Tribunal considered that the Practitioner should have, but did not, consult and consider the views of KW's guardian, the Public Advocate, following the appointment of the Public Advocate about KW's on­going treatment needs. The Tribunal found that this also constituted a breach of the Conduct Code.
4. Further, under para 3.5.3 of the Conduct Code, a doctor is required to ensure that his or her patients are informed about the doctor's fees and charges. KW was an existing patient of the Practitioner and the Tribunal considered that it was reasonable for the Practitioner to assume, prior to the appointment of the Public Trustee as administrator of KW's estate, that KW had consented to the Practitioner continuing to apply his standard rate of fees. However, once the Public Trustee had been appointed, the Tribunal considered that it was a failure of the Practitioner not to obtain the Public Trustee's consent to that fee arrangement and that the Practitioner had breached this aspect of the Conduct Code.
5. The Tribunal found that Allegation Six had been made out.

Charging Medicare Australia for services for which the Practitioner was not entitled to charge

1. In Panegyres, this is referred to as Allegation Seven. The Practitioner had admitted that he charged Medicare Australia for cognitive testing that he did not perform. The Practitioner also admitted that he billed Medicare Australia for telephone calls and the reports to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act) by reference to the Medicare Benefits Schedule (MBS) item number 116.
2. Further, the Practitioner billed Medicare Australia for every consultation with KW, even though, on the Practitioner's own admission, there were no adequate contemporaneous notes of some of those consultations.
3. The Practitioner admitted that he was not entitled to bill Medicare Australia for these services. The Tribunal therefore found that Allegation Seven had been made out.

1. In support of the Board's submissions as to the appropriate penalty, the Board elected to address the considerations which it submits that the Tribunal should take into account by reference to those set out and identified by this Tribunal in Medical Board of Australia and Myers [2014] WASAT 137 (S) (Myers) at [12]. In Myers, the Tribunal said that those matters may (emphasis added) require consideration, are interrelated and not mutually exclusive and the listed considerations are not exhaustive.

Protection of the public against further misconduct

1. The Board makes the point that the public puts enormous trust in medical practitioners and expect and rely on medical practitioners, particularly medical practitioners of the experience, standing and maturity of the Practitioner, to take complete care of, and protect, their patients.
2. The Tribunal found that the Practitioner financially exploited the patient who was a vulnerable person; Panegyres at [349]. This, in the view of the Board, amounted to a breach of the trust that KW had in him.
3. The Board submits that the Practitioner's conduct and the circumstances in which it occurred are evidence of a need to protect the public against further misconduct by him. The Board says that the penalty which it is seeking is of sufficient severity to be a general deterrent in relation to the Practitioner's serious and disturbing misconduct of financially exploiting not only a patient, but a patient who is a person under disability.

Protection of the public through general deterrence of other Practitioners

1. The Board further submits that the penalty which it is seeking is of sufficient severity to protect the public from misconduct through general deterrence of other medical Practitioners.

Protection of the public by reinforcing high professional standards and denouncing transgressions

1. The Board considers that the penalty which it is seeking is of sufficient severity to reassure the public that the transgression of financially exploiting a patient who was a person under disability is strongly denounced by the medical profession.

1. In the Board's submission, the Practitioner's conduct by:

(a) rendering his account to the Public Trustee in the way that he did, essentially hoping or expecting that the account would not be queried; and

(b) charging Medicare Australia for services when he was not entitled to do so or which were not clinically indicated or reasonably required for the patient's well­being

was disingenuous, if not dishonest. This conduct demonstrates the Practitioner's lack of care or consideration for KW.

1. The Board considers that the penalty which it is seeking reflects the medical profession's concern about the disrepute which the Practitioner's conduct has brought to the medical profession in the eyes of the community.

Breach of an Act, Regulations, Guidelines or Code of Conduct

1. The Practitioner claimed Medicare Australia benefits for medical services which were not covered by the Health Insurance Act 1973 (HI Act) and which, in the view of the Board, is potentially an offence under s 82, s 128A and/or s 128B of the HI Act.
2. The Board says that the integrity of Medicare Australia is a fundamental element of medical practice in Australia and would be unworkable if the public did not have faith in the honesty and trustworthiness of medical practitioners in relation to the financing of medical services.
3. Further, the Practitioner was found to be in breach of the Conduct Code, which is a clear statement of the written rules of the profession which sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community. It brings together, into a single Australian code, standards that have long been at the core of medical practice; Panegyres at [366].
4. The penalty which the Board is seeking should, and does, in the view of the Board, reassure the community that transgressions such as falsely certifying and making declarations for medical benefits on behalf of a patient and breaches of the guidance to the medical profession provided by the Conduct Code are denounced by the medical profession.

1. There is no criticism of the quality of care provided to the patient by the Practitioner; Panegyres at [65]. However, the Tribunal found that there were services provided by the Practitioner to KW while he was an in-patient for which there is no contemporaneous record; Panegyres at [102] and [340]. The Board says that the Practitioner's duty to keep adequate contemporaneous records of the care that he provided to the patient was intrinsic to good medical practice, not just for the provision and coordination of a high level of care but also for charging appropriately for that care.
2. In the Board's submission, the Practitioner's conduct with respect to record keeping and claims for Medicare Australia benefits demonstrates ignorance of, or disregard for, basic rules and indifference to rudimentary professional requirements.
3. A purpose of the penalty which being sought is to educate the Practitioner about the basic rules and ensure that the Practitioner commences and maintains the good medical practice of keeping adequate contemporaneous records of the care that he provides to patients.

1. The Board considers that this is not a matter of one instance of unprofessional conduct or professional misconduct. This is a matter of repeated and systematic instances of unprofessional conduct or professional misconduct in the form of provision to a patient with health services of a kind that were excessive, unnecessary or otherwise not reasonably required for the patient's well-being, as well as failing to keep adequate contemporaneous records of care provided to patients, and improper charging of Medicare Australia.

1. It is not in dispute that the Practitioner's disciplinary history is that of a finding of gross carelessness in December 2001 arising from patient care. A fine of $7,000 was imposed.

Does the Practitioner understand the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the Practitioner?

1. The Board says that the Practitioner gave his evidence in an arrogant, indignant and avoidant manner, and that there were inconsistencies and contradictions in the Practitioner's evidence.
2. The Practitioner delegated the task of making decisions about fair and reasonable fees to charge his patients. The Practitioner took no responsibility for his billing; ts 475 and 481, 19 May 2017. He was affronted when the Public Trustee queried his account; ts 539-542, 19 May 2017). He blamed nurses and junior medical practitioners for failing to document his attendances on patients, (including his alleged late night attendances when no one else was around); ts 432-434, 18 May 2017.

Are there any special skills possessed of the Practitioner?

1. In the Board's view, the Practitioner does not have any special skills above those of a reasonably competent consultant neurologist. The Board cannot see any reason why the Practitioner's registration should not be suspended.

1. There is no evidence of any personal circumstances which should have any impact on penalty.

Are there any other matters related to the Practitioner's fitness to practise?

1. The Board does not consider that there are any other matters that are relevant.

1. The Board does not seek an order that the Tribunal cancel the Practitioner's registration. However, the Board does seek an order that the Tribunal suspend the Practitioner's registration.
2. The Board submits that Owen J's reasons in Jemielita are a primary source of guidance to the Tribunal on the appropriate penalty in the circumstances of this case. Jemielita relevantly concerned a medical practitioner claiming for procedures other than the procedures which were actually performed. Justice Owen characterised the mischief as dishonesty; Jemielita at 146.
3. Justice Owen said however that the impugned conduct of lodging claims for wrong services did not demonstrate calculated fraudulent conduct. It did not establish that the practitioner in that case was unfit to be a member of the profession. It did not demonstrate that he was likely to re-offend. The protection of the public did not require that the name of the practitioner concerned be removed from the register; Jemielita at 150.
4. Justice Owen concluded that in the circumstances a term of suspension would serve to deter the practitioner and others who may be inclined towards similar conduct. It would assist to maintain the faith of the community in the integrity and standing of the medical profession generally. It would mark the community's disapproval of dishonest conduct. The public would recognise the suspension as a significant penalty on its own right; Jemielita at 150.
5. With that in mind, the Board seeks orders that:
   1. the Practitioner be reprimanded;
   2. the Practitioner's registration be suspended for 12 months commencing from one month after the date of this order;
   3. upon his resumption of practice following suspension the Practitioner's registration be subject to the following conditions:

(a) Within six months of the ordering of these conditions the Practitioner must undertake and successfully complete programs of education, approved by the Board and including a reflective practice report, in relation to:

(i) the making of clinical notes when seeing patients;

(ii) billing practices and procedures including Medicare requirements for billing;

(b) The Practitioner must submit to an audit of his practice (audit), including any supporting records, within four months of the notice of the imposition of these conditions and thereafter on a 6 monthly basis by permitting an auditor (auditor) approved by the Board to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the Practitioner's billing practices and procedures to ensure insofar as it is reasonably practicable to do so, that the Practitioner does not inadvertently or otherwise:

(i) charge for medical services which are not clinically indicated and which are not reasonably required for patients' well­being; or

(ii) charge Medicare Australia for services when he is not entitled to do so.

(c) The Practitioner must submit to a minimum of three (3) audits.

1. All costs associated with compliance with the conditions are at the Practitioner's own expense.
2. The conditions be the subject of a review period of 6 months.

1. The Practitioner also elected to address the applicable considerations by reference to the considerations set out in Myers at [12] to determine the appropriate penalty. However, the Practitioner submits that it is also relevant to take into account the effect that the findings, the publicity and the impact of the penalty will have on the Practitioner's practice and professional standing. The Practitioner cites Srna v The Medical Board of Western Australia [2004] WASCA 198 (Srna) at [91] as authority for this submission.
2. The Practitioner says that the Board's reliance on the findings in Jemielita, in support of its submission that suspension is appropriate in the present case, is misplaced.
3. The relevant charge in Jemielita was that the doctor concerned had twice knowingly claimed a medical benefit in respect of services he did not perform, namely two radical mastectomies. The doctor was also charged with gross carelessness or incompetency arising out of the operations, but those charges were dismissed.
4. The critical finding was that in each case the doctor had performed a procedure which was less complex (or at least attracted a smaller fee) than a modified radical mastectomy. However, the 'real mischief' was that the doctor acted dishonestly in lodging a claim for benefits in the course of his professional practice by claiming for a procedure he knew he had not performed.
5. In assessing the appropriate penalty, Owen J, while noting that the doctor had been found to have been untruthful, his contention that he had, in fact, carried out a modified radical mastectomy, he nonetheless concluded that the Board's original penalty of cancelling the doctor's registration was too severe. He considered that suspension for 12 months would adequately serve to deter the doctor and others who might be inclined towards similar conduct.
6. In this case, the Practitioner says that the essence of the misconduct of which he has been found guilty is:

(a) providing more services than were clinically indicated and reasonably necessary;

(b) failing to obtain the Public Trustee's consent to the fee arrangement before sending an invoice, but in circumstances where the rate at which the services were charged was not found to have been unreasonable;

(c) failing to discuss with the Public Advocate a treatment plan for KW in the last two weeks of KW's admission; and

(d) attributing incorrect MBS item numbers to some items on his invoice, and attributing MBS item numbers to some services for which no Medicare payment was claimable.

1. The Practitioner reminds the Tribunal that there has been no criticism of the quality of care provided by him to KW. There is no finding that the Practitioner has acted dishonestly. There is no finding that the Practitioner was untruthful in his evidence. There is no finding that the Practitioner charged for services he did not perform; Panegyres at [325].
2. The Practitioner also points out that the Tribunal's findings concerning incorrect billing to Medicare Australia were all premised on admissions by the Practitioner; Panegyres at [354]-[355]. The Practitioner admitted that the invoice prepared by a member of his staff should not have referred to MBS item number 116 for telephone calls and reports to the Tribunal under the GA Act, and that he is responsible for the error. He also admitted that the invoice wrongly referred to MBS item numbers for cognitive testing that he did not personally perform (but which was performed under his direction), and that MBS item numbers were referred to for consultations for which there did not exist adequate contemporaneous notes.
3. The Practitioner says that, unlike Jemielita, this is not a case where he has dishonestly claimed against Medicare for services he did not perform, or where he has been untruthful in his evidence before the Tribunal. The Practitioner says he honestly but mistakenly believed that his practice was correctly ascribing MBS item numbers on his invoices. Upon becoming aware of the error, he admitted the mistake and took full responsibility for it.
4. The Practitioner submits that it is also relevant that he did not present a bill to Medicare Australia for his services. KW was a private patient and the invoice was presented to KW's administrator. Save for the findings concerning attendances that were not reasonably necessary, the Practitioner reminds the Tribunal that there is no finding that the Practitioner was not entitled to charge a private patient those fees for those services.
5. The Practitioner says that between June and November 2017, the Practitioner and all of his office staff attended the Australian Medical Association's 'Medical Accounts Unit' course. The Practitioner has modified the way in which his practice issues bills to private patients, and ensures that when patients are admitted to hospital they are always provided with an estimate of fees. The Practitioner has also modified his practice in taking notes of his attendances.
6. The Practitioner does not consider that suspension is necessary to protect the public. The findings against the Practitioner do not render him presently unfit to practise; Khosa at [191]. Nor is suspension necessary to provide general deterrence to other practitioners to protect the public or maintain the reputation or standards of the profession. The circumstances in which KW came to be admitted to hospital for such an extended period were extraordinary and were exacerbated by the conduct of KW's mother. This is a single isolated incident. The Practitioner was not in any way responsible for the length of KW's admission. No complaint has been made by the Public Advocate about the clinical management of KW. The Practitioner contends that the misconduct in which he was found to have engaged is in sending an invoice to KW's administrator, without first obtaining the administrator's consent to the fee arrangement and without discussing with the administrator whether the Practitioner should charge for all of the services for which he claimed.
7. Further, he points out that there is no complaint about the quality of care provided to KW by the Practitioner. Seeing KW more often than was considered clinically necessary did him no harm, and undoubtedly, in the view of the Practitioner, was good for him. It is the Practitioner's submission that, in substance, the misconduct in which the Practitioner has been found to have engaged is in sending an invoice to KW's administrator without first obtaining the administrator's consent to the fee arrangement and without discussing with the administrator whether the Practitioner should charge for all the services he in fact provided.
8. The Practitioner submits that he has not made any financial gain from the misconduct. It was not in contest that he was entitled to charge KW as a private patient and the Tribunal found that the rate at which he invoiced the Public Trustee was not excessive. Nonetheless, the only remuneration the Practitioner has received has been from Medicare Australia and HBF. The Public Trustee has not repaid Medicare Australia. The Public Trustee has not paid any of the gap for the services the Practitioner provided and which, on the Tribunal's findings, were clinically indicated and necessary. The Practitioner has not pursued KW's administrator for payment of the outstanding part of the invoice to which he is entitled to payment, even allowing for the Tribunal's findings. Notwithstanding his entitlement, the Practitioner has written off that debt.
9. The Practitioner further submits:

(a) He is one of only two consultant neurologists at Joondalup Health Campus (JHC). The other, works only two days a week and only does ward rounds. The other consultant does not provide emergency neurology or any other neurological services, and he is not trained in emergency neurology or neurodegenerative disorders.

(b) The Practitioner is the only neurologist who provides electroencephalograms (EEGs) and nerve conduction studies to JHC. All of the diagnostic equipment at JHC used to conduct EEGs and nerve conduct studies belongs to the Practitioner.

(c) If the Practitioner's registration was suspended by the Tribunal, it is likely he would lose his position at JHC, and the services he currently offers, both personally and via his equipment at the hospital, would be lost to the community. Also lost would be the service he provides to the Neurosciences Unit, which offers free services to patients with Huntington's disease and early onset dementia.

(d) Through the Neurosciences Unit, the Practitioner has been a leader in a research and treatment program focussing on Huntington's disease in indigenous Australians. He has recently travelled to Kununurra to conduct the first ever Huntington's disease outreach clinic for indigenous people. Suspension of his registration would jeopardise, if not eliminate, the prospect of this service becoming a regular clinic.

(e) The Practitioner says that he is also the only neurologist who provides services to Geraldton and the mid-West of Western Australia.

(f) He is conducting numerous clinical trials, most of which were terminated or suspended as a result of media attention following these proceedings. Nonetheless, not all of the trials have been cancelled. The Practitioner says that the suspension of his registration would inevitably lead to the termination of the remaining trials, to the immediate detriment of the patient participants in the trials and the general detriment of the community.

(g) Suspension of the Practitioner's registration would also lead to the termination of the employment of the staff employed by the Practitioner at his Joondalup and Subiaco clinics.

(h) He is currently supervising three doctors in training for specialisation as physicians and one undergraduate medical student at the University of Western Australia.

1. The Practitioner concludes by saying that this is not a case where suspension is necessary to protect the public by reason of the Practitioner's present unfitness to practice or a need to maintain the reputation or standards of the profession. The conduct the subject of the Tribunal's findings occurred over a relatively short period of time and involved one patient. It is an appropriate case for the imposition of a global penalty having regard to the Practitioner's overall conduct rather than isolating certain incidents.
2. In the above circumstances, the Practitioner considers that an appropriate penalty is a reprimand. He says that he made no financial gain and is likely to be required to make a substantial contribution to the Board's costs of the proceeding. Accordingly, a fine is not warranted nor, having regard to the Practitioner's acknowledgment of his conduct and the steps he has taken to address it, in particular by undertaking education courses, is there any need to impose the conditions on his registration sought by the Board.

1. In the Tribunal's opinion, the findings against the Practitioner arose from a course of behaviour and the Tribunal considers that it is appropriate and open to it to impose a global penalty rather than separate sanctions for each unprofessional act; Myers at [15]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72]- [75]. We do not understand the parties to be arguing to the contrary.
2. The findings against the Practitioner are undoubtedly serious. Of those findings, the most serious is the finding that the Practitioner charged for all of his attendances on KW, some of which were not clinically indicated or reasonably required for KW's welfare, in circumstances where the Practitioner knew of KW's lack of competence and knew that KW had been declared by the Tribunal to be incapable of making personal or financial decisions; Panegyres at [349]­[352].
3. However, we accept the Board's concession that it has not been established that there is a need for the Practitioner's registration to be cancelled. We do not consider that the Practitioner's conduct renders him unfit to practice. The objects of the proceedings against the Practitioner can be met by imposing a penalty less than the cancellation of his registration.
4. On the other hand, we do not accept the Practitioner's submission that those objects would be met by ordering a reprimand.
5. The Practitioner has submitted that this was a simple, isolated incident and that the misconduct in which the Practitioner was found to have engaged was issuing an invoice when he had not first obtained consent from KW's administrator. The Tribunal disagrees. This understates the findings made by the Tribunal against the Practitioner and, in any event, while it is the case that the Practitioner rendered a single invoice upon KW's discharge from hospital for the Practitioner's services to KW, it was the evidence of the Practitioner, and of his practice manager, that he in fact completed timesheets for his patients on a weekly basis. The Practitioner made entries on a hand written sheet at the end of each week, retaining the timesheet in his briefcase week to week and then, at the time of KW's discharge, handed it to his staff who then issued the invoice without further reference to, or any decision-making by him; Panegyres at [109] and [203]. By virtue of this process, it can be said that on each occasion that he made an entry on the timesheet for consultations which had no clinical justification, he made a decision to charge KW for consultations which were not reasonably required.
6. The conduct in question therefore occurred over a sustained period of time.
7. We also do not accept that the fact that the invoice was never paid in full is a relevant consideration. Similarly, we do not accept as a relevant consideration the fact that it was the Public Trustee, and not the Practitioner, who sought payment from Medicare Australia.
8. The Tribunal has concluded that a period of suspension of the Practitioner's registration is the appropriate penalty. It is a significant penalty and we accept the Board's submission that suspension of the Practitioner's registration will serve as a deterrent to the Practitioner from repeating the conduct and will demonstrate to other practitioners that this conduct is unacceptable. It will also demonstrate to the public that such conduct will not be tolerated.
9. We disagree that a suspension of the Practitioner's registration for a period of time would result in a loss of services to the community. It may be that a period of suspension will result in some inconvenience to some parts of the community. However, we accept the evidence of Dr Simon Wood, in the form of a letter addressed to the Board's solicitors filed with the Tribunal on 14 June 2018. Dr Wood is the director of medical services at JHC. He says that JHC is confident that there will be no difficulty in recruiting to replace the Practitioner if the need arises. We accept the view expressed by Dr Stephen Paul Richards contained in his affidavit dated 20 June 2018. Dr Richards says that he met with Dr Wood to discuss JHC's 'plan to deal with the possible suspension' of the Practitioner. Dr Richards acknowledges that Dr Wood had such a plan. However, Dr Richards is unaware of the details of that plan and expresses some doubt as to whether, at least in the short term, such a plan exists.
10. The consequential effects of the period of suspension on the Practitioner's staff and practice, raised by the Practitioner, are unfortunate but unavoidable and cannot be taken into account.
11. As we mentioned earlier in these reasons, we have been provided with letters or references supporting the Practitioner. These are from colleagues of the Practitioner, from a social worker and from a member of the Practitioner's staff. It is clear from these letters that the authors were aware of the findings against the Practitioner at the time when these letters were written. While these letters undoubtedly reflect the high regard in which the authors hold the Practitioner, the findings made by the Tribunal against the Practitioner are not findings concerning the Practitioner's competence and accordingly they do not assist the Tribunal.
12. When assessing the relevant period of suspension, we accept the Practitioner's evidence that he and his staff have attended the AMA's 'Medical Accounts Unit' course. We also accept that the Practitioner has introduced procedures concerning billing of his patients. While we are not persuaded that the Practitioner is remorseful, we do not consider that the Practitioner is at risk of reoffending.
13. We conclude that the appropriate length of suspension of the Practitioner's registration is a period of six months.
14. However, on completion of that period, we do not consider that it is necessary to impose conditions on the Practitioner's registration, either as sought by the Board or at all. We have already said that we do not agree that the Practitioner is at risk of reoffending and the imposition of conditions, with the attendant costs to the Practitioner, will not further the objects of the disciplinary proceedings against him and may more properly be regarded as punitive rather than protective.
15. In particular, we do not consider that it is necessary to impose a condition upon the Practitioner that he undergoes further education in respect of the importance of making clinical notes when seeing patients. We do not believe that the Practitioner is unaware of his responsibilities or the need in this regard. Instead, what is our view the Practitioner needs to be reminded of is the importance of this practice and that it applies to him as much as to any other medical practitioner. We consider that the penalty imposed will achieve this outcome.

1. Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) relevantly provides:

(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

1. Thus the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal is to bear its own costs. However, s 87(2) of the SAT Act gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. The question is whether in all the circumstances of the particular case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. The onus is on the party seeking an order in its favour; Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA at [51] (Martin CJ and Corboy J agreeing).
2. As the Tribunal said in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30]:

... Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.

1. The Practitioner accepts the general proposition that the Board is entitled to its costs of the proceeding.
2. However, the Practitioner says that part of the proceeding was devoted to issues solely relevant to Allegation Three (in particular, whether the Practitioner in fact attended on all of the occasions for which he issued an invoice), which the Board accepts was the most serious of the allegations made by the Board. The Board failed on that separate issue.
3. In the above circumstances, the Practitioner considers that an order that the Practitioner pay the Board's costs of the proceeding should be discounted to reflect the Tribunal's assessment of the proportion of the proceeding devoted to that separate issue.
4. The Tribunal agrees that some of the costs of the Board should be met by the Practitioner.
5. In terms of the actual amount of costs claimed, the Tribunal's approach is to look not at what has actually been charged to the client, but rather, to consider what reasonable allowance should be made, taking a robust and broad brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion; Medical Board of Australia and Costley [2013] WASAT 2 at [66]; The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5].
6. All of the amounts that follow exclude GST.
7. The Board says that it incurred costs up to the end of the proceeding in Panegyres of $395,407.10. As we understand it, that amount is made up of $153,336.70 in solicitors' fees and $242,070.40 as disbursements including counsel's fees of $194,349.00. We consider that the briefing of counsel was justified in the circumstances. The Board is seeking to recover $100,000 in solicitors' fees and $225,000 in disbursements which includes counsel's fees of $182,600.
8. There was of course no finding against the Practitioner in respect of Allegation Three, and a reduction in costs is appropriate. However, when the charge against the Practitioner is not a discrete issue involving its own evidence it is difficult to assess what an appropriate reduction might be. Ultimately, the matter of the amount is again at the discretion of the Tribunal.
9. In the circumstances and having regard to the Legal Profession (State Administrative Tribunal) Determination 2018, we will allow counsel's costs in an amount of $122,000, solicitors' fees in an amount of $100,000 and the full amount of the disbursements claimed, $42,400. The Practitioner should therefore pay the Board's costs of the proceeding assessed in the sum of $264,400. The total amount of $264,400 is to be paid to the Board within three months of the date of delivery of these reasons.

1. The Practitioner has said that in the event that the Tribunal considers that the appropriate penalty is a period of suspension of the Practitioner's registration, then the Practitioner should be given an opportunity to be heard on the issue of the date upon which such suspension should commence. While the Tribunal does not consider that it is necessary for the parties to be heard on this point, the Tribunal will allow the parties 14 days from the date of delivery of these reasons to agree and to file proposed orders giving effect to the Tribunal's decision in respect of penalty and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.