Medical Board of Western Australia and Bham [2006] WASAT 190 (11 July 2006)

Medical Board of Western Australia and Bham [2006] WASAT 190 (11 July 2006) - WASAT 2006 case summary — Zoe

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16 The Health Insurance Commission audited 850 claims for HDL, 50 per month for each month in the period 1 January 1992 to 31 May 1993. In respect of 141 of the 850 claims, the practitioner was not entitled to claim any Medicare benefit because he had not received a written request for an HDL request from the referring practitioner. In respect of a further 104 claims, as the criteria for Item 66317 were not met, the respondent was not entitled to a claim under the Item number, however he may have claimed under Item 66201 which attracts a slightly smaller benefit.

17 Where a treating practitioner requires pathology tests to be done on a patient, a pathology request form should accompany the specimen to the laboratory. The request is normally on stationery supplied by the laboratory to the requesting practitioner. The request form should indicate what the treating practitioner wishes to be done. Occasionally, the requesting practitioner makes a further request for tests on the sample taken. In these cases, if the further request is not made in writing, written confirmation must be sent to the laboratory within 14 days of the additional request being made. All requests and written confirmations must be kept by the laboratory for a period of 18 months. In the cases in respect of which the practitioner was convicted, the practitioner did not hold these written requests.

18 On 6 April 1998, in the Local Court at Kogarah, the practitioner was sentenced in respect of the 18 offences. However, prior to that sentencing hearing, the practitioner had lodged an appeal against the convictions in the Supreme Court of New South Wales. On 6 April 1998, counsel for the practitioner advised the Magistrate in the Local Court at Kogarah that steps were being taken to cause the Supreme Court proceedings to be dismissed. The Magistrate then imposed a total fine of $9000 and court costs of $50 in respect of the convictions against the practitioner.

19 Following his convictions, the matters the subject of the convictions were referred to a Medicare Participation Review Committee (Committee) established under the Health Insurance Act 1973 and on 20 November 2000 the respondent appeared before that Committee. On 9 March 2001 that Committee disqualified the practitioner from participation in the Medicare Scheme for 26 weeks. The practitioner then appealed this decision to the Administrative Appeals Tribunal (Cth) which reduced the disqualification to three months (see Bham and Medicare Participation Review Committee and Anor [2002] AATA 768).

20 The Committee also referred the complaint to the New South Wales Medical Board, which in turn referred the complaint to its Professional Standards Committee. On 8 December 2004, the Professional Standards Committee was convened and made findings that the respondent was guilty of "unsatisfactory professional conduct" and "professional misconduct" within the meanings of those expressions in s 36 and s 37 of the Medical Practice Act 1992 (NSW).

21 The Professional Standards Committee made the following consequential orders:

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22 The Medical Board contends that the practitioner should be dealt with under the Medical Act 1894 (WA) in respect of his conviction and earlier conduct in New South Wales, notwithstanding that the Professional Standards Committee of the New South Wales Medical Board made an order in relation to such conduct. The Board relies on s 13(2) of the Medical Act 1894 to press its application. This enables the Board to allege a practitioner is unfit to practise by reason of a conviction in Western Australia or elsewhere.

23 Under s 13(3b), the Tribunal, on dealing with an allegation under s 13(2) is limited to ordering the removal of the name of the practitioner from the register or suspending registration to practise. Thus, it has no other powers of discipline such as reprimand, fine and the like, if it finds the s 13(2) ground is made out.

24 Counsel for the Medical Board submits that because the New South Wales order only takes effect when the practitioner seeks to be re-registered in New South Wales, which re-registration he has never sought, the practitioner effectively has not suffered any disciplinary penalty in respect of his offences. Rather, at the time the order was made, the practitioner was registered elsewhere in Australia, including Western Australia where his right to practise remains undiminished.

25 The conduct complained of was considered to be "unsatisfactory conduct" and "professional misconduct" under the Medical Practice Act 1992 (NSW). However, the Tribunal is not invited to determine if it should be considered "infamous" or "improper conduct" under the Western Australian Act. The sole question under s 13(2) is whether the convictions render the practitioner "unfit to practise".

26 The evidence concerning the conduct leading to the convictions in New South Wales does not disclose the sort of conscious wrongdoing that normally warrants conduct being described as "disgraceful" or "dishonourable", and so "infamous" for the purposes of s 13 of the Medical Act 1894. This view also seems to have supported the findings made by the Professional Standards Committee of the New South Wales Medical Board.

27 However, counsel for the Medical Board submits that in substance the convictions were for offences the essence of which involved dishonesty, is a characteristic fundamental to the practice of medicine. This is supported in part by s 11AA of the Medical Act 1894 which requires as a condition of registration that a person be of good character. Counsel contends that the fact that there have been convictions of the type entered justify the view that the practitioner "is unfit to practise".

28 Counsel for the Board refer to the case Re Anandasivam (2003) 34 SR(WA) 334. The Tribunal has little doubt that in a case like this, where a medical practitioner has committed fraud, there will always be a strong case to be made that the practitioner is unfit to practise and therefore should, in terms of s 13(3b), either be deregistered or suspended from practice.

29 In the present case, however, it is not clear to the Tribunal that the practitioner was guilty of fraud in any relevant sense. The evidence before us suggests that at the material time the practitioner was a salaried pathologist who derived no personal financial gain from the overcharging involved. His evidence on that issue was not contradicted in the proceedings in the Commonwealth Administrative Appeals Tribunal. It appears that the Tribunal accepted what the practitioner put to them in that regard.

30 There appears to be some foundation to the submission made by counsel for the practitioner that matters in respect of which the practitioner was charged were the result of inadequate checking by him and of a faulty administrative procedure which did not separate out matters where there was no written request from those in respect of which claims were forwarded to Medicare.

31 Consequently, the Tribunal is not satisfied that the facts underlying the convictions, or the convictions themselves, are for dishonesty offences. As a result, the Tribunal is not satisfied that the allegation that the practitioner is unfit to practise by reason of the convictions in New South Wales is made out.

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34 The Board says the practitioner either made the statement in the statutory declaration in circumstances where he knew it to be false or that he made it recklessly without caring whether it was true or false, in that he had been convicted in New South Wales of the 18 offences of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth).

35 The Board says that in the circumstances in which the practitioner made the statement his conduct must be considered infamous conduct, as it is "disgraceful" on any view.

36 In this regard, the Board emphasises that the mutual recognition scheme as it applied then (and as it still applies) relies for its administration and success on the frankness and honesty of an applicant in disclosing matters of relevance to the Board when requested to do so. The Board says it is properly reliant on a medical practitioner who applies for registration by mutual recognition to be candid and honest in his or her disclosures to the Board. This is particularly so as the Board is not in a position to conduct a full investigation into the good faith of each practitioner who applies for registration; it must be able to rely upon the representations of the practitioner involved.

37 The Board says that the statements made by the practitioner in the declaration at the relevant time take on an even greater significance by reason of the fact that the statement was made in a statutory declaration wherein he consciously averred to the truth of his statements.

38 The Board say that had the practitioner been truthful in his statutory declaration, while it may have been that the practitioner as a matter of law would have been entitled to insist on registration under the Mutual Recognition (Western Australia) Act 1995- because nothing in the Mutual Recognition (Western Australia) Act 1995 seemed to permit the Board to deny registration because of the disclosure of a prior conviction - the disclosure of the conviction would have permitted the Board to have moved for the removal of the practitioner's name from the register, as it now has sought to do. The Board points out that good character, amongst other things, is an express requirement of registration as a medical practitioner pursuant to the provisions of s 11AA of the Medical Act 1894, and the Mutual Recognition (Western Australia) Act 1995 may be taken to be founded on an assumption that, if a practitioner is registered elsewhere in Australia, no question has arisen as to the maintenance of his or her good character elsewhere in Australia.

39 The Board submits that, in circumstances where the practitioner can be seen to have failed to make proper disclosure about his earlier conduct, he has conducted himself in a manner that practitioners of good repute and competency would reasonably regard as "disgraceful or dishonourable" and thus "infamous", in the terms discussed in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.

40 The practitioner's defence is that, while he now accepts that he was convicted at all material times and should have made disclosure of his convictions to the Board at the material time in August 1998, he then held the belief that the offences of which he had been convicted four months earlier in New South Wales were not "convictions" to which the request for disclosure related.

41 At the hearing in the Tribunal, the basis of the practitioner's primary belief in this regard seemed to arise from an observation that a former solicitor of his had made on some social occasion in the 1980's, to the effect that where an appeal is lodged the conviction is not in place (or words to that effect).

42 Additionally, the practitioner seems also to rely on a belief that by reason of the circumstances in which the offences were committed - where he says it was accepted by the Court that convicted him that there was no conscious wrong-doing or dishonesty - the convictions somehow were not the type of convictions of which the Medical Board of Western Australia were expecting disclosure when he applied for registration under the Mutual Recognition (Western Australia) Act 1995 as a general practitioner in Western Australia, given he was convicted by reference to his conduct in New South Wales as a pathologist.

43 When the practitioner appeared before the Professional Standards Committee in New South Wales in December 2004 to deal with similar complaints of unsatisfactory conduct by reference to his registration in that State, he appears also to have told that Committee he did not disclose the convictions to the Medical Board in Western Australia because he had an appeal in place against the convictions and believed, from what his solicitor had earlier remarked back in the 1980's, that the appeal had the effect of suspending the convictions. He also told the Committee that he did not consider the convictions were relevant to registration as a general practitioner (as he proposed then to practise in Western Australia) because they had been committed in the course of practising as a pathologist.

44 The Tribunal accepts that while the civil standard of proof (on the balance of probability) ordinarily applies in proceedings such as these, it is nonetheless appropriate to regard the Briginshaw approach which requires the finder of fact to have a reasonable satisfaction that the things complained of actually occurred before making any finding against a person.

45 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at pages 362 and 363 Dixon J said:

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47 In this case, given the factual context in which the practitioner acknowledges that he had in fact been convicted of 18 offences in New South Wales in April 1998, in a practical sense the burden falls on the practitioner to explain why he did not make disclosure to the Board of the convictions entered against him just four months earlier. Mere forgetfulness is not plausible given the short period of four months between conviction and the declaration. Indeed the practitioner does not assert mere forgetfulness. Rather, he attempts to offer a more substantive explanation (or explanations). As noted, his primary explanation is that he believed the convictions were technically not convictions because an appeal had been lodged against them, which belief he attributes to a comment made in a social context by a former (now deceased) solicitor in the 1980's.

48 As to the basis of this asserted belief, to say the least, it was at best based on a very hazy recollection. When first questioned by counsel for the Board as to his state of mind when answering the Board's questions in August 1998, the practitioner both said that the remark made some 20 or more years earlier by the former solicitor were not actively present in his mind and yet, at the same time, he held the belief that the convictions were not convictions.

49 The Tribunal does not accept that the practitioner's claim that he actually or honestly held the asserted belief when he gave his statutory declaration to the Medical Board of Western Australia in August 1998. While the practitioner says he is not a "legal man", he otherwise presented himself to the Tribunal as a sophisticated person. He is a well educated and qualified medical practitioner, who formerly practiced as a pathologist. He is also experienced in business, which may be inferred from his own statements that in the 1980's he was regularly in social contact with the former solicitor because the solicitor acted for him on property and commercial transactions. The Tribunal finds the belief claimed to be utterly implausible.

50 It also does not sit comfortably with the fact that the practitioner's own legal counsel told the Magistrates Court at Kogarah in April 1998 that only the paperwork remained to be completed before the appeal against his convictions was dismissed.

51 That leaves for consideration the practitioner's further explanation given to the New South Wales Professional Standards Committee that he was of the view that the convictions arising from his conduct as a pathologist in New South Wales were not relevant to his proposed practise as a general practitioner in Western Australia. It might be remarked in passing that this rather tends to support the view that the practitioner was prepared to overlook the convictions, not because there was an appeal pending, but because he had not considered them terribly relevant to the practise of a general practitioner. Nonetheless, the Tribunal does not accept that this was the practitioner's generally held view as of August 1998, however much he may have convinced himself then or later that it was a good reason not to disclose his convictions.

52 The Tribunal is comfortably satisfied, notwithstanding the serious consequences that may follow from the finding, that when the practitioner stated to the Medical Board in August 1998 that he did not have any convictions he knew the statement to be false, as the Board alleges in the first alternative. This is not a case of mere reckless behaviour.

53 As to whether the practitioner's conduct should be considered infamous under the test laid down in Allinson, or merely improper conduct in a professional respect, the Tribunal considers in light of its findings the practitioner's conduct must be considered infamous. To state that he did not have any convictions, when he knew he did, can only be characterised as behaviour that other practitioners of good repute and competency would consider disgraceful or dishonourable.

54 As to penalty, on the one hand, while it might be argued that such conduct should not automatically result in suspension, the failure of the practitioner to be other than perfectly frank with the Medical Board in his dealings with the Board suggests an inability to be honest with colleagues in his profession and also with patients and others with whom he may be called upon to deal as a practitioner. Members of the public expect members of the medical profession to be scrupulously honest in the conduct of their professional affairs. A period of suspension from practice is called for to mark the seriousness of the practitioner's conduct and the need for medical practitioners to be utterly honest in their professional dealings. The public cannot have any confidence in medical practitioners if they have licence to behave in the way the practitioner did in this instance.

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55 The facts in VR 142 and VR 143 of 2005 provide much of the background to this matter. Following the registration of the practitioner as a medical practitioner in Western Australia in 1998, he commenced to practise in Western Australia as a general practitioner.

56 At that time -indeed since June 1997 - the practitioner was an undischarged bankrupt under the Bankruptcy Act 1966 (Cth).

57 In October 2001, the practitioner - who was then employed at a medical practice in Beechboro - contacted Dr De Kauwe, who operated the nearby Morley Family Practice as a sole practitioner. The practitioner suggested that he might provide services as a medical practitioner in Dr De Kauwe's practice. He initially approached Dr De Kauwe because a proposed corporation buy-out of the Beechboro practice had made his own future uncertain.

58 At the October 2001 meeting, the practitioner told Dr De Kauwe that he was currently working at the nearby practice and because it was being corporatised and moving to Noranda, he was considering leaving the practice. The practitioner and Dr De Kauwe did not come to any firm agreement at that meeting.

59 In December 2001, the practitioner and Dr De Kauwe met again. Dr De Kauwe says that during this visit the practitioner told him he had a large client base at the other practice and showed him several Health Insurance Commission monthly payment summary statements, which identified his billings to Medicare. He says that the practitioner told him he wanted only a room in which to practice as an independent practitioner. Dr De Kauwe says that the practitioner and he then concluded an arrangement whereby the practitioner would operate from his practice and would receive 60% commission, less GST, for all his billings. The two doctors discussed a possible starting date in March 2002.

60 Dr De Kauwe says the practitioner then informed him that, in order to leave the other practice, he was required to pay the practice $25 000 to gain his release. Dr De Kauwe says that following further discussion he agreed to provide the practitioner with a loan of $25 000 for this purpose.

61 Dr De Kauwe says he subsequently engaged his solicitors to prepare a loan deed based on his agreement with the practitioner. Under the deed, which was subsequently signed by the relevant parties, the practitioner was engaged as an independent contractor to Morley Family Practice based on 60% commission, less GST, and was required to repay the practice a minimum of $480 per week for 52 weeks with one final repayment of $40 in respect of the loan of $25 000. The deed was between Vevil De Kauwe Pty Ltd ACN 092112304 and Victor Bham. The practitioner's signature appears on the last page of the deed and was witnessed by the receptionist in the Morley Family Practice. The cheque for $25 000 was that of the company which Dr De Kauwe controlled and used to administer his practice.

62 Dr De Kauwe says that he and the practitioner signed the deed on 28 February 2002 and on the same day he gave the practitioner a cheque for $25 000 payable to "Victor Bham", the name the practitioner had used in all their dealings to that point. The $25 000 cheque was produced in evidence and showed certain alterations.

63 Dr De Kauwe explained how the cheque came to be altered. Dr De Kauwe said the practitioner, as "Victor Bham", was the original payee and the cheque was marked "not negotiable". Dr De Kauwe said that later on the day he gave the practitioner the cheque, the practitioner returned and asked him to alter the cheque. He said the practitioner told him that "The bank don't know me as Victor so could you cut that off"; and that, "I can't put this cheque into my account because it will take several days to clear because it is non negotiable. If you cut that off, I'll be able to get this cash and give it to the Beechboro Family Practice straight away so that I can be released by them". Dr De Kauwe says that as a result of that representation, he agreed to make the alterations requested by the practitioner including by striking through the words "not negotiable".

64 In his evidence, the practitioner agreed that the $25 000 cheque was initially made payable to "Victor Bham" and was marked "not negotiable" and that changes were later made to make it payable to cash. The practitioner said that "... I told him [Dr De Kauwe] that because I had commitments at that time and then I wanted to settle some accounts, pay all the arrears and all that" (T 218). He said he didn't want to have to wait a period of five or seven days for the cheque to clear. He claims that he said to Dr De Kauwe:

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83 In this case, the question arises whether the conduct of the practitioner which was in contravention of the Bankruptcy Act 1966 proscription on a bankrupt person from entering into a credit transaction in excess of $3000 with a person without telling them that he or she is a bankrupt, and the conduct of the practitioner in lying to a fellow medical practitioner about the purpose of the $25 000 loan (and the subsequent $10 000 loan) that were provided by the fellow practitioner to facilitate the practitioner's commencement as a medical practitioner in the fellow practitioner's practice, constitute conduct in the pursuit of the practitioner's profession which would reasonably be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency.

84 In that regard it is also interesting to note the decision of Roylance v The General Medical Council [2001] AC 311 in which the United Kingdom Privy Council upheld a finding of the General Medical Council that Dr Roylance was guilty of "serious professional misconduct" as a registered medical practitioner on the ground of a failure to take action over the years when he was the District General Manager of a relevant health authority when concerns were being raised about the excessive mortality of infants, and a failure to take any steps in a particular case to prevent an operation from proceeding. The practitioner did not challenge the jurisdiction of the General Medical Council to inquire into the matters alleged against him, but contended that the conduct complained of - or his failure to act in certain cases - did not involve any judgment as a medical practitioner.

85 The Privy Council at [37] noted that the expression "serious professional misconduct" was a successor to the earlier phrase used in the Medical Act 1858 (UK) - and still used in the Medical Act 1894 (WA) - "infamous conduct in a professional respect", but that there was not any real difference of meaning intended by the change of words. Their Lordships noted that: "This is not an area in which an absolute precision can be looked for". However, some essential elements of the concept could be identified. This case therefore provides some useful guidance in relation to the matters now in issue.

86 At [38], their Lordships noted that "misconduct" is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules or standards ordinarily required to be followed by a medical practitioner in particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word "professional" which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious.

87 The Privy Council accepted at [39] that professional misconduct extends further than simple clinical misconduct:

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94 As to the question of breach of the Bankruptcy Act 1966, the Tribunal plainly is entitled to have regard to the nature of conduct complained of and whether or not it constitutes an offence against the law. In this case, there can be little doubt, in our view, that the conduct of the practitioner in negotiating a loan in excess of $3000 with Dr De Kauwe's administration company, through Dr De Kauwe, in circumstances where Dr De Kauwe was not advised by the practitioner that he (the practitioner) was a bankrupt, was conduct in contravention of the Bankruptcy Act 1966 s 269(1)(a). It is not necessary for the Tribunal to conclude that an offence was committed, indeed the Tribunal does not have any such jurisdiction, but it may for the purposes of these proceedings ascertain whether it considers that the conduct complained of appears to have contravened that statutory provision for the purposes of these disciplinary proceedings. In doing so, the Tribunal applies the Briginshaw standard of proof, referred to earlier. The Tribunal is quite satisfied that the conduct complained of contravenes the Bankruptcy Act 1966 provision. The Tribunal also considers that, when this conduct is understood as part of a course of conduct on the part of the practitioner whereby he obtained a $25 000 loan for the stated purpose of obtaining release from his former medical practice in order to commence practice at the Morley Family Practice, it is of relevance to the current proceedings. It is not conduct which can be, or should be, looked at in isolation.

95 As to the further proposition that the practitioner borrowed money from a company, not a medical practitioner, and for this reason his conduct should not be considered to have any connection with the pursuit of the practice of medicine, the fact is that the company concerned was a company controlled by Dr De Kauwe, which had the function of administering his medical practice known as Morley Family Practice that the practitioner wished to join. Further, the Tribunal notes that the practitioner negotiated the loan - which was evidenced by a deed involving himself and the company - for the purpose of facilitating his engagement by the Morley Family Practice. To achieve that outcome he needed to deal directly with the fellow practitioner, Dr De Kauwe. The Tribunal rejects the submission that the fact that the loan transaction in question was concluded between the practitioner and a company, not another medical practitioner, is of relevance in the particular circumstances of this case.

96 As to the overall proposition that the conduct complained of cannot be characterised as infamous or improper in a professional respect, because it should merely be characterised as a commercial transaction between two persons divorced from the practice of medicine, the Tribunal notes that the whole purpose of the initial loan transaction of $25 000, and the further loan transaction involving $10 000, was to enable the practitioner to obtain a release from his former medical practice in order to commence practice at the Morley Family Practice. Indeed, this was acknowledged by the practitioner in his own evidence, which we have recounted earlier in these reasons. The practitioner (T 217) acknowledged the professional context in which the loan was negotiated:

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Medical Board of Western Australia and Bham [2006] WASAT 190 (11 July 2006)

MEDICAL BOARD OF WESTERN AUSTRALIA and BHAM [2006] WASAT 190 (11 July 2006)

Legislation Cited (3)

Cases Cited (5)