Mukherjee v Medicare Participation Review Committee

Mukherjee v Medicare Participation Review Committee - [2010] FCA 233 - FCA 2010 case summary — Zoe

[11]

5 The appellant was convicted of each offence. The appellant was sentenced by her Honour Magistrate Carolyn Jane Barkell on 25 September 2007, and the sentence imposed was divided between the charges. Dr Mukherjee was ordered to perform 100 hours of community service; to be released on his own recognizance under s 20(1)(a) of the Crimes Act 1914 (Cth) to be of good behaviour for a period of three years, self in the amount of $500; and during that time to accept the care of Dr Sharat Lal, psychiatrist, or his delegate to take medication as prescribed and attend counselling as directed; and to make reparation in the sum of $9,453.70 to Medicare Australia. 6 On 7 January 2008 a delegate of the Minister for Health and Ageing acting pursuant to s 124D(2) of the Act notified the Chairperson of the MPRC of the details of convictions relating to the appellant. Thereafter, pursuant to s 124E of the Act, the Chairperson set up a committee and pursuant to s 124J of the Act convened a hearing by the MPRC which was conducted on 14 May 2008. 7 Before the MPRC the appellant tendered several medical reports. Dr Doron Samuell, a psychiatrist, provided a report dated 24 September 2007. Dr Samuell was consulted by Dr Mukherjee on 27 August 2007 and 18 September 2007. Dr Samuell obtained a history from the appellant of a long standing depressive illness which is referred to later in this decision. Dr Samuell considered that the appellant was suffering from a mood disorder at the time he committed the offences. 8 Another psychiatrist, Dr Sharat Lal, also provided a provided a report dated 24 September 2007. Dr Lal became the treating doctor for the appellant for his depressive illness and he expressed the opinion that the appellant's condition had contributed significantly to his 'aberrant behaviour'. 9 The MPRC considered the medical evidence concerning the appellant. On 15 July 2008 the MPRC made the following determination: Pursuant to s 124F of the Act, Dr Gopal Mukherjee is fully disqualified for access to Medicare benefits for three months.

[36]

19 In Relan s 124FAA was applicable because the applicant, having entered into two agreements under s 92 of the Act in respect of inappropriate practice, was the subject of a notice which was issued under s 106X of the Act referring his conduct to the MPRC. The Tribunal in Relan considered that a variation of the MPRC's decision was necessary because the disqualification would cause hardship to the patients of the particular practice, and not because it would cause undue hardship to the medical practitioner: see Relan at [33]-[34]. 20 The Court observes that Relan did not consider the criteria to be applied under s 124F and was related to unique circumstances. In the present appeal, unlike the circumstances in Relan, there was no evidence of any effect upon the appellants patients. Further, there was no evidence that the appellant had particular language skills which could be used for the benefit of his patients. This was a decisive issue in the MPRC's deliberations in Relan. 21 The improvement of the performance of the practitioner is not a factor which the Tribunal was bound to take into consideration, as such consideration is not identified in s 124F as a matter to which regard must be paid. In these circumstances, the fact that the Tribunal did not consider this fact does not constitute a basis for jurisdictional error: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at [39]. 22 The Court finds that the decision in Relan has no application to the present appeal. 23 Thirdly it is submitted that the Tribunal member failed to consider how the determination of three months full disqualification from participation in the Medicare scheme would achieve or fulfil the objects in s 79A or the purpose in s 124F of the Act. 24 In regard to s 79A of the Act, Part VAA establishes the Professional Services Review Scheme for the purpose of determining whether a practitioner has engaged in inappropriate practice. Section 79A which is contained in Part VAA states: The object of this Part is to protect the integrity of the Commonwealth medicare benefits and pharmaceutical benefits programs and, in doing so:

[62]

47 The appellant submits that while the Tribunal affirmed the decision of the MPRC, it did not adopt the MPRC's reasons. The appellant contends that the Tribunal never had regard to specific facts or factors in reaching its decision. Instead, the appellant submits, the Tribunal member merely stated repeatedly, 'I have taken into account' the various portions of the evidence but nowhere did she deal in detail with the factual considerations. 48 The appellant refers the Court to the decision of the Full Court in Dornan and Others v Riordan and Others (1990) 24 FCR 564. In that decision the Court found that a substantial failure to provide reasons for a decision, in circumstances where a statement of reasons is required for the exercise of power under the statute by the decision-maker, constitutes an error of law. The Court has also been referred to the decision of the Full Court in Civilian Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 at [49]-[50] in which a similar finding was made. 49 Section 124F(3)(a) mandates the Tribunal to have regard to the nature of, and circumstances concerning the relevant offences. The Tribunal is not required to refer to every piece of evidence and every contention made by the appellant in his written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. 50 The Court has considered the decision of the Tribunal but cannot discern any failure as alleged. The Tribunal considered all salient facts, and gave reasons for its decision. The Tribunal's reasons for its decision are not to be construed 'minutely and finely with a eye keenly attuned to the perception of error': see Politis v Federal Commissioner of Taxation (1998) 16 ALD 707 at 708; see also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272. 51 During oral submissions the appellant claimed that the Tribunal failed to recognise that between the date of the first offence on 12 July 2002 and the date of the final offence on 5March 2004 there was a period of six months, namely between April 2003 to September 2003, when no offences were committed. However such submission is a demonstration of the appellant's overly critical approach to the decision. For the reasons above, the Court rejects this ground appeal.

[74]

59 As already referred to, it is recognised that a period of disqualification may contain an element of punishment: see Rich per McHugh J at [42]-[43]. Disqualification is prescribed as one of the methods to be considered by the MPRC to ensure the integrity of the Medicare system. The Tribunal is not required to state why it agreed with the MPRC's determination of disqualification, other than the observations which it stated in [24] of the Tribunal's decision. 60 The appellant points out that s 124F(3)(b) of the Act requires the MPRC, when making its determination, to comply with 'guidelines in force under s 124H'. Since it is common ground that there were no guidelines current, the appellant submits that the Tribunal should at least have considered the former guidelines. 61 The Court finds that, since no guidelines were current, neither the MPRC nor the Tribunal was required to consider the expired guidelines. The Tribunal considered the sanction imposed by the MPRC and concluded that it was appropriate. 62 In particular (c) the appellant alleges that the Tribunal found that the appellant was 'partly aware of what he was doing in the commission of the relevant offences, but failed to determine how that reflected in or should be taken account when considering "the nature and number of offences committed and the length of time during which they were committed"'. 63 The actual finding of the Tribunal was: 'I do not consider that he was wholly unaware of what he was doing'. The Tribunal, by making such statement recognised that the appellant was suffering from a mood disorder. However that disorder was not sufficient to negative the appellant's mens rea at the time the offences were committed. Further, the Tribunal specifically referred to the pleas of guilty when it made its observation that the appellant was not 'wholly unaware'. 64 Having referred to the fact that the appellant was not 'wholly unaware' and the pleas of guilty, the Tribunal member then considered the various sanctions available. In finding that disqualification for three months was the appropriate sanction, the Tribunal must be taken to have considered the member's assessment of the appellant's awareness. 65 Particular (d) alleges that the Senior Member determined 'crucial findings in a rolled-up wrapped-up fashion' that did not demonstrate an appreciation of the task at hand, nor did the Tribunal member explain the basis of those findings. The appellant submits that the Tribunal member's reasons are inadequate and that instead of engaging in an active intellectual exercise when considering the critical issues, the Tribunal member provided her reasons in a 'wrapped-up' or 'rolled-up' fashion. The appellant relies upon Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 in support of his submission. 66 In Lafu the Full Court considered the cancellation of a visa, such cancellation becoming effective following completion of the holder's gaol sentence. The appellant applied to the Administrative Appeals Tribunal for a review of the delegate's decision. The decision was affirmed. The appellant then appealed to this Court. The first respondent (the Minister) had issued a Direction providing guidance to decision-makers when making a decision to refuse or cancel a visa under s 501 of the Migration Act 1958 (Cth). One of the matters to be considered under the Direction was whether visa refusal or cancellation 'would prevent (or inhibit the commission of) like offences by other persons'. The Tribunal did not discuss the content of the Direction in its deliberations. On appeal to this Court, a single judge affirmed the Tribunal decision: see Lafu v Minister for Immigration and Citizenship and Another (2009) 110 ALD 302. On appeal, the Full Court concluded that the single judge had erred in finding that the Tribunal's reasons constituted an 'active intellectual process' (see Tickner and Others v Chapman and Others (1995) 57 FCR 451 at 462) as the single judge had not considered the specific issue of general deterrence. 67 In the present proceedings however, the Court is satisfied that the Tribunal member engaged in an active intellectual process. The Court has found that there is no issue which has not been addressed by the Tribunal which the Tribunal was bound to address. As was explained by Brennan J in Peko-Wallsend at [61]; A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

[75]

The Court is unable to find any basis upon which the Full Court's decision in Lafu assists the appellant. 68 Particular (e) alleges that the Senior Member failed to take into account the fact that the appellant had been in medical practice 'for in excess of 20 years and that he has already been fully punished for the commission of the relevant offences'. 69 The Tribunal recorded that the appellant had been in practice for 25 years as set out in paragraph [11] of its decision when it stated:'He has worked in the same practice at Fairfield for 25 years'. Further, the Tribunal was fully aware of the sentences ordered by Magistrate Barkell in the Burwood Local Court as is evident from the specific reference to such penalties in the Tribunal's reasons. The submission of the appellant seems to ignore both of these considerations. 70 Particular (f) alleges that the Senior Member failed to consider that the three month disqualification was out of proportion to the kinds of determination previously handed down by the Tribunal. Such claim overlooks the issues already considered, namely that the Tribunal considered all other possible sanctions, and determined that the three month disqualification was warranted. 71 Particular (g) claims that the Tribunal member failed to consider other or alternative sanctions. The Tribunal member was satisfied, having considered the various sanctions available that disqualification for a period of three months was appropriate. Other alternative sanctions were considered: see [23] of the Tribunal's decision reproduced at [46] of this judgement. There is no unreasonableness as alleged. 72 By particular (h), the appellant claims that the Tribunal member failed to set out 'the inconsistencies in the applicant's evidence and to state their import in her decision'. 73 There was no obligation on the part of the Tribunal member to state inconsistencies in the appellant's evidence. The significant inconsistency which the Tribunal referred to was in respect of the appellant's submissions before the Tribunal as to the appellant's 'awareness' compared to his pleas of guilty. On this question, the Tribunal Member said: It is somewhat difficult to understand Dr Mukherjee's stance taken before the MPRC and this Tribunal given that he pleaded guilty to the offence of knowingly making false statements.

[76]

74 Having referred to the inconsistency the Tribunal member then went on to consider the penalty which should be imposed. There is no unreasonableness, in the Wednesbury sense, in the Tribunal's process. 75 By Particular (i) the appellant claims that the Tribunal's decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds and that as such the Tribunal member misconceived its purpose or function. 76 The Court is unable to find any error in the conduct of the Tribunal as alleged. The convictions and punishment under the criminal law do not operate to save the appellant from any sanction under s 124F of the Act. The Court is satisfied that the Tribunal has not identified the wrong issues, nor asked itself a wrong question, nor ignored relevant material. Nor has it relied upon irrelevant material or made any erroneous finding or reached a mistaken conclusion: see Craig v The State of South Australia (1995) 184 CLR 163 at 179. In these circumstances, the Court adopts the observations referred to in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] wherein Gleeson CJ and McHugh J referred to a claim of irrational and unreasonable findings as merely being a way of describing disagreement with the decision. 77 The appellant also submitted that the Tribunal failed to pay regard to the sentencing remarks of Magistrate Barkell upon the appellant's conviction at the Burwood Local Court wherein the Magistrate specifically rejected the Crown's submission that the appellant's gambling and alcohol misuse had remained untreated, and found that there was 'a major mood disorder' which was being addressed. 78 The claim that the sentencing remarks were overlooked cannot be sustained in view of the Tribunal specifically addressing this issue: see [21] to [24] of the Tribunal's decision reproduced at [46] of this judgement. 79 In view of such consideration the Tribunal clearly referred to the sentencing remarks of Magistrate Barkell. In these circumstances the Court can find no basis for the claim that the Tribunal's decision is so unreasonable that no reasonable decision-maker could have arrived at such decision: see Wednesbury. Ground 5 of the appeal is therefore rejected. 80 From the body of the appellant's reply submissions as well as their oral argument, the Court can discern one further submission raised by the appellant. 81 The appellant submits that the Tribunal member cited and applied the wrong legal test when referring to the 'nature and number of offences committed' at paragraph [24] of the Tribunal decision when in fact, s 124F(3)(a) requires the MPRC, when making determinations under s 124F(1), to have regard to the 'nature of, and the circumstances concerning the commission of' each relevant offence. 82 The Court finds that this submission is misconceived. The Tribunal clearly understood the correct test to be applied, as s 124F(3) of the Act was quoted in the Tribunal's decision at [7]. The Court is satisfied that the words 'nature and number' were used by the Tribunal member in a general sense to arrive at a finding concerning the suitability of suspension as a sanction in preference to other sanctions that were available. The Court holds that the 'circumstances' of the relevant offences as referred to in s 124F(3)(a) could include the 'number' of relevant offences. The Tribunal member was not seeking at [24] of the Tribunal's decision to again cite the relevant test precisely. As such the Tribunal member did not err as claimed.

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