Bajpe and Medicare Participation Review Committee
[2010] AATA 236
•1 April 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE
DIVISIONNo 2009/2801 Re PREM BAJPE
ApplicantAnd MEDICARE PARTICIPATION REVIEW COMMITTEE
RespondentDECISION
16 April 2010
Tribunal Miss E A Shanahan, Member and
Dr K Breen, MemberDate Place Melbourne
CORRIGENDUM TO DECISION [2010] AATA 236
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 1 April 2010 as follows:
(a) paragraph 13, third line, delete s 8 and insert Schedule 8 (Drugs, Poisons and Controlled Substances Act 1981 (Vic) and Drugs, Poisons and Controlled Substances Regulations 2006 (Vic))
(b) paragraph 13, fourth line, delete s 8 and insert Schedule 8
(sgd) E A Shanahan
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 236
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2801
GENERAL ADMINISTRATIVE DIVISION ) Re PREM BAJPE Applicant
And
MEDICARE PARTICIPATION
REVIEW COMMITTEE
Respondent
DECISION
Tribunal Miss E A Shanahan, Member and
Dr K Breen, MemberDate1 April 2010
PlaceMelbourne
Decision The Tribunal affirms the decision that Dr Prem Bajpe be fully disqualified from participating in the Medicare scheme for a period of 26 weeks with effect from 1 May 2010.
The Tribunal determines that Dr Bajpe undergo counselling in the form of instruction in the use of the Medicare Benefit Schedule and his responsibilities in relation to that schedule.
(sgd) E A Shanahan
Member
MEDICARE PARTICIPATION – conviction on 59 counts of obtaining property of the Commonwealth by deception – offence under s 134(1) of the Criminal Code Act 1995 – disqualification from providing services to which Medicare benefits relate – implementation of the disqualification – decision affirmed
Criminal Code Act 1995, s134(1)
Health Insurance Act 1973 (Cth)
Health Insurance (General Medical Services Table) Regulations 2009 (Cth)
Re Luka G Mukherjee and Medicare Participation Review Committee (2009) AATA 484
Re Della Malva and Medicare Participation Review Committee (2006) AATA 884
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Wong v Commonwealth; Selim v Lele, Tan and Rivett (constituting Professional Services Review Committee) No (309) (2009) 236 CLR 573
REASONS FOR DECISION
1 April 2010 Miss E A Shanahan, Member
Dr K Breen, Member1. Dr Bajpe was convicted of 59 counts of dishonesty obtaining property of the Commonwealth by deception. (County Court, 3 October 2008). In broad terms the types of services to which the conviction related were:
(a)Provision of professional services for which there was no record of a patient consultation by Dr Bajpe on the relevant date.
(b)The claiming of payment for two professional services rendered to the same patient on the same day where the clinical record did not reveal two such service deliveries.
(c)Emergency after hours service (MBS Item 98) where the service was performed in hours.
(d)The preparation and review of multi-disciplinary care plans (then MBS Item 721 and 725) where the plans and reviews were not completed and there was no evidence of involvement of other health care providers in the treatment of the patient.
(e)Claiming for comprehensive health assessments for patients over the age of 75 conducted outside the consulting rooms (then MBS Item 702) where the clinical notes did not reflect the detailed assessment of the patient required by the MBS item number.
2. Dr Bajpe’s conviction was a relevant offence under Part VB of the Health Insurance Act 1973 (the Act) attracting review by the Medicare Participation Review Committee (MPRC) of Dr Bajpe’s eligibility for providing services to which a Medicare benefit related.
3. On 15 April 2009 the MPRC fully disqualified Dr Bajpe from the provision of professional services under Medicare for a period of 26 weeks. Dr Bajpe made application to this Tribunal for review of the decision on 22 June 2009. The implementation of the period of disqualification was stayed until this Tribunal made its decision.
4. The Applicant was represented by Mr George Defteros and the Respondent by Ms Natalie Butler. Dr Bajpe gave evidence before the Tribunal. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) (Exhibit R1) and the parties tendered the following documents:
For the Applicant:
·Dr Bajpe’s curriculum vitae – Exhibit A1
For the Respondent:
·T Documents – Exhibit R1
·Relevant extracts from a Medicare Benefits Schedule book operating from 1 November 2002 – Exhibit R2
·Health Insurance (General Medical Services Table) Regulations 2009 – Exhibit R3
·Dr Bajpe’s Medicare statistics – Exhibit R4
BACKGROUND TO THE APPLICATION
5. Dr Bajpe was first registered by the Medical Practitioners Board of Victoria on 16 June 1999, having graduated medicine from Bangalore Medical College in India in 1989. He came to Australia in 1996 and worked in hospitals as a Resident Medical Officer and Registrar before embarking on locum general practitioner positions. He completed the Australian Medical Council’s examination for overseas trained doctors’ in 2000. He has since obtained vocational registration through the Royal Australian College of General Practice. From 2001 to 2009 he was in solo general practice in Bendigo, the name of this practice being the Holistic Family Medical Practice. The offences leading to Dr Bajpe’s conviction on 15 April 2009 occurred between May 2002 and October 2003. Several areas in and around Bendigo have been classified by the Department of Health and Aging as districts of medical workforce shortage.
6. Dr Bajpe’s convictions followed a three month trial in the Country Court sitting in Bendigo before a Judge (Cohen J) and a jury. Dr Bajpe was self represented.
7. Following the reporting of suspect billing practices by a staff member at Dr Bajpe’s clinic, Medicare commenced an investigation. In January 2003 Medicare Australia (Health Insurance Commission (HIC) representatives interviewed Dr Bajpe. They advised him of the billing requirements and his responsibility to comply with the Medicare Benefits’ Schedule (MBS) Guidelines. Despite this instruction the billing offences continued until October 2003.
8. The MPRC was automatically advised of Dr Bajpe’s conviction for dishonestly obtaining property of the Commonwealth. A Certificate of Conviction in accordance with s 178 Evidence Act was and is accepted as evidence of conviction. On 15 September 2009 the MPRC fully disqualified Dr Bajpe for a period of 26 weeks.
DR BAJPE’S EVIDENCE BEFORE THE TRIBUNAL
9. Dr Bajpe gave evidence before the Tribunal. His arrival at the hearing was delayed by approximately two hours. He explained his lateness as being due to the necessity to see patients at the Burnside Medical Centre (Burnside) where he now works. He informed the Tribunal that he had ceased practising in Bendigo in September 2009 and now worked essentially full-time at Burnside. Prior to this date he had spent 75 per cent of his working hours in Bendigo and 25 per cent at Burnside.
10. The Tribunal had noted that the Medicare records listed four provider numbers for Dr Bajpe indicating four different practice sites and asked if these were still active. Dr Bajpe said he only worked at Burnside and in a clinic at St Albans. He had instructed the practice manager at Burnside to advise Medicare so that the other non-active numbers would be cancelled. He had not checked that this had been done. The Tribunal posed a series of questions to Dr Bajpe. He said that the person who had reported his billing practices to Medicare was a patient of his who suffered from a psychiatric illness and family problems and to whom Dr Bajpe had offered a job as a receptionist. This individual worked irregular hours and was totally inexperienced. Dr Bajpe said he had purchased the Bendigo clinic from Dr Ooi and for the first three months in the practice Dr Ooi’s practice manager who was also his wife, had stayed at the practice to teach Dr Bajpe the ropes but didn’t. Dr Bajpe confirmed that he had undertaken a half day instruction course run by Medicare before commencing private practice. He had trained in pain management during a hospital resident medical officer term but was self taught in the treatment of chronic pain. He described the 2003 investigation by Health Insurance Commission (HIC) representatives’ as unpleasant and that their advice regarding billing practices and requirements was of little help as he was already familiar with the MBS. At the time he suspected he was being investigated. Dr Bajpe admitted that he had made mistakes and considered that he had been more than adequately punished for these.
11. It had been Dr Bajpe’s practice in Bendigo to, on completion of a consultation, write down the appropriate item number for billing purposes on a piece of paper and have the patient hand this to the receptionist.
12. Dr Bajpe described his current practice which is run by a senior general practitioner who attends two to three half days per week. Paramedical staff are also employed and pain management is now the responsibility of a physiotherapist who has a particular interest in the subject.
13. Dr Bajpe was asked if he had any restrictions on his practice imposed by the Medical Practitioners’ Board of Victoria. He answered that he had voluntarily restricted his prescribing of s 8 drugs but on further questioning admitted that he had been subject to enquiries in relation to s 8 drugs because of his prescribing profile while in Bendigo.
14. In answer to Mr Defteros’ questions Dr Bajpe said he had been counselled in a way by Dr Sadhai, the senior general practitioner at Burnside, had himself reread the MBS book and taken steps to ensure that inappropriate billing would not recur. He was asked if he had sought assistance from a psychologist to which he replied, that he had spoken with a Dr Ibrahim but only for medico legal purposes.
15. Ms Butler enquired as to how much of the necessary paperwork was done by the practice manager at Burnside. Dr Bajpe said the practice manager fills out the Items 721 or 720 and 725 Care Plan Forms on his instructions. Dr Bajpe indicated that in the multi disciplinary care plan the patients were referred primarily to the paramedical staff at Burnside such as physiotherapists and podiatrists. The Burnside Medical Centre is a bulk billing clinic.
DOCUMENTARY EVIDENCE
16. The documentary evidence is voluminous and the Tribunal has selected those most pertinent to the application having read all of the documentation.
DR BAJPE’S STATEMENT TO THE COUNTY COURT
17. Dr Bajpe provided a statement entitled DEFENCE RESPONSE OF DR BAJPE to Justice Cohen dated 18 June 2008 in which he denied all charges and explained his practice (T16, p162-169).
18. Dr Bajpe believed that as patients initiated consultations with him and then booked follow-up visits, this amounted to informed consent. His use of care plans (then Items 721 and 725) had been dictated by the incidence of chronic disease with multiple co-morbidities in his patients. However lack of a universal care plan form had led to misunderstandings. He had adapted the format of the Division of General Practices form for his own use.
19. Dr Bajpe said his understanding of what was an emergency service differed to that of Medicare. Dr Bajpe relied on his previous experience working in the Accident and Emergency departments’ of public hospitals in Australia, to determine what was an emergency. His understanding of what was an after hours consultation also differed to the definition provided by Medicare. Following the laying of charges, Dr Bajpe had instructed his receptionist to contact Medicare by telephone and clarify the appropriate item number for an individual service to avoid any further similar confusion. Dr Bajpe had also delegated the interpretation of the information in the MBS book to his receptionist given the demands on his time as a solo general practitioner in a busy practice.
20. Dr Bajpe brought to Justice Cohen’s attention the HIC investigators’ attitude to himself and claimed that some of his patients (15 in all) interviewed by the investigators had been coerced into signing prepared statements relating to the duration and frequency of their visits to Dr Bajpe and the nature of the services received under a care plan.
THE COUNTY COURT DECISION
21. The findings of the Country Court on 3 October 2008 have been summarised by Mr David Curtain, QC the Chairperson of the MPRC (T20). The Tribunal adopts Mr Curtain’s summary which states at pages 265-266:
…
7.On 3 October 2008, after a trial which lasted from 30 June 2008 to 25 September 2008 and in which Dr Bajpe represented himself, he was found guilty by a jury of 59 counts of dishonestly obtaining property from a Commonwealth entity, by deception. …
8.In her sentencing remarks. Her Honour Judge Cohen outlined the frauds of which Dr Bajpe was convicted. She noted that a number of the counts involved instances where there was no record of him having a consultation with the patient on the date in respect of which he claimed a fee. There was also a number where he claimed two consultation fees for the same date but there was only a record of one consultation on the patient file.
9.In relation to a number of other instances, the evidence was, and he ultimately conceded that he had not performed the services for which he had billed after hours, as he had claimed.
10.A large number of the charges related to his claiming was …provision of multi-disciplinary care plans and reviews of multi-disciplinary care plans. Her Honour found his arguments and evidence about those items far fetched and her impression was that they were subsequently invented to try and justify his claims.
11.Her Honour also noted a final group of charges relating to claiming for an item 702, which was for the provision of a comprehensive health assessment for a patient of 75 years or older. She noted that the relevant files indicated that there was written assessment, and the progress notes for the relevant dates where there was an attendance reflected nowhere near the detail of the assessment that was required under the schedule, whether done inside or outside of his consulting rooms.
12.Her Honour noted that his pleas of not guilty, his manner and arguments throughout the course of a very extended trial indicated that he accepted no responsibility for the events and reflected no contrition or remorse for offending. She noted that on the contrary, he raised arguments and made assertions to the effect of blaming many other people for various aspects of those events, including his patients, his receptionist, the Medicare Advisory Line, the HIC investigators and staff, Dr Karlik and for more recent events, the prosecution and the court; all indicating that he accepted no responsibility himself.
13.Her Honour noted that he expressed no remorse until the day before sentence and to the extent that then expressed remorse, it was in her view a reflection of the very recent realization by him of the serious consequences he then faced and for the very deep distress that it caused to his wife.
14.Her Honour observed that he had a responsibility to deal honestly with the HIC in submitting claims for payment. He breached that responsibility repeatedly and at times systematically. She said he was stealing public money.
…
17.She said that she regarded his offending as involving repeated, and in some months systematic, dishonest behaviour occurring over some 16 to 17 months, and which he had, until recently, not acknowledged as his personal wrongdoing. She said when sentencing “even now you do not seem to recognise the real extent of the offences of dishonesty obtaining money from Medicare by deception. You betraying [sic] community trust – the granting to you of a Medicare provider number with the ability to claim sums of money likely to be processed under a system without scrutiny, and the trust of your patients whose signatures you obtained on assignment forms, and then used to claim payments to which you are not entitled.”
18.She decided that in August and September 2003, his claiming for items 720 and 724 had become so systematic and defiant to the Schedule requirements that it reflected a worsening level of culpability and abuse of the privilege making claims under the Medicare system.
MEDICARE PARTICIPATION REVIEW COMMITTEE DECISION
22. The Committee chaired by Mr David Curtain, QC determined unanimously that Dr Bajpe be disqualified for a period of 26 weeks from participation in the Medicare scheme. The Committee believed that Dr Bajpe’s remorse was qualified and that he still believed that he had been hard done by. The Committee noted that Dr Bajpe had repaid all but $2,300 of the amount wrongly appropriated and the fine imposed by Justice Cohen had been paid in full. The Committee noted and took into account Dr Bajpe imperfect understanding of the Medicare system, his belief that he was entitled to charge for some of the items for which he wrongly claimed and that he had a body of patients who valued highly his professional capacity.
MEDICARE RECORDS
23. The Tribunal was provided with the Medicare records of Dr Bajpe’s billings, for the period 1 January 2007 to 31 January 2010. This includes part of his billing since he transferred his practice to Burnside (Ex R4).
RELEVANT LEGISLATION
24. The Health Insurance Act 1973 provides for referral of medical practitioners convicted of certain offences termed relevant offences to the MPRC (Part VB).
25. Section 124B of the Act defines a relevant offence to include an offence against s 134.1 of the Criminal Code Act 1995 which states:
(1) A person is guilty of an offence if:
(a)the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b)the property belongs to a Commonwealth entity.
The determinations available to the MPRC are outlined in s 124F:
124FDeterminations in relation to relevant offences and relevant civil contraventions
Determinations
(1)Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(1) in relation to a practitioner shall make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence or relevant civil contravention that is the subject of a notice under section 124D and has not been the subject of a previous determination by a Committee.
(2)A Committee established under subsection 124E(1) in relation to a practitioner shall, in making a determination in relation to the practitioner, determine that:
(a)no action should be taken against the practitioner;
(b)it should counsel the practitioner;
(c)it should reprimand the practitioner;
(d)the practitioner is disqualified in respect of one or more of the services mentioned in subsection (4A); or
(e)the practitioner is fully disqualified; or
(f)in relation to a practitioner who has engaged in a relevant offence or a relevant civil contravention under Division 2 or 3 of Part IIBA:
(i) any other practitioner who is employed, or engaged under a contract for services, by the practitioner is taken to be disqualified while so employed or so engaged; or
(ii) if the practitioner is an officer of a body corporate—any other practitioner who is employed, or engaged under a contract for services, by the body corporate is taken to be disqualified while so employed or so engaged and while the first-mentioned practitioner is an officer of the corporation.
…
(5)Where a Committee determines under paragraph (2)(d) or (e) that a practitioner is disqualified, the Committee shall specify in the determination the period over which the disqualification is to have effect, being a period that ends:
(a)where the determination is a review of a period of disqualification referred to in subsection 124D(3)—on or before the day on which that period of disqualification is to come to an end; or
(b)in any other case—within 5 years after the day on which the determination comes into effect.
26. Section 19 (2)(a)(i) and (2)(c)(iii) explain that Medicare benefits will not be payable for services rendered or initiated by a disqualified practitioner during the period of disqualification.
27. Section 124F(3)(b) requires the MPRC to comply with the Guidelines in force under s 124H of the Act. These Guidelines were not repealed on 1 January 2008 and new Guidelines were not registered until 9 December 2009 ie after the MPRC decision of 15 September 2009.
28. The Tribunal notes that Guidelines under s 124(H)(1) of the Health Insurance Act 1973 were made by the Minister for Health on 17 November 2009 and registered on the Federal Registrar of Legislative Instruments on 9 December 2009. No Guidelines were in force at the time of Dr Bajpe’s conviction or the decision of the MPRC. While the Tribunal normally takes into consideration the legislation and Guidelines in existence at the time of the hearing, the Tribunal is not bound by Guidelines but rarely departs from same (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 634. The Guidelines applicable to Dr Bajpe’s offences recommend a disqualification period not exceeding six months.
SUBMISSIONS
29. Mr Defteros for the Applicant, submitted that while Dr Bajpe acknowledged the seriousness of the offences of which he was convicted he denied he had acted dishonestly. He and his staff were inexperienced in 2002 and 2003 and this in‑experience lead to errors. Dr Bajpe now works in a group general practice with more experienced practitioners and support staff and was not at risk of making reckless decisions.
30. Mr Defteros argued that the charges could have been dealt with summarily in the Magistrates Court thereby avoiding the three month County Court trial with the detrimental adverse publicity suffered by Dr Bajpe.
31. Dr Bajpe had been foolish in representing himself before the County Court and MPRC after a disagreement with his legal representatives and at both hearings had been emotional and overburdened by his financial commitments. Mr Defteros indicated that Dr Bajpe was still repaying the loans he had entered into to discharge the debt to the Commonwealth and the fine imposed by the County Court. Mr Defteros indicated that Dr Bajpe had eventually expressed remorse albeit late in the County Court trial.
32. The Tribunal was asked to look beyond the certificate of conviction to Dr Bajpe’s efforts of rehabilitation in his current medical practices.
33. The Applicant relied on the Tribunal’s decision in Re Della Malva and submitted that a reprimand rather than disqualification was the correct and preferable decision.
34. Ms Butler (for the Respondent) apprised the Tribunal of the recent introduction of new Guidelines and that at the time of the MPRC hearing the former Guidelines had lapsed (as of 1 January 2008). While it was normal practice for the Tribunal to consider Guidelines in force at the time of an AAT hearing, Dr Bajpe had an accrued right to have the Tribunal consider his application under those existing prior to 1 January 2008 (s 124(h) of the Act; (Re Drake No 2).
35. Ms Butler submitted that Dr Bajpe’s argument that his transgressions were mistakes and not fraudulent, was not sustainable in light of his conviction. The nomination of the correct item number for billing purposes was ultimately Dr Bajpe’s responsibility and one that could not be delegated.
36. Ms Butler distinguished the decision in Re Della Malva based on the facts of that case. The Respondent relied on the decision of Mrs Josephine Kelly in Re Gopal Mukherjee and MPRC which at the time of this hearing was before the Federal Court, the decision having been appealed. This appeal to the Federal Court was dismissed by Justice Cowdrey on 17 March 2010 (Re Mukherjee and Medicare Participation Review Committee [2010] FCA 233).
37. The Respondent submitted the Tribunal should affirm the MPRC’s decision and fully disqualify Dr Bajpe from participation in the Medicare Scheme for 26 weeks.
38. In response to a question from the Tribunal Ms Butler voiced the opinion that the penalties open to the MPRC and to this Tribunal were not mutually exclusive although there was no authority on the question. She subsequently, after the hearing, provided a written submission on this question.
TRIBUNALS’ DELIBERATIONS
39. The Tribunal accepts the certificate of conviction as evidence of Dr Bajpe dishonestly obtaining property of the Commonwealth despite his claim that his and his staff members’ inexperience lead to what he perceived to be unintentional errors. The Tribunal agrees with Justice Cohen’s conclusion, that at times Dr Bajpe’s billing practices indicated systematic fraud.
40. Given the seriousness of the penalty imposed by the MPRC, this Tribunal, constituted by two Members who between them have over 80 years of experience as medical practitioners, was more than a little surprised by Dr Bajpe’s delayed arrival to give evidence by nearly two hours, necessitating periods of adjournment in the hearing. The Tribunal acknowledges his duty to his patients but Dr Bajpe’s explanation that he was of necessity seeing patients is contrary to his claim that working as he now does in a multi-doctor group practice has relieved the work pressures that in part caused his billing errors.
41. The Tribunal is not convinced that Dr Bajpe has fully accepted his responsibilities with respect to the Medicare system. He gave evidence of delegating his responsibility to inform Medicare of changes in his practice sites and the relevant provider numbers to the practice manager and has not checked that his instructions have been followed. The Medicare practice statistics for Dr Bajpe between 1 February 2009 and 31 January 2010, continue to name four practice sites. It is noted that Dr Bajpe last used his provider number for the Bendigo site on 20 November 2009 and first used his Burnside Medical Centre practice location on 5 October 2009, which is at odds with his evidence that he ceased practice in Bendigo in September 2009. Dr Bajpe has stated that he was no longer up to his eyeballs in paperwork as more staff at Burnside allowed him to delegate completion of necessary forms to the practice manager, on his instructions. Dr Bajpe agreed that he had made mistakes but believed he had been adequately punished by the County Court imposed fines and did not deserve further punishment in the form of disqualification from participation in Medicare Scheme.
42. The Tribunal has considered the Guidelines imposed on the MPRC under S 124(H)(1) of the Act in force until 1 January 2008 and of those in effect since 9 December 2009. On the evidence the MPRC decision and that of this Tribunal, is in accordance with both Clauses 6,7 and 8 of the first Guidelines and Clauses 7,8, 9 and 12 of those now current.
43. The Applicant has relied on the decision in Re Della Malva and The Medicare Participation Review Committee decision. The facts of that case are that the doctor had been interviewed by the Health Insurance Commission representatives concerning her billing practices. Following this review she did not render any accounts for services provided to her in-hospital patients between April and October 2002. On the advice of colleagues she then rendered accounts for the six month period with the help of her secretary, working through her patient records and those of the hospitals concerned but without reference to her personal diary. Dr Della Malva billed several patients for services (numbering 81) while she was absent from practice for a period of one week attending a medical conference. These services had attracted payment of $3,702.90 which Dr Della Malva repaid. In addition she repaid the Medicare component for 417 services delivered in this six month period despite there being no alleged wrong doing. Dr Della Malva pleaded guilty to the charges before a Magistrates Court and was discharged without conviction provided she be of good behaviour for a period of two years.
44. Dr Della Malva’s practice was unusual in that her practice profile was predominantly (60 per cent) elderly patients with complex medical problems and of non- English speaking Italian origin. Dr Della Malva spoke fluent Italian and was the only consultant physician in the area to do so. In January 2002 she had been hospitalised with a cervical disc prolapse, this occurring during the early weeks of her pregnancy. Her pregnancy was complicated with the threat of miscarriage and post delivery at the time when she estimated and rendered the accounts under consideration, she was taking analgesic medication (Capodex) that may cause sedation and impair alertness.
45. In Re Mukherjee and the MPRC as relied on by the Respondent, Dr Mukherjee attributed his billing for specialised services he had not provided, to the existence of a then undiagnosed mood disorder. Psychiatric evidence was to the effect that this was either depression fluctuating with hypomania (Dr Lal) or bipolar disorder (Dr Samuel). It had been argued that Dr Mukherjee was unable to distinguish honest from dishonest behaviour when depressed. However, independent psychiatric expert evidence was that periods of complete normalcy were frequently dispersed between the periods of abnormal mood. The MPRC had disqualified Dr Mukherjee from receiving Medicare benefits for three months following a guilty finding in the New South Wales local court. (The grounds of appeal to the Federal Court are not relevant to this decision).
46. There has been no suggestion that Dr Bajpe has experienced either physical or mental ill health. He has repeatedly given evidence at the end of a patient consultation he wrote the billing item number on a piece of paper for the patient to deliver to the reception staff. He claimed that he understood the Medicare billing requirements prior to his instruction by HIC investigators in early 2002 and has since refreshed his knowledge. Despite these claims he has stated his billing errors were due to inexperience, the fault of his staff and difficulties he experienced in interpreting the MBS definitions. The Tribunal Members’ find the MBS definitions and instructions quite clear and while English is not Dr Bajpe first language his understanding and use of English appears excellent.
47. Dr Bajpe maintains his innocence although he has accepted the conviction. He believes he has been adequately punished by adverse publicity and the County Court imposition of a fine. He did not show any remorse before this Tribunal.
48. The Tribunal agrees with Justice Cohen that at times Dr Bajpe’s billing practices, particularly in relation to care plans, suggested systematic fraud.
49. There is evidence derived from Dr Bajpe’s annual Medicare practice profiles (R4) that he has altered his practice both in service billing and the prescribing of s 8 drugs of addiction to align with standard general practice and this is to his credit. However the seriousness of the charges; the continuation of improper billing practices after being interviewed by HIC investigators; the maintenance of the argument that his transgressions were errors and not fraud for which he has already been punished and his evidence that he still delegates some of his responsibilities to clerical staff leads the Tribunal to determine that the MPRC decision should be affirmed as the correct and preferable decision.
50. Ms Butler has provided the Tribunal with the opinion that as a matter of statutory interpretation it is within the Tribunals’ powers to impose a sanction of counselling (s 124F(2)(b)) in conjunction with the disqualification sanction. There is no judicial authority on this matter. The Tribunal has determined that Dr Bajpe receive counselling in the form of further instructions in the use of the Medicare Benefit Schedule and his responsibilities pursuant to the privileges derived there from. Should we be wrong in our interpretation of the Act a strong recommendation for counselling would be appropriate.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan and Dr K Breen, MembersSigned: Dianne Eva.
ClerkDate of Hearing 17 February 2010
Date of Decision 1 April 2010
Solicitor for the Applicant Mr G Defteros, Defteros Lawyers
Solicitor for the Respondent Ms Natalie Butler, DLA Phillips Fox
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