Bham and Medicare Participation Review Committee and Anor
[2002] AATA 768
•5 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 768
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/111
GENERAL ADMINISTRATIVE DIVISION )
Re AMEEN AHMED BHAM
Applicant
And MEDICARE PARTICIPATION REVIEW COMMITTEE
Respondent
And MINISTER FOR HEALTH AND AGEING
Party Joined
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Dr. P. Staer, Member
Date5 September 2002
PlacePerth
Decision The Tribunal varies the decision under review by reducing the period of disqualification from participation in the Medicare Scheme from 26 weeks to 3 months. The disqualification is to take effect 28 days after service of this decision on Dr Bham.
(Sgd) Joan Dwyer
Senior Member
HEALTH – Health professionals – medical practitioner – disqualification from participation in Medicare - conviction for making false claims - whether disqualification appropriate – Guidelines published by Minister – weight to be accorded to guidelines – presumptive maximum period of disqualification – factor to be considered in determining appropriate period of disqualification – decision varied
Health Insurance Act 1973 s 124F, 128A(1),
Minister for Human Services v Haddad (1995) 38 ALD 204
Re Edward and Minister for Human Services and Health and Medicare Participation Review committee (1996) 42 ALD 613
Re Markey and Minister for Human Services and Health and Medicare Participation Review Committee (1996) 42 ALD 90
REASONS FOR DECISION
5 September 2002 Mrs Joan Dwyer, Senior Member Dr. P. Staer, Member
This is an application under s124R of the Health Insurance Act 1973 ("the Act" for review of a decision of a Medicare Participation Review Committee ("the Committee") made under s 124F(2)(e) of the Act on 9 March 2001 (Tdocs pp6-8). The Committee disqualified Dr Bham from participation in the Medicare Scheme for 26 weeks. The determination of the Committee was to take effect 28 days after service on Dr Bham. Prior to that time, on 6 April 2001, Dr Bham applied to the AAT for review of the decision of the Committee and also sought a stay of that decision. A stay was granted by the AAT on 12 April 2000.
At the hearing Mr Shanahan of Counsel appeared for Dr Bham. Mr Macliver, General Counsel with the Australian Government Solicitor, appeared for the Party Joined, whose title is now The Minister for Health and Ageing. There was no appearance for the Committee. Dr Bham gave evidence. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
BACKGROUND FACTSDr Bham graduated in medicine in Burma in 1963 and passed examinations in London to become a Member of the Royal College of Pathology in 1972. In 1984 he became a Fellow of the Royal College of Pathology. He migrated to Australia in 1976. He started working as a pathologist in Australia in 1977. From 1977 to 1988 he conducted a pathology practice, under the name London Pathology, in Sydney.
Dr Bham said that he sold that practice to a Dr Khoosal in 1988. Dr Khoosal lived in Melbourne and attended at the practice once a week. He changed its name to Pathlab Diagnostics. Dr Bham continued to work in the practice together with two other pathologists and other staff. He said he was a salaried pathologist while working for Dr Khoosal, earning approximately $60 - 70,000 a year. In 1994 Dr Bham repurchased the practice from Dr Khoosal.
In December 1996 Dr Bham was convicted of 18 offences under s128A(1) of the Act which provides:
128A False statements relating to medicare benefits etc.
(1)A person shall not make, or authorise the making of, a statement (whether oral or in writing) that is:
(a)false or misleading in a material particular; and
(b)capable of being used in connection with a claim for a benefit or payment under this Act.
Penalty: $2,000.
The 18 offences in respect of which Dr Bham was convicted were each an offence constituted by Dr Bham signing a form to claim Medicare benefits for pathology services. It is commonly described as a "batch header". The pathologist signs a declaration claiming medicare benefits in respect of pathology services provided to patients. The evidence is that Medicare claims were "batched" in groups of 50. It was found by the Magistrate that on 18 batch header forms Dr Bham had claimed an entitlement to medicare benefits for HDL analysis of cholesterol, when he was not entitled to those benefits. There was no dispute about the fact that the analysis had in fact been performed. In some cases there was no entitlement to benefits because the referring general practitioner had not followed up a telephone request by making a written request for the test to be performed. Unless there is a written request a pathologist is not entitled to medicare benefits. In other situations the amount claimed should have been claimed at a lower rate because certain conditions precedent to claim the higher rate had not been satisfied.
The background to the 18 charges was explained in a statement of Mr Burnett a Senior Investigation Officer at pp69-75 of the T documents. Mr Burnett stated at paragraphs 13-18 and 26:
13.Should a treating practitioner require pathology tests to be done for 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 which tests 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.
14.On the 26 July, 1993 a notice under sub-section 23DK(3) of the Health Insurance Act was serviced [sic] on Doctor Bham. The notice requested the doctor to produce to the Health Insurance Commission certain written requests or written confirmations in respect of his claiming for item 66317, a test termed HDL cholesterol. The documents were required for audit purposes. Also delivered with the notice was a schedule of the particular requests to be supplied. . . .
15.The majority of the requests were delivered to the Commission the following day. Also delivered were the test results for the majority of the patients.
16.A check of the requests supplied against the schedule of patients revealed that 34 of the requests had not been supplied. On the 23 August, 1993 a letter was sent to Doctor Bham together with a list of the missing forms, seeking an explanation from him. . . .
17.On the 31 August, 1993 a reply was received from Doctor Bham. In the reply he stated he was forwarding a further 22 requests with the letter and set out how one other request was made out on another pathology company's stationery. He apologised for not being able to supply the remaining 11 requests. .. . .
18.The available requests were examined in detail and three separate areas of concern were identified.
. . .
26.The majority of Doctor Bham's work is bulk billed on Medicare as was the case with the claims for benefits in these matters. To make a claim in this manner, the claimant sends the Medicare 'assignment form' together with a covering 'claim for assigned benefits' form completed in the prescribed manner, to Medicare for payment. The covering form is also known as a 'batch header.' There could be up to one hundred forms in each batch. The 245 assignment forms submitted by Doctor Bham in these matters were contained in a total of 221 different batches.
Although Dr Bham was convicted in December 1996, the sentencing following the conviction was delayed until 6 April 1998 because of related proceedings commenced by Dr Bham. On 6 April 1998, he was fined a total of $9000, being $500 on each of the 18 offences.
It is clear from the Magistrate's remarks on sentencing that Dr Bham had been charged with more than 18 offences, but that evidence had only been called as to 18 of those offences. It is not clear in how many respects each of the 18 statements was false. Each of the 18 offences related to a batch header which covered one or more claims, for Medicare benefits to which the pathology provider was not entitled.
In his precis of the audit of Dr Bham, Mr Burnett, the Investigation Officer, wrote at T docs p 63:
The total amount of monies involved in the matters is not great as only a selection of claims submitted by the doctor were audited. In respect of the 141 claims where HDL was not requested and no written confirmation was forthcoming, $1,438.20 in benefits was paid. The other 104 claims are somewhat different as Doctor Bham was entitled to claim item 66201 for these. There is a $1.85 higher benefit for the HDL test. In total Doctor Bham was not entitled to $192.40 in respect of these claims. The monetary factor really is not a consideration, the submission of false claims is what should be looked at. As Mr Azize sets out in his advice, once charges have been laid, the action operates as a deterrent, both particular and general.
That passage must be read bearing in mind that Dr Bham's convictions do not cover all the 245 claims referred to by Mr Burnett. In paragraph 26 of his statement, set out at paragraph 7 of these reasons, Mr Burnett explained that the 245 assignment forms were in 221 different batches each with a batch header. Dr Bham was only charged in respect of 18 batchheaders in which he signed a false statement. Thus the total monetary effect of the false statements in respect of which he was convicted would have been considerably less than $1630.60. The amount was not stated in the material before us. The amounts wrongly claimed in the 18 statements which gave rise to charges and convictions were small. But the 18 false statements in respect of which Dr Bham was charged were representative, rather than the only false statements found on the audit.
The investigating officer further set out the basis of prosecution action as follows:
Section 16A(4) of the Health Insurance Act sets out:-
A request to or by an approved pathology practitioner for a pathology service is not effective for the purpose of subsection (3) unless the request is:-
(a)made in writing; or
(b)is made otherwise than in writing-confirmed in writing within the period of 14 days commencing on the day on which the request is made.
The fact that Doctor Bham did not produce any written confirmations in respect of the 141 claims for benefits in this category means that he was not entitled to claim and by doing so, has submitted claims that were false in a material particular and could be prosecuted under Section 128B of the Act. A prosecution under this section is further enhanced by sub-section 16A(5) of the Act which sets out:-
A request to or by an approved pathology practitioner for a pathology service that is made otherwise than in writing and is not confirmed in writing within the period referred to in paragraph (4)(b) shall be deemed, for the purpose of sub-section (3), never to have been made.
Following conviction the Minister gave notice of the convictions to the Committee as required pursuant to s 124D of the Act. The Committee conducted a hearing at which Dr Bham was present and gave evidence. The Committee delivered written reasons (T docs pp6-8).
The Committee seems to have overlooked the fact that Dr Bham was not convicted in respect of false statements in 221 batch headers covering 245 unauthorised claims, but only in respect of 18 offences covering 18 batch headers and thus far fewer claims.
The Committee concluded at paragraphs 14-19:
14. In his written submission to the Committee he [Dr Bham] appears to ascribe his offences to overwork and depression. This aspect was explored with him in the witness box. He claims to have worked, and still to work, extremely long hours. To the extent that overwork contributed to these offences it is no excuse. He claims to have cut down his work load. The practice profile which was before the Committee does not bear this out. In his first year in general practice he generated, from Medicare alone, $444,000.00, in 1998-99 $291,000.00 and in 1999-2000 $328,000.00. These are disturbing figures, putting him in the top 1% of general practitioners.
15. Dr Bham has had no treatment for his depression.
16. Dr Bham gave details of severe financial hardship. When he commenced to speak of this it appeared that this had had some part in his offences. He had become overextended and was having a cash flow problem. However this was probably not the impression he intended to give.
17. Contrition is a matter most important to the sentencing process in the Criminal Courts. It is, for a somewhat different reason, equally important to a professional disciplinary body. The function of this disciplinary body is to identify practitioners who cannot be trusted within the Medicare scheme and devise, within the parameters laid down by the Act and the guidelines, an appropriate order to ensure as far as prognostication will allow that the practitioner will observe the rules in future. Without genuine contrition of the part of the practitioner it is difficult to be satisfied that the practitioner will not offend again. Dr Bham's conduct convinces the Committee that he does not recognise the seriousness of his actions and is not to be trusted.
18. Where the offences which bring the practitioner before one of these Committees were committed over 7 years ago and there is no suggestion that the practitioner has offended in the intervening period it is often appropriate to deal leniently with the practitioner and not to disqualify him. This is not such a case. We do not know precisely when the informations were laid against Dr Bham but it was probably in the first half of 1994. The trial took place in April 1996. The delay thereafter is solely the result of the actions of Dr Bham.
19. The Committee is satisfied that a period of disqualification is required. The guidelines provided to us by a previous Minister suggest that in these circumstances a period of up to six months would be appropriate. We are entitled to go outside this parameter if we consider that the circumstances justify it. We do not propose to do so.
The Committee imposed a disqualification from participation in the Medicare Scheme for 26 weeks.
RELEVANT LEGISLATIVE PROVISIONS
The powers of the Tribunal on review are the same as the powers of the Committee. They are set out in s 124F of the Act as follows.
124F Determinations in relation to relevant offences
(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 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 following:
(i)the provision of specified professional services, or the provision of professional services other than specified professional services;
(ii)the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons;
(iii)the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or
(e)the practitioner is fully disqualified.
(3)In making a determination under subsection (2) in relation to a practitioner, a Committee shall:
(a)without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:
(i)each relevant offence of which the practitioner has been convicted; and
(ii)each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and
(b) comply with guidelines in force under section 124H.
(4)A determination under subsection (2) shall be made in writing.
(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.
APPLICATION OF THE RELEVANT LEGISLATION
The first issue raised by Mr Shanahan concerned s 124F(3)(a)(i). Mr Shanahan submitted that the Tribunal was obliged to consider "the nature and the circumstances concerning the commission of each relevant offence of which the practitioner has been convicted", but was not entitled to consider other offences which Dr Bham may have committed, but of which he had not been convicted.
The Committee at paragraph 11 of its reasons said:
11. Dr Bham's offences were committed between 4 January 1992 and 17 May 1993. Dr Bham had been requested to provide his records relating to 820 patients between 1 January 1992 and 31 May 1993. These patients had been randomly selected. It is thus apparent that the convictions may not represent all the false claims. Their measure could be calculated, at least approximately, by multiplying the numbers set out above by the ratio which the total number of Dr Bham's claims for the relevant item over the 17 month period bears to the 820 services which were selected. During this period there were approximately 12,831 Item 66317 claims. Thus there would have been about 2,230 claims in the first category and 1,659 in the second. The total overpayments would have been of the order of $25,000.000.
Mr Shanahan submitted at paragraphs 10 -13 of the applicant's submissions:
10.In the proceedings which lead to his 18 conviction under section 128A the Applicant had another 170 charges against him which were either withdrawn or dismissed. These charges are not "relevant offences" under section 124B of the Act. It is only in relation to "relevant offences" that a Committee is authorised to make determinations under section 124F:-
(1)Subject to subsections 124J(8) and 124T(3), a Committee established under section 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 that is the subject of a notice under section 124D and has not been the subject of a previous determination by the Committee.
11.Unsubstantiated allegations cannot lawfully be the subject of a notice under section 124D(2) of the Act, nor can they be the subject of a determination under section 124F of the Act. Therefore such allegations cannot lawfully be the subject of proceedings by a Medicare Participation Review Committee, and, consequently, evidence of such allegations is irrelevant to the proceedings of a Medicare Participation Review Committee and should neither be admitted nor considered.
12.Where a Medicare Participation Review Committee considers such unsubstantiated allegations it acts outside the jurisdiction conferred on it under the Act.
13.Equally, if such a Medicare Participation Review Committee extrapolates from a practitioner's conviction of "relevant offences", such as the 18 offences of which the Applicant was convicted, that he or she must necessarily have committed further offences, despite such further allegations never having been alleged or proven in an appropriate criminal court, the Committee acts outside the jurisdiction conferred on it under the Act. Such unsubstantiated allegations cannot lawfully be the subject of a notice under section 124D(2) of the Act, nor can they be the subject of a determination under section 124F of the Act.
We accept those submissions as correct. The Act specifies the offences to which the Committee and the Tribunal may have regard. They are limited to "relevant offence[s] of which the practitioner has been convicted", as set out it in s 124F(3) (a) (i) and (ii). There are no offences falling within the description in s 124F(3)(a)(ii). As to s 124F(3)(a)(i), there are two errors in the Committee's approach. First, it is not appropriate to do a calculation as to how many other similar offences may have been committed, if the statistical rate of false statements overall was the same as in the sample selected for random audit by the Health Insurance Commission. Secondly the Committee seems to have overlooked the fact that Dr Bham was not convicted in relation to all the 245 matters covered by 221 batch headers. He was not convicted of any offences other than the 18 in respect of which he was sentenced on 6 April 1988. So far as the evidence reveals they are the only offences "of which the practitioner has been convicted" and are thus the only offences to which the Committee and the Tribunal are directed have regard by s 124F(3) of the Act.
It is true that s 124F(3)(a) specifically states that it does not limit "the generality of the matters to which [the Committee] may have regard". Mr MacIiver agreed that only matters as to which there has been a conviction are covered by s 124F(3)(a)(i) and (ii), but he seemed to be suggesting that the Committee was entitled to take into account other matters such as false statements that it suspected Dr Bham may have made as part of "the generality of matters", relevant to the commission of the offences. We do not accept that submission in so far as it purports to allow false statements which may possibly have been made to be treated as offences in respect of which Dr Bham was convicted. He was convicted in respect of 18 offences. Those offences did not involve obtaining $1630.60 by way of Medicare benefits. They covered a lower, but unspecified amount. Nor did they involve "overpayments . . . of the order of $25,000.00" (paragraph 11 of reasons of the Committee).
We must however consider "the nature of, and the circumstances concerning the commission of" those 18 offences. The nature of the offences is that they were representative offences. They do not result from special circumstances such as, for instance, ill-health or a temporary absence of an administrative person in the practice who would normally have performed preliminary checks to see that the documents were all in order. Nor did Dr Bham claim that there was any reason why his checking of statements he signed was less rigorous on the 18 occasions in respect of which he was convicted, than it would have been on other occasions.
The Full Court of the Federal Court in Minister for Human Services v Haddad (1995) 38 ALD 204 at pp 210-211 considered the meaning to be given to the requirement in s124F(3)(a) that "regard be had to the circumstances concerning the commission of each relevant offence of which the practitioner has been convicted". The Full Court held that knowledge of the falsity of statements made was a matter to which regard was to be had, even where the practitioner was not charged with an offence requiring such knowledge. The Full Court thus indicated that the concept of "the circumstances concerning the commission of the relevant offence", was not to be narrowly construed. Applying that approach to the facts of this matter we consider that it is appropriate to bear in mind that these were not isolated incidents and that there were other similar fact situations brought to attention by the audit. We also bear in mind that the matters in respect of which Dr Bham was charged were a 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 to be forwarded to Medicare.
We have accepted Mr Shanahan's submission, that it is not appropriate to do a calculation of the likely amounts by which Medicare was over charged as a result of matters which did not give rise to convictions. However it is a different matter to bear in mind that the matters in respect of which charges were laid were not isolated instances. The evidence as to the circumstances concerning the commission of the relevant offences is that they were a result of an administrative failure in the way in which records were checked and accounts were sent to Medicare. The fact that the audit revealed other similar circumstances does establish that there was inadequate supervision of the preparation of accounts to be sent to Medicare, and that Dr Bham failed to satisfy himself that the statements he signed were correct.
The Committee in paragraph 17 (i) of its reasons concluded that Dr Bham's conduct established "that he does not recognise the seriousness of his actions and is not to be trusted". It is not clear to us what was the evidentiary basis for that finding. Dr Bham explained in evidence the procedures in place at the time for preparing accounts. He did not seem to deny the seriousness of the failures of the system or his own mistakes. He gave evidence that the systems had been changed once the audit revealed the problems which gave rise to the charges.
It was Dr Bham's evidence that as he was nothing more than a salaried pathologist while working for Dr Khoosal, he derived no personal financial gain from the overcharging. We gave leave to Dr Bham to provide confirmation by producing tax returns as to the salary arrangement he had while he was working for Dr Khoosal. We have not received any further evidence as to that matter. However as Dr Bham's evidence on the issue was not contradicted, we have decided to accept that evidence. But even though Dr Bham was an employee of Dr Khoosal at the relevant time, he had responsibilities as an Approved Pathology Provider (APP). We find that he did not exercise those responsibilities in a careful and thorough manner. That in our opinion is a serious circumstance concerning the commission of the relevant offences of which Dr Bham was convicted.
Section 124F(3)(b) requires the Committee to "comply with guidelines in force under section 124H". Those are the guidelines to which the Committee referred in stating that it did not propose to go outside the "parameter" of a period of up to six months, and in then imposing that maximum period of disqualification. The Tribunal in reviewing the decision of the Committee must also comply with the guidelines.
THE GUIDELINESThe Full Court of the Federal Court in Haddad explained the role of the guidelines at pp211-213. Before considering that explanation it is appropriate to set out the guidelines so far as relevant to this matter. They provide as follows:
Compliance with Guidelines
2. In making determinations under sub-sections 124F(2) and 124G(2) of the Act in relation to a relevant offence, or relevant offences, the subject of a notice under section 124D of the Act, a Committee is required to have regard to the matters and comply with the directions set out in Parts II and III respectively of these Guidelines,
Exercise of powers under the Act3.(1) Nothing in these Guidelines shall be read as limiting the powers conferred by the Act on a Committee.
(2) Nothing in these Guidelines shall be read as limiting the capacity of a Committee to take into account, in making a determination, matters the Committee considers relevant to the making of the determination, being matters not dealt with in these Guidelines.
4. Subject to these Guidelines, a Committee established in relation to a practitioner may, for the purposes of:
(1) making a determination under sub-section 124F(2); or
(2) considering whether to make a determination under subsection 124G(2) that no action should be taken against a practitioner, inform itself on any matter in such manner as it considers appropriate.
5. The Committee shall bear in mind that its consideration under these Guidelines of any relevant offence dealt with by a court shall not extend to a review of the decision of the court in relation to that offence.
PART II - MATTERS RELEVANT TO DETERMINATIONS UNDER SUBSECTION 124F(2)6. In making a determination under sub-section 124F(2) of the Act in relation to a conviction of a relevant offence or relevant offences, the subject of a notice under section 124D of the Act, a Committee shall have regard to the following matters:
(1) the nature, and circumstances concerning the commission, of such relevant offence or offences, including:
(i) the number of such relevant offences;
(ii) the date of commission of each such relevant offence;
(iii) the seriousness of each such relevant offence;
(iv) the penalty, if any, imposed by the court upon the practitioner in respect of each such relevant offence;
(v) the reasons for decision and any other statements made by the court in relation to its consideration of each such relevant offence.
. . .
The Full Court of the Federal Court said in Haddad at pp211-213:
Under s 124H the minister has power to make guidelines to be applied by committees with respect to the making of determinations.
The guidelines in the present case have been made by the minister "to be applied" by committees in the making of determinations. The schedule in which the guidelines are set out describes them as "Guidelines to be Applied".
. . .
While the guidelines are not to be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903 (Cth), nevertheless certain provisions of that Act apply in relation to the guidelines as they apply to statutory rules.
Accordingly, the guidelines in the present case are to be regarded as having the same binding force as the statutory rule. Although they are referred to as "guidelines" they can more properly be described as rules which in fact circumscribe the discretion which the authority has, to use the language of Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 301; 36 ALD 1 at 13.
The guidelines are not mere internal policy directives drawn up within the department to assist staff in the implementation of general policy, nor are they in the nature of administrative rulings.
The real issue in the present case is not whether the guidelines are binding or have legislative force, but rather what their effect is, on their true construction and what they require the committee to do when making a determination under s 124F.
Clause 2 requires the committee to have "regard to the matters and comply with the directions" set out in the guidelines.
Clause 3 states that nothing in the guidelines will be taken to limit the powers conferred by the Act on a committee. Further, nothing in the guidelines is to be read to limit the capacity of the committee to take into account matters that the committee considers relevant to the making of the determination, being matters not dealt with in the guidelines.
Clause 5 makes it clear that when considering a relevant offence under the guidelines, which has been dealt with by a court, the committee shall not be entitled to review the decision of the court in relation to that offence.
Under cl 6, in making a determination in relation to a conviction of a relevant offence, the committee must have regard, among other things, to the nature and circumstances concerning the commission of the relevant offence including the seriousness of each relevant offence and any statements made by the court in relation to its consideration of a relevant offence.
In the present case the magistrate included in his remarks on sentence, a statement that the defendant ''well knew what the situation was and obviously knew what he was doing ''.
Under cl 7, in making a determination, a committee must have regard to certain matters such as the length of time the practitioner has been in active professional practice; the effect that a determination might have on the practitioner and on the practitioner's patients and the community in which he practises, together with "any other matters which the Committee considers relevant".
The presumption as to the limitation on the period of disqualification is framed as a presumption which the committee shall have regard to. It is not stated that the committee is bound to apply that time limit on disqualification. Thus, the period of 6 months is a "presumption" which is rebuttable. Accordingly, on its ordinary meaning, it is a prima facie period which may be varied if the committee thinks it appropriate after having regard to other relevant matters. What it means is that the committee begins with the presumption that the maximum 6 month period applies, but other evidence, circumstances and matters may outweigh it to justify the imposition of a longer period. The weight of particular considerations is a matter for the committee.Guideline 6 contains a list of matters as to the nature and circumstances concerning the commission of the relevant offence to which a Committee shall have regard in making a determination under s 124F(2). In compliance with that guideline we note:
(i)the number of relevant offences is 18;
(ii)the dates of commission as set out at T docs pp53-54 are as follows:
9.2.93, 17.2.93, 1.3.93, 6.3.93, 22.3.93, 23.3.94 (sic), 2.4.93, 3.4.93, 7.4.93, 19.4.93, 21.4.93, 22.4.93, 30.4.93, 8.5.93, 10.5.93, 11.5.93, 17.5.93.
(iii)there is no evidence as to the seriousness of each relevant offence, in the sense of the amount of money involved, save for the matters already set out in paragraphs 6 to 14 of these reasons. There is also an element of seriousness in that the convictions reveal a systemic failure and a lack of appropriate care in checking claims for Medicare benefits before signing a declaration;
(iv)the penalty imposed by the Magistrate was $500 in respect of each relevant offence, making a total of $9000.00
(v)the Magistrate said very little as to his consideration of the appropriate penalty for each offence (R1). He stated (R1 p5):
These have been matters that have been before me for a very lengthy hearing and they are matters where the defendant took a view in relation to the regulations that benefited himself substantially in relation to the way he conducted his practice and it seems to me that therefore any exercise of any discretion is also not an appropriate exercise. True it is that the defendant may have a prior good record but the fact is that he was before me in relation to a considerable number of matters, 18 of which I have found proven, so it seems to me I should proceed by way of fine. Is there anything further either of you want to say?
ANGELOVSKI: No that's all, your Worship.
BENCH: In each case I will take into account the prior good record but of course these matters are matters that came to light and were, as I understand it, the result of some order and therefore representative of what happened over a number of months in 1993 basically. It was a continuing offence. The defendant continued to take an attitude in relation to the rules that best suited him to make a profit really, so therefore it seems to me that whilst imposing a fine, and I think that's an appropriate way to proceed, I must take into account the prior years of good character and I will do that.
IN EACH CASE THE DEFENDANT IS CONVICTED AND IN EACH CASE FINED $500 IN EACH OF THE 18 MATTERS, THAT IS, AS I UNDERSTAND IT, A TOTAL OF $9,000.It seems that the Magistrate had not been told that Dr Bham was a salaried pathologist employed on a fixed salary. On the evidence before the Tribunal that was the situation. If that is so, Dr Bham's view of the regulations, or his carelessness about compliance with the regulations, did not benefit him substantially, but rather benefited Dr Khoosal. We must say if the evidence Dr Bham gave to us, that he was a salaried employee, was accurate, we are surprised that he did not give similar evidence to the Magistrate. He was convicted of the offences in December 1996. If he had been a salaried employee in 1993 when the offences occurred we cannot understand why he did not say so in his evidence. That would surely have been an appropriate matter for the Magistrate to take into account in fixing penalty.
Guideline 7 directs the Committee to consider each of the matters specified in guideline 7 when making a determination under s 124F(2). We will now proceed with that task.
7(1) the length of time Dr Bham has been in active professional practice as a practitionerDr Bham on the evidence graduated in Burma in 1963 and passed examinations in his speciality in London in 1972. However we consider it is his practice in Australia as a general practitioner and pathologist since 1976 or 1977 which is more relevant. So far as the evidence reveals Dr Bham practised first as a general practitioner and then as a pathologist for approximately 16 years without problems as to his professional skills or as to Medicare, until the 1993 audit.
7(2) the effect that any particular determination . . . would have in relation to Dr BhamTo take this matter into account it is necessary to consider Dr Bham's current practice as a medical practitioner. He ceased to practice as a pathologist in 1997. He said this was because his marriage broke down and because he lost the practice due to financial problems. He said he then moved from Sydney to Canberra where he started working for a general practitioner on the basis that he was entitled to a percentage of the fees he earned. Once again financial problems arose and in September 1998 he moved to Perth.
Dr Bham has worked for many different Perth general practices. The T documents included letters in support of Dr Bham from Dr Hawkins and Dr Edelman for whom Dr Bham was working as at November 2000. Their references at T docs pp224 and 225 are both extremely positive. They appear to be in direct conflict with the Committee's finding that Dr Bham was not to be trusted. The Tribunal indicated to Dr Bham that it would find evidence from his employers to be relevant to the matters the Tribunal would be considering under Guideline 7(3). It was told that Dr Bham no longer works for either of those practices. He now works in four different general practices and works seven days a week and some evenings.
We have some concern about the hours Dr Bham said he currently worked. There was material in the T documents (p226) and in exhibit R2 showing that Dr Bham's payments from Medicare were very high, and in the year 2001 amongst the top 1% in Australia. He explained that by saying he was working very long hours because he still has some debts and because, since his marriage has broken up, work is his main interest in life. Any period of full disqualification from participation in the Medicare scheme would affect Dr Bham's earnings, as the only medical work he could perform would be working as a salaried government doctor or work such as writing medico-legal reports, and there is no evidence that such work would be available to him. On the other hand disqualification from participating in the Medicare scheme as a pathologist only, would have no effect at all on Dr Bham. The potential loss of income and the loss of his main interest in life are matters we take into account under guideline 7(2).
7(3) The effect of any period of disqualification on Dr Bham's patients and/or the community in which he practices, in respect of the provision and quality of medical servicesThere was no evidence from anyone other than Dr Bham as to the nature and quality of the medical services he currently provides. Mr Macliver submitted that the fact that he currently works on a sessional basis at a number of different practices means that no one practice would have to bear the whole loss of Dr Bham's services during any period of suspension. We accept that as a relevant factor. This was not a matter like Re Markey and Minister for Human Services and Health and Medicare Participation Review Committee (1996) 42 ALD 90 where there was evidence that Dr Markey was building up his own sole practice and a period of disqualification would mean the loss of recently acquired patients.
Nor was there evidence that Dr Bham works in an area of special need either culturally or geographically. In Re Edward and Minister for Human Services and Health and Medicare Participation Review Committee (1996) 42 ALD 613, there was evidence of great difficulty attracting doctors to Churchill to the extent that the applicant and the only other doctors in full-time practice had all been recruited from the United Kingdom. We agree with the Tribunal in Re Edwards that in those circumstances the adverse effect on the community of Churchill as a result of a significant period of suspension was a weighty factor. There is no similar evidence in this matter.
Dr Bham in his evidence to the Committee (Tdocs pp282-286) said that he had a large following at the practice where Dr Edelman worked. He also said he did counselling for depressed patients and was successful in that. He told the Committee (Tdocs p285) and this Tribunal that most of his patients come especially to see him. We agree with the comments of the Committee to the effect that the statistics do not support that assertion. They show that in the year 2001 Dr Bham provided 15,978 Medicare rebated services to 9,671 patients, a ratio of only 1.65 services per patient (R2). The statistics also show that only 265 of 9,671 patients were seen more than 5 times in the year. Further the analysis at Tdocs p226 showed that in every year from 1997 to 2001, the vast majority of Dr Bham's consultations were item 53 consultations, which as mentioned by the Tribunal during the hearing applies to consultations lasting from 5 to 25 minutes. That would not allow for any in depth counselling.
Dr Bham's evidence, as already mentioned, appeared to be supported by the letters of Dr Hawkins and Dr Edelman. Dr Hawkins pointed out that Dr Bham saw patients out of hours and at weekends which is convenient to working people and wrote that the standard of his care was consistently high. Dr Edelman wrote that "a large percentage of his practice load [was] patients who see him on an ongoing basis". That is not supported by the statistics to which we have referred.
We find that the hours Dr Bham works in the evenings and weekends are an advantage to working people, but there was no evidence that other doctors are not also prepared to work those hours.
length of period of disqualification under s 124F(2)The Guidelines at paragraph 8 set out presumptions as to length of disqualification to which the Committee, and this Tribunal, shall have regard, if they are of the opinion that "some action should be taken in respect of the practitioner". Guideline 8 does not assist in determining when that action should be in the form of counselling or a reprimand and when it should be some form of disqualification, but it does provide presumptive periods of maximum disqualification.
For the first occasion on which a practitioner is convicted, where the relevant offence or offences are under s 128A of the Act, namely making a false statement, but are not indictable offences of knowingly making a false statement under s 128B of the Act, the presumption set out in the Guideline is that "disqualification for a period of not more than 6 months would be appropriate". Thus six months is suggested as the maximum period of disqualification, unless there is some reason to go beyond the presumptions in the Guidelines.
The Committee decided there was no reason to fix a greater period of disqualification than the presumed maximum, but it did not explain why it chose the maximum, save to point to a perceived lack of contrition as evidenced by the conduct of Dr Bham. It is not clear to which aspect of Dr Bham's conduct the Committee was referring.
We consider that a disqualification period is appropriate. We are not looking at an isolated instance or an inexperienced practitioner. None of the factors in Guidelines 6 or 7 pointed to disqualification not being appropriate in this matter. As to the length, of the disqualification, it is relevant to consider the matters in Guidelines 6 and 7. Under Guideline 7(4) we also propose to consider:
(i)the role of disqualification as a deterrent to prevent the commission of future offences by Dr Bham or other practitioners;
(ii)the gain to Dr Bham as a result of the offences;
(iii)Dr Bham's health;
(iv)any mitigating factors.
The matters in Guideline 6 do not point to any one period of disqualification as being appropriate. As we have said the offences are not isolated aberrations which might perhaps point to a lower than usual period of disqualification. Neither is there clear evidence of intentional fraud on Medicare. There are a number of offences and there is no reason to believe that they are the only false statements actually made. The evidence does not point to the conduct of Dr Bham or the system of preparation of claims at the practice being any different on the specified occasions than on other occasions. The flaws were inherent in the administrative system of the practice and in Dr Bham's somewhat cursory checking of claims. The amounts of overclaimed were small, but they were only representative. The penalty imposed by the Magistrate was 25% of the maximum penalty, but there were 18 offences in respect of which that penalty was imposed.
As to Guideline 7 (1) to (3) there was nothing urged on us which persuaded us that it would be unjust to impose a disqualification on Dr Bham. He did practice for many years before these problems were discovered. He does have some debts, but he has been earning very well over the years 1997-2001. There is no evidence that satisfies us that the effect of a disqualification would so disadvantage his patients that a disqualification should be very short.
As to Guideline 7(4) we do consider it appropriate to bear in mind the deterrent effect of a period of disqualification on Dr Bham in particular and on practitioners in general. Dr Bham did recognise his errors and his fault in not checking carefully, but we had the impression that the volume of services he is now providing is so great as once again to not provide adequate time for checking his own compliance with Medicare procedures. The Tribunal is of the view that only a period of some months disqualification will impress upon Dr Bham the need for compliance rather than shortcuts.
Dr Bham said his health is now good.
There are however two mitigating factors which the Tribunal does consider relevant. The first is Dr Bham's evidence on oath that he did not gain personally from the overcharging. The second is the fact that he has ceased to practice as a pathologist. We note that at the sentencing hearing, Mr Shoulder who appeared for the Health Insurance Commission, said that the HIC was taking action to stop Dr Bham working as a pathologist. He added (R2 p3), "He still has his medical licence and I understand is working as a doctor". As Dr Bham has ceased work as a pathologist there is no point in disqualifying him under s 124F(2) in respect of the provision of pathology services. To disqualify him in respect of any participation in the Medicare Scheme may well mean that for that period he will be unable to earn an income as a doctor.
Taking all these matters into account the Tribunal has decided that a disqualification from participation in the Medicare scheme for three months, being half the presumed maximum period under Guideline 8 is appropriate.
The decision under review will be varied by reducing the period of disqualification from 26 weeks to 3 months. The disqualification is to take effect 28 days after service of this decision on Dr Bham.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Dr P Staer, Member
Signed: Grace Carney
AssociateDate/s of Hearing 13 August 2002
Date of Decision 5 September 2002
Counsel for the Applicant Mr Shanahan
Solicitor for the Applicant Butcher Paull & Calder
Counsel for the Respondent Mr Macliver
Solicitor for the Respondent Australian Government Solicitor
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