Dixit and Minister for Health and Aged Care - [2001] AATA 452

DECISION AND REASONS FOR DECISION [2001] AATA 452

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1315

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AVADHESH DIXIT
  Applicant
           And    MINISTER FOR HEALTH AND AGED CARE
  Respondent

DECISION

Tribunal The Hon. C R Wright QC., (Deputy President)

Date28 May 2001
PlaceSydney

Decision The Tribunal affirms the decision under review and orders that the disqualification is to take effect on and from 25 June 2001.

[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Health – medical practitioner – disqualification from participating in Medicare – conviction for making false claims – whether disqualification period excessive – decision under review affirmed.
Health Insurance Act 1973 – ss.128B,124F
Haddad and Medicare Participation Review Committee (21 February 1995) 37 ALD 690
Edwards and Minister for Human Services Health and Medicare Participation Review Committee No. V95/1193, AAT No. 11030

REASONS FOR DECISION

28 May 2001 The Hon. C R Wright QC., (Deputy President)

Pursuant to s.29(1) of the Administrative Appeals Tribunal Act 1975 ("the Act") and s.124R of the Health Insurance Act 1973 ("the Health Act"), the applicant seeks a review of a determination made pursuant to s.124F(2)(e) of the Health Act by a Medicare Participation Review Committee ("the Committee").
On 17 July 2000 the Committee determined that the applicant be fully disqualified from professional participation in the Medicare Scheme for a period of 56 weeks commencing 1 September 2000. The applicant, Dr. Dixit, is a general medical practitioner having qualified in India in 1953 at King George Medical College in Lucknow. The applicant and his family migrated to Australia in 1970, and on arrival he worked for a few months at Parramatta Hospital, and then for approximately 3 years in a group general practice.
In 1973 the applicant started his own practice near Blacktown. The applicant is now 72 years of age. Until the events giving rise to the present proceedings occurred, the applicant was of good character and had never before been prosecuted for any offence under the Health Act or for any other offence of any nature whatsoever.
On 25 January 2000, the applicant appeared at the St. James Local Court in New South Wales charged with 20 offences under s.128B of the Health Act. He pleaded guilty to each offence and was duly convicted. A further 126 offences were taken into account under the enabling provisions of the Crimes Act. Section 128B of the Health Act provides for a penalty of a fine of $10,000 and/or imprisonment for 5 years upon the conviction of any person who knowingly makes a statement which is capable of being used in connection with a claim for benefit under the Health Act and which is false or misleading in a material particular. This section may be compared and contrasted with s.128A which provides for much more lenient penalties where any such statement is merely false, i.e. where it has not been made by the offender knowing of its falsity.
An offence under s.128B is triable summarily by consent if the presiding Magistrate considers it to be an appropriate course. In such circumstances the maximum penalty is a fine of $1,000 and/or imprisonment for a period of 6 months.
The applicant was sentenced to 4 months imprisonment, which was suspended upon his entering into recognisance in the sum of $5,000 to be of good behaviour for 2 years, he was also ordered to pay court costs. No order for reparation was made as he had already repaid $3,092.50 to the Health Insurance Commission before his trial. The sum of $3,092.50 represented the total sum, which he had unlawfully obtained by the Commission in respect of all of the 146 offences which were before the court at the time.
On 22 March 2000 a delegate of the Minister for Health and Aged Care referred the conviction of the applicant to D. I. Cassidy Q.C., who convened a Medicare Participation Review Committee which consisted of himself, Dr. John Ellard from the Minister's Panel, and Dr. Graeme Miller from the Australian Medical Association. The Committee conducted a careful investigation into the facts and circumstances giving rise to the applicant's convictions and made several observations in its written decision which have a bearing upon the present application to review.
The Committee said (inter alia):-
"The offences covered a period of 18 months, from 23 January 1997 to 17 July 1998.
Each involved direct bill claims by Dr. Dixit for benefits, which had been assigned to him by patients – bulk billing. The false statements were contained in the documents by which the doctor made claims for benefits assigned to him, known as batch headers, which contained representation that services had been provided.
To each of the 114 batch headers, the subject of an information, there were annexed a number of separate assignment forms.
178 of these assignments forms were false, in that the service alleged in them to have been performed had not been provided."
The Committee also observed that as it had a limited understanding of Dr. Dixit's modus operandi and of his motivation, they had explored these matters with the applicant. The applicant told the Committee that some claims which he considered genuine had been rejected by the Health Commission and as a consequence he was out of pocket, as some of these patients had used out of date Medicare cards. The Committee observed "he made the false claims to make up the losses", and then observed "the committee has real doubts about the genuineness of this explanation".
It appears from evidence given before the Committee that between 1987 and 1995 the applicant suffered from stenosis of a carotid artery, which had to be surgically cleared in December 1995. Before this was diagnosed and operated upon the applicant had several transient ischaemic attacks, which included three episodes of hemiparesis.
Reports by the operating surgeon and Dr. Lianos, a psychiatrist, were placed before the Committee. Dr. Lianos found the applicant to be confused, awkward, distracted and unable to volunteer information when he saw him in December 1999. Dr. Lianos was unable to come to a clear conclusion as to the criminal behaviour of the applicant from a psychiatric perspective. He observed that there had been an apparent change in the applicant's behaviour after his operation and he also said that there was, upon examination, a significant deficit in the applicant's attention, concentration and short-term memory. He continued:
"This can account for mild confusional states that would allow for emergence of unexpected and inexplicable behaviour. In addition to these mental state findings, there is the anxiety and depression/agitation that has been evident following his endarterectomy. My concern is that Dr. Dixit may have in fact suffered greater damage than is assessable in a clinical interview. It is not uncommon post-endarterectomy for there to be subtle personality changes that can only be detected by those that are most familiar with the person concerned."
The Committee accepted as being clear that there had been some deterioration in the applicant's mental function. The applicant is hypertensive but does not regularly take medication. He has an enlarged prostate and an elevated PSA.
The Committee also discussed the nature of the applicant's medical practice and observed that he is vocationally registered and most of his practice involves the provision of prescriptions to drug addicts, although there was no suggestion that the prescriptions were wrongly prescribed.     The Committee observed:
"He is very much a one-man practice.   He employs a receptionist for 1 hour per day.   The practice is not a large one and it is shrinking.   In round figures, for the quarter April-June1998, he provided 2,500 services to 900 patients.   In the quarter year January-March 2000, he provided 1,300 services to 500 patients.   Almost all his services have been for consultation with very few procedures, and those simple ones, 9 in the 1998 year and 18 in 1999 year (the 12 months April-March).
A matter which concerns the Committee greatly in these circumstances is the quality of Dr. Dixit's capacity to practice medicine.   Whilst recognising the long and honourable service that he has given to the community and the profession it feels compelled to take some action against him.   It sees no reason to depart from the range suggested by the Guidelines.   Since it is possible that the order made by the Committee may precipitate Dr. Dixit's retirement it will delay the operation of this decision beyond the usual 28 days to give him some time to make arrangements to dispose of, or to organise the continuation, of his practice."
At the hearing before the Tribunal, which occurred on Monday, 14 May 2001, the applicant was represented by Mr. Turnbull of counsel, and the respondent Minister by Mr. McKenzie of counsel.
Mr. Turnbull made it clear that it was not contended on behalf of his client that a disqualification should not have been imposed. He submitted rather that the disqualification imposed by the Committee was excessive and should not have exceeded 6 months in duration. In support of his submissions, Mr. Turnbull referred to two medical reports from Dr. Andrew Robertson, a consultant general and forensic psychiatrist, dated 14 November 2000 and from Dr. Ivan Lorentz, a consultant physician neurologist, dated 23 October 2000.
Each of these medical practitioners expressed the view that the applicant was currently fit to continue in medical practice. In addition, Dr. Robertson expressed the view that it was reasonable to suppose that following his carotid endarterectomy the applicant was apprehensive about further cerebro-vascular events and "He may have had some greater cognitive and affective disturbance at that time than is the case at the present". He continued "At my examination on 13 November 2000, he presented well. He certainly is not clinically depressed. He shows some very minor cognitive impairments, but his short-term memory is excellent, with regard to verbal memory, and his concentration and attention, as measured by the 'months of the year backward' test, are also excellent".
Mr. Turnbull submitted that his client's criminal activities had been motivated by neither "need" nor "greed". That "need" was not a motivating factor is clear enough. He was not in debt at the relevant time and was conducting two successful practices. He has a dependent wife, and four children ranging in age from 29 to 41 years. However they have long since ceased to be dependent upon him. He owns real estate from which he derives rental income. He owns the property from which he conducts his principal practice. Details of his assets and income were not forthcoming however, and although it is plain that he should not be grouped among the mega rich, he appears to be comfortably off, quite apart from the monies he derives as income from his medical practice. As to "greed" however, I think it is a different story. The attempt to provide a convincing explanation for his fraudulent misconduct based upon his medical condition and the psychiatric reports, is in my opinion unconvincing. The facts establish a consistent systematic and deliberate series of fraudulent transactions perpetrated on many occasions over a significant period of time.
He was prosecuted under s.128B, not 128A. The arguments advanced in Haddad v Medicare Participation Review Committee (21 February 1995) 37 ALD 690 could not be advanced in the present case. The present applicant pleaded guilty to knowingly making the fraudulent statements. On the material before me, I am in no doubt that he did.
The applicant was not called to give evidence at the hearing before the Tribunal and no oral or documentary evidence of any kind was introduced by either party, except the two medical reports which I have mentioned above. The case was essentially debated upon the 'T' documents and the submissions of counsel. It is for this reason that I have referred to the numerous comments of the Medicare Participation Review Committee whose findings of fact and observations were not seriously contested by the applicant, although Mr. Turnbull did submit that the Committee's observations at the end of paragraph 11 – "The fact that the Crown considered this to be a case appropriate to be dealt with summarily is a matter that would suggest that an order towards the bottom of the scale would be appropriate", was not adhered to by the Committee because it in fact imposed a much more substantial disqualification. As to this, I must say that with all respect to the Committee I do not see that the Crown's election to deal with a prosecution summarily, rather than upon indictment necessarily has any bearing upon the way in which the Medicare Participation Review Committee should deal with the significantly different issues that arise for its determination in proceedings under Part VB of the Health Insurance Act 1973. In other respects however, it appears to me that the Committee correctly identified and made proper determinations taking into account those matters which it was required to consider under the Health Act itself and the guidelines by the Minister dated 23 August 1991 made pursuant to s.124H(1) of the Health Act. It is also incumbent upon this Tribunal in determining the duration of any disqualification to be imposed upon the applicant to give recognition to those guidelines.
It was submitted by Mr. McKenzie and not disputed by Mr. Turnbull that the Tribunal should be satisfied that the applicable "presumption" under guideline No. 8(3) is that a disqualification period of not less than 6 months and not more than 18 months is appropriate. The range provided for in the guidelines is presumptive and not binding, but generally speaking the range provided should be accorded considerable respect.
Counsel for the applicant submitted that consistency of treatment is a primary consideration for the Tribunal in determining the appropriate length of any disqualification, and relied upon Edwards v Minister for Human Services Health and Medicare Participation Review Committee No. V95/1193, AAT No. 11030, as authority for this proposition.
It was accepted by the Tribunal in Edwards case that the principles expounded in Lowe v The Queen 1984, 58 ALJR 415, were applicable to the imposition of a penalty such as that presently being contemplated, as well as the imposition of criminal sanctions in a criminal court. However, the facts in Edwards were entirely different from the present case. In Edwards, a direct comparison was possible and, indeed, necessary between the behaviour of two medical practitioners who had been engaged in almost identical fraudulent activities in the same medical practice. But as has often been observed by courts of high authority, a mere difference between penalties does not warrant the conclusion that one is excessive or the other inadequate nor does it create for the individual with the more severe punishment, a justifiable sense of grievance.
Individual circumstances will frequently alter the penalties which should be applied in superficially similar cases. For example, there are obvious differences between the present case and that of Hadded. It should be noted that the purpose of disqualification from accessing the Medicare scheme is primarily intended as a mechanism for ensuring the efficient operation of the scheme rather than as a form of penalty or punishment simpliciter.
The researches of counsel were unable to reveal more than 5 cases involving disqualification from the Medicare scheme of medical practitioners who have come before the Administrative Appeals Tribunal during the last 13 years. This tends to indicate that these are fairly rare matters, and in my opinion to use 5 cases, some of which involved radically different facts from those under review, as a data base to provide a range within which the present penalty must fit or otherwise be condemned as excessive, is quite inappropriate.
It was submitted that if the applicant were prevented from practicing, many people in the area in which he practices would be substantially deprived of medical services. Without a full analysis of this submission, it is difficult to reach an affirmative conclusion upon the issue. Mr. Turnbull claimed that his client lives in a border area between Blacktown and Duneside, that most of his patients come from young socially and economically deprived families and from elderly pensioners. The practice is conducted about 2½ kilometres from the central business district of Blacktown. Mr. McKenzie claimed that there were quite a number of general practitioners in the Blacktown area, but was unable to state where these practices existed in relation to the applicant's principal place of business. Without more I simply have no proper foundation to make a finding of the kind which the applicant invites me to make.
I have read the written submissions of both parties with some care and I have also read the cases to which reference was made at the hearing. I can see no reason for departing from the views of the Committee and indeed would adopt the same as my own. I think the disqualification period imposed was entirely appropriate. Consequently the decision under review is affirmed.
Counsel agreed that if this should be the outcome, the implementation of the disqualification should be postponed for a period of 28 days to enable the applicant to make appropriate arrangements as to the conduct or disposition of his practices.   Accordingly, I order that the decision as to the applicant's disqualification is affirmed, but such disqualification is to take effect on and from Monday 25 June 2001.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C R Wright QC., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  14 May 2001
Date of Decision  28 May 2001
Counsel for the Applicant         Mr M Turnbull
Solicitor for the Applicant          Mark Turnbull & Co
Counsel for the Respondent    Mr C McKenzie
Solicitor for the Respondent    Phillips Fox