MEDICAL BOARD OF AUSTRALIA and PANEGYRES - [2017] WASAT 146

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION: MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS H LESLIE (MEMBER)
DR K JEFFRIES (SENIOR SESSIONAL MEMBER)

HEARD: 15 TO 19 MAY AND 19 TO 20 JUNE 2017

DELIVERED : 21 NOVEMBER 2017

FILE NO/S: VR 102 of 2015

BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
PETER KONSTANTINOS PANEGYRES
Respondent

Catchwords:

Medical practitioner - Disciplinary matters - Unprofessional conduct - Professional misconduct - Charging patient for services not provided - Charging patient for services not clinically indicated - Charging for services where no clinical notes - Charging Medicare Australia for services - Code of Conduct for doctors in Australia - Capacity of patient to make decisions concerning his estate - Conduct substantially below standard reasonably expected of a health practitioner of an equivalent level of training or experience

Legislation:

Guardianship and Administration Act 1990 (WA)
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 31, s 35, s 39
State Administrative Tribunal Act 2004 (WA), s 32

Result:

Practitioner guilty of professional misconduct

Summary of Tribunal's decision:

This matter concerns a referral by the Medical Board of Australia to the Tribunal alleging that a medical practitioner, Peter Konstantinos Panegyres, is guilty of professional misconduct arising from his treatment of a patient, KW. In particular, the Board alleged that the practitioner charged his patient for consultations which did not occur or, failing such a finding by the Tribunal, that he charged for services which were not clinically indicated or necessary for the patient's wellbeing.
The Board also alleged that the practitioner is guilty of professional misconduct arising from his failure to obtain appropriate consent in respect of the practitioner's fee arrangements once an administrator had been appointed for KW during the course of his admission, as well as charging Medicare Australia for services for which the practitioner was not entitled to charge and for unnecessary services provided to the patient.
The Tribunal concluded that there was insufficient evidence to support a finding that the practitioner had charged the patient for services that he did not provide. The Tribunal dismissed that allegation.
However, the Tribunal found that the practitioner had provided and charged for medical services for the patient which were not clinically indicated and which were not reasonably required for the patient's wellbeing. The practitioner could not produce clinical notes to explain the need for those services.
Further, the Tribunal found that the practitioner had charged Medicare Australia for those services when he was not entitled to do so.
The Tribunal also found that the practitioner should have, but did not, obtain the consent of the patient's administrator to the terms and conditions of the patient's treatment, even though the practitioner knew that the patient did not have the capacity to make those decisions himself. Further the Tribunal found that the practitioner had charged Medicare Australia for other services for which the practitioner was not entitled to charge.
The Tribunal considered that in so doing the practitioner's conduct fell substantially below the standards expected of doctors by their professional peers and the community.
The Tribunal therefore concluded that the practitioner was guilty of professional misconduct.

Category: B

Representation:

Counsel:

Applicant: Ms B Mangan
Respondent: Mr P Morris SC

Solicitors:

Applicant: Panetta McGrath Lawyers
Respondent: Clayton Utz

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Dekker v Medical Board of Australia [2014] WASCA 216
Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113
Hewett v Medical Board of Australia [2004] WASCA 170
Jones v Dunkel (1959) 101 CLR 298
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Medical Board of Australia and Woollard [2012] WASAT 209
NOM v Director of Public Prosecutions (2012) 38 VR 618
Qidwai v Brown [1984] 1 NSWLR 100
Rejfek v McElroy (1965) 112 CLR 517
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Medical Board of Australia (Board) is established by s 31 of the Health Practitioner Regulation National Law (Western Australia), (National Law) which is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The Board has the functions referred to in s 35 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
This matter comes before the Tribunal by way of an application by the Board filed on 28 May 2015 (Application). The Board then filed an amended application on 10 October 2016 (AA).
The respondent's response to the AA is dated 3 November 2016 (AR).
The application relates to the treatment by the respondent (practitioner) of KW, while KW was a patient at the Joondalup Health Campus (JHC). The Board alleges that the practitioner is guilty of professional misconduct as defined in the National Law.
The matters referred to the Tribunal are summarised in para 6 of the Board's written opening submissions dated 1 May 2017 (Applicant's Opening Submissions) as:
a)charging for services not provided;
b)charging excessively;
c)excessive provision of services;
d)failure to keep records;
e)failure to obtain consent from the Public Trustee to the fees charged;
f)acting in a manner contrary to the Conduct Code (as defined later in these reasons); and
g)charging Medicare Australia for services for which he was not entitled to charge.
The matter proceeded to a number of directions hearings and was mediated on 29 October 2015 and 14 December 2015. The applicant filed its bundles of documents in April 2016, November 2016 and May 2017 and the respondent filed its bundle in November 2016. The parties also filed a number of witness statements, including the statement of the practitioner dated 28 February 2017.
The matter was heard between 15 and 19 May 2017 inclusive and then on a further two days on 19 and 20 June 2017. At the conclusion of the hearing on 20 June 2017, the Tribunal's decision was reserved.

The Board's allegations in detail

The Board alleges that the practitioner has behaved in a way that constitutes professional misconduct as defined in s 5 of the National Law in that he has engaged in:
a)unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and/or
b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
(AA para 23(a) and (b)).
In AA at para 23, the Board then sets out the particulars of the alleged professional misconduct. For ease of reference, in these reasons, we will refer to the allegations by the numbers one to seven as set out below.

Allegation One excessive provision of services

The Board alleges that the provision of services to KW on 78 occasions (although the Board disputes, in Allegation Three, that the practitioner did in fact provide that number of services to KW) over an 87 day period (during which the practitioner was on leave for 14 days) was not clinically indicated, and so was excessive, unreasonable or otherwise not reasonably required for KW's wellbeing, in the circumstances which were that during this period:
i)it was clinically indicated and so necessary or reasonable for the practitioner to review or have consultations with KW no more than 23 times per week;
ii)KW's condition was generally stable; and
iii)KW was receiving comprehensive and regular medical and allied medical care from the JHC medical staff.
(AA para 23(c)).

Allegation Two failure to keep records

The Board alleges that the practitioner failed to keep any or any adequate records or contemporaneous records of the services provided by him to KW including the nature of those services (AA para 23(d)).

Allegation Three charging for services not provided

The Board says in AA at para 23(e) that Allegation Three is in the alternative to Allegation Two.
The Board alleges that the practitioner charged KW for services that he did not provide to KW (AA para 23(e)).

Allegation Four charging excessively

The Board alleges that the practitioner charged KW excessively and in excess of the amounts in the Australian Medical Association (AMA) List of Medical Services and Fees for costing assistance and guidance for services (AMA List) during 27 November 2012 to 21 February 2013 inclusive, 87 days in total, when he did not have KW's consent (or the consent of the Public Trustee or Public Advocate from 22 January 2013) to being charged these amounts or amounts in excess of the amounts in the AMA List.
The practitioner charged KW:
i)a total of $25,265.10 for services during 27 November 2012 to 21 February 2013 inclusive, when the amounts in the AMA List for those services totalled $11,135;
ii)excessively for individual attendances;
iii)so that he failed to adopt a 'step down' schedule of billing and charge a lower fee after an initial period in hospital.
(AA para 23(f)).

Allegation Five failure to obtain consent from the Public Trustee to the fees charged

The Board alleges that the practitioner failed to seek and obtain consent from the Public Trustee about the fees charged and to be charged by him for KW's medical treatment following the appointment of the Public Trustee as KW's plenary administrator of the estate of KW on 22 January 2013 (AA para 23(g)).

Allegation Six acting in a manner contrary to the Conduct Code

The Board alleges that the practitioner acted in a manner contrary to Good Medical Practice: A Code of Conduct for Doctors in Australia published by the Board under s 39 of the National Law (Conduct Code) in that he failed to:
i)recognise the power imbalance in the doctor-patient relationship and not exploit KW financially (Conduct Code, clause 3.2.6);
ii)inform KW and/or the Public Advocate of the nature of, and need for, all aspects of his clinical management, including examination and investigations, and giving him adequate opportunity to question or refuse intervention or treatment (Conduct Code, clause 3.3.3); and/or
iii)ensure that KW and/or the Public Trustee were informed about his fees and charges (Conduct Code, clause 3.5.3).
(AA para 23(i)).

Allegation Seven charging Medicare Australia for services for which he was not entitled to charge

The Board alleges that the practitioner charged Medicare Australia under its Medicare Benefits Schedule (MBS) item numbers for services when he knew or ought to have known that he was not entitled to charge under those item numbers (AA para 23(k)).

Clarification of allegations at final hearing

As has been previously mentioned, the Board says in AA at para 23(e) that Allegation Three (charging for services not provided) is in the alternative to Allegation Two (failure to keep records). However, in the Applicant's Opening Submissions at para 7, the Board then says that Allegation Three (charging for services not provided) is '[t]he most serious ... and related to this the matters of charging excessively [Allegation Four] and excessive provision of services [Allegation One]'.
The Tribunal accordingly intends to disregard the statement in AA that Allegation Three is in the alternative to Allegation Two. The Tribunal will instead consider and find on Allegation Three, and if Allegation Three is not made out, then it will consider and find on Allegation One and Allegation Two together, followed by the other Allegations.
Also, in AA at para 23(h), the Board alleges that:
[The practitioner] failed to seek and obtain consent from the Public Trustee about the fees in excess of the amounts in the [AMA List] charged by him and to be charged by him for [KW's] medical treatment during 27 November 2012 to 21 February 2013 inclusive.
This allegation is not referred to in para 6 of the Applicant's Opening Submissions, nor in the Board's closing submissions filed on the final day of the hearing (Applicant's Closing Submissions). The Tribunal is of the view that this allegation should be considered as part of Allegation Five (failure to obtain consent from the Public Trustee to the fees charged) and will not consider it as a separate allegation.
Finally, the Board clarified at the start of the hearing that it is not alleging that KW should have been treated as a public patient. The Board's case is, in fact, that the practitioner was entitled to charge KW for the services provided as a private patient, but that the amount charged was excessive (T:18; 15.05.17).

The meaning of 'professional misconduct'

The term 'professional misconduct' is defined in s 5 the National Law as conduct which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
The first and second limbs of that definition incorporate the term 'unprofessional conduct' which is defined in s 5 in the National Law as:
... professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner’s registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well‑being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation;
The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [524] [527]:
Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:
'[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.'
The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:
'... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence ...'
…
Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism". (Lucire v Health Care Complaints Commission [2011] NSWSC 99; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70).

Onus and standard of proof

The Board bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362, Dixon J, as he then was, also observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony, or indirect inferences'.
On the standard of proof required in a civil case where serious allegations are made, in Rejfek v McElroy (1965) 112 CLR 517, Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ stated at 521 as follows:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal said:
… Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

The facts

On 15 June 2016, the parties were ordered to confer and file with the Tribunal a statement setting out the agreed issues and facts in this matter, noting any issues and facts which were not agreed. Due to a number of factors, including the substantial amendments made by the Board to its application in October 2016, the parties never in fact complied with that order.
However, the Board included in the Applicant's Opening Submissions a statement of the facts it considered were not in issue. Counsel for the practitioner submitted on the first day of the final hearing that that document contains some errors and omissions and handed up a brief response to that document dated 14 May 2015 (Response to facts not in issue). In the Applicant's Closing Submissions at para 3, the Board accepted the clarifications set out in that response.
The Tribunal therefore understands that the facts, to the extent that they are agreed by the parties, are as set out in the Applicant's Opening Submissions, subject to the practitioner's clarifications, and the Tribunal makes these findings of fact.
The practitioner was, at all material times, a registered health practitioner, specifically a medical practitioner with general registration and specialist registration in the field of 'physician neurology'. In addition to clinical services provided by him at JHC, his private neurology clinic at Subiaco, the Neurosciences Unit of the Western Australian Department of Health and the MidWest Country Neurology service, the practitioner is the founder and director of Neurodegenerative Disorders Research Pty Ltd, a not for profit research organization devoted to the understanding of neurodegenerative disorders. He also and supervises medical students at the University of Western Australia; AA para 2 and AR para 2.
The practitioner practises in adult neurology involving diagnosis, care and management of neurological disorders; AA para 3 and AR para 2.
On 5 July 2009, KW consulted the practitioner for an assessment of a tremor disorder. The practitioner diagnosed emerging extrapyramidal syndrome and possibly idiopathic Parkinson's disease. The practitioner recommended reassessment in a further three to six months, together with further investigations including MRI scanning and screening and blood tests in the interim.
The practitioner consulted with KW as an inpatient in Mount Hospital, a private hospital, on 6, 7, 8 and 9 July 2009. KW was seen for clinical review with the practitioner on 8 December 2009, 22 June 2010, 26 August 2011 and 24 August 2012; AA para 4 and AR para 3.
While KW was an in-patient in Mount Hospital he paid a gap payment over and above the relevant health insurance and Medicare Australia contributions for the services rendered by the practitioner.
At the first clinical review on 8 December 2009, the practitioner provided to KW the practitioner's 'Patient Information Details' form, which the practitioner signed. The practitioner's 'Patient Information Details' form included the statement:
PLEASE NOTE: All private patients seen in these rooms will be charged fees that are in accordance with the recommendations of the Australian Medical Association. This will require a gap payment, payable on the day of consultation, a gap not covered by Medicare and your Private Health Fund.
(AA para 5 and AR para 4)
On 10 August 2012, the practitioner discussed KW's condition by telephone with Dr Peter Connaughton, a specialist in occupational and environmental medicine and on 20 August 2012, Dr Connaughton sent a follow up email to the practitioner stating:
A short email about [KW], whom we discussed recently. The reason for this email is that I am concerned about [KW's] worsening situation including his function, mobility and his capacity to cope generally. As you know he lives in Paraburdoo and is 77 years of age. He is booked for Cognitive testing this Wednesday 22nd and he will be flying down to Perth for that.
I have spoken with your secretary this morning - and she has very kindly put [KW] on a cancellation list if anyone is unable to attend this Friday. He does not have an appointment to see you until 28 September - and I would be very grateful if there is any way that you could arrange to see him sooner.
(AA para 7 and AR para 6)
At his review on 24 August 2012, the practitioner assessed that KW's general condition had deteriorated, including that KW's memory function was worse. The practitioner assessed that KW:
a)required reevaluation of his extrapyramidal syndrome;
b)had probably emerging dementia;
c)had possible Parkinson's disease dementia complex;
d)had possible Lewy body disease; and/or
e)had possible Alzheimer's disease with Parkinson's disease.
The practitioner also noted that KW had increasing difficulty walking and had developed some dyskinesia. A subsequent FDG PET scan performed on 28 September 2012 supported the practitioner's conclusions, noting:
overall scan findings would support a diagnosis of Lewy Body dementia.
(AA para 8 and AR para 7)
In November 2012, Dr Connaughton and the practitioner spoke by telephone about KW's condition, in which they discussed the likelihood that KW was suffering Lewy body disease. The practitioner and Dr Connaughton decided that KW needed to be assessed to determine his capacity to make decisions in relation to his selfcare and his property; AA para 9 and AR para 8.
On 26 November 2012, KW was accompanied by a registered nurse from his place of employment at Paraburdoo and admitted to the Emergency Department of JHC on the basis of a history of increasing falls and an inability to attend to activities of daily living skills; AA para 10 and AR para 9.
On 27 November 2012, KW was admitted to JHC under the care of the practitioner; AA para 11 and AR para 9.
KW was discharged from JHC on 21 February 2013; AA para 12 and AR para 9.
During 27 November 2012 to 21 February 2013 inclusive, when KW was an inpatient at JHC, he received medical care from the JHC staff including care by specialists in:
a)physiotherapy;
b)nursing;
c)social work;
d)speech pathology;
e)occupational therapy; and
f)cognitive and psychological testing.
(AA para 13 and AR para 10(a))
At the time of KW's admission, the practitioner was the only attending neurologist at JHC. The neurology service at JHC was supported by one registrar and two resident medical officers (resident or residents), who shared responsibilities with other medical departments, including cardiovascular medicine, respiratory medicine, gastroenterology and palliative care; AR para 10(b).
The registrar and two residents were within JHC on 10 week rotations only. Those rotations in each case had commenced at different times. None of these junior medical staff had any neurological training and all were expected to receive that training from the practitioner.
On 3 December 2012, the practitioner prepared a medical report for this Tribunal (exercising its jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act), informing the Tribunal that, in the practitioner's opinion, KW:
a)had Lewy body disease, which is a progressive neurodegenerative disorder with dementia and Parkinson's disease;
b) was dementing from Lewy body disease;
c)was incapable of making reasonable decisions in relation to personal healthcare, living situation and financial affairs;
d)did not have testamentary capacity because of his dementia;
e)was incapable of making an Enduring Power of Attorney; and
f)was likely to make a limited contribution to the relevant Tribunal hearing.
(AA para 14 and AR para 11)
On 8 January 2013, the Tribunal ordered that KW's brother be appointed:
a)limited guardian of KW to decide KW's living arrangements and make treatment decisions for KW; and
b)plenary administrator of KW's estate.
(AA para 15 and AR para 11)
On 12 January 2013, a registered nurse from JHC informed the practitioner that KW had accused his brother of taking his money and that KW was concerned about his property; AA para 16 and AR para 11.
By application filed with the Tribunal on 14 January 2013, the practitioner:
a)applied to the Tribunal for an urgent review of the guardianship and administration order made on 8 January 2013, on the basis of concern regarding KW's assets and property; and
b)sought an order that the Tribunal appoint an independent guardian and administrator.
(AA para 17 and AR para 11)
The parties agree that, but for the conduct of KW's brother and his friend TB, KW could well have been moved from JHC to a nursing home, St Ives Murdoch, within days of 14 January 2013.
On 22 January 2013, the Tribunal ordered that:
a)the Public Advocate be appointed the limited guardian of KW to decide KW's living arrangements and make treatment decisions for KW; and
b)the Public Trustee be appointed plenary administrator of KW's estate.
(AA para 18 and AR para 11).
On 3 March 2013, the practitioner generated an invoice (Invoice) for 78 services provided to KW for the period 27 November 2012 to 21 February 2013 inclusive (a period of 87 days during which the practitioner was on leave for 14 days between 25 December 2012 and 7 January 2013) when KW was an inpatient at JHC, at a total cost of $25,265.10 as particularised in 'Annexure A' to the Application; AA para 19 and AR para 13.
As to the Invoice:
a)The practitioner charged KW for services provided by him on 78 occasions; AA para 20(a) and AR para 14(a).
b)The fee in the AMA List for:
i)MBS Item 116 was $134 and KW was charged $350 for this Item;
ii)MBS Item 133 was $255 and KW was charged $350 for this Item; and
iii)MBS Item 11000 was $320 and KW was charged $450 for this Item.
(AA para 20(d) and AR para 14(c))
All of the appointed guardian, the practitioner and the medical team were working towards KW's discharge from JHC, and admission to a nursing home, St Ives Murdoch; AR para 14(d)(iii).
The attempts of the appointed guardian, the practitioner and the medical team to have JW discharged from JHC and admitted to a nursing home, St Ives Murdoch were frustrated by two gastroenteritis occurrences at St Ives; AR para 14(d)(iv).
The Invoice was issued on 3 March 2013 after KW's discharge from JHC on 21 February 2013, and after the appointment of the Public Advocate as limited guardian, and the Public Trustee as administrator of KW's estate on 22 January 2013; AA paras 1418 and 20(e) and AR paras 11 and14(d)(vi).
The practitioner charged KW the sum of $350 for cognitive testing on 30 November 2012 and 4 December 2012 that he did not perform but which was performed under his direction; AA para 20(f) and AR para14(e).
The practitioner billed Medicare Australia:
a)$197.95 under MBS Item 132 for an initial assessment of an inpatient on 27 November 201; AA para 21(a) and AR para 15(a)(ii).
b)$99.10 under MBS Item 133 for a subsequent attendance on an inpatient on 28 November 2012. AA para 21(b) and AR para 15(a)(ii).
c)$56.65 on each occasion by reference to MBS Item 116, for the following services that did not come within the description of services under MBS Item 116 and, which according to the Invoice were provided by the practitioner on the following dates:
(i)telephone calls with nursing staff on 01/12/2012, 02/12/2012, 07/12/2012, 08/12/2012, 09/12/2012, 15/12/2012, 16/12/2012, 23/12/2012, 13/01/2013;
(ii)cognitive assessments performed by another practitioner on 30/11/12 and 04/12/2012;
(iii)a report to the Tribunal 14/01/2013;
(iv)a telephone call with the Registrar on 22/12/2012; and
(v)a telephone call on 12/01/2013.
(AA para 21(c) and AR para 15(b))
Medicare Australia paid to the practitioner the sum of $1,033.50 under the MBS Item numbers referred to in the preceding paragraph; AA para 22 and AR para 16.
The parties agree that the practitioner was entitled to charge KW $350 for cognitive testing performed at his direction and under his supervision. It is also agreed by the parties that the practitioner was entitled to charge for telephone calls to staff and others concerning KW's wellbeing. The parties also agree that such charges should not have been given an MBS item number descriptor (Response to facts not in issue para 6).
Other facts not in issue are that:
a)there is no criticism of the quality of care provided to KW by the practitioner;
b)there is no suggestion that the practitioner was in any way responsible for the length of KW's stay at JHC or that the practitioner did anything other than use his best endeavours to protect KW and have him placed in an appropriate care facility as soon as this could be achieved; and
c)insofar as there is a demonstrated deficiency in the hospital notes, this deficiency was not relevant to and had no adverse effect upon KW's clinical care.
(Response to facts not in issue para 7)

Exhibits

The exhibits tendered by the parties and marked are set out in the table below (we note below where exhibits were marked over objection of a party):

NO:	DESCRIPTION:	TENDERER:	WITNESS WHO PROVED EXHIBIT:	NOTES:	OBJECTIONS:
1	Letter from the practitioner dated 25 March 2014	Board	Document 3 in applicant's bundle (Volume 1 of 2)	No objection
2	Practitioner's clinical notes relating to KW	Board	Document 7 in applicant's bundle (Volume 1of 2) (less documents 82, 197 and 198 which are marked separate exhibits	No objection
3	Joondalup Health Campus Clinical Records relating to KW	Board	Document 9 (Volume 2 in applicant's bundle) pages 204 to 482	No objection
4	Medicare data of consultations by the Practitioner with KW	Board	Document 10 (Volume 2 in applicant's bundle) pages 483 to 493	No objection
5	List of Medical Services and Fees	Board	Applicant's supplementary bundle of documents, documents 13 to 17 from pages 85 to 149	Objection on the grounds of relevance (T:18; 15.05.17)
6	List of aged care rehabilitation physicians accredited at JHC	Board	Document 18 in the applicant's supplementary bundle at page 150	The practitioner objects to the tendering of this document. (T:18; 15.05.17)
7	Witness statement of Dr Joon Qing Jason Tan dated 28 November 2016	Board	Joon Qing Jason Tan	Document 3 in the applicant's bundle of witness statements	No objection
8	Witness statement of Dr Sook Wei Ng dated 25 October 2016	Board	Sook Wei Ng	Document 2 in the applicant's bundle of witness statements	No objection
9	Annexure A to the Board's Application - Invoice of Practitioner to KW	Board	Stephen Henry Dennis	Document at pages 11 to 14 of the applicant's bundle (Volume 1)	No objection
10	Email from Patricia Castledine to Mr Stephen Dennis dated 19 August 2013	Board	Stephen Henry Dennis	Document 16 at page 523 of the applicant's bundle (Volume 2)	No objection
11	HADSCO complaint form and information sheet	Board	Stephen Henry Dennis	Document at pages 517 to 522 of the applicant's bundle (Volume 2)	No objection
12	Witness statement of Stephen Dennis dated 3 August 2016	Board	Stephen Henry Dennis	Document at tab1 of the applicant's bundle of witness statements	The Practitioner objects to paragraph 17 and the Board concedes it does not rely on the statement as a statement of truth (T:67; 15.05.17)
13	Email from HADCO to Stephen Dennis dated 27 September 2013	Board	Stephen Henry Dennis	Document at pages 515 to 516 of the applicant's bundle (Volume 2)	No objection
14	Email from Stephen Dennis to Practitioner dated 8 October 2013	Board	Stephen Henry Dennis	Document at page 512 of the applicant's bundle (Volume 2)	No objection
15	Email from Patricia Castledine to Stephen Dennis dated 22 October 2013 and patient information details sheet	Board	Stephen Henry Dennis	Documents at page 510 and at 513 of the applicant's bundle (Volume 2)	No objection
16	Email exchange between Stephen Dennis and Patricia Castledine dated 22 23 October 2013	Board	Stephen Henry Dennis	Document at page 509 of the applicant's bundle (Volume 2)	No objection
17	Email of Stephen Dennis to Moana Bennett dated 25 October 2013 at 10.46 am	Board	Stephen Henry Dennis	Document at page 506 of the applicant's bundle (Volume 2)	No objection
18	Email and letter of 19 November 2013 from HADSCO to Stephen Dennis	Board	Stephen Henry Dennis	Documents at pages 501 and 502 of the applicant's bundle (Volume 2)	No objection
19	AHPRA notification form	Board	Stephen Henry Dennis	Document at pages 494 to 500 of applicant's bundle (Volume 2)	No objection
20	Bundle of emails of Stephen Dennis and Patricia Castledine dated between March June 2013	Practitioner	Stephen Henry Dennis	Tendered as a separate bundle at hearing	No objection
21	Witness statement of Dr Richards dated 23 February 2017	Practitioner	Stephen Paul Richards	Document 3 in the respondent's book of witness statements	The Board objects to paragraph 17 as an expression of opinion without no probative value (T:127; 16.05.17)
22	Witness statement of Vanessa Faye Sheridan dated 18 April 2017	Practitioner	Tendered separately at hearing	TheBoard objects to statements made at paragraph 4, 6 and 7 on the basis of hearsay and assumption (T:163; 16.05.11)
23	Witness statement of Cheryl Ann MacFarlane dated 14 May 2017	Practitioner	Cheryl Ann MacFarlane	Tendered separately at hearing	No objection
24	Notice of Patient Fees - Professor Peter K Panegyres	Practitioner	Patricia Anne Castledine	Tendered separately at hearing	The Board objects of the ground of relevance (T:172; 16.05.17)
25	Statement of Patricia Anne Castledine dated 23 February 2017	Practitioner	Patricia Anne Castledine	Document 1 in Respondent's book of witness statements	The Board objects to paragraphs 4, 5, 6, 7, 11 and 12 on the ground of relevance (T:185; 16.05.17)
26	Account sent to KW in relation to stay at Mount Hospital dated 14 July 2009	Practitioner	Patricia Anne Castledine	Tendered separately at hearing	No objection
27	Handwritten billing sheets of the Practitioner	Board	Patricia Anne Castledine	Document at pages 199 to 201 of the applicant's Bundle (Volume 1)	No objection
28	Witness statement of Rosalba Palazzolo dated 23 February 2017	Practitioner	Rosalba Palazzolo	Document 2 in respondent's book of witness statements	The Board objects to paragraph 6, 7, 8, 9, 10, 11 on the ground of hearsay (T:210; 16.05.17)
29	Letter from Rosa Palazzolo to KW dated 24 June 2009	Practitioner	Rosalba Palazzolo	Document at page 82 of the applicant's bundle (Volume 1)	No objection
30	Report of Professor David Williams dated 17 July 2015	Board	David Williams	Document 5 in applicant's bundle (Volume 1)	No objection
31	Supplementary report of Professor David Williams dated 19 July 2016	Board	David Williams	Document 4 in applicant's supplementary bundle	No objection
32	Report of Professor Brian Chambers 23 July 2014	Board	Brian Chambers	Document 6 in applicant's bundle (Volume 1)	No objection
33	Supplementary report of Professor Brian Chambers dated 28 June 2016	Board	Brian Chambers	Document 3 in applicant's supplementary bundle	No objection
34	Two expert reports of Professor JW Watson dated May and June 2016	Practitioner	John Watson	Filed as one bundle in June 2017	No objection
35	Note to experts dated 17 May 2017	Board	Tendered separately at hearing	No objection
36	Joint report of the expert witnesses filed 17 May 2017	Board	Tendered separately at hearing	No objection
37	Typed list of consultations with KW from practitioner's rooms	Board	Brian Chambers	Document at pages 197 to 198 of the applicant's bundle (Volume 1)	No objection
38	Journal article by Freed and Allen - Variation in outpatient consultant physician fees in Australia by speciality and state and territory	Practitioner	John Watson	Tendered separately at hearing	No objection
39	Updated curriculum vitae of Professor Peter Panegyres submitted at hearing on 18 May 2017	Practitioner	Peter Konstantinos Panegyres	Tendered separately at hearing	No objection
40	Witness statement of Professor Peter Panegyres dated 28 Februaryف2017 and exhibits	Practitioner	Peter Konstantinos Panegyres	Document 4 in the respondent's book of witness statements	No objection
41	Redacted billing accounts and census sheets of Professor Peter Panegyres	Pracitioner	Peter Konstantinos Panegyres	Pages 140 to 214 of the respondent's bundle	Admitted over strong objection from Board on the basis that it has no corroborative value (T:368; 18.05.17)
42	Practitioner's diaries and appointment books	Board	Peter Konstantinos Panegyres	Documents 20 to 25 in the applicant's supplementary bundle	No objection
43	JHC standards for clinical documentation within the health record	Board	Peter Konstantinos Panegyres	Document 9 in the applicant's supplementary bundle	No objection
44	Pages 16 and 17 of JHC's Guidelines for Medical Staff	Board	Peter Konstantinos Panegyres	Originally marked for identification as MFIB Document 10 in the applicant's supplementary bundle	No objection
45	Extracts of Medicare Benefits Schedule	Board	Peter Konstantinos Panegyres	Documents 15, 16 and 17 in the applicant's supplementary bundle (pages 113 to 149 inclusive)	No objection
46	Extract of AMA List	Board	Peter Konstantinos Panegyres	Documents 13 and 14 of the applicant's supplementary bundle	No objection
47	Miscellaneous correspondence December 2014 to November 2016	Board	Peter Konstantinos Panegyres	Document 19 in the applicant's supplementary bundle and respondent's bundle 26 to 28, 127 to 131 exchange of correspondence	No objection
48	Narrative of Professor Peter Panegyres dated 17 February 2016	Board	Peter Konstantinos Panegyres	Originally marked for identification only Document at pages 3 to 17 of the respondent's bundle	The practitioner objects to the parts that were not the subject of crossexamination (T:631; 19.05.17)
49	Witness statement of Patricia Anne Castledine dated 19 May 2017	Practitioner	No objection
50	Summary of evidence of Patricia Anne Castledine	Practitioner	No objection

Professor Panegyres' evidence

The practitioner provided a written statement of evidence (Exhibit 40) and also gave evidence orally at the hearing. He was crossexamined.
The relevant sections of the practitioner's witness statement dated 28 February 2017 are as follows:

Joondalup Health Campus

At times relevant to these proceedings, JHC (or 'Hospital') was a 380bed general hospital with a private ward located adjacent to public wards. It was an extremely busy facility and the major hospital for both public and private patients in the northern suburbs of Perth.
The private wing of JHC was a 48bed ward at the western end of the hospital. The ward was adjacent to the practitioner's consulting rooms and to those of the other staff specialists.
As an accredited specialist, except when on leave, the practitioner is on call 24 hours per day, seven days per week for both public and private patients and he is also on call for any patients admitted to JHC's Emergency Department who present with neurological issues.
Accreditation as a practitioner at the Hospital was subject to the practitioner being prepared to abide by the policies and by-laws of JHC contained in the Hospital's Facility Rules (Rules).
The practitioner:
a)comes within the classification of Specialist Practitioner identified at paragraph 41.7 of the Rules;
b)under paragraph 218.5 of the Rules, is required 'to attend patients as often as is necessary to ensure high quality patient care and to comply with accepted professional standards'; and
(c)under paragraph 220.2 of the Rules, as a Specialist Practitioner, is required to assume responsibility for the clinical care of patients admitted under his care.
The practitioner says that at all relevant times, there was no other neurological consultant at the Hospital or dedicated junior medical staff in neurological training. At the relevant times, the practitioner says he was supported by one registrar and two resident medical officers. The registrar was a general registrar not in specialist training and the registrar and resident medical officers had divided responsibilities, being also required to assist in cardiovascular medicine, respiratory medicine, gastroenterology and palliative care.
Each of the support medical staff, including the practitioner's registrar from time to time, was on rotation at the Hospital for a 10 week period. None of the junior medical staff had prior training or experience in neurology and it was part of the practitioner's role at the Hospital to teach each group of junior doctors as they rotated through.

Practitioner's routine

The practitioner says that he maintains so far as possible a rigid schedule. His schedule at the relevant time was as follows.
Monday:     On Monday mornings he attends the Mount Hospital to conduct ward rounds, then to his Subiaco clinic for research patients, and then travels in the afternoon to JHC to do nerve conduction studies, electromyography and botulinum toxin injections;
When the afternoon clinic is concluded, he conducts a ward round, examining and assessing both public and private patients. Because of problems with coordination and with the divided responsibilities of the junior medical staff, he says that often these ward rounds would be conducted without the 'Neurological Team'. The practitioner's consultation with each patient involves neurological assessment, review of drug charts and discussions with nursing staff about matters of concern. Because nursing staff change with each shift, as the consultant responsible, the practitioner believes it was important to ensure that instructions with respect to particular patients were clearly understood. If junior medical staff were not with him at the time of a ward round, the practitioner would contact them via their pagers or mobile phones to discuss relevant issues.
Tuesdays:     On Tuesday mornings the practitioner is at JHC and remains there until late afternoon.
The practitioner would be involved in at least one ward round with junior medical staff and the ward round would include both public and private patients. Ward rounds always began in the public wards. When ward rounds are completed, the practitioner then conducts a private clinic at the JHC where he sees one new patient and one followup patient.
He then conducts an evening review clinic at his rooms in Subiaco. These clinics might continue until late evening and involved consultations with patients with conditions such as epilepsy, Parkinson's disease, stroke and dementia.
Wednesdays:         On Wednesdays, the practitioner does not attend JHC until late in the evening after his clinic in Subiaco. During the day, and before his Subiaco clinic, he attends at the Neurosciences Unit. The Neurosciences Unit is part of a global network which facilitates the exchange of the latest information concerning new treatments, clinical trials and the like.
When the practitioner arrives at JHC on a Wednesday, first he reviews the results of EEGs done on unwell patients, some of whom are in intensive care. He then examines private patients and attends to any issues which might have occurred during the course of the day. The practitioner is not accompanied by junior medical or nursing staff and any issues arising were dealt with following communication directly with the nursing staff.
Thursdays:   On Thursdays, the practitioner's routine is similar to Tuesdays. Ward rounds are organised and conducted with junior staff. Both public and private patients are seen. At the conclusion of the afternoon ward round, the practitioner then reviews patients in his clinic at JHC until late evening.
Fridays:       Early on Fridays, there is what the practitioner refers to as an inter-Hospital neurology ward round. This is a professional development meeting of neurologists conducted in conference rooms in teaching hospitals within the Perth metropolitan area. Neurologists present patients with neurological disorders and this is followed by general discussion. The other participating hospitals at the time were Royal Perth Hospital, Fremantle Hospital, Sir Charles Gardner Hospital and Princess Margaret Hospital for Children.
The practitioner then attends his Subiaco clinic where he and others performed research on patients with neurological disorders and conducted clinical trials. This often generated research publications.
Late Friday mornings, the practitioner commences a review clinic. He sees about 10 patients and the clinic would finish late in the afternoon.
The practitioner then travels to JHC to assess acutely unwell neurological patients who need care. Ward rounds are performed with junior medical staff. The ward rounds continue until late evening.
SaturdaysOn Saturday mornings, the practitioner conducts a clinic in his Subiaco rooms where he assesses two or three new patients and finalises EEG reports. In the afternoons he liaises with his research assistant, works on research papers and deals with any outstanding matters from the week. If the practitioner has private patients in JHC or the practitioner has been asked to consult with respect to a new or existing patient, he would then travel to JHC.
Sundays:      On Sundays if the practitioner has a private patient admitted in the Hospital or he is called in, he would travel to JHC.
During the relevant period, this schedule was adjusted to accommodate a two-week vacation period at Christmas and one Friday Geraldton clinic.

KW

At the time of his admission, KW was aged 78 years. He was a bachelor whose only known relative was a brother, JW, who was living in California and who had had no contact with the patient for about 37 years.
KW had been working in Paraburdoo. The practitioner's first contact with him was on 5 July 2009 when KW flew down from Paraburdoo for an assessment of a tremor to investigate the possibility of an emerging extrapyramidal syndrome. He was assessed by the practitioner over a fiveday interval as an inpatient at the Mount Hospital.
KW was subsequently seen in the practitioner's clinic for review on 8 December 2009, 22 June 2010, 26 August 2011 and 24 August 2012.
The consultation on 24 August 2012 had been prompted by a telephone conversation the practitioner had with Dr Peter Connaughton, an occupational physician. Dr Connaughton told the practitioner that KW's work colleagues had become worried about his deteriorating condition and were concerned, amongst other things, about KW's ability to 'cope generally'.
Following the practitioner's assessment on 24 August 2012, the practitioner says that there had been a deterioration in KW's cognitive function and in his movement disorder, suggesting the possibility of Lewy body disease.
The practitioner describes Lewy body disease as an uncommon dementia syndrome with Parkinsonian features. The disease is characterised, amongst other things, by fluctuating cognitive impairment and recurrent visual hallucinations. He says that it can be a difficult disorder to manage because of the significant fluctuation in cognitive capacity, the individual's response to hallucinations and the dangers associated with incorrect medications. A patient with Lewy body disease can be lucid in the morning but comatose in the afternoon. A patient may have an awareness of the unreality of hallucinations and be comfortable with them or may be troubled and anxious with behavioural difficulties arising from disorientation and confusion. A further characteristic of patients with dementia disorders, including Lewy body disease, is a tendency to wander. There is also a real concern as to the medications given to such patients, particularly with the respect to the use of antipsychotics, which can lead to adverse reactions including death.
There were no locked medical wards in JHC at the time and, in the practitioner's view, any patient with a tendency to wander, including Lewy body disease, presented a risk to himself, to other patients and to staff.
On 9 November 2012, the practitioner was contacted again by Dr Connaughton, and following discussions with Dr Connaughton it was concluded that the best course was for KW to be admitted to JHC for an assessment of his deteriorating cognitive and motor functions in the context of the probable diagnosis of Lewy body disease. KW was admitted on 27 November 2012.
The practitioner says that in the ordinary course, it is hoped that a patient suffering a progressive and dementing disease or disorder could be assessed, stabilised and moved to an appropriate care facility within a period of between two and four weeks. In most cases, any delay in the discharge of such a patient will have been caused by difficulty in locating available space within an appropriate care facility. However, in KW's case, his problems were exacerbated by the fact that he had no partner, carer, child or existing guardian to look after his affairs. Complications with respect to the appointment of an appropriate guardian, the location of a suitable care facility and accessing the care facility once located, meant that his stay in the Hospital was much longer than expected or desirable.

Problems with guardianship and placement

On 3 December 2012, approximately one week after KW's admission, the practitioner prepared a medical report and the forms necessary for an application to the Tribunal under the GA Act for the appointment of a guardian. This was based on the practitioner's presumptive diagnosis of Lewy body disease. The practitioner says that he made this application because KW was unable to make reasonable decisions about his personal health care, living situation or financial affairs.
KW's brother, JW, was appointed plenary administrator and limited guardian (including the function of making treatment decisions for KW) on 8 January 2013.
The practitioner says the appointment of JW as guardian and administrator caused great distress to KW, which heightened the practitioner's sense of personal responsibility for KW's wellbeing. It led the practitioner to become personally involved in the application for the appointment of an independent guardian.
Whilst the subsequent appointment of an independent guardian and administrator was made by 22 January 2013, there were delays in the transfer of relevant papers and in other administrative steps. The practitioner says that this meant that an administrator did not make himself known to Hospital staff until approximately 5 February 2013.
By early February 2013, suitable care accommodation had again been located for KW in St Ives. The practitioner's recollection is that it had been his perception from about 5 February 2013 that KW was likely to be transferred to St Ives within days. Unexpectedly, his transfer to St Ives was then further delayed by an outbreak of gastric illness in St Ives and complications with respect to the continuing availability of a room.

Consultation with KW

With respect to the practitioner's consultations with and attendances upon KW whilst an inpatient, the practitioner says that:
a)he felt an added responsibility for KW, an existing patient with no one to look after him and the practitioner had a sense that he had to protect him from his brother and others who had identified themselves as friends;
b)both because of the Rules and because of the practitioner's awareness of the nature of Lewy body disease, he felt he had a greater responsibility for KW's wellbeing than any other staff member would feel;
c)it was the practitioner's practice for patients of KW's complexity to be seen every day, particularly given KW's unique circumstances, risk of sudden deterioration and potential medication complications;
d)problems arose as a result of KW wandering the wards, sometimes unclothed, and sometimes with aggressive response.
Even once KW had been assessed and his medications stabilised, the practitioner's continuing and overriding concerns arose from the fact that practitioner considered that JHC was an unsuitable place for his continued residence. Whilst KW remained in hospital, he constituted a risk both to himself and to other patients.

The consultations charged for

The practitioner says that he has not charged KW for a consultation that did not take place.
His first consultation with KW at JHC was on 27 November 2012. The practitioner saw him in the public ward C which is a medical ward when he was in room 151D. This consultation took place at about 9 am. He was then under the general medical team.
At this consultation, the practitioner reviewed KW's recent history and undertook a complete neurological examination. Following the consultation, the practitioner spoke to his registrar, Dr Tan. The practitioner was not present at the ward round undertaken by Dr Tan and recorded in the clinical notes; Exhibit 3 page 234. However, Dr Tan's notes record the prescription of medications and the undertaking of certain tests which he had already discussed with Dr Tan.
The practitioner says that the clinical notes record the practitioner's consultations with KW in ward rounds on Tuesdays, Thursdays and Friday afternoons.
Despite the absence of notations on Mondays and Wednesdays, the practitioner has absolutely no doubt that he consulted with KW on these days. He has a clear recollection with respect to some of the consultations which have been specifically queried, and notes:
a)On Monday, 3 December 2012, the practitioner had to see KW to complete the documentation necessary for an application for the appointment of a guardian. The practitioner then saw him later in the day for neurological review.
b)The practitioner saw KW on the ward round and then he authorised balance training for KW with the physiotherapist.
c)On 18 December, the practitioner saw KW, spoke to him, examined him, reviewed his observations, checked his medications and spoke to nurses and then to the speech therapist.
d)The practitioner saw KW on 24 December. This was the practitioner's last day at JHC before taking leave. The practitioner did a ward round of all his patients. KW had been wandering around the outpatient's area of the Hospital. It is noted that authorisation was given for a guard and for an increase in the dose of Seroquel. Only the practitioner was able to authorise both the guard and the increase in medication.
e)The practitioner saw KW on 7 January 2013. This was his first day back at JHC after a 2week break and the practitioner did a ward round of all his patients.
f)The practitioner saw KW on 8 January 2013. This was the day on which KW was to leave the Hospital to go to the Tribunal. The practitioner was the only one authorised to clear him as fit to leave the Hospital and the practitioner had to see him, assess him and ensure that arrangements were appropriate for his leaving and return.
g)On 11 January 2013, the practitioner saw KW after his meeting with JW and TB. The practitioner took a neurological history, did an examination, reviewed his drug chart and observations, and spoke to the nurses. The practitioner also reassured KW concerning the nature of his discussion with his brother JW and TB.

Consent for gap payments

Before August 2012 the practitioner says that his fee for hospital consultation with a private patient was $300. In August 2012, he increased this fee to $350.
While he was being treated as an outpatient, KW had signed a written consent with respect to projected fees. In 2009 he had also signed such a consent for in hospital consultations prior to being admitted to the Mount Hospital.
At the time of his admission to JHC on 27 November 2012, KW's condition had deteriorated to such an extent that further informed consent, whether it be to the treatment proposed or to the payment of the practitioner's fees, was not possible to obtain. The practitioner expected him to be leaving the Hospital within days, but due to a number of unexpected delays KW was not transferred to another facility until 21 February 2013.

Hospital notes

The practitioner accepts that there were services provided by him to KW while he was an inpatient for which there is no adequate contemporaneous record in the Hospital notes.
The practitioner says that at the time of KW's admission, it was the practice at JHC for entries in the Hospital notes to be made by registrars, residents, nurses and other health care providers. Consultants or specialists were not expected themselves to make entries in the Hospital records when accompanied by junior staff and it was not the practitioner's practice so to do, or to ensure that junior staff had done so.
If the practitioner had occasion to refer to the notes of a patient, it was to only check for relevant clinical entries. He says that he did not concern himself with whether his attendance upon the patient was or was not recorded in those notes.
In the result, the notes might or might not refer to the practitioner's presence with variations even on the one ward round.
The practitioner says that the process is now different. Junior medical staff is now instructed to make, in addition to the usual notations concerning the patient's condition and management, a record of the date, time and persons in attendance at the time of the consultation. If the practitioner is on his own, the practitioner makes the appropriate recording.

MBS Item 116

The practitioner accepts that it is an error to refer to MBS Item 116 when submitting accounts for telephone consultations. The practitioner also accepts responsibility for the error. It was the practitioner's error. The practitioner would not expect his accounts staff to have appreciated the issue and to have corrected the error.
The practitioner considers that it was appropriate to charge KW for telephone consultations but he says that a patient is not entitled to seek a rebate from Medicare Australia for this service.

However, we accept the Board's concession that it has not been established that there is a need for the Practitioner's registration to be cancelled. We do not consider that the Practitioner's conduct renders him unfit to practice. The objects of the proceedings against the Practitioner can be met by imposing a penalty less than the cancellation of his registration.
On the other hand, we do not accept the Practitioner's submission that those objects would be met by ordering a reprimand.
The Practitioner has submitted that this was a simple, isolated incident and that the misconduct in which the Practitioner was found to have engaged was issuing an invoice when he had not first obtained consent from KW's administrator. The Tribunal disagrees. This understates the findings made by the Tribunal against the Practitioner and, in any event, while it is the case that the Practitioner rendered a single invoice upon KW's discharge from hospital for the Practitioner's services to KW, it was the evidence of the Practitioner, and of his practice manager, that he in fact completed timesheets for his patients on a weekly basis. The Practitioner made entries on a hand written sheet at the end of each week, retaining the timesheet in his briefcase week to week and then, at the time of KW's discharge, handed it to his staff who then issued the invoice without further reference to, or any decision-making by him; Panegyres at [109] and [203]. By virtue of this process, it can be said that on each occasion that he made an entry on the timesheet for consultations which had no clinical justification, he made a decision to charge KW for consultations which were not reasonably required.
The conduct in question therefore occurred over a sustained period of time.
We also do not accept that the fact that the invoice was never paid in full is a relevant consideration. Similarly, we do not accept as a relevant consideration the fact that it was the Public Trustee, and not the Practitioner, who sought payment from Medicare Australia.
The Tribunal has concluded that a period of suspension of the Practitioner's registration is the appropriate penalty. It is a significant penalty and we accept the Board's submission that suspension of the Practitioner's registration will serve as a deterrent to the Practitioner from repeating the conduct and will demonstrate to other practitioners that this conduct is unacceptable. It will also demonstrate to the public that such conduct will not be tolerated.
We disagree that a suspension of the Practitioner's registration for a period of time would result in a loss of services to the community. It may be that a period of suspension will result in some inconvenience to some parts of the community. However, we accept the evidence of Dr Simon Wood, in the form of a letter addressed to the Board's solicitors filed with the Tribunal on 14 June 2018. Dr Wood is the director of medical services at JHC. He says that JHC is confident that there will be no difficulty in recruiting to replace the Practitioner if the need arises. We accept the view expressed by Dr Stephen Paul Richards contained in his affidavit dated 20 June 2018. Dr Richards says that he met with Dr Wood to discuss JHC's 'plan to deal with the possible suspension' of the Practitioner. Dr Richards acknowledges that Dr Wood had such a plan. However, Dr Richards is unaware of the details of that plan and expresses some doubt as to whether, at least in the short term, such a plan exists.
The consequential effects of the period of suspension on the Practitioner's staff and practice, raised by the Practitioner, are unfortunate but unavoidable and cannot be taken into account.
As we mentioned earlier in these reasons, we have been provided with letters or references supporting the Practitioner. These are from colleagues of the Practitioner, from a social worker and from a member of the Practitioner's staff. It is clear from these letters that the authors were aware of the findings against the Practitioner at the time when these letters were written. While these letters undoubtedly reflect the high regard in which the authors hold the Practitioner, the findings made by the Tribunal against the Practitioner are not findings concerning the Practitioner's competence and accordingly they do not assist the Tribunal.
When assessing the relevant period of suspension, we accept the Practitioner's evidence that he and his staff have attended the AMA's 'Medical Accounts Unit' course. We also accept that the Practitioner has introduced procedures concerning billing of his patients. While we are not persuaded that the Practitioner is remorseful, we do not consider that the Practitioner is at risk of reoffending.
We conclude that the appropriate length of suspension of the Practitioner's registration is a period of six months.
However, on completion of that period, we do not consider that it is necessary to impose conditions on the Practitioner's registration, either as sought by the Board or at all. We have already said that we do not agree that the Practitioner is at risk of reoffending and the imposition of conditions, with the attendant costs to the Practitioner, will not further the objects of the disciplinary proceedings against him and may more properly be regarded as punitive rather than protective.
In particular, we do not consider that it is necessary to impose a condition upon the Practitioner that he undergoes further education in respect of the importance of making clinical notes when seeing patients. We do not believe that the Practitioner is unaware of his responsibilities or the need in this regard. Instead, what is our view the Practitioner needs to be reminded of is the importance of this practice and that it applies to him as much as to any other medical practitioner. We consider that the penalty imposed will achieve this outcome.
Costs
Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) relevantly provides:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
…
Thus the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal is to bear its own costs. However, s 87(2) of the SAT Act gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. The question is whether in all the circumstances of the particular case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. The onus is on the party seeking an order in its favour; Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA at [51] (Martin CJ and Corboy J agreeing).
As the Tribunal said in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30]:
… Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
The Practitioner accepts the general proposition that the Board is entitled to its costs of the proceeding.
However, the Practitioner says that part of the proceeding was devoted to issues solely relevant to Allegation Three (in particular, whether the Practitioner in fact attended on all of the occasions for which he issued an invoice), which the Board accepts was the most serious of the allegations made by the Board. The Board failed on that separate issue.
In the above circumstances, the Practitioner considers that an order that the Practitioner pay the Board's costs of the proceeding should be discounted to reflect the Tribunal's assessment of the proportion of the proceeding devoted to that separate issue.
The Tribunal agrees that some of the costs of the Board should be met by the Practitioner.
In terms of the actual amount of costs claimed, the Tribunal's approach is to look not at what has actually been charged to the client, but rather, to consider what reasonable allowance should be made, taking a robust and broad brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion; Medical Board of Australia and Costley [2013] WASAT 2 at [66]; The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5].
All of the amounts that follow exclude GST.
The Board says that it incurred costs up to the end of the proceeding in Panegyres of $395,407.10. As we understand it, that amount is made up of $153,336.70 in solicitors' fees and $242,070.40 as disbursements including counsel's fees of $194,349.00. We consider that the briefing of counsel was justified in the circumstances. The Board is seeking to recover $100,000 in solicitors' fees and $225,000 in disbursements which includes counsel's fees of $182,600.
There was of course no finding against the Practitioner in respect of Allegation Three, and a reduction in costs is appropriate. However, when the charge against the Practitioner is not a discrete issue involving its own evidence it is difficult to assess what an appropriate reduction might be. Ultimately, the matter of the amount is again at the discretion of the Tribunal.
In the circumstances and having regard to the LegalProfession (State Administrative Tribunal) Determination 2018, we will allow counsel's costs in an amount of $122,000, solicitors' fees in an amount of $100,000 and the full amount of the disbursements claimed, $42,400. The Practitioner should therefore pay the Board's costs of the proceeding assessed in the sum of $264,400. The total amount of $264,400 is to be paid to the Board within three months of the date of delivery of these reasons.

Orders

The Practitioner has said that in the event that the Tribunal considers that the appropriate penalty is a period of suspension of the Practitioner's registration, then the Practitioner should be given an opportunity to be heard on the issue of the date upon which such suspension should commence. While the Tribunal does not consider that it is necessary for the parties to be heard on this point, the Tribunal will allow the parties 14 days from the date of delivery of these reasons to agree and to file proposed orders giving effect to the Tribunal's decision in respect of penalty and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
1 OCTOBER 2018