Medical Board of South Australia v Markey No. Dcaat-96-128 Judgment No. D3556

[1997] SADC 3556

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Anderson, Member Pickering, Member Fullgrabe and Member Paterson

Hearing

22/11/96, 19/12/96.

Representation

Complainant MEDICAL BOARD OF SOUTH AUSTRALIA:
Counsel: Mr M Stevens - Solicitors: Crown Solicitors' Office

Respondent DR GREGORY BARTON MARKEY:
Counsel: Mr A Possingham

DCAAT-96-128

Judgment No. D3556

13 February 1997

(Medical Practitioners Professional Conduct Tribunal)

MEDICAL BOARD OF SOUTH AUSTRALIA v MARKEY

Medical Practitioners Professional Conduct Tribunal

Judge Anderson, Members Pickering, Fullgrabe and Paterson

By a complaint, dated 28 October 1996, and laid pursuant to Section 58 of the Medical Practitioners Act 1983 ("the Act"), Gregory Barton Markey ("the respondent") is alleged to be guilty of unprofessional conduct upon the following grounds:

1. The respondent has been guilty of improper conduct in relation to the practice of medicine.

Particulars

(a) At all material times the respondent was registered as a Medical Practitioner on the appropriate register, for the purposes of the MedicalPractitioners Act 1983.

(b) At all material times the respondent carried on the practice of medicine at Middleton, in the State of South Australia.

(c) The respondent was convicted in the Adelaide Magistrates' Court on 9 February 1995, of 10 charges of having made a statement in writing that he knew to be false in a material particular and that was capable of being used in connection with a claim for payment under the Health Insurance Act 1973; contrary to Section 128B of the Health Insurance Act 1973.

(d) The respondent committed the 10 offences referred to in paragraph (c) above on 5 January 1993, 15 January 1993, 25 January 1993, 2 February 1993, 1 March 1993, 5 March 1993, 15 March 1993, 22 March 1993, 6 April 1993 and 19 April 1993 respectively.

(e) All the offences involved the respondent making a claim for assigned benefits for services rendered to non-hospital patients, which falsely stated that the defendant had provided the professional services specified on the assignment form, when the respondent had not in fact provided such professional services.

(f) The respondent received the sum of $1,568.00 as a consequence of making the aforementioned false claims.

2. The respondent has been guilty of unethical conduct in the practice of medicine.

Particulars

(a) The particulars set out in paragraph 1(a) to (f) inclusive are repeated.

(b) The respondent has acted unethically in the practice of medicine in that he exploited his patients for financial reasons contrary to the provisions of the Australian Medical Association Limited Code of Ethics governing the relationship between Doctor and Patient.

Before this Tribunal the respondent was represented by Mr Possingham of Counsel who admitted the allegations on behalf of his client.Such an admission was accepted as satisfactory by Mr Stevens of Counsel for the Medical Board in relation to the complaint.

Unfortunately, the matter has taken far too long to reach this Tribunal. Responsibility for how that came about was not canvassed in detail before us and is of limited relevance.

As can be seen from the particulars set out above, the respondent has defrauded the Medicare bulk billing scheme on 10 occasions over a period of about fifteen weeks from January to April 1993.

There is some uncertainty as to when his actions came to light.It was probably in February 1994.This led to a Federal Police Investigation with which the respondent co-operated fully so as to avoid the need to cause distress to his patients.

He appeared in the Adelaide Magistrates Court on 4 February 1995 and pleaded guilty to 10 counts alleging breaches of the Health Insurance Act 1973 pursuant to Section 128B thereof.From his false claims over the whole period, the respondent obtained the sum of $1,568.05 to which he was not entitled.In imposing penalty, the learned Stipendiary Magistrate acknowledged that consequent upon his conviction, the respondent would face the prospect of further substantial penalties both from the authorities and from his professional body.A fine of $1,000, together with costs of $248 and an order for restitution of the sum of $1,568.05 was made.

We accept that the whole of that financial penalty has been paid by the respondent.

Thereafter, in August 1995, the fact of this conviction came to the attention of an officer of the Medical Board.However, the Commonwealth authorities did not provide the necessary evidentiary material until February 1996.A complaint was laid before the Medical Board in March 1996 and referred to this Tribunal in August 1996.It first came before this Tribunal in November 1996 and submissions were heard in December 1996.

Whilst this was occurring, the respondent also appeared before the Medicare Participation Review Committee in mid 1995.On 16 August 1995, that Committee determined that the respondent be disqualified from participation in the Medicare Benefit Scheme for 34 weeks.An appeal to the Administration Appeals Tribunal ("AAT") was successful in part in that that period was reduced to 26 weeks from 7 July 1996.

As a consequence of that order, for that period patients treated by the respondent have not been able to claim Medicare benefits for services rendered by the respondent.

Thus, his appearance before us is the third occasion upon which the respondent finds himself in jeopardy consequent upon his actions of early 1993.

Whilst the timing may be said to be unfortunate because of the dates of his Medicare Benefit Scheme suspension, there is nothing to suggest that the Medical Board could have done more or acted in any other way.In any event, the respondent, through his counsel, acknowledges that the course which the matter has taken is appropriate in a professional setting.

The actions of the respondent in falsely claiming Medicare rebates for services which were not rendered was a deliberate attempt by him to obtain funds to which he was not entitled.Put shortly, it was a fraud upon the Commonwealth revenue.

To his credit, as we have said, the respondent made full admissions and expressed contrition from the moment he was spoken to by the Federal Police. This was repeated before the AAT and confirmed by his acknowledgment of guilt both in the Adelaide Magistrates Court and before this Tribunal.His only explanation for his actions has been acute short term financial embarrassment to the extent that he was, for that period, unable adequately to provide food for his family of a dependent wife and three children.The respondent acknowledges that, professionally, this is an inadequate explanation and that his actions are deserving of condemnation by his professional body of which this Tribunal is the manifestation.

The respondent has had a long professional career.He graduated with the degrees of Bachelor of Medicine, Bachelor of Surgery from the University of Adelaide in 1952.He became a Fellow of the Royal College of Surgeons of Edinburgh and England and was awarded Fellowship of the Royal Australasian College of Surgeons in 1970.From that time until 1988, he practised as a surgeon principally in Whyalla and Port Augusta.He undertook a considerable amount of "pro bono" work amongst outlying aboriginal settlements during this time using his own aircraft.He was well regarded professionally.In 1988, the respondent took work as a general practitioner in Adelaide and then commenced his practice at Middleton, between Port Elliott and Goolwa.He returned there in 1992 after some time in Townsville.

It was after his return, and the death of his mother, that he encountered the financial stress which led to his present position.It is important to know that the making of falsified claims ceased when the respondent received funds from the estate of his late mother.

At no time has his practice at Middleton been other than barely remunerative. Whilst he was disqualified from using the Medicare Benefits Scheme, he earned about $2,500 and forewent gross income of about $40,000.Mr Possingham told us that the respondent continued to work (often without charge) in the hope that should he not be further prevented from practice by this Tribunal, he would have a practise to return to. It was stated that he has no other assets.He is 67 years of age.

The reasons for decision of the AAT address the respondent's circumstances in much greater detail than is here necessary.That Tribunal acted pursuant to certain laid down criteria and had as its objective the need to preserve the integrity of the Medicare Benefits Scheme.Whilst this Tribunal has a different objective, it is necessary to bear in mind the sanctions which have already been imposed upon the respondent.

The role of a professional tribunal has long been seen to be the protection of the public.It is not the concern of this Tribunal to punish the respondent. Section 32R of the Medical Practitioners Act 1938 (NSW) was considered in the unreported judgment of Richter v Walton (Court of Appeal delivered 15 July 1993).There Kirby P and O'Keefe AJA said, in a joint judgment:

"The purpose of an order under Section 32R of the Act is to protect the public, not to punish the practitioner.The disciplinary power is, as the High Court said in New South Wales Bar Association v Evatt ((1968) 117 CLR 177 at 183), "entirely protective".In no sense is the order to be regarded as punitive or imposed to conform to notions of due punishment for the conduct which is found. Removing the name of a medical practitioner from the Medical Register is the ultimate professional sanction, in the same way as is the disbarring of a barrister.Again as the High Court has said "when such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege" (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201 to 202)."

It is apparent that similar considerations apply to the Medical PractitionersAct 1983 Act: Medical Board of South Australia v Newcombe (Judgment No D3303 delivered 1 September 1995).

In determining the appropriate penalty so as to ensure, to the greatest extent possible, that other medical practitioners are not likely to act as the respondent did it is necessary to give great weight to the notion of general deterrence.Of course, any penalty must contain an element of personal deterrence but, in our opinion, in this matter, it is of overwhelming significance that medical practitioners at large be made aware that behaviour of the type undertaken by the respondent, irrespective of it obtaining only a small sum of money within a relatively confined time frame in circumstances of some personal stress, will attract a significant sanction from this Tribunal.

This is so not only in such circumstances, but obtains even where there is contrition accompanied by immediate confession and ongoing acknowledgment of guilt.

It is difficult to envisage a circumstance where the behaviour of a medical practitioner which amounted to a deliberate and ongoing fraud upon the revenue could not attract the severest sanctions set out in the Act.This must be so to ensure that the public remains protected from others who may be so inclined to act, even where other tribunals, exercising other powers and protecting other interests, have considered the matter and imposed penalties.

Thus, in our opinion, notwithstanding all that has been said in favour of the respondent, including his very long period of practice and his professional and financial loss since the AAT delivered its decision in mid-1996, behaviour such as he has acknowledged is deserving of the severest condemnation.

Pursuant to Section 58 of the Act the order of the Tribunal is that the registration of the respondent as a medical practitioner on the general and specialist registers be cancelled.

Thursday, 13 February 1997 - In Court:

Application for costs - refused.

Application pursuant to Section 67 of the Act to suspend the effect of the order - order suspended for 21 days and, should appeal be instituted within the time, until appeal is determined.

Application for suppression of respondent's name - refused.