Mukherjee and Medicare Participation Review Committee

[2009] AATA 484

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4023

GENERAL ADMINISTRATIVE DIVISION		)
Re		GOPAL MUKHERJEE

Applicant

And MEDICARE PARTICIPATION REVIEW COMMITTEE

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date30 June 2009

PlaceSydney

Decision The reviewable decision is affirmed.  

...................[sgd]..........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

HEALTH INSURANCE – Medicare Participation Review Committee – Applicant convicted of offences for knowingly making false statements - Determination disqualifying applicant from receiving Medicare benefits for three months – Medical and other evidence considered - Held applicant not entirely unaware of his actions - Decision affirmed

Administrative Appeals Tribunal Act 1975, ss 37, 41

Health Insurance Act 1973, ss 124F, 124H, 128B

REASONS FOR DECISION

30 June 2009 Mrs Josephine Kelly, Senior Member      

SUMMARY

1.      Dr Gopal Mukherjee has been practising as a general practitioner in Australia since 1984. He seeks the review of the decision made by the Medicare Participation Review Committee (MPRC) on 15 July 2008 to fully disqualify him from receiving medicare benefits for three months.  That means that medicare benefits are not payable for professional services provided by Dr Mukherjee during the disqualification period.   The MPRC has agreed that the operation or implementation of its determination be stayed until this Tribunal delivers its decision (s 41 of the Administrative Appeals Tribunal Act 1975 (the AAT Act)).

2. Dr Mukherjee was referred to the MPRC because he had been convicted in September 2007 of 63 offences of knowingly making false statements relating to medicare benefits under section 128B of the Health Insurance Act 1973 (the Act).   The offences were committed from 12 July 2002 to 5 March 2004. The New South Wales Local Court ordered Dr Mukherjee to perform 100 hours of community service, released him on a recognisance to be of good character for three years, and ordered him to enter into the care of a psychiatrist, and repay $9,453.70 to Medicare Australia (Medicare).

3.      For the reasons that follow, I affirm the decision made by the MPRC.

THE ISSUE

4. The issue in this case is whether the MPRC's determination to fully disqualify Dr Mukherjee from receiving medicare benefits for three months, made pursuant to s 124F(2)(e) of the Act, is the correct or preferable decision in all the circumstances.

LAW

5. Section 124F of the Act provides for determinations to be made in relation to relevant offences and relevant civil contraventions. Subsection 124F(1) of the Act provides:

“(1) Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(1) in relation to a practitioner shall make a determination in relation to the practitioner of any relevant offence or relevant civil contravention that is the subject of a notice under s 124D and has not been the subject of a previous determination by a Committee”.

6.      Subsection 124F(2) of the Act sets out the possible courses of action that may be taken in making a determination in relation to a practitioner.

7.      Subsection 124F(3) of the Act provides:

“In making a determination under subsection (2) in relation to a practitioner, a Committee shall:

(a)without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:

(i)each relevant offence which the practitioner has been convicted; and

(ii)each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and

(iii)each relevant civil contravention for which a pecuniary penalty order has been made against he practitioner; and

(b)comply with guidelines in force under section 124H”.

8.      There are special requirements, if the decision-maker imposes a disqualification, as the MPRC did in this case, set out in subsection 124F(4A) and (5) of the Act.

THE CASE FOR DR MUKHERJEE

9. Mr Ainsworth, counsel who appeared for Dr Mukherjee, argued that the appropriate determination in this matter is that no further action was required to be taken (s 124F(2)(a) of the Act). Alternatively, I should consider the alternative sanctions available under s 124F(2) of the Act.

10.     The principal argument put by Mr Ainsworth was that at no time during the course of committing the offences was Dr Mukherjee fully aware of his actions.  Mr Ainsworth relied on the evidence of Dr Mukherjee,  Dr Lal, Dr Mukherjee's treating psychiatrist, Dr Samuel, psychiatrist, who prepared a pre-sentence report at the request of  Dr Mukherjee's solicitors, and Dr Wright, consultant psychiatrist, who has seen Dr Mukherjee more recently and prepared a report dated 15 December 2008.

11.     Other matters that  Mr Ainsworth argued supported a different finding were:

.          Dr Mukherjee was divorced in 2002;

.          he was made bankrupt in 2004 and discharged in 2007;

.he pleaded guilty to the charges, has repaid $9,453.70,  and served a community service order of 100 hours;

.          the charges related to specialised services that he did not provide;

.the following time frame is significant - there have been no offences since 2004,   he was sentenced in September 2007 and the MPRC met in May 2008;

.           the MPRC's determination takes away all Dr Mukherjee's means of income;

.Dr Mukerjee has no assets, and he has little money over after paying 30% of his income to the practice for which he works, tax, child maintenance,  superannuation, and paying for his car and rent;

.he is on the Impaired register in relation to alcohol and has to have a blood test every month;

.          he is precluded from prescribing certain medications;

.          a complaint has gone to the medical board which he has to defend;

.          he has worked for the same practice in Fairfield for 25 years;

.he has been practising largely without restriction although monitoring of any non-standard service continues and is in place for 5 years; and

.          he just wants to be a general practitioner in the western suburbs of Sydney.

12.     Mr Ainsworth argued that Dr Mukherjee has been punished enough.  At the hearing, Mr Ainsworth said that if I were not persuaded that no further action was required, an appropriate determination would be to disqualify Dr Mukherjee from providing specialist services until the end of 2009 but to allow him to provide services with item number 23, 36 and 5020, that is standard consultation, extended consultation and after hours consultation, respectively.

CONSIDERATION

13. I have taken into account all the evidence before me, including the documents filed under s 37 of the AAT Act, and the submissions made on behalf of both parties. Dr Mukherjee did not give oral evidence to this Tribunal. Both parties relied upon the transcript of proceedings before the MPRC where Dr Mukherjee did give oral evidence. In part, he said:

“On hindsight, I look back, I can’t believe or I can’t imagine why I did that. It’s all cloudy. I can’t believe that I did that. I feel like a separate person was controlling me and who did this and I got really no explanation. I think it is bizarre and crazy what I did… I believe my mind was controlled by diseases, bipolar disorder and I couldn’t, I can’t give you an explanation of why I did it. I feel like I didn’t do it, like somebody else did it”. 

14.     Both parties accept, and it is clear on the evidence, that Dr Mukherjee has suffered from a mood disorder dating back to the time of his university studies in India.  He has experienced episodes of major depression and periods of hypomania.  He suffered from depression and hypomania during the period he committed the offences which was untreated or only partially treated.   However, I do not accept Mr Ainsworth's principal submission that at no time during the commission of the offences was Dr Mukherjee fully aware of his actions. 

15.     I have taken into account the evidence of Dr Lal and Dr Samuell, and in particular the extracts from their evidence relied on by Mr Ainsworth. In his report dated 24 September 2007 Dr Lal said that both major depression and hypomania can impair judgment significantly, or exacerbate underlying compulsive behaviours.  Dr Lal concluded:

“I have no doubt that Dr Mukherjee’s condition has contributed significantly to his aberrant behaviour”.

16.     Dr Samuell's diagnosis was slightly different. He thought Dr Mukerjee suffered from Bipolar Disorder type one or two.  Dr Samuell said: 

“The grandiosity, poor judgment and impulsivity around the time of the alleged offences is strongly suggestive of a mood disorder”.

17.     Dr Wright agreed with the opinions of Dr Lal and Dr Samuell, which he summarised as: 

(they) concluded that it was likely that the offences for which he was charged and pleaded guilty occurred during an episode of mood disorder.     

18.     Dr Wright then said:

“In relation to your specific question about whether a patient with such a condition (undiagnosed and untreated bipolar disorder) would have periods of complete normality interspersed with hypomania and major depression, it has been my experience in treating such patients over a number of years that there can indeed be periods of complete normality interspersed with through periods of depression, hypomania and mixed affective states.  The impact of this can be that the individual is subject to behavioural and judgmental changes as influenced by a mood disorder at certain times, and at other times is not so affected”.

19.     I do not consider that Dr Mukherjee's evidence given to the MPRC about when he was or was not able to distinguish honest from dishonest behaviour persuasive.  His evidence on this question before the MPRC was contradictory.  Contrary to Mr Ainsworth's submission, I do not consider that his statement that he was unable to distinguish honest from dishonest behaviour when he was depressed but not hypomanic, supports the argument that he was never fully aware of what he was doing.  Rather, it seems to me to contradict it.  As I understand that statement, it means that he could make that distinction when he was hypomanic.

20.     I agree with the MRPC's conclusion that Dr Mukarjee's illness contributed significantly to the commission of the offences.  I do not consider that he was wholly unaware of what he was doing. It is somewhat difficult to understand  Dr Mukherjee’s stance taken before the MPRC and this Tribunal given that he had pleaded guilty to the offence of knowingly  making false statements.

21.     I have taken into account the magistrate's remarks on sentencing and the findings made by the MPRC.  I emphasise that this matter is before me for review on its merits.  I note that the written submissions filed on behalf of Dr Mukherjee did not seem to appreciate that this Tribunal was undertaking a review of the MPRC's decision on that basis.

22.     Taking into account all the evidence and the particular matters put to me on behalf of Dr Mukerjee, I have decided that it is appropriate to affirm the decision made by the MPRC.

23. I have considered the possible determinations in this case that may be made pursuant to s 124F(2) of the Act, which are:

take no action against the practitioner

counsel the practitioner

reprimand the practitioner

partially disqualify the practitioner; and/or

fully disqualify the practitioner.

24.     I have also taken into account that Dr Mukherjee has undertaken treatment of his psychiatric disorders since being hospitalised in 2007, that his mood has been stable since that time, and that he has not been consuming alcohol.  I appreciate that full disqualification is the most serious sanction that can be imposed, however, it is for a limited period.  In my view, the nature and the number of offences committed, and the length of time during which they were committed, support the determination made by the MPRC, which I affirm.

25. Finally, I should address a submission made by Ms Butler, solicitor who appeared on behalf of the MPRC. Ms Butler argued that the Guidelines made under section 124H of the Act, but which had lapsed on 1 January 2008, should be taken into account as a statement of policy. In the absence of any evidence that those Guidelines have been adopted as policy since they lapsed, I do not consider that I should take them into account or apply them. Section 124F(3)(b) of the Act requires the MPRC, or presently the Tribunal, only to “comply with Guidelines in force.”

DECISION

26.     For the above reasons, the reviewable decision is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ..……[sgd]...…….

Steven Mulipola, Associate

Date of hearing:  4 February 2009

Date of decision:  30 June 2009

Counsel for the Applicant:  Mr M Ainsworth

Solicitors for the Applicant:  TressCox Lawyers

Solicitors for the Respondent:                  DLA Phillips Fox