Panegyres v Medical Board of Australia
[2020] WASCA 58
•24 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PANEGYRES -v- MEDICAL BOARD OF AUSTRALIA [2020] WASCA 58
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 2 OCTOBER 2019
DELIVERED : 24 APRIL 2020
FILE NO/S: CACV 101 of 2018
BETWEEN: PETER KONSTANTINOS PANEGYRES
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE T SHARP, DEPUTY PRESIDENT
MS H LESLIE (MEMBER)
DR K JEFFRIES, SENIOR SESSIONAL MEMBER
Citation: MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146
File Number : VR 102 of 2015
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE T SHARP, DEPUTY PRESIDENT
MS H LESLIE (MEMBER)
DR K JEFFRIES, SENIOR SESSIONAL MEMBER
Citation: MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146 (S)
File Number : VR 102 of 2015
Catchwords:
State Administrative Tribunal - Vocational regulation - Medical practitioner - Over-servicing patient - Overcharging patient - Where patient was mentally incompetent - Where consent of guardian and Public Trustee not obtained - Whether the Tribunal erred in finding financial exploitation of patient having regard to cl 3.2.6 of Good Medical Practice: A Code of Conduct for Doctors in Australia (Conduct Code) - Whether ethical standard in cl 3.2.6 of Conduct Code dependent on whether doctor subjectively intended to financially exploit patient
State Administrative Tribunal - Vocational regulation - Medical practitioner - Appellant found guilty of professional misconduct - Conduct found to be substantially below standard - Whether reasons given adequate to disclose intellectual process
State Administrative Tribunal - Vocational regulation - Medical practitioner - Whether tribunal erred by misapplying the correct standard of proof
State Administrative Tribunal - Practice and Procedure - Costs - Whether reasons given adequate to disclose intellectual process for costs quantification
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 41
State Administrative Tribunal Act 2004 (WA), s 105(9)(b)
Result:
Leave to appeal granted
Appeal allowed
Leave to cross-appeal refused
Cross-appeal dismissed
Orders of Tribunal set aside and substituted orders made
Category: B
Representation:
Counsel:
| Appellant | : | M D Cuerden SC & E M Heenan |
| Respondent | : | B A Mangan |
Solicitors:
| Appellant | : | Clayton Utz |
| Respondent | : | Panetta McGrath Lawyers |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bernadt v Medical Board of Australia [2013] WASCA 259
Bhattacharya v General Medical Council [1967] 2 AC 259
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402
Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Dekker v Medical Board of Australia [2014] WASCA 216
Gipp v R [1998] HCA 21; (1998) 194 CLR 106
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
Harnett v Medical Board of Victoria [1941] VLR 289
Hewett v Medical Board of Western Australia [2004] WASCA 170
Hoile v Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157
International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45; (2012) 246 CLR 455
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Keet v Ward [2011] WASCA 139
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Kuligawski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
Medical Board of Australia and Panegyres [2017] WASAT 146
Medical Board of Australia and Panegyres [2017] WASAT 146 (S)
Medical Board of Queensland v Cooke [1992] 2 Qd R 608
Michaud v Stefanovski [2016] WASCA 85
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Palermo v Palermo [2015] WASCA 49
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Payne v Parker [1976] 1 NSWLR 191
Pickford v Imperial Chemical Industries Plc [1998] 3 All ER 462
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Re Phillips (1978) 18 SASR 14
Re Voon and Medical Board of the ACT (1993) 1 ALD 655
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Singh v Medical Board of Australia [2018] WASCA 125
South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213; (2009) 105 SASR 1
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115
Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252
Waite v Alcoa of Australia Ltd [2020] WASCA 1
Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
TABLE OF CONTENTS
BUSS P & MURPHY JA:
Introduction
The statutory background
Unprofessional conduct
Professional misconduct
The Conduct Code
The Board's case against Dr Panegyres
The Board's allegations
Preliminary observations on the Board's allegations
The Board's findings of professional misconduct
The Conduct Decision - grounds of appeal and Dr Panegyres' overview of the appeal
Grounds of appeal - in the Conduct Decision
Dr Panegyres' overview of the appeal as to the Conduct Decision
The merits of the grounds of appeal in relation to the Conduct Decision
Ground 2
Ground 1
Ground 3
Characterisation of the Tribunal's findings in the Conduct Decision
Overcharging for services not clinically indicated or reasonably required
Single instance or multiple instances?
The gravamen of the Tribunal's findings as a whole
Merits of the other grounds of appeal - grounds 4 - 7
The disposition of the appeal
The court's powers
The exercise of this court's powers
Cross-appeal
Conclusion and orders
VAUGHAN JA:
Nature of the appeal and cross-appeal
Background facts
Statutory framework
The conduct decision
(1) The Board's case against Dr Panegyres
(2) The Tribunal's approach and conclusions
(3) The Tribunal's factual findings and reasoning on the Board's allegations.
Allegation Three: Charging KW for services that Dr Panegyres did not provide to KW
Allegations One and Four: Excessive provision of services and charging
Allegations Two, Five and Seven
Allegation Six: Acting in a manner contrary to the Conduct Code
(4) The finding of professional misconduct
The penalty and costs decision
The grounds of appeal and cross-appeal
(1) The conduct decision - grounds of appeal
(2) The penalty and costs decision - grounds of appeal
(3) The Board's cross-appeal - grounds of appeal
(4) The question of law in the cross-appeal
Leave to appeal and cross-appeal
Disposition in relation to the Board's cross-appeal
(1) The Board's contentions on the cross-appeal
(2) The Tribunal's reasons disclose no express misapplication of the correct standard of proof
(3) Misapplication because no plausible explanation and on the balance of probabilities the consultations charged for did not take place
(4) Conclusion as to the Board's cross-appeal
(5) Additional observations as to the Tribunal's approach to Allegation Three
Disposition in relation to Dr Panegyres' appeal against the conduct decision
(1) Ground 1: Finding of breach of cl 3.2.6 of Conduct Code by financial exploitation
(2) Ground 2: Alleged inadequacy of reasons for finding of professional misconduct
(3) Ground 3: Characterising Dr Panegyres' conduct as multiple instances of unprofessional conduct
(4) Conclusion as to Dr Panegyres' appeal against the conduct decision
Disposition in relation to the appeal against the penalty and costs decision
(1) Grounds 4, 5 and 6: Dr Panegyres' appeal against the penalty decision
(2) Ground 7: Dr Panegyres' appeal against the costs decision
Consequential determination following the disposition of the appeal
(1) General considerations
(2) The factual findings on the conduct case presented against Dr Panegyres
(3) The court should make the decision that the Tribunal should have made
(4) Dr Panegyres is guilty of multiple instances of unprofessional conduct
(5) The penalty to be imposed on Dr Panegyres
(6) Quantification of the Board's costs in the Tribunal proceedings
Conclusion
BUSS P & MURPHY JA:
Introduction
This is a consolidated appeal by the appellant (Dr Panegyres) against findings of professional misconduct by the State Administrative Tribunal (Tribunal) and consequential penalty orders. In the proceedings before the Tribunal, the respondent (the Board) alleged that Dr Panegyres, a neurologist, had been guilty of professional misconduct in relation to certain matters arising from his care of a mentally incompetent person, KW. Amongst other things, the Board alleged, and the Tribunal found, that Dr Panegyres had overcharged KW by charging KW for services which were not clinically indicated and were not reasonably necessary for his wellbeing. The Tribunal found no conscious impropriety on the part of Dr Panegyres.
The Tribunal ordered that Dr Panegyres be suspended from practice as a registered medical practitioner for six months, and ordered him to pay the Board's costs fixed in the sum of $264,400. The suspension order has been stayed pending the determination of this appeal.
The Tribunal's reasons with respect to the misconduct findings are conveniently referred to as the 'Conduct Decision',[1] and the Tribunal's reasons in relation to penalty will be referred to as the 'Penalty Decision'.[2]
[1] Medical Board of Australia and Panegyres [2017] WASAT 146.
[2] Medical Board of Australia and Panegyres [2017] WASAT 146 (S).
By this appeal, Dr Panegyres raises seven grounds of appeal. The first three relate to the Conduct Decision, and the last four relate to the Penalty Decision. They are to the following effect:
1.The Tribunal erred in the Conduct Decision in finding that Dr Panegyres contravened a provision of a relevant professional standard[3] concerning financial exploitation of patients.
2.The Tribunal's reasons in the Conduct Decision fail to explain the intellectual process by which it arrived at a finding of professional misconduct.
3.Insofar as the Tribunal's reasons in the Conduct Decision disclose that it found multiple instances of unprofessional conduct, together constituting professional misconduct, the Tribunal erred in characterising Dr Panegyres' conduct as multiple instances of unprofessional conduct, rather than conduct amounting to one event of unprofessional conduct.
4.Related to ground 1, the Tribunal erred in the Penalty Decision in assessing the penalty to be imposed on the basis that Dr Panegyres had financially exploited KW.
5.The Tribunal erred in the Penalty Decision in finding that Dr Panegyres' misconduct was constituted by a sustained course of conduct.
6.(In the event that grounds 1 ‑ 5 fail), the Tribunal erred in the Penalty Decision in imposing a suspension for six months - this was manifestly excessive.
7.The Tribunal also erred in the Penalty Decision[4] in finding that Dr Panegyres should pay costs fixed in the sum of $264,400, because the Tribunal's reasons do not disclose the intellectual process which led to that quantification.
[3] Good Medical Practice: A Code of Conduct for Doctors in Australia (Conduct Code).
[4] Penalty Decision [102].
The background to the appeal is set out in detail in the reasons of Vaughan JA. In broad terms and in outline:
1.KW was a private in‑patient of Dr Panegyres at Joondalup Health Campus from 27 November 2012 to 21 February 2013.
2.KW, under Dr Panegyres' care, was diagnosed as having a neurodegenerative disease, involving dementia and Parkinson's disease.
3.On 3 December 2012, Dr Panegyres prepared a medical report for a guardianship and administration application in relation to KW, in which Dr Panegyres confirmed his diagnosis and said, in effect, that KW was incapable of managing his health affairs or his financial affairs.
4.As a result of that application, on 8 January 2013, KW's brother was appointed his guardian, but there ensued some rankling between them.
5.On 22 January 2013, KW's brother was removed from his representative capacity. The Public Advocate was thereupon appointed as KW's limited guardian, and the Public Trustee was appointed as KW's plenary administrator.
6.KW was discharged from the hospital on 21 February 2013, and placed in a nursing home - at which time he ceased to be under the care of Dr Panegyres.
On 3 March 2013, Dr Panegyres raised an invoice for the services provided to KW over the period 27 November 2012 to 21 February 2013 (the 'Invoice').[5] The Invoice was raised against KW, care of the Public Trustee, and was sent to the Public Trustee's postal address. The Invoice was for a total of $25,265.10.[6] Dr Panegyres charged above the AMA List rates.[7] Dr Panegyres received payments under the Invoice from Medicare and a private health insurer totalling $6,166.20. The Public Trustee has not paid the balance.[8] The Board became involved in this matter following a complaint by the Public Trustee.
[5] Conduct Decision [56].
[6] BB 148 - 151.
[7] Conduct Decision [57].
[8] Conduct Decision [114].
The Tribunal (amongst other things) found that Dr Panegyres had overcharged KW by charging him for services which were not reasonably required for his wellbeing and not clinically indicated.[9] Dr Panegyres does not challenge that finding. Indeed, in oral submissions, senior counsel for Dr Panegyres accepted that apart from the first two initial consultations, Dr Panegyres' consultations with KW were approximately double those which were clinically indicated or required for KW's wellbeing.[10] He also accepted that at the time of providing the services, Dr Panegyres had in contemplation that a fee would be charged for them.[11]
[9] Conduct Decision [347].
[10] Appeal ts 7.
[11] Appeal ts 9, 11, 28, 33.
Nor does Dr Panegyres challenge the finding (essentially based on Dr Panegyres' own diagnosis at the time) that at all material times, KW had dementia and was incapable of managing his health or financial affairs. Dr Panegyres also accepted before the Tribunal[12] that he did not seek the consent of KW's brother, as initial guardian, or the consent of the Public Trustee, as KW's subsequent plenary administrator, in relation to the fee arrangements for the services provided to KW. Nor is there a challenge to the finding that he did not consult with the Public Advocate as to the nature and scope of the services required for KW's ongoing treatment.[13]
[12] Conduct Decision [348], [352].
[13] Conduct Decision [351].
For the reasons which follow, in outline:
1.The Tribunal erred by not disclosing, in the Conduct Decision, its reasons for finding Dr Panegyres guilty of professional misconduct.
2.There should be a substituted order that Dr Panegyres was guilty of unprofessional conduct.
3.The parties should be heard further on any consequential (penalty) orders pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
4.The Tribunal erred by not disclosing, in the Penalty Decision, its reasons for finding that Dr Panegyres should pay costs fixed in the amount of $264,400, and (subject to [111] below) the determination of such costs should be assessed by a member of the Tribunal to be nominated by the President of the Tribunal in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).
The statutory background
Vaughan JA has set out the general statutory background in relation to this matter. Also, the National Law (relevantly) provides, pursuant to div 3 and div 8 of pt 8, for a system by which complaints of unprofessional conduct[14] may be made against a medical practitioner and investigated by the Board.
[14] Section 144(1)(a) of the National Law.
As Vaughan JA has noted, s 5 of the National Law includes definitions of 'unprofessional conduct', and 'professional misconduct'. We agree with his Honour's observations at [145] ‑ [148] and [150] ‑ [157] as to the operation of those provisions. At this point, it is convenient to set out the definitions in full.
Unprofessional conduct
The term 'unprofessional conduct' is defined and then expressed to include certain conduct:
unprofessional conduct, of a registered health practitioner, means 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[.] (emphasis added)
Professional misconduct
Unlike the terms 'unprofessional conduct' and 'unsatisfactory professional performance' as defined in s 5 of the National Law, the definition of 'professional misconduct' is inclusory and does not contain an exhaustive statement of the concept:
professional misconduct, of a registered health practitioner, 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[.] (emphasis added)
The Conduct Code
Having regard to the Board's allegations referred to in the next section of these reasons, it is convenient to mention here the effect of the Conduct Code and to refer to its provisions insofar as they are relevant to this appeal.
The basic structure of the Conduct Code has been outlined by Vaughan JA. As his Honour has observed, the Conduct Code describes itself as a code specifying what is expected of all doctors registered to practise medicine in Australia.[15] It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community.[16] It brings together standards at the core of medical practice.[17] The Conduct Code provides, however, that it is not a substitute for the provisions of legislation and case law. If there is any conflict between the Conduct Code and the law, the law takes precedence.[18]
[15] Conduct Code, cl 1.1 par 1.
[16] Conduct Code, cl 1.1 par 1.
[17] Conduct Code, cl 1.1 par 3.
[18] Conduct Code, cl 1.3 par 1.
The Conduct Code has been developed and approved pursuant to s 39 of the National Law. It thus attracts s 41 of the National Law and is 'admissible … as evidence of what constitutes appropriate professional conduct or practice for the profession'.[19]
[19] Section 41 of the National Law was amended in 2018 in terms that do not affect the proper disposition of this appeal.
As Vaughan JA has also observed, there are parts of the Conduct Code that are more aspirational than standard setting. For example, good medical practice is said to involve being considerate to those close to the patient and respectful of their role.[20] It cannot be assumed that any departure from the conduct or practice referred to in the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law.
[20] Conduct Code, cl 3.9.1.
Ultimately, in disciplinary proceedings against a medical practitioner, the question is not whether the impugned conduct is in 'breach' of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
Clause 3.2.6 of the Conduct Code provides:
A good doctor-patient partnership requires high standards of professional conduct. This involves … [r]ecognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially. (emphasis added)
Clause 3.3.3 of the Conduct Code provides:
An important part of the doctor-patient relationship is effective communication. This involves … [i]nforming patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.
Clause 3.5.3 of the Conduct Code provides:
Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. The information that doctors need to give to patients is detailed in guidelines issued by the National Health and Medical Research Council. Good medical practice involves … [e]nsuring that your patients are informed about your fees and charges.
The Conduct Code has an extended definition of the term 'patient' to encompass substitute decision makers. Clause 1.6 provides that the term 'patient' also includes substitute decision makers for patients who do not have the capacity to make their own decisions. For the purposes of the Conduct Code the Public Advocate (KW's guardian) was a substitute decision maker for KW in relation to treatment decisions. The Public Trustee (KW's administrator) was a substitute decision maker for KW in relation to financial matters.
The Board's pleaded case only relied on cl 3.2.6, cl 3.3.3 and cl 3.5.3 of the Conduct Code.[21] Although it had not been mentioned or relied on by the Board at the hearing, the Tribunal's reasons nevertheless referred to cl 5.2 of the Conduct Code.[22] This provides:
[21] Conduct Decision [17].
[22] Conduct Decision [368(d)].
5.2Wise use of health care resources
It is important to use health care resources wisely.
Good medical practice involves:
5.2.1Ensuring that the services you provide are necessary and likely to benefit the patient.
5.2.2Upholding the patient's right to gain access to the necessary level of health care and, whenever possible, helping them to do so.
5.2.3Supporting the transparent and equitable allocation of health care resources.
5.2.4Understanding that your use of resources can affect the access other patients have to health care resources.
Clause 5.2 of the Conduct Code is also referred to in cl 2.2.10:
Good medical practice involves … [m]aking responsible and effective use of the resources available to you (see Section 5.2).
The Board's case against Dr Panegyres
The Board's allegations
As the Tribunal observed, the Board alleged in effect that Dr Panegyres:[23]
[23] Conduct Decision [5], [10] - [22].
1.Provided services which were not clinically indicated and not reasonably required for KW's well‑being (referred to as 'Allegation One').
2.Failed to keep records of the services provided to KW (referred to as 'Allegation Two').
3.Charged for services not provided to KW (referred to as 'Allegation Three').
4.Charged excessively for services provided to KW without KW's consent (referred to as 'Allegation Four').
5.Failed to seek and obtain the Public Trustee's consent to the fees charged and to be charged to KW (referred to as 'Allegation Five').
6.Acted in a manner contrary to the Conduct Code (referred to as 'Allegation Six') in that he:
(a)failed to recognise the power imbalance in the doctor/patient relationship and exploited KW financially (cl 3.2.6 of the Conduct Code);
(b)failed to inform KW and/or his guardian (the Public Advocate) of the nature and need for KW's clinical management and treatment, so as to give KW (or his guardian) adequate opportunity to question or refuse treatment (cl 3.3.3 of the Conduct Code); and
(c)failed to ensure that KW and/or his administrator (the Public Trustee) were informed about Dr Panegyres' fees and charges (cl 3.5.3 of the Conduct Code).
7.Charged Medicare Australia under the Medicare Benefits Schedule item numbers for services when Dr Panegyres knew or ought to have known that he was not entitled to charge under those item numbers (referred to as 'Allegation Seven').
The Board alleged that Dr Panegyres had engaged in professional misconduct by reference to both subparagraphs (a) and (b) of the definition of that term in s 5 of the National Law. The Board alleged that the conduct as alleged should be characterised as professional misconduct because it met the statutory formulation in par (a) of the definition and, further or in the alternative, the statutory formulation in par (b) of the definition.[24]
Preliminary observations on the Board's allegations
[24] Amended application, par 23; BB 143.
The following preliminary observations may be made about the Board's allegations.
First, Allegation Six alleged conduct 'contrary' to the Conduct Code. In other words, it alleged, in effect, a contravention of the Conduct Code. Putting the allegation that way, however, tended to distract attention from the proper use to which the Conduct Code could be put in the proceedings. As noted earlier, by s 41 of the National Law, the Conduct Code was no more than admissible evidence of appropriate professional conduct or practice.
Secondly, Allegation One appears to have been designed to invoke par (d) of the definition of 'unprofessional conduct'.
Thirdly, the Tribunal found that there was no expert evidence led by the Board identifying what was a generally accepted standard that might be expected of a practitioner such as Dr Panegyres by his professional peers of good repute and competence,[25] against which to judge the actual conduct of Dr Panegyres alleged in this case. There was, however, agreement between the experts that 'it would not be acceptable for the practitioner to charge for any consultations that [were] excessive, unnecessary or otherwise not reasonably required for the persons well‑being'.[26]
[25] Conduct Decision [364].
[26] Conduct Decision [365].
Fourthly, whilst it was plainly open to the Board to seek to prove the appropriate professional conduct (against which Dr Panegyres' conduct could be judged) by reference to the Conduct Code, the only allegations by the Board which in terms invoked the Conduct Code were the allegations in Allegation Six. Each of the other allegations, Allegations One, Two, Three, Four, Five and Seven, as a separate instance of alleged misconduct, was not underpinned by the invocation of the Conduct Code (although Allegation Five effectively covered the same subject matter as Allegation Six(c) and Allegation Six (c) included a reference to the Conduct Code).
Fifthly, the Board did not contend that the Tribunal, having regard to the expertise of its members, should make findings as to the appropriate professional conduct in the circumstances of this case without expert evidence and in the absence of the Conduct Code providing evidence as to the appropriate professional standard.[27]
[27] cf Dekker v Medical Board of Australia [2014] WASCA 216 [73].
The Board's findings of professional misconduct
Whilst as discussed later, the Tribunal's reasons are inadequate to explain how it came to the conclusion that Dr Panegyres had engaged in professional misconduct, the ultimate findings of the Tribunal were to the effect that Dr Panegyres had engaged in professional misconduct by:[28]
(1)providing and charging for services which were not medically indicated or were not reasonably required for KW's well‑being, contrary to cl 3.2.6 of the Conduct Code;
(2)failing to obtain the Public Advocate's consent to KW's ongoing treatment arrangements, contrary to cl 3.3.3 of the Conduct Code;
(3)failing to keep adequate or contemporaneous records, contrary to an unidentified provision of the Conduct Code;
(4)charging Medicare Australia for services for which he was not entitled to charge and which were not clinically indicated or reasonably required for KW's wellbeing, contrary to cl 5.2 of the Conduct Code.
[28] Conduct Decision [371], read with [340], [349], [351], [356] and [368]. In [371.1(b)], the reference to 'KW's administrator' is evidently erroneous and is plainly intended, when the Tribunal's reasons are read as a whole, to refer to 'KW's guardian' - the Public Advocate.
The third of those findings was made even though the Board had not relied on the Conduct Code as providing the appropriate professional conduct or standard against which to judge Dr Panegyres' failure to keep records.
The fourth finding above was made (1) in the absence of any finding, as alleged, that Dr Panegyres knew or ought to have known that he was not entitled to charge Medicare Australia under the relevant items, and (2) even though the Board had not relied on the Conduct Code as providing the appropriate professional conduct or standard.
The Tribunal also found that Allegation Three (involving an allegation of dishonesty) had not been proved.[29]
[29] Conduct Decision [327].
Further, whilst the Tribunal found, as a fact, that Dr Panegyres failed to obtain the Public Trustee's consent to KW's fees and charges, contrary to cl 3.5.3 of the Conduct Code (as alleged by the Board in Allegation Six(c)), the Tribunal did not include that finding as part of its overall findings (at [371] of the Conduct Decision) as to professional misconduct.
The Conduct Decision - grounds of appeal and Dr Panegyres' overview of the appeal
Grounds of appeal - in the Conduct Decision
As noted earlier, there are three grounds of appeal in relation to the Conduct Decision.
Ground 1 alleged, in effect, that the Tribunal erred in fact and law in finding that Dr Panegyres had breached cl 3.2.6 of the Conduct Code by financially exploiting KW (knowing of KW's incompetence and unfitness to make personal or financial decisions) because:
(a)Dr Panegyres did not charge KW until the Invoice was sent; and
(b)the Invoice was sent to the Public Trustee (Ground 1).
Ground 2 alleged, in effect, that the Tribunal erred in failing to disclose in its reasons the intellectual process that led to the finding that Dr Panegyres' conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
Ground 3 was in the alternative to ground 2. Ground 3 alleged that, if it was to be inferred from the Tribunal's reasons that Dr Panegyres was guilty of breaches of the Conduct Code that constituted multiple instances of unprofessional conduct which together amounted to professional misconduct within par (b) of the definition of 'professional misconduct' in the National Law definition, then the Tribunal erred in characterising Dr Panegyres' conduct as multiple instances of unprofessional conduct.
Dr Panegyres' overview of the appeal as to the Conduct Decision
Dr Panegyres accepted for the purposes of this appeal, the following findings in respect of Allegations One, Two, Four, Five and Seven:
1.It was not necessary or clinically indicated for him to see KW for a full neurological review more than three times per week.[30]
2.His records were inadequate to justify the charge imposed when the Invoice was issued.[31]
3.The Invoice was excessive because it charged for attendances that the Tribunal found were not necessary or clinically indicated.[32] Dr Panegyres further accepted that he ought not to have charged KW for the attendances that the Tribunal found were not necessary or clinically indicated.[33]
4.He ought to have obtained the Public Trustee's consent to charging KW as a private patient before issuing the Invoice.[34]
5.He ought not to have included the impugned Medicare item numbers on the Invoice.[35]
[30] Appellant's submissions, par 91(a); WB 27.
[31] Appellant's submissions, par 91(b); WB 27.
[32] Appellant's submissions, par 91(c); WB 27.
[33] Appellant's submissions, par 98; WB 28.
[34] Appellant's submissions, par 91(d); WB 27.
[35] Appellant's submissions, par 91(e); WB 27.
Dr Panegyres then said:[36]
[36] Appellant's submissions, par 92 ‑ 94; WB 27 - 28.
92.[T]he findings above constitute a single instance of unprofessional conduct not substantially below the standard reasonably expected. The conduct issues under the National Law arising from the above findings of fact are ultimately all attributable to the single event of the issuing of the Invoice to the Public Trustee.
93.If no Invoice had been issued:
(a)It would not have mattered that the appellant performed more neurological reviews than were necessary or clinically indicated (Allegation One). It was not alleged that the reviews did any harm to KW. The conduct issue was whether the appellant should have charged for those attendances.
(b)It would not have mattered whether the appellant's records justified the charge imposed on the Invoice (Allegation Two). It was common ground that the hospital notes were adequate for KW's clinical care.
(c)No issue for charging for attendances which were unnecessary would have arisen (Allegation Four).
(d)No issue of obtaining the Public Trustee's consent to charging KW as a private patient would have arisen (Allegation Five).
(e)No issue of which [Medicare] items might apply to charges imposed on the Invoice would have arisen (Allegation Seven).
94.[Dr Panegyres'] grounds of appeal concerning the Conduct Decision challenge the Tribunal's finding that he 'financially exploited' a vulnerable patient and the conclusion that he was guilty of professional misconduct. (emphasis added)
The merits of the grounds of appeal in relation to the Conduct Decision
Ground 2
It is convenient to commence with a consideration of ground 2 - the sufficiency of the Tribunal's reasons in the Conduct Decision. Counsel for the Board was effectively unable to explain the process of reasoning by which the Board had found Dr Panegyres guilty of professional conduct.[37]
[37] Appeal ts 63, 65, 67 - 69.
We agree that ground 2 succeeds for the reasons given by Vaughan JA at [296] ‑ [300] and [308] ‑ [311]. That is sufficient to uphold ground 2.
In addition, other critical aspects of the Tribunal's reasons (at Conduct Decision [368] ‑ [371]) lacked coherence and consistency, and failed to explain the Tribunal's reasoning process with sufficient certainty.
At Conduct Decision [368], the Tribunal 'specifically' found Dr Panegyres to be 'in breach' of the Conduct Code in four particular respects. The first three reflected, in substance, Allegations Six (a), Six (b) and Six (c), respectively. The fourth appeared to be directed to Allegation Seven, but the Board had not relied on the Conduct Code in respect of Allegation Seven.
Then at Conduct Decision [369], the Tribunal said that a 'breach' of the Conduct Code 'may constitute … unprofessional conduct'. The implication there is that the four specific 'breaches' of the Conduct Code in Conduct Decision [368] were 'breaches' which 'may' constitute unprofessional conduct. It was incumbent, in our view, for the Tribunal to identify which, if any, of the four specified breaches of the Conduct Code was found to have constituted unprofessional conduct.
Next, at Conduct Decision [370], the Tribunal said that it was 'open' to find, and that it did find, that, in relation to 'Allegations One, Two, Three, Five, Six and Seven', Dr Panegyres' conduct constituted, in effect, professional misconduct. There was no explanation why this was so in a context where (1) the Board, by Allegations One, Two, Five and Seven, had not relied on 'breaches' of the Conduct Code; (2) the only 'breaches' of the Conduct Code as alleged were the Allegation Six 'breaches'; and (3) the import of the Tribunal's reasons at [368] ‑ [369] was that only 'breaches' of the Conduct Code could satisfy a finding of unprofessional conduct or professional misconduct.
Finally, at [371] of the Conduct Decision, the Tribunal returned to the Conduct Code as purportedly providing a basis for its findings of professional misconduct, yet, in substance, two of the four findings of professional misconduct were in relation to allegations for which the Board had not relied on the Conduct Code.
In substance, the first two findings of professional misconduct at [371] of the Conduct Decision[38] corresponded with, respectively, Allegation Six (a) and Allegation Six (b) (and these were allegations in which the Board had relied on the Conduct Code). The third finding at [371] of the Conduct Decision[39] related to Allegation Two (failure to keep records), but the Board had not relied on the Conduct Code in relation to the failure to keep adequate records. The fourth finding of professional misconduct at [371] of the Conduct Decision[40] related to Allegation Seven (charging Medicare), but that finding was made, as indicated earlier (1) despite the Board never having relied on the Conduct Code in that regard; and (2) absent any finding that Dr Panegyres had the actual or constructive knowledge alleged by the Board to be integral to its allegation of professional misconduct in that respect.
[38] Conduct Decision [371.1(a)] and [371.1(b)].
[39] Conduct Decision [371.1(c)].
[40] The 'second' par (c) in [371] of the Conduct Decision.
The above matters provide an additional basis for upholding ground 2.
Ground 1
Ground 1 attacks the finding of 'breach' of cl 3.2.6 of the Conduct Code. It reflects the framework within which the Board presented its case (by Allegation Six (a)) and the Tribunal's findings (at [371.1](a)).
However, as noted earlier, framing the case in that way distracted attention from the real issues. They were, relevantly at this point:
(1)What was the appropriate professional conduct evidenced by cl 3.2.6 of the Conduct Code?
(2)Did Dr Panegyres' conduct involve a departure from that appropriate conduct?
(3)If so, was the departure unprofessional conduct?
(4)If unprofessional conduct, was it conduct substantially below the standard reasonably required of a registered health practitioner of an equivalent level of training or experience (ie, was it professional misconduct within par (a) of the definition of that term)?
(5)If the conduct was unprofessional conduct but not, in itself, professional misconduct, did this unprofessional conduct, combined with other found instances of unprofessional conduct, amount to professional misconduct in accordance with par (b) of the definition of professional misconduct?
Given that ground 2 should be upheld in any event (raising the prospect of a retrial or this court making substitutive orders), and given that ground 1 sits within a framework which deflected attention from the real issues, it is unnecessary and inappropriate to decide ground 1 on its terms.
However, the arguments in relation to ground 1 included submissions as to the nature and scope of cl 3.2.6 of the Conduct Code. As those arguments will have a bearing upon the question of whether there needs to be a retrial or whether this court ought make substitutive orders, and, if so, what orders, it is convenient at this juncture to consider the effect of cl 3.2.6 of the Conduct Code as supplying evidence as to appropriate professional conduct.
Dr Panegyres' arguments were to the effect that there could be no 'breach' of cl 3.2.6 of the Conduct Code involving financial exploitation of KW because (1) no charges were raised against KW prior to the appointment of the Public Trustee as plenary administrator, (2) the Invoice was the only charge raised for the services provided to KW, and the Invoice was sent to the Public Trustee, a statutory officeholder with competence and experience in managing the affairs of others, who could take advantage of the full services of the Public Service and other agencies and instrumentalities of the State, and (3) cl 3.2.6 of the Conduct Code, on its proper construction, could only be 'breached' where there was a positive intention by the practitioner to financially exploit the patient - which was not this case.[41] The arguments involved the implicit contention that KW's mental incapacity, to Dr Panegyres' knowledge, was not an aggravating circumstance in the assessment of his conduct as a whole.
[41] Appellant's written submissions, pars 96 - 110; WB 28 - 29.
For the reasons given in [59] ‑ [62] below, the construction of cl 3.2.6 of the Conduct Code advanced by Dr Panegyres' cannot be accepted. Also, for the reasons given in [59] ‑ [61] below, the implicit contention in Dr Panegyres' submissions that his knowledge that KW was an incompetent person was not an aggravating circumstance when considering the gravity of his conduct, cannot be accepted.
Clause 3.2, in its preamble to (relevantly) cl 3.2.6, commences with a normative statement to the effect that 'high standards of professional conduct' are 'required' of a medical practitioner. It is fundamentally concerned with ethical conduct in the doctor's dealings with a patient.
The ethical conduct to which cl 3.2.6 is directed 'involves' both 'recognising … and not exploiting' the patient in the ways specified. It expresses two related ideas - there is a power imbalance in the doctor/patient relationship which the doctor should recognise and not 'exploit', ie, should not unfairly or unethically take advantage of.[42]
[42] 'Exploit' is defined in the Oxford English Dictionary Online to mean (relevantly for present purposes) 'To take advantage of in an unfair or unethical manner; to utilise for one's own ends'.
Amongst other things, cl 3.2.6 speaks of a standard by which a doctor is expected to recognise, and guard against the prospect that, because of the power imbalance, the patient may be susceptible to express or implicit suggestions involving the conferral of sexual or financial benefits (beyond a proper fee for service in all the circumstances) on the doctor. Conduct by a doctor which encourages the conferral of such sexual or financial benefits on the doctor is inconsistent with the ethical standard referred to in cl 3.2.6 on its proper construction, even though the doctor subjectively does not intend to take advantage of the imbalance of power in the relationship and exploit the patient.
Relevantly for present purposes, overcharging the patient for the provision of professional services is inconsistent with the ethical standard referred to in cl 3.2.6 of the Conduct Code.
However, even if that conclusion were wrong, and overcharging without a subjective intention to exploit is not inconsistent with cl 3.2.6, the point has no real significance in the context of this particular case. That is because the Tribunal also found, by reference to the expert evidence, that it was not acceptable for Dr Panegyres to charge for any consultations that were excessive, unnecessary or otherwise not reasonably required for KW's wellbeing.[43] That finding is effectively unchallenged.[44]
Ground 3
[43] Conduct Decision [365]; see also [243], [346].
[44] See [42.3] above.
By ground 3, Dr Panegyres submitted that on the uncontested primary findings of fact, his conduct could not properly be characterised as multiple instances of unprofessional conduct and, on the contrary, could only be properly characterised as a single instance of unprofessional conduct.
As ground 3 is in the alternative to ground 2, and ground 2 should be upheld, it is strictly unnecessary to address ground 3. However, the question of characterisation raised by ground 3 is ultimately relevant to the dispositive orders in this appeal, and is conveniently discussed at this juncture.
Characterisation of the Tribunal's findings in the Conduct Decision
Overcharging for services not clinically indicated or reasonably required
The basal character of the Tribunal's unchallenged (or unsuccessfully challenged) findings is that Dr Panegyres was guilty of overcharging KW by charging KW, via the Invoice, for services which were not clinically indicated and were not reasonably required for his well‑being (which, for convenience may be referred to, in shorthand, as 'over‑servicing').
Over‑servicing itself is a form of unprofessional conduct (see par (d) of the definition of 'unprofessional conduct' in s 5 of the National Law). Even where the doctor does not charge the patient for the over‑servicing, over‑servicing may cause the patient trouble, inconvenience, expense (eg, concomitant pharmaceutical or hospital charges or travel expenses), and even injury if invasive procedures are unnecessarily taken. Also, given the power imbalance between the doctor and patient, the patient is ordinarily unable to form a considered view as to whether the services provided are clinically indicated or not and whether he or she should consent or refuse consent to such services or treatment.
In the case of KW, there was no finding to the effect that Dr Panegyres' over‑servicing caused KW any material trouble, inconvenience, other expense or injury. Rather, it was the charging for the over‑servicing which constituted the basal feature of the Tribunal's adverse findings, in circumstances which aggravated the inappropriateness of that conduct. The aggravating circumstances were that, to the knowledge of Dr Panegyres, KW, more than ordinary patients, had lacked the insight to assess or query the nature, extent and frequency of the services for which Dr Panegyres was charging by the Invoice, and the rates at which he was charging.
As noted earlier (see [57] above), Dr Panegyres in this appeal implicitly submitted, in effect, that KW's mental incompetence, and Dr Panegyres' knowledge of it, were not aggravating circumstances, given that only one charge was raised, and this was the Invoice sent to the Public Trustee. That submission cannot be accepted for the following reasons:
1.The Invoice was raised against KW, albeit sent care of the Public Trustee. It created a charge the payment of which would come out of KW's estate.[45]
2.KW, given his incapacity, and to the knowledge of Dr Panegyres, was in no position to appreciate that he was receiving, and was being charged for, services that were not clinically indicated and were not reasonably required for KW's well‑being.
3.Following their appointment, Dr Panegyres did not (1) consult with and consider the views of the Public Advocate about KW's ongoing treatment needs, or (2) obtain the consent of the Public Trustee (or KW's brother when he was guardian) in relation to his fee arrangements in a context where consent to fees would ordinarily presuppose the patient (or their representative) having an adequate understanding of the nature and scope of the services to be provided. Accordingly, Dr Panegyres did not obtain, when the opportunity arose, consent as to the nature and frequency of the services he was providing or the charges for those services.
4.The Public Trustee was not in a position to form a considered view, or engage in a reasoned discussion with, Dr Panegyres as to whether the services charged to KW were reasonable, including whether they were clinically indicated and reasonably required for KW's well‑being, given that:
(a)the Public Trustee had no independent knowledge of the services for which Dr Panegyres was charging via the Invoice, and whether those services were clinically indicated and reasonably required for KW's well‑being; and
(b)the Public Trustee could not consult with KW (or the Public Advocate) about the services provided by Dr Panegyres, from KW's perspective.
[45] KW's estate was not vested in the Public Trustee: s 69(4) of the Guardianship and Administration Act 1990 (WA).
As to that last point, whilst, as occurred here, the Public Trustee might, in effect, ultimately seek an investigation into the matter by the Board under the National Law,[46] the possibility of an investigation does not alter the fundamental power imbalance at the heart of the relationship between Dr Panegyres and KW. Indeed, the statutory scheme for such an investigation by the Board is, at least in part, a recognition of, and response to, the power imbalance in the doctor/patient relationship. Moreover, KW was at a particular disadvantage in relation to such an investigation because neither he, nor the Public Trustee, was in a position to provide the Board with relevant information, from KW's perspective, as to what services were provided, when and for what purpose.
Single instance or multiple instances?
[46] Divisions 3 and 8 of pt 8 of the National Law.
Next, it is necessary to consider the question of whether this was a single instance or involved multiple instances of inappropriate conduct (to use a neutral expression at this stage).
In this case, no specific occasions were identified on the evidence as representing over‑servicing. Rather, looking at the period in which KW was under the care of Dr Panegyres as a whole, the finding was, in effect, that (apart from the first two weeks) Dr Panegyres' consultations with KW were effectively double what was clinically indicated or reasonably required for KW's well‑being. Charging for this over‑servicing was made through the issue of the (single) Invoice.
The overcharging occurred in the aggravating circumstances that, to Dr Panegyres' knowledge, KW was mentally incompetent. Dr Panegyres' failures to consult with the Public Advocate or to obtain the consent of the Public Trustee are, in substance, relevant to the operative effect of the aggravating circumstances in this case.
In these circumstances, the better characterisation of the inappropriate conduct is that it constituted a single instance of overcharging KW whilst he was under Dr Panegyres' care at Joondalup Health Campus.
Further, the Tribunal's finding[47] of a breach of the Conduct Code in failing to keep adequate records (relating to Allegation Two) ought not be treated as a separate finding of unprofessional conduct, as the Board never alleged such a case.[48] Also, the finding as to charging Medicare (in relation to Allegation Seven)[49] ought not be treated as a separate finding of unprofessional conduct, for three reasons. First, insofar as it constitutes a finding that Medicare was charged for unnecessary services, it is substantively encompassed within the finding of overcharging. Secondly, the burden of the Board's case was that Dr Panegyres knew or ought to have known that he could not charge Medicare, and the Tribunal made no such finding.[50] Thirdly, the Tribunal's adverse finding was based on a breach of the Conduct Code, but the Board did not advance its case on that basis.[51]
The gravamen of the Tribunal's findings as a whole
[47] The first [371.1(c)] in the Conduct Decision.
[48] See [31] and [51] above.
[49] The 'second' [371.1(c)] in the Conduct Decision.
[50] See [51] above.
[51] See [31] and [51] above.
The basal feature of the Tribunal's adverse findings were as stated in [68] above - subject to a consideration of the mental element of Dr Panegyres' conduct.
The Tribunal's findings as to overcharging are to be understood, and their significance assessed, in the context that:
1.The Tribunal (as the Board accepted in this appeal)[52] made no finding of dishonesty or conscious impropriety against Dr Panegyres.
2.The Board alleged, but failed in its allegation, that Dr Panegyres had knowingly charged for services that he did not in fact render to KW. (As discussed later, the cross‑appeal in this regard should be dismissed.)
[52] Appeal ts 49 - 50, 54 - 55.
In other words, the gravamen of the Tribunal's Conduct Decision (on the unchallenged findings) is that Dr Panegyres overcharged KW by charging for services which were, objectively, clinically not indicated and not reasonably required, in the aggravating circumstances mentioned, but did so without any conscious impropriety that he was overcharging, and without any subjective intention to charge more than a proper fee for services rendered.
As to the aggravating circumstances - that, to Dr Panegyres' knowledge, KW was mentally incompetent - it is implicit in the Tribunal's findings that Dr Panegyres did not refrain from consulting the Public Advocate as to treatment, or the Public Trustee as to fees, for fear that approval would not be forthcoming.
The Tribunal's Conduct Decision should also be understood in the context that the following matters were not in issue before the Tribunal:[53]
1.There was no criticism of the quality of care provided to KW by Dr Panegyres.
2.There was no suggestion that Dr Panegyres was in any way responsible for the length of KW's stay in the hospital, or that he 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.
3.Insofar as there was a demonstrated deficiency in the hospital notes, this deficiency was not relevant to and had no adverse effect upon KW's clinical care.
[53] Conduct Decision [65].
Merits of the other grounds of appeal - grounds 4 - 7
The other grounds of appeal relate to the Penalty Decision. As the appeal must be allowed in respect of ground 2 of the Conduct Decision, it is strictly unnecessary to deal with grounds 4 ‑ 6. However, it should be noted that Dr Panegyres' arguments on ground 4, insofar as they correspond with his arguments on ground 1, cannot be accepted for the reasons in [59] ‑ [62] and [69] ‑ [70] above. As to ground 5 (in relation to the Tribunal's finding of a sustained course of conduct) the proper characterisation of the Tribunal's decision is explained in [66] ‑ [71] above. Ground 6 falls away as it is predicated on an absence of success in the appeal against the Conduct Decision.[54] There is, however, merit in Dr Panegyres' complaint that the Tribunal, on the one hand, inconsistently found that personal deterrence was a significant factor in the order for suspension, whilst at the same time finding that there was no risk of Dr Panegyres reoffending.[55]
[54] Appeal ts 35.
[55] Penalty Decision [83], [87].
Ground 7, in substance, raises a separate issue - whether the Tribunal also erred in law in failing to give adequate reasons for finding that Dr Panegyres should pay costs of $264,400. We agree with Vaughan JA at [319] ‑ [343] of his Honour's reasons to the effect that the Tribunal failed to give adequate reasons for requiring Dr Panegyres to pay costs in the sum of $264,400.
The disposition of the appeal
The court's powers
Dr Panegyres has succeeded in establishing legal error in the Conduct Decision in respect of ground 2 - the Tribunal failed to disclose in its reasons the intellectual process by which it found that Dr Panegyres was guilty of professional misconduct.
Section 105(9) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal; or
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
Ordinarily, the court's power under s 105(9)(b) of the SAT Act would only be exercised where only one conclusion was open on the correct application of the law to the facts found by the Tribunal.[56] Thus, where the decision committed to the original decision‑maker is essentially a 'factual, evaluative and ministerial judgment', the ordinary course would be to remit the matter to the body established for the purpose of making that decision.[57]
[56] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20]; Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166].
[57] Osland [20].
However, the power under s 105(9)(b) of the SAT Act is also wide enough, in appropriate circumstances, to determine any factual issue remaining to be determined in consequence of dealing with the error of law established in the appeal, where that issue is conveniently capable of determination upon uncontested evidence or primary facts found by the Tribunal.[58]
[58] Osland [20]; Carey [68].
In this case, the question of whether Dr Panegyres was guilty of either professional misconduct or unprofessional conduct was to be determined by the Tribunal in the context of strenuously fought adversarial proceedings, including the calling of oral evidence, in relation to events going back to 2012. Although the Tribunal failed to disclose the intellectual process by which it concluded that Dr Panegyres was guilty of professional misconduct, it made material findings of fact, on the contested factual issues before it, which are unchallenged and not in dispute.
Given the history of this matter, given that the principal residual issue concerns the drawing of inferences from uncontested primary facts by reference to (relatively) familiar statutory criteria and given the absence of any 'ministerial' aspect to the evaluative task,[59] this is one of those cases where the court should exercise its power under s 105(9)(b) of the SAT Act. Neither party suggested otherwise.
The exercise of this court's powers
[59] cf Osland [20].
Dr Panegyres, in this appeal, did not dispute that his conduct in overcharging KW for services not clinically indicated and not reasonably required for his wellbeing constituted unprofessional conduct.[60] Indeed, in the 'orders sought' by Dr Panegyres in the appeal, he invited the court to make a finding that he was guilty of unprofessional conduct.[61]
[60] Appellant's submissions, pars 92, 118, 138; WB 27, 31, 34; appeal ts 14 - 15, 31, 92.
[61] 'Orders wanted', par 3(a); WB 36.
In our view, Dr Panegyres' conduct in overcharging KW, even without the aggravating circumstances that, to Dr Panegyres' knowledge, KW was mentally incompetent, would justify a finding of unprofessional conduct. The aggravating circumstances in this case confirm that conclusion.
The real question for decision is whether the conduct goes beyond unprofessional conduct so as to be professional misconduct, ie, that it was unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[62]
[62] See par (a) of the definition of 'professional misconduct' in s 5 of the National Law.
In assessing the gravity of the conduct, consideration should be had to the amount of the overcharging. As Vaughan JA observed,[63] the overall effect of the overcharging was that, by the issue of the Invoice for $25,000 (approximately), Dr Panegyres overcharged KW $9,000 (approximately). This was not a trifling amount. Also, the aggravating circumstances in which the conduct occurred ought be taken into account (see [68] ‑ [70] above).
[63] See [397] of Vaughan JA's reasons.
On the other hand, material weight should be given to the absence of any conscious impropriety in the conduct, as discussed in [77] ‑ [79] above, and the other circumstances referred to in [80] above.
Weighing all these matters together, on the facts not in controversy, we are not persuaded that the unprofessional conduct of Dr Panegyres is of a character which could fairly be described as substantially below the standard reasonably required of a registered medical practitioner of an equivalent level of training or experience as Dr Panegyres. In this regard, the absence of any dishonesty or conscious impropriety otherwise is a significant factor. Further, even if we were wrong in characterising the conduct as a single instance of unprofessional conduct, and the conduct should properly be characterised as split into (1) over‑servicing, (2) overcharging in consequence of over‑servicing, and (3) failing to consult the Public Advocate and to obtain the consent of the Public Trustee, those matters do not, taken together, disclose professional misconduct within the meaning of par (b) of the definition of that term in s 5 of the National Law. Those individual events of unprofessional conduct (on the present assumption) do not reflect misconduct of a gravity greater than that when considering Dr Panegyres' conduct viewed as a single whole. Nor would those matters, together with Allegations Five and Seven (even if those allegations were properly regarded as instances of unprofessional conduct, contrary to the conclusion in [75]), constitute professional misconduct. Allegations Five and Seven are really no more than part and parcel of the relevant overcharging.
The conclusion that Dr Panegyres was guilty of unprofessional conduct still leaves open for consideration the question of penalty, and the potential application of s 196(2) of the National Law - in relation to which the parties should be heard further. In determining the question of penalty in disciplinary proceedings, the court is to take into account (amongst other things) the relevant circumstances as they exist at the time of the imposition of the penalty orders.[64]
[64] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [40].
In relation to ground 7 (costs), we agree, as indicated earlier, that ground 7 should be upheld.
Cross-appeal
The onus was on the Board to prove that Dr Panegyres charged for services that he did not provide. The onus was not on Dr Panegyres to prove that he had provided the services.
There was no dispute that if the services were provided, they were for neurological services provided at Joondalup Health Campus. Dr Panegyres was the only attending neurologist at the hospital at that time. The neurology service at the hospital was supported by one registrar and two resident medical officers, who shared responsibilities with other medical departments.[65] Neither the registrar nor the residents had any neurological training, and were expected to receive that training from Dr Panegyres.[66] There was evidence from a resident at the time (Dr Ng) to the effect that she worked under Dr Panegyres,[67] usually attended ward rounds with Dr Panegyres as part of the neurology team,[68] and, as the most junior person, was generally the note taker, although sometimes, if the registrar had the file, he would take notes.[69] There was also evidence from the registrar (Dr Tan) who worked with Dr Panegyres at the relevant time.[70] His evidence was to the effect that he attended each of Dr Panegyres' patients as part of his own routine daily ward rounds,[71] that when he was at Joondalup Health Campus, he always accompanied Dr Panegyres when Dr Panegyres did his ward rounds,[72] and that he made notes of the consultations where he was the most junior doctor accompanying Dr Panegyres.[73] Dr Tan's notes indicated that he (Dr Tan) saw KW daily, and Dr Tan said that it was clear from his notes that Dr Panegyres was not present on all those occasions.[74] There was also evidence to the effect that Joondalup Health Campus had a protocol for the maintenance of clinical documentation.[75]
[65] Conduct Decision [48].
[66] Conduct Decision [49].
[67] Conduct Decision [138].
[68] Conduct Decision [146].
[69] Conduct Decision [148] - [159].
[70] Conduct Decision [164].
[71] Conduct Decision [176].
[72] Conduct Decision [181].
[73] Conduct Decision [184] - [186].
[74] Conduct Decision [196].
[75] GB 598 - 601.
The Tribunal found, in effect, that the medical records of the hospital (including the notes made by the registrar and resident) did not contain a record of many of the consultations the subject of Dr Panegyres' charges to KW.[76] In particular, the Tribunal accepted that if the notes kept by the registrar and the resident did not record Dr Panegyres as being in attendance, he was not there.[77] The Tribunal also found, in effect, that Dr Panegyres did not himself have any clinical notes of many of the consultations for which he charged KW.[78]
[76] Conduct Decision [320].
[77] Conduct Decision [313].
[78] Conduct Decision [313] - [321], [339] - [340].
Forensically, the issue in relation to Allegation Three ultimately came down to whether Dr Panegyres had provided the services to KW in consultations for which he charged, which were not recorded anywhere in the medical records of the hospital.
In the proceedings before the Tribunal, the Board pointed to the failure by Dr Panegyres to call oral evidence of nurses and other medical staff who were in a position to observe KW and observe the nature and extent of any services provided by Dr Panegyres to KW, and contended that this enlivened the application of the rule in Jones v Dunkel.[79] As to this contention, the Tribunal correctly found, in effect, that if, as was the case, the medical records of the hospital did not disclose the consultations for which Dr Panegyres charged, then no practical purpose would be served in calling individual medical staff and asking about their recollection of events four years previously. Also, as the Tribunal correctly observed, witnesses of that nature were equally available to the Board if it thought it appropriate to call such evidence.[80]
[79] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
[80] Conduct Decision [313] - [316].
Dr Panegyres' direct evidence on the topic was to the effect that on each of the occasions for which he charged KW, including, relevantly, when there was no record of the consultation, he undertook a full neurological assessment, including a review of KW's medications, his blood pressure, his temperature and his behaviour.[81] The effect of his evidence was that there were consultations, particularly at night, where he would see KW in the absence of junior medical staff or nurses, and in respect of which there would be a 'verbal handover' the next morning. Dr Panegyres did not, however, suggest that the medical records contained evidence of a 'verbal handover' which referred to or recorded a consultation that he had had with KW alone the previous evening.[82]
[81] Conduct Decision [319].
[82] Conduct Decision [313], [320] - [322]; ts 431 - 432.
Dr Panegyres' oral evidence was a key element of the forensic contest on the question of whether he had provided the services for which he was charging KW. Dr Panegyres' explanation of why he did not keep clinical notes of the full neurological assessments which he said he undertook could not be shelved and put to one side without undertaking an assessment of the reliability and credibility of his evidence on this topic as a whole. Yet that is what the Tribunal purported to do when it found that his explanation for not having a record of the services was 'plausible', whilst at the same time saying it was not 'necessary or appropriate' to consider the truthfulness or otherwise of his testimony.[83] Plainly, the veracity of his testimony on oath bore upon whether his explanation for having no clinical notes was 'plausible'. It was both necessary and appropriate for the Tribunal to consider the truthfulness or otherwise of his testimony as a whole, even though, having done so, it would then be open (theoretically at least) to accept parts of his evidence and reject others. The word 'theoretically' is used here because a finding that the evidence should be accepted as to why he had no clinical notes in relation to the relevant consultations would necessarily import a finding that the consultations had occurred.
[83] Conduct Decision [323].
Had the Tribunal accepted Dr Panegyres' evidence to the effect that he provided the services (having considered, amongst other things, his explanation for not keeping clinical notes), the Board would have failed in its allegation that Dr Panegyres had not provided the services.
On the other hand, had the Tribunal rejected Dr Panegyres' evidence on the topic that would not, in and of itself, have established the Board's case. That is because, generally speaking, disbelief in a witness' evidence of a fact does not establish the contrary.[84] Thus, even if the Tribunal had rejected Dr Panegyres' oral evidence to the effect that he had provided the consultations, the question would still have been whether, upon the evidence that the Tribunal did accept, the Board's allegation had been established in relation to the services for which Dr Panegyres charged KW at the hospital, but which were not recorded in the hospital's records. The Board's case in that event would ultimately have depended on circumstantial evidence (KW not being in a position, through his dementia, to give direct evidence on the topic). The circumstantial evidence would have involved essentially (1) the absence of any record of the consultations in the hospital's medical records, (2) the absence of any clinical notes of Dr Panegyres, and (3) any inferences that might have been available on the evidence as to whether such records or notes would ordinarily have been kept had the services been provided. In assessing the weight to be given to the circumstantial evidence, it would have been open to the Tribunal to take into account that (on the present hypothesis) it disbelieved the testimony of the only person who could have given direct evidence that the services were provided.[85]
[84] Kuligawski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [60].
[85] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [52], [54] - [55], [57] - [58]; see also Pickford v Imperial Chemical Industries Plc [1998] 3 All ER 462, 473 ‑ 474.
In this case, the Tribunal misunderstood and misapplied the burden of the decision in Hewett v Medical Board of Western Australia[86] in finding that it was not 'necessary or appropriate' to consider the truthfulness or otherwise of Dr Panegyres' testimony. Hewett was a case where a medical practitioner allegedly had sexual contact with a patient. The patient and the doctor gave conflicting evidence. The Medical Board of Western Australia found the allegation proven, but did so by essentially asking itself, and answering, the single question as to who was lying - the patient or the doctor. It did so without a consideration of the evidence as a whole.[87] Hewett is not an authority for the proposition that the Tribunal, in disciplinary proceedings, may avoid resolving important factual contests having regard to the evidence as a whole, including the sworn testimony of witnesses. To the contrary, Hewett is consistent with the requirement that the evidence must be looked at as a whole.
[86] Hewett v Medical Board of Western Australia [2004] WASCA 170.
[87] See Hewitt [91], [115] - [121], [166] - [167], [183] - [185], [202] - [211], [219].
However, the cross‑appeal in this case is limited to a question of law.[88] In this matter, the cross‑appeal was not argued on the basis that the Tribunal had failed to make all necessary findings of fact and thereby failed to address and determine the material issues in the case. The Board's cross‑appeal was confined to the question of whether the Tribunal had misapplied the standard of proof by not, in effect, having
found Allegation Three to have been proved. That involved a question of fact rather than a question of law.[89] Accordingly, leave to cross‑appeal should be refused and the cross‑appeal dismissed.
[88] Section 105(2) of the SAT Act.
[89] See Waite v Alcoa of Australia Ltd [2020] WASCA 1 [99] and the cases there cited.
Conclusion and orders
The appeal has been shown to have merit and it is in the interests of justice to grant leave to appeal.[90]
[90] As to which see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18]; Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
Accordingly, leave to appeal in the consolidated appeal should be granted, the appeal should be allowed, the orders of the Tribunal made on 21 November 2017 and 16 October 2018 (subject to the matter in [111] below) should be set aside, and there should be an order by this court that Peter Constantinos Panegyres is guilty of unprofessional conduct by excessively charging for services to a patient who, to his knowledge, was mentally incompetent. The parties should be heard on the question of any further orders pursuant to s 196(2) of the National Law in light of these reasons.
As to the costs of the primary proceedings, Dr Panegyres seeks an order that he pay the costs of the Board and that the determination of such costs be assessed by a member of the Tribunal to be nominated by the President of the Tribunal in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).
Leave to cross‑appeal should be refused and the cross‑appeal dismissed. The parties should be heard on the costs of the primary proceedings and the costs of the appeal and the cross‑appeal.
VAUGHAN JA:
Nature of the appeal and cross-appeal
The appellant medical practitioner, Peter Panegyres, seeks to appeal against a finding of the State Administrative Tribunal that he is guilty of professional misconduct. The finding of professional misconduct was that, contrary to the provisions of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Conduct Code), Dr Panegyres:
1.provided and charged for medical services to a patient, KW, which were not clinically indicated and were not all reasonably required for KW's well‑being;
2.failed to obtain the consent of KW's administrator to the ongoing treatment arrangements for KW;
3.failed to keep adequate records or contemporaneous records of the services provided by him to KW including the nature of those services; and
4.charged Medicare Australia for services for which he was not entitled to charge and charged Medicare Australia for services to KW which were not all clinically indicated or reasonably required for KW's well‑being.
Dr Panegyres also seeks to appeal against a consequential penalty - that he be suspended from practice for six months - and an order that he pay the costs of the Tribunal proceedings in the amount of $264,400. The operation of the suspension order has been stayed by order of Murphy JA made 20 November 2018 pursuant to s 106(1) of the State Administrative Tribunal Act 2004 (WA).
Two separate appeals were instituted (one against the conduct finding and the other against the penalty and costs decision). However, the two appeals were consolidated by order made on 31 October 2018.
The respondent is the Medical Board of Australia. The Board referred Dr Panegyres' conduct to the Tribunal under s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Western Australia) (National Law). The Board resists Dr Panegyres' appeal. The Board also cross‑appeals to the extent that the Tribunal failed to uphold one of the Board's contentions as to Dr Panegyres' conduct, namely, that Dr Panegyres charged for services that were not provided.
The appeal and the cross-appeal both require leave.[91] With leave an appeal on the part of Dr Panegyres as to the finding of professional misconduct and order for suspension may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.[92] That said, Dr Panegyres largely accepts the factual findings made by the Tribunal. His grounds do, however, allege certain factual errors. If leave is granted the cross-appeal by the Board may only be brought on a question of law.[93] Dr Panegyres contended that the Board's application for leave to cross‑appeal did not raise any question of law.
[91] State Administrative Tribunal Act, s 105(1).
[92] State Administrative Tribunal Act, s 105(13). See Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [149] - [154].
[93] State Administrative Tribunal Act, s 105(2).
Background facts
Dr Panegyres is a specialist neurologist who is registered as a medical practitioner pursuant to the National Law. Among other places he provides clinical services at Joondalup Health Campus (JHC). The conduct proceedings arose out of the services provided by Dr Panegyres to a patient (referred to as 'KW') who was a private in-patient at JHC between 27 November 2012 and 21 February 2013.
KW first consulted Dr Panegyres on 5 July 2009. Dr Panegyres diagnosed emerging extrapyramidal syndrome and possibly idiopathic Parkinson's disease. Dr Panegyres then consulted with KW as an in‑patient at the Mount Hospital in July 2009. Later Dr Panegyres saw KW for clinical review. At a clinical review on 8 December 2009 KW was provided with a 'Patient Information Details' form which KW then signed. It provided:
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.
KW's condition worsened over 2012. By late-August 2012 Dr Panegyres assessed KW as probably having emerging dementia. On 26 November 2012 KW was accompanied by a registered nurse from his place of employment in Paraburdoo and admitted to the emergency department of JHC. On 27 November 2012 KW was admitted to JHC under the care of Dr Panegyres. KW remained an in-patient at JHC until discharged on 21 February 2013. KW was diagnosed as dementing from Lewy body disease. Lewy body disease is a progressive neurodegenerative disorder with dementia and Parkinson's disease.
At the time of KW's admission, Dr Panegyres was the only attending neurologist at JHC. The neurology service was supported by a registrar and two residents. Those medical practitioners shared responsibilities with other medical departments. None of the junior medical staff had any neurological training. As an in-patient at JHC, KW was a private patient under Dr Panegyres' clinical care. However, KW also received medical care from other JHC staff including care by specialists in other areas such as physiotherapy, nursing and cognitive and psychological testing.
Insofar as the Conduct Code established applicable standards, the Board's case, as pleaded in relation to Allegation Six, relied only on breaches of cl 3.2.6, cl 3.3.3 and cl 3.5.3 of the Conduct Code. There is, as previously noted, common features between Allegation 6(a)'s breach of cl 3.2.6 of the Conduct Code (exploiting financially) and the adverse finding the subject of Allegation Four (excessive charging). Accordingly, it is convenient to defer the evaluation exercise in relation to the breach of cl 3.2.6 of the Conduct Code until after having dealt with the finding the subject of Allegation Four.
As to the other two breaches within Allegation Six:
1.Clause 3.3.3 of the Conduct Code requires a doctor to give his or her patient an adequate opportunity to question or refuse intervention and treatment. Dr Panegyres did not provide the Public Advocate with any opportunity post-22 January 2013 to have a say as to KW's on-going treatment.
2.Clause 3.5.3 of the Conduct Code requires a doctor to ensure that his or her patients are informed about fees and charges. Dr Panegyres did not provide the Public Trustee with any opportunity post-22 January 2013 to agree to the fee arrangement that Dr Panegyres sought to invoke.
In those two respects Dr Panegyres' conduct was below the standard established by the Conduct Code. The conduct might be said to be substantially below the standard so far as there are only two possibilities. A patient either is, or is not, afforded an adequate opportunity to question or refuse treatment; and a patient either is, or is not, informed about fees and charges. But whether behaviour constitutes professional misconduct as being substantially below the relevant standard involves a qualitative evaluation rather than a binary determination. It cannot be enough that, there being only two possibilities, the practitioner fails to meet the standard. That would see automatic substitution of the more serious finding of professional misconduct for unprofessional conduct whenever the subject matter of the impugned conduct involves such an omission.
I am not satisfied that on the evidence the Board established that Dr Panegyres' conduct in breach of cl 3.3.3 and cl 3.5.3 of the Conduct Code was substantially below the relevant standard. Dr Panegyres' failure to raise KW's ongoing treatment with the Public Advocate, and seek consent to a fee arrangement with the Public Trustee, was one of omission: he failed to act where action was required. But there was nothing to suggest a conscious or wilful intentional failure on the part of Dr Panegyres. Dr Panegyres' failing was one of inadvertence rather than one involving moral turpitude. The behaviour is unprofessional conduct rather than professional misconduct.
There is a difficulty in relying on the standards established by the Conduct Code in relation to the other instances of unprofessional conduct (ie conduct other than that within Allegation Six). The Board's pleaded case only relied on cl 3.2.6, cl 3.3.3 and cl 3.5.3 of the Conduct Code. Although it had not been mentioned or relied on by the Board at the hearing, the Tribunal's reasons nevertheless referred to cl 5.2 of the Conduct Code. This provides:
5.2Wise use of health care resources
It is important to use health care resources wisely.
Good medical practice involves:
5.2.1Ensuring that the services you provide are necessary and likely to benefit the patient.
5.2.2Upholding the patient's right to gain access to the necessary level of health care and, whenever possible, helping them to do so.
5.2.3Supporting the transparent and equitable allocation of health care resources.
5.2.4Understanding that your use of resources can affect the access other patients have to health care resources.
Clause 5.2 of the Conduct Code is also referred to in cl 2.2.10:
Good medical practice involves … [m]aking responsible and effective use of the resources available to you (see Section 5.2).
The Tribunal found that Dr Panegyres was in breach of cl 5.2 of the Conduct Code on the basis that Dr Panegyres had failed to ensure that that the services provided were necessary and likely to benefit KW.[399] That finding of breach exceeded the Board's pleaded reliance on the Conduct Code. It cannot be relied on for present purposes; such a breach was no part of the Board's case. A similar procedural fairness issue arises in considering whether cl 5.2 of the Conduct Code may be relied on as establishing an applicable standard. In circumstances where cl 5.2 of the Conduct Code was neither pleaded nor relied on by the Board at the hearing before the Tribunal it is, in my view, impermissible to rely on cl 5.2 for this purpose.
[399] Primary decision [368(d)].
As to the excessive servicing finding (Allegation One), it is possible to rely on the par (d) part of the s 5 definition of 'unprofessional conduct' as establishing a standard of conduct. In nominating certain conduct as unprofessional conduct the legislature has identified various conduct that is inconsistent with the standard that is reasonably expected of health practitioners by the public and professional peers. In terms of par (d) one such standard is that registered health practitioners ought not provide a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being. Despite the differences in the language employed as to the relevant standard in the s 5 definitions of 'unprofessional conduct' and 'professional misconduct' (refer to [155] above) I consider the same standard to be applicable for the purpose of evaluating whether there is professional misconduct.
So too, as to the excessive charging finding (Allegation Four), there is an applicable standard which may be considered: the Tribunal made the unchallenged finding that it is unacceptable for a practitioner to charge for consultations that are excessive, unnecessary or otherwise not reasonably required for a patient's well-being. As so expressed there are common considerations in evaluating whether the excessive servicing and the excessive charging constitutes professional misconduct. That is not surprising when it is remembered that, while the excessive charging also concerns an amount that should not have been paid by Medicare Australia (the $1,033.50),[400] the excessive charging was otherwise coextensive with the excessive servicing.
[400] Correctly described by the Board as a 'relatively small' amount: Respondent's submissions, par 88; WAB 54.
Based on the concession that, after the initial two weeks Dr Panegyres' consultations were double that reasonably required, the excessive servicing consists of some 26 consultations.[401] The excessive charging is some $9,100 to $10,133.50.[402] However, it was accepted that Dr Panegyres was entitled to charge KW for the amount charged to Medicare Australia,[403] ie the $1,133.50 was not chargeable as against Medicare Australia but was not excessive as against KW. On that basis the overcharging consisted of an amount of $9,100 in relation to the total Invoice of $25,265.10 (about 36% of the total amount charged).
[401] Dr Panegyres relevantly charged for 64 neurological assessments. See [176] above. The experts agreed - and the Tribunal seemingly accepted - that during the initial two weeks of KW's hospitalisation five to seven consultations a week were appropriate: Primary decision [335]. That equates to 12 attendances. The Tribunal found that, after the initial two weeks, a full neurological review was not necessary or clinically indicated on more than three times a week: Primary decision [336]. Applying that three times a week to the following eight weeks and four days of KW's hospitalisation (after allowing for Dr Panegyres' leave period) there should have been no more than a further 26 attendances - an overall total of 38 attendances. As there were in fact 64 relevant attendances the excessive servicing consists of 26 consultations (ie 64 less 38). See generally ts 3 - 7.
[402] Comprising the $350 for each unnecessary consultation (ie 26 x $350) and the $1,033.50 charged to Medicare Australia.
[403] Primary decision [64].
In relation to the excessive servicing and charging Dr Panegyres' conduct falls short of the relevant standard. That is why there have been findings of unprofessional conduct. For that unprofessional conduct to constitute professional misconduct Dr Panegyres' conduct must be substantially below the relevant standard. The question is one of degree. But it arises in a context where there is no moral turpitude, fraud or dishonesty. It was accepted that Dr Panegyres provided the services in contemplation that they would be charged for. That is what happened: Dr Panegyres rendered the Invoice. There was, however, no case advanced - and no finding - of deliberate over servicing to obtain financial benefit. There was no criticism of the quality of care provided by Dr Panegyres and no suggestion that Dr Panegyres was responsible for the length of KW's stay at JHC.
In support of a finding of professional misconduct is the fact that the excessive servicing continued over a sustained period (from at least mid‑December 2012 to 21 February 2013). The excessive attendances and charges also represent a significant proportion of the total attendances and charges. The total amount of the excessive charges is itself substantial. The first and third of those matters is tempered by the circumstance that the length of KW's hospitalisation contributed to the number of excessive neurological assessments on the part of Dr Panegyres and the eventual excessive charges. Dr Panegyres was not responsible for the prolongation of KW's hospital stay. In that sense these two conduct matters were exacerbated by external events in the form of complications in the appointment of a guardian and administrator and the outbreaks of gastroenteritis that delayed KW's discharge to a home. However, both the servicing and the charging were then aggravated by Dr Panegyres' breaches of the Conduct Code in not consulting with or considering the views of the Public Advocate as to KW's treatment needs and in not obtaining the Public Trustee's consent to the fee arrangement. The excessive charging also manifested itself in Dr Panegyres' incorrect charges to Medicare Australia.
In the circumstances referred to in the preceding paragraph the unprofessional conduct represented by Dr Panegyres' excessive services and excessive charging was no mere technical contravention on his part. Even taking into account that the length of KW's hospitalisation was beyond Dr Panegyres' control, and cannot be held against him, both matters are serious instances of unprofessional conduct. The former is serious because of its sustained and repetitive nature; the latter is serious because of the amount involved and the failure to recognise that services should not be charged for where they are excessive, unnecessary or otherwise not reasonably required for a patient's well-being.
I am, however, unable to conclude that the excessive servicing or excessive charging constitutes professional misconduct (either individually or when considered together).
The findings concern a single patient and an unusual situation where Dr Panegyres' care of that patient was prolonged due to events beyond Dr Panegyres' control. There is no suggestion that Dr Panegyres' conduct compromised KW's health care or his outcome as a patient. There are no findings of lack of medical competence or unsafe clinical care. The absence of any conscious wrongdoing or bad faith puts Dr Panegyres' conduct into a category where he has acted without moral turpitude, fraud or dishonesty. The conduct of which Dr Panegyres is guilty is well removed from that which has traditionally been regarded as the kind of conduct where, without evidence of relevant standards, it was possible to say the conduct would reasonably be regarded as disgraceful or dishonourable by Dr Panegyres' peers of good repute and competency or inconsistent with him being a fit and proper person to hold registration as a medical practitioner. All of that belies a finding of professional misconduct on the basis that Dr Panegyres' conduct was substantially below the relevant standard. That is particularly the case given the limited basis on which it has been possible to identify the relevant standard. The Board's failure before the Tribunal to clearly enunciate and establish the relevant standard of conduct makes it difficult to identify the gradations implicit in the standard such as would assist in establishing that Dr Panegyres' conduct was substantially below the standard.
The excessive servicing and the excessive charging, like the conduct in breach of the Conduct Code, is unprofessional conduct rather than professional misconduct.
The remaining head of unprofessional conduct as found is that the subject of Allegation 6(a) (breach of cl 3.2.6 of the Conduct Code in exploiting a patient financially). In circumstances where there is no moral turpitude, fraud or dishonesty on the part of Dr Panegyres this is, at most, conduct in aggravation of the excessive charging. I am unable, for the same reasons as I have found that the excessive charging was not professional misconduct, to find that Dr Panegyres' breach of cl 3.2.6 of the Conduct Code constituted professional misconduct. It too is unprofessional conduct rather than professional misconduct.
The Board put its case of professional misconduct in terms of par (b) of the s 5 National Law definition as well as par (a). Accordingly, although I have found that, individually, each instance amounts to unprofessional conduct rather than professional misconduct, it remains necessary to consider whether the three identified conduct areas, considered together, amount to professional misconduct. Viewed together the various instances may have a greater significance and amount to conduct that is substantially below the relevant standard. The whole may be more than the sums of the parts.
Viewing the conduct together it remains the case that Dr Panegyres' behaviour should be characterised as unprofessional conduct rather than professional misconduct.
While I have identified three distinct categories of conduct those three categories of conduct are closely associated. Each is bound up with Dr Panegyres' care of KW over a discrete time period. With the exception of the Medicare Australia charges there is a correlation between the excessive servicing and the excessive charging. And the breaches of the Conduct Code are closely connected with the excessive servicing (as to the failure to consult with the Public Advocate) and the excessive charging (as to the failure to obtain the Public Trustee's consent and the financial exploitation). In those circumstances, for the reasons that each individual conduct item is not conduct that is substantially below the relevant standard, so too - considered together - the various instances of unprofessional conduct are not below the standard reasonably expected of a practitioner of an equivalent level of training or experience to Dr Panegyres.
Dr Panegyres is guilty of unprofessional conduct in respect of the three identifiable streams of conduct that have been established against him (see [373] above). He is not, however, guilty of professional misconduct.
The penalty to be imposed on Dr Panegyres
It is necessary to consider the appropriate orders to be made under s 196(2) of the National Law in light of the findings of unprofessional conduct that have been made. The parties made detailed submissions to the Tribunal on the question of penalty.[404] Further submissions were made in this court.[405] However, those further submissions were made on the basis that each party was wholly successful in its respective case before this court.
[404] Penalty decision [32] - [58] (the Board), [59] - [75] (Dr Panegyres).
[405] Appellant's submissions, pars 138 - 139; WAB 34. Respondent's submission on cross-appeal, pars 114 ‑ 119; WAB 81.
So, for example, the Board sought a substituted penalty of cancellation of Dr Panegyres' registration as a health practitioner for a period of two years on the basis that there should be a finding of professional misconduct as Dr Panegyres had charged for services that he never provided. By contrast Dr Panegyres sought that he be reprimanded on the basis that he was guilty of a single isolated act of unprofessional conduct - and, moreover, that there was no breach of cl 3.2.6 of the Conduct Code.
Neither of those two positions have prevailed. Importantly, while Dr Panegyres' behaviour has been found to constitute unprofessional conduct, rather than professional misconduct, it is, to my mind, more than a single event.
Any sanction under s 196(2) of the National Law must be imposed by reference to, among other things, the nature and seriousness of the practitioner's conduct. The court has not had submissions from the parties as to the appropriate orders based on the findings made in these reasons. It follows that the court is not presently in a position to determine the appropriate orders under s 196(2).
The court could send the matter back to the Tribunal, differently constituted, to reconsider the question of orders under s 196(2) based on the findings made in these reasons. Alternatively, the court could hear from the parties on delivery of these reasons and then - with the benefit of the parties' submissions - proceed to make the decision that the Tribunal could have made in the proceedings. The latter is the appropriate course in terms of both bringing the matter to a conclusion as soon as practicable and the use of public resources. On delivery of reasons the parties should be heard on the question of penalty.
Quantification of the Board's costs in the Tribunal proceedings
Dr Panegyres sought an order that the question of costs be remitted to the Tribunal to be dealt with by way of assessment pursuant to r 43(1) of the State Administrative Tribunal Rules. The question should be sent back to the Tribunal. However, this court should not interfere further than necessary with the Tribunal's practices and procedures as to determination of costs. The matter ought to be sent back to the Tribunal for reconsideration. The Tribunal may decide itself whether to exercise the procedure under r 43.
The Tribunal should, however, ensure that it is in a position to evaluate and assess the Board's claim as to costs. At the least this requires that the Tribunal be appropriately informed as to the work done and time taken as is claimed for and the rates which are said to apply to that work. The detail required in this respect is a matter for the Tribunal. It may take the form of an affidavit attaching the tax invoices as charged. Alternatively, the Tribunal may consider it appropriate to require a short form bill of costs. Dr Panegyres will be able to make submissions based on those materials which may be of assistance to the Tribunal on its reconsideration.
The nature of the issue and the error grounding the successful appeal is not such as would disqualify the members who made original decision from reconsidering the matter. To the contrary, as the issue is one of quantification of costs, those members of the Tribunal who presided over the hearings are best placed to reconsider the matter. In accordance with s 105(10) of the State Administrative Tribunal Act this court should direct that in reconsidering the matter the Tribunal may be constituted by the members who made the original decision.
Conclusion
Since writing the foregoing I have read the joint reasons of Buss P and Murphy JA.
In the main, the joint reasons result in orders that I would also make. First, Dr Panegyres should have leave to appeal against the decisions of the Tribunal made in VR 102 of 2015 being the orders of the Tribunal made on 21 November 2017 and 16 October 2018. Second, the appeal should be allowed. Third, the finding of professional misconduct should be set aside and substituted with a finding of unprofessional conduct. Fourth, the penalty of suspension should be set aside and the parties should be heard further on the question of penalty. Fifth, the order that Dr Panegyres pay the Board's costs of the Tribunal proceedings should be set aside to the extent that it provides for quantification in the amount of $264,400. Sixth, the Board's application for leave to cross-appeal should be dismissed and the cross-appeal should be dismissed.
There are two substantive differences between the orders to give effect to the joint reasons and the orders that I would make:
1.First, the formal finding of unprofessional conduct that I would make would reflect my view that there are three distinct categories of conduct. The formal finding I would make would also reflect my view that it was unprofessional conduct to charge Medicare Australia for services for which Dr Panegyres was not entitled to charge.
2.Second, while I would send the costs quantification back to the Tribunal, I would not require that it be conducted in accordance with r 43 of the State Administrative Tribunal Rules. I would allow the Tribunal to determine how best to conduct the costs assessment.
The orders to be entered on delivery of these reasons should reflect the outcome provided for in the joint reasons. So too, in determining the appropriate orders to be made under s 196(2) of the National Law, it will be necessary to have regard to the formal finding of unprofessional conduct as proposed in the joint reasons rather than the finding that I would make.
I agree that the parties should be heard as to the costs of the appeal and the cross-appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Research Orderly to the Honourable Justice Vaughan
24 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PANEGYRES -v- MEDICAL BOARD OF AUSTRALIA [2020] WASCA 58 (S)
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 24 APRIL 2020
DELIVERED : 24 APRIL 2020
FILE NO/S: CACV 101 of 2018
BETWEEN: PETER KONSTANTINOS PANEGYRES
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE T SHARP, DEPUTY PRESIDENT
MS H LESLIE (MEMBER)
DR K JEFFRIES, SENIOR SESSIONAL MEMBER
Citation: MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146
File Number : VR 102 of 2015
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE T SHARP, DEPUTY PRESIDENT
MS H LESLIE (MEMBER)
DR K JEFFRIES, SENIOR SESSIONAL MEMBER
Citation: MEDICAL BOARD OF AUSTRALIA and PANEGYRES [2017] WASAT 146 (S)
File Number : VR 102 of 2015
Catchwords:
Vocational regulation - Medical practitioner - Penalty - Finding of unprofessional conduct - Where medical practitioner charged with excessively charging patient who, to the medical practitioner's knowledge, was mentally incompetent - Imposition of reprimand and fine.
Vocational regulation - Costs - Costs of primary proceedings before State Administrative Tribunal - Respondent's costs to be assessed by member of State Administrative Tribunal - Where restitution claimed in relation to costs paid by medical practitioner pursuant to orders set aside by this court - Costs of appeal and cross‑appeal
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 196(2)
State Administrative Tribunal Act 2004 (WA), s 105(9)(b)
State Administrative Tribunal Rules 2004 (WA), r 43
Result:
Appellant reprimanded and fined $20,000
Appellant to pay the respondent's costs of primary proceedings to be assessed by a member of the State Administrative Tribunal
Respondent ordered to repay to the appellant the sum of $153,000 in respect of costs paid by the appellant pursuant to the costs order of the State Administrative Tribunal set aside by this court
Respondent to pay the appellant's costs of the appeal and the cross‑appeal
Category: B
Representation:
Counsel:
| Appellant | : | E M Heenan |
| Respondent | : | B A Mangan |
Solicitors:
| Appellant | : | Clayton Utz |
| Respondent | : | Panetta McGrath Lawyers |
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Panegyres v Medical Board of Australia [2020] WASCA 58
BUSS P & MURPHY JA:
(This judgment was delivered extemporaneously on 24 April 2020.)
These reasons are supplementary to the court's reasons in Panegyres v Medical Board of Australia[406] (primary decision), and should be understood in that context.
[406] Panegyres v Medical Board of Australia [2020] WASCA 58.
In the primary decision, the court found the appellant (Dr Panegyres) guilty of unprofessional conduct by excessively charging for services to a patient who was mentally incompetent, to the knowledge of Dr Panegyres. These reasons deal with the question of penalty arising from that finding and consequential costs orders.
By s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law), applied in the present circumstances by virtue of s 105(9)(b) of the State Administrative Tribunal Act 2004 (WA), the court may do one or more of the following:
(a)caution or reprimand the practitioner;
(b)impose a condition upon the practitioner's registration;
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period; and
(e)cancel the practitioner's registration.
Dr Panegyres contended that the appropriate order under s 196(2) of the National Law is to order a reprimand and a fine of $10,000.
The respondent (the Board) submitted, in effect, that he should be reprimanded and pay a fine of $20,000.
The purpose of disciplinary proceedings is for the protection of the public and not for the punishment of wrongdoing. In that context, regard is ordinarily had (amongst other things) to the need to maintain the high standards and good reputation of the profession generally in the eyes of the community, the need to deter others in the profession who might similarly transgress in the future, and the need to deter the practitioner from any further departures from appropriate professional standards.[407]
[407] Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992), 140 ‑ 142; Craig v Medical Board of South Australia (2001) 79 SASR 545 [43] ‑ [48]; see also Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [37], [188] ‑ [195].
The imposition of a fine may serve the object of bringing home to the practitioner the seriousness of his or her departure from professional standards.[408]
[408] Craig [47].
A fine may also more generally underscore, beyond a reprimand, the seriousness of the departure in the context of the need to maintain the high standards and good reputation of the profession generally.
Having considered all the submissions advanced by the parties, the following matters seem to us to be of most significance in this case.
First, there is no proper basis for the court to conclude that Dr Panegyres is presently unfit to practise.[409] That is particularly so when regard is had to the matters in [77] and [80] of the primary decision.
[409] See generally, Khosa [191] - [195].
Secondly, Dr Panegyres has been a medical practitioner since 1981 and a specialist neurologist since 1996. He has had an impressive career and holds a number of senior positions within the medical profession. His only previous disciplinary breach involved a finding of gross carelessness in December 2001 arising from patient care for which a fine of $7,000 was imposed.
Thirdly, the events in question occurred many years ago, and there has been no suggestion of any repetition of unprofessional conduct since then. There is no proper basis to infer that there is a real risk of the repetition of such conduct in the future.
Fourthly, the unprofessional conduct of Dr Panegyres nevertheless involved a very serious lapse in proper professional standards of the kind in question. At a minimum, any orders for the protection of the public (including the maintenance of high professional standards and the good reputation of the medical profession) would involve a reprimand. In all the circumstances of this case, the imposition of a fine is also called for in light of the consideration referred to in [8] above.
The maximum fine under s 196(2)(c) of the National Law is $30,000. Bearing in mind the seriousness of the unprofessional conduct in the context of the circumstances of this case taken as a whole, in our opinion it is appropriate to order that Dr Panegyres be fined the sum of $20,000, in addition to a reprimand.
As to the costs of the primary proceedings, both parties agreed that the Board should have its costs of the primary proceedings and that the costs be assessed by a member of the Tribunal to be nominated by the President of the Tribunal.[410] That is appropriate in the circumstances.
[410] State Administrative Tribunal Rules 2004 (WA), r 43.
Dr Panegyres also raised a further matter in relation to the costs of the primary proceedings. He contends that he has been out of pocket in the sum of $264,400 since 18 December 2018, and seeks an order in the following terms:
Within 14 days [the Board] do repay to [Dr Panegyres] the sum of $264,400 paid by [Dr Panegyres] pursuant to order 2 of the Tribunal dated 16 October 2018, together with interest thereon at the rate of 6% per annum from 18 December 2018 to the date of repayment.
The Board resists such an order.
There is no doubt that Dr Panegyres will be liable to pay a significant amount in costs once they are assessed in the Tribunal. In the earlier proceedings before the Tribunal, Dr Panegyres submitted that a reasonable amount of costs payable to the Board was $112,700 including GST.[411] The difference between $264,400 and $112,700 is $151,700. We are satisfied that an order for restitution is appropriate in the circumstances, but we are not satisfied that there needs to be any specific order in respect of interest even assuming, for present purposes, there is a power to order it in this context, particularly in the absence of evidence from Dr Panegyres and in the low interest environment over the last year or two. It seems to us that justice would be done in all the circumstances by requiring the Board to repay to Dr Panegyres the sum of $153,000, leaving the sum of $111,400 effectively paid on account.
[411] Dr Panegyres' outline of submissions on costs, 11 July 2018, par 11; BB 102.
As to the costs of the appeal and the cross‑appeal, Dr Panegyres seeks an order that the Board pay his costs of the appeal, including reserved costs. The Board contends that he should have only 60% of his costs.
In the broad, Dr Panegyres has succeeded in the appeal in substituting for the finding of professional misconduct, the less serious finding of unprofessional conduct. That is so notwithstanding that a number of the arguments advanced by Dr Panegyres in the appeal going to the gravity of his conduct have not been accepted. As the successful party in the appeal, Dr Panegyres should have his costs of the appeal as sought. Also, as the cross‑appeal has been dismissed, the Board should pay Dr Panegyres' costs of the cross‑appeal, and there is no dispute as to that.
VAUGHAN JA:
I view Dr Panegyres' conduct as giving rise to three distinct categories of unprofessional conduct. See the primary decision at [373] ‑ [374] and [419.1]. I also include within that unprofessional conduct the charging of Medicare Australia. See the primary decision at [378] and [419.1]. Due to those two reasons, as I explain at [420] of the primary decision, the question of penalty falls to be determined by Buss P and Murphy JA.
That said, as I note at [407] of the principal decision, while I have identified three distinct categories of conduct, those three categories of conduct are closely associated. Were I to be determining the appropriate orders under s 196(2) of the National Law, I would for that reason impose a global penalty. Further, I agree with the principles and matters of significance as to penalty as stated by Buss P and Murphy JA. Were I to be determining the appropriate orders under s 196(2) of the National Law, but be doing so based on my view in characterising the conduct and the consequential findings as to unprofessional conduct that I would make, I too would impose a fine of $20,000 and a reprimand.
Otherwise I agree that the Board should pay Dr Panegyres' costs of the appeal and the cross‑appeal, to be assessed if not agreed. I also agree with their Honour's disposition as to Dr Panegyres' application for restitution of the amount previously paid by way of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
24 APRIL 2020
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