RE: Dr Epifania Sherfan

[2002] NSWMT 3

New South Wales

Medical Tribunal

CITATION:	RE: Dr Epifania Sherfan [2002] NSWMT 3
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr Epifania Sherfan
FILE NUMBER(S):	40008 of 2001
CORAM:	Patten DCJ - Toh, Dr S - Pasfield, Dr M - Houen, Ms J
CATCHWORDS:
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	12 April 2002

JUDGMENT:

IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES

Deputy Chairman: His Honour Judge D Patten

Members: Dr Saw-Hooi Toh

Dr Michael Pasfield

Ms Jennifer Houen

12 April 2002

RE: Dr Epifania Sherfan

NO: 40008/01

REASONS FOR DETERMINATION

THE COMPLAINT:

On 27 April 2001 the Health Care Complaints Commission (the Complainant) referred a complaint to the Tribunal, pursuant to Sec 51 (1) of the Medical Practice Act (the Act). The complaint alleged three matters. The first was that Dr Sherfan had been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of Sections 36 and 37 of the Act, in that she,

“1. Has demonstrated a lack of adequate knowledge, skill judgment or care in the practice of medicine.

2. Has engaged in improper conduct relating to the practice of medicine.

3. Has been convicted for offences under Sec 128 A of the Health Insurance Act 1973 of the Commonwealth.

The second allegation was that she has been convicted of offences in NSW and the third that she is not of good character.

All the allegations arise out of the same factual matrix, namely, that between 8 August 1995 and 3 September 1996, on some 23 occasions, Dr Sherfan made false and misleading claims on the Health Insurance Commission, as a result of which she falsely obtained $4,197 from the Commission and that, between 31 December 1996 and 11 February 1997, she made 22 claims on the Commission without providing the details, or a copy of the claim to the patient. As a consequence, on 15 December 1998, she was convicted in the Downing Centre Local Court of 23 offences against Sec 128A of the Health Insurance Act and 22 offences against Sec 127.

THE RELEVANT FACTS:

At the outset of the hearing before the Tribunal, the Complaint was admitted and the Complainant’s case solely comprised the tender of documentary material. This material revealed that, between 8 August 1995 and 3 September 1996, as alleged, Dr Sherfan made 23 false or misleading claims upon the Health Insurance Commission, of which 9 involved claims for services which she had not, in fact, performed and 14 related to claims for a more costly service than that which had in fact been performed. In addition between 31 December 1996 and 11 February 1997, Dr Sherfan made 22 claims upon the Health Insurance Commission without providing to the patient, either the details of the claim, or a copy of it.

As the case has been presented to the Tribunal, it has no greater detail of the facts than is contained in the charges which formed the basis of the proceedings in the Local Court.

Sections 127 and 128 A of the Health Insurance Act are respectively, so far as relevant, in the following terms:-

“127. Assignor of medicare benefit to be given copy of assignment etc.

(1) A person (in this section referred to as the “practitioner”) shall not enter into an agreement under subsection 20A(1) with another person (in this section referred to as the “patient’) for the assignment to the practitioner of the right to the payment of a medicare benefit in respect of a professional service (not being an agreement entered into by way of the acceptance of an offer to assign under subsection 20A(2), unless the practitioner:

(a) causes the particulars relating to the professional service that are required by the form approved for the purposes of subsection 20A(1) to be set out in the agreement to be so set out in the agreement before the patient signs the agreement; and

(b) causes a copy of the agreement to be given to the patient as soon as practicable after the patient signs the agreement.

(2) A person who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding $1,000 or imprisonment for a period not exceeding 3 months, or both.

128A. False statement relating to medicare benefits etc.

(1) A person shall not make, or authorise the making of, a statement (whether oral or in writing) that is:

(a) false or misleading in a material particular; and

(b) capable of being used in connection with a claim for a benefit or payment under this Act.

Penalty: $2,000

As it appears, Dr Sherfan pleaded not guilty in the Local Court to all 45 charges but, after a hearing, which occupied some days, on 15 December 1998, Mr W Brydon, Local Court Magistrate, convicted her of each of the charges and imposed penalties by way of fines and orders that she perform Community Service work. He also made a reparation order in the sum of $4,197. It should perhaps be recorded that, in the proceedings before Mr Brydon, Dr Sherfan faced other similar charges of which she was acquitted.

DR SHERFAN’S EXPLANATION FOR HER CONDUCT:

Dr Sherfan gave sworn testimony before the magistrate and her evidence is before the Tribunal. In effect, as the Tribunal understands it, she either purported to be unable to proffer any explanation, or cast the responsibility for what occurred upon her secretarial assistant, Ms Mary Reece. Her cross-examination by Mr Palmer who appeared before the Magistrate for the Director of Public Prosecutions, seemed to this Tribunal to undermine considerably her evidence that she was innocent of any criminal intent. This view was apparently shared by the Magistrate when he found the offences proved and imposed convictions.

Before the Tribunal, Dr Sherfan also gave sworn evidence. There was the following exchange between Dr Sherfan and her counsel, Mr Parnell:-

“Q. How do you feel now about these offences you committed in this period between 1995 and 1997?

A. I am very sad and very sorry that these things have been committed. It was apparent to the court and to the Commission that I have not shown contrition for the wrongs that were done in ’84 after the first conviction with the Health Commission and even after the second conviction in ’90,’95. This, of course, is not true. I have prepared a letter to this effect and if it please the court I would like to read it.

Q. Could I have a look at that letter? (Produced to Mr Parnell). Before you come to that, you know that it has been said about you, firstly, that you tried to blame your former receptionist for some of these wrongs, and secondly, it has been said that you in effect tried to blame the system for forcing you to endeavour in effect to make more income. You appreciate that?

A. (Witness nodded head).

Q. What do you say today about any suggestion that you were blaming your former receptionist?

A. During the course of the court proceedings there was mention and even the letter to the Health Care Commission about the role of my secretary. I realise now that all the onus of these convictions lie on me and I shouldn’t blame people, as I have indicated in that letter that you have there. Sorry, my train of thought has gone. The onus of all these should lay on me. I am very sorry that these things had happened on us. There, of course, are so many things that can happen in a surgery. There are many demands by your profession medically and even socially and financially. As I have indicated in my letter to the Health Care Complaints Commission, I was aware of the investigations going on into my practice for a while and my patients’ attendance to the surgery had dwindled. There were costs. My secretary wanted a raise as well. But, of course, that doesn’t give me the reason to do things like getting a higher rebate. For these rebates that were for higher costs involve the removal of warts we di

d indeed call the insurance commission about this and we had a reply and we thought that was okay then, but it wasn’t so. Anyway, I am so sorry for all these and I have suffered all these embarrassments that have happened. I have been shunned by friends and relations, but I know all this adversities I have to face and have to go on. I am very sorry.

In cross-examination Ms Kiel, who appeared for the Complainant, sought to clarify Dr Sherfan’s current position regarding the offences:-

“Q. But you do realise that the convictions for which you were found guilty were in fact dishonesty offences.

A. Yes ma’am.

Q. And in admitting the complaints against you are true, you understand that you are admitting that you were dishonest at the moment and that you behaved dishonestly?

A. I am sorry, yes.

Q. I just want to clarify that that is your position now, that you were at the time deliberately dishonest?

A. As I have said in the court, we did call as far as the warts were concerned the insurance commission for that matter. The others I think were an oversight.

Q. You see, in the Local Court proceedings you said that you didn’t agree that you were dishonest and you told the court back in 1998 that you had no intention to defraud anybody and that your secretary had made mistakes and that you had no intention of claiming for more than you were entitled to and that you didn’t think you were cheating or defrauding anybody. That was your evidence before the Local Court?

A. That’s correct ma’am.

Q. Has that position changed since then?

A. Well, it seems that because in that way I was probably blaming other people who were with me and I shouldn’t. I should oversee all these problems and I know and I realise the onus of all this is on me and I blame myself. I am very sorry.

Q. So; you don’t stand by the evidence that you gave before the Local Court back then?

A. On that context, I don’t.

A little later in the cross-examination, there was this further evidence:-

“Q. So it was your evidence in 1998 that you filled out the form according to what you thought was fair and reasonable because you thought you were entitled to do it?

A. That’s right.

Q. And; you did that deliberately?

A. Yes, you well might say.

Q. But I am just trying to clarify your position today. You seem to be slipping back into saying you didn’t do it deliberately, but the court found that you did and it is important for this Tribunal to know, which is considering whether or not you should be deregistered on this occasion, just what you accept about your own behaviour?

A. At that time when these warts came about I have been doing warts for a long time, but they were just few in number and, as the book says, you charge them by attendance only, and which I did, but I have found that even with ten warts it was quite painful for the patients and it was all right to have those cauterised into your face. It was very, very painful. You can see tears coming down through the cheeks and all this. It was quite painful. I had it myself. I made sure that they won’t have pain if it is more than ten, it is 30,40 or 50 of these lesions on the face, so -----

Q. But isn’t the fact that you were cauterising warts, but you were charging for surgical incisions?

A. There were incisions done for those warts. There were incisions, but no suturing.

Q. You see, what I am suggesting to you is that your concern was not entirely for your patients; your concern was also that you should be paid appropriately and that you therefore though it was up to you to determine what you were paid, not Medicare?

A. I wouldn’t say that.

Q. You wouldn’t say that?

A. No, but it seems - well, that I have to concede that I blame myself for all these things, the circumstances surrounding them. I am sorry.

Q. So what do you say now was the reason for why you defrauded Medicare?

A. I think it would boil down to financial problem.

Q. At the time?

A. At the time.”

PREVIOUS PROCEEDINGS:

It is of particular relevance in this case to record that the convictions against Dr Sherfan in the Local Court on 15 December 1998 were not the first time that Dr Sherfan had been convicted of similar offences. On 4 December 1989, she was arraigned before Judge Cooper in the District Court upon an indictment which charged her with a number of offences of making statements which were false in a material particular and were capable of being used in connection with an application for payment of an amount under the Health Insurance Act 1973. There were some 16 charges in all to which she pleaded guilty. Pecuniary penalties were imposed and she was ordered to pay the total sum of $322 into court for payment out to the Health Insurance Commission.

Those convictions, or at least the conduct which led to them, (paragraphs (c) and (d) were not then part of Sec 64(1) of the Act) caused Dr Sherfan to be brought before the Medical Tribunal, constituted by Judge H H Bell, Dr G Rieger, Dr J Overton and Mrs L Antoniadis. That Tribunal handed down its determination on 19 September 1990, in which, after referring to the false statements which caused Dr Sherfan to be prosecuted, continued:-

“We accept that in some instances she may not have actually known them to be false but at the same time she did not affirmatively believe them to be true. She has shown little contrition.

What then is to be done about it?

The respondent is a native of the Philippine Islands who has been a practising doctor for about twenty years in the Philippines, the United States of America and in New South Wales. She is now aged 47 years. She has published articles on obstetrics and gynaecology; she has a solo practice which caters for a wide cross-section of races. Her first language is English but she speaks a number of Philippino dialects as well as some Spanish, Korean and Arabic.

The great bulk of her practice depends on bulk-billing and she has not been shown to have regularly and systematically indulged in fraud. It may be that her tactic, discussed by the Medicare Participation Review Committee in its report, of pleading not guilty in the Local Court and then changing her plea on arraignment, has had the effect of suppressing relevant facts, but we would not be justified in speculating as to whether this worked in her favour or otherwise.

We have seriously considered de-registration as a recognition of the seriousness of this conduct but we have decided that in all the circumstances something short of this will suffice. We have no power to fine since the Court has exercised that power.

We propose instead to suspend her from practice for three months and to place a condition on her registration which may impress upon her what her obligations are. Breach of this condition might result in her being brought back before the Tribunal when she would again face the prospect of de-registration.

The condition imposed by the Tribunal was that Dr Sherfan pursue and complete a remedial course of training in practice administration with the Family Medicine Program to the satisfaction of the NSW Director of that program and that, at the expiration of 6 months from the commencement of the course, she furnish to the Chairman of the NSW Medical Board, written evidence of her satisfactory completion. It appears that Dr Sherfan simply ignored her obligation to comply with this condition and the matter was not pursued by the Board.

It is also relevant to record that, following her convictions on 15 December 1998 for the offences which bring her before this Tribunal, she came before the Medicare Participation Review Committee which, on 16 March 1999, ordered pursuant to Sec 124F (2) (e) of the Health Insurance Act, that she be disqualified from participation in the Medicare scheme for a period of 3 years.

SUBJECTIVE CIRCUMSTANCES:

Dr Sherfan’s evidence was that, since her convictions at the end of 1998, she has virtually ceased practising medicine. There is no reason to doubt her evidence in this regard and, moreover, the order made by the Medicare Participation Review Committee in March 1999 would have effectively prevented her from practising medicine as a private practitioner. It appears that she has made no attempt to obtain employment, for instance, at a hospital or at a research institution.

A body of evidence was tendered on Dr Sherfan’s behalf portraying her as a caring, thorough and competent practitioner and there was also evidence as to her extensive involvement in community activities, particularly those related to men and women of Philippino extraction. She is and has been active in the Philippino - Australian Sports Club and the Philippino Catholic Organisation. With the former body, whose President, Mr Manny Castillo, gave oral evidence, she has been a voluntary medical officer and has served as such at sports tournaments, social functions etc. Ms Ascuncion Natividad, founding President of the Philippino Catholic Organisation and a former patient of Dr Sherfan, gave evidence supportive of her good character and competence as a Medical Practitioner.

CONCLUSIONS:

Despite the subjective matters to which reference has been made, the Tribunal is in no doubt that the seriousness of the conduct, which brings Dr Sherfan before the Tribunal, is such that no other order is appropriate than that her name be removed from the Register of Medical Practitioners. For that purpose the Tribunal is satisfied that Dr Sherfan has been guilty of unsatisfactory professional conduct within the definition in Sec 36 of the Act of a sufficiently serious nature to constitute professional misconduct within Sec 37. It is also satisfied that Dr Sherfan has been convicted of offences which fall within Sec 64 (1) (c) of the Act and that she is not of good character within Sec 64 (1)(d). The community is entitled to expect that persons engaged in the high and honourable profession of medicine exhibit character and integrity of a very high order. This Dr Sherfan has demonstrably failed to do.

Although the Tribunal is by no means satisfied from her somewhat equivocal evidence that Dr Sherfan, even now, displays insight into her wrongdoing or appropriate remorse and contrition, it feels, nonetheless, that it is proper to stipulate a relatively short period of two years during which an application for review of its order of removal from the Register may not be made. In fixing this period, it takes into account the fact that Dr Sherfan has now not practised medicine for more than three years.,

There seems to be no reason why Dr Sherfan should not be ordered to pay the costs of the proceedings before the Tribunal.

ORDERS:

The Tribunal orders:

That the name of Dr Sherfan be removed from the Register of Medical Practitioners.

That an application for review of the above order may not be made for a period of two years from the date of this determination.

That Dr Sherfan pay the Complainant’s costs of the proceedings.