VERMA v McGREGOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 12 December 1988, 10 February 1989 [1989] NSWCA 218 Medical practitioners — Conviction of offences for presenting medical assignment forms false in material particulars — Order by Disciplinary Tribunal that appellant's name be removed from Register — Whether order removing name of appellant from Register justified — Appeal dismissed. ORDERS The appeal is dismissed; Order that the appellant's name be removed from the Register and the appellant to pay the respondent's costs of the appeal. Samuels JA I agree with Clarke JA. McHugh JA I agree with the orders proposed by Clarke JA and with his reasons. Clarke JA This is an appeal from an order of the Medical Tribunal established under the Medical Practitioners Act 1938 as amended directing that the appellant's name be removed from the Register of Medical Practitioners of New South Wales. The appellant does not, however, challenge the finding of professional misconduct that was made and the issue which arises is whether the order made by the Tribunal reflects a failure properly to consider all the relevant circumstances with the consequence that an inappropriate order was made. In particular counsel submitted that the evidence demonstrated that the appellant was unlikely to offend again and that, in those circumstances, it would have been appropriate for the Tribunal simply to have imposed conditions upon the appellant's right to practise medicine by, for instance, permitting him to practise only in employment in a public hospital. I should observe that his counsel initially submitted that the Tribunal should have utilised its power to fine the appellant under s32R(1)(h) of the Medical Practitioners Act. In view of the fact that the appellant had already been fined by the Supreme Court in respect of the misconduct which led to his appearance before the Tribunal it appeared to the court that s32R(7) precluded the Tribunal, and the court on appeal, from imposing a fine. Upon his attention being directed to this subsection, the appellant's counsel did not submit that the section on its proper construction did not preclude the court from imposing a fine on the appellant. Instead he withdrew his submission in apparent acceptance of the provisional view which the court expressed. The complaint by the Secretary of the New South Wales Department of Health which brought the appellant before the Tribunal was lodged after the appellant had unsuccessfully appealed from his conviction in the Supreme Court on 12 charges under s129 of the Health Insurance Act 1973. He had been arraigned originally on 21 charges and was found not guilty on 9. The 12 counts on which he was found guilty were based either upon the issue of a document which was false in a material particular or the making of a statement in writing false in a 2 UNREPORTED JUDGMENTS material particular. In broad terms it was asserted that he had adopted fraudulent means to obtain moneys to which he was not entitled from the Commonwealth of Australia. The offences which occurred in the period between 7 February 1980 and 21 September 1982 concerned charges which the appellant had made for hospital attendances, surgery consultations or home attendances which the jury must have been satisfied had not taken place. Upon conviction the appellant was fined a total of $9,100.00 on ten counts and on each of the other two counts was released on a recognizance of $100 to be of good behaviour for four years with the recognizances conditioned upon payment to the Commonwealth of a pecuniary penalty of $4,000.00. In sentencing the appellant the trial judge, Roden J, observed that each offence involved a fraudulent imposition upon public funds and that although, in conformity with what appeared to be the practice in other states of the Commonwealth, he proposed to impose a non custodial sentence the offences represented a serious abuse of the appellant's position. His Honour then said, and I quote: "His fraudulent methods varied. They included charging for services which had not been performed, obtaining signatures from unsuspecting and at times illiterate patients, using what on the evidence appear to have been forged patients' signatures, and entering into an arrangement with a patient to sign false and fraudulent assignment forms in order to satisfy somebody else's outstanding debt. By any standing, if one were to ignore the fact that these offences are associated with health insurance they represent a substantial entry into the field of commercial fraud." Counsel for the appellant challenged the description of the appellant's conduct as a substantial entry into the field of commercial fraud. He pointed out that the total sum of which the Commonwealth was defrauded amounted to $228.00 and submitted that involvement in fraudulent activity concerning such a small amount of money hardly merited the description given by his Honour. I am not, however, persuaded that what his Honour said was, in context, inaccurate. The first fraud was perpetrated in February 1980 and fraudulent misconduct was repeated during a period in excess of two and a half years until September 1982. In my opinion repeated acts of fraudulent misconduct by a professional man over a period of two and a half years could appropriately be described in the manner in which his Honour described the appellant's conduct. The main thrust of the submissions advanced in support of the appellant's case was that his compliance with accepted standards since September 1982 and the impressive character evidence called in his aid demonstrated that he had learned his lesson and was unlikely to offend again. Particular reliance was placed on the dictum of Hutley JA in Skinner v Beaumont, (1974) 2 NSWLR 106, at 109, where his Honour said: "Public interest requires that competent doctors who are willing to practise should be allowed to do so unless there are countervailing public interests. The likelihood of repetition of the offence would be the most usual countervailing public interest." There is no doubt that the likelihood of repetition of misconduct is a relevant matter for consideration but it is by no means the only matter. Much will depend upon the nature of the misconduct, for instance, whether it demonstrates a failure to appreciate basic standards demanded of a professional person and whether there is a need to bring home to members of the medical profession an awareness of the fact that such misconduct by a practitioner will not be tolerated. URJ VERMA v McGREGOR (Clarke JA) 3 The appellant, who was born in India in 1940 graduated in medicine in Lucknow in 1962 and continued to practise in India as a medical officer or assistant surgeon between that year and 1968. He then practised in the United Kingdom, the Irish Republic and Canada before migrating to Australia in 1978. Upon arrival in this country he set up practice at Port Kembla. He has continued to practise at Port Kembla during the whole of the time since 1978 except during two periods. In 1985 the Medical Board purported to suspend him from practice and, according to evidence which was not challenged, the appellant did not practise between 8 October 1986 and the revocation of the suspension in August 1987. In addition the appellant was apprehended for a bail offence and spent about five days in custody. It is submitted that he was wrongfully placed in custody and it is appropriate to consider the present appeal upon the basis that that submission is correct. The appellant testified that before he was first charged with the offences which led to his conviction he saw about 400 patients a week in addition to seeing hospital patients and carrying out house calls. After the trial that number had been reduced, according to the appellant, to 250-300 patients a week. This evidence was no doubt led to demonstrate a community need for his services. Evidence, which could be broadly described as character evidence, was given in the form of written testimonials and oral evidence. This was supplied by former patients and medical practitioners. It is, I think, fair to say that this evidence established that the appellant was an enthusiastic and competent medical practitioner who was devoted to his patients. The tribunal observed that the evidence of some of the witnesses demonstrated a lack of objectivity but notwithstanding that observation it cannot be gainsaid that there was weighty evidence of his capacity and enthusiasm. Both before the Tribunal and this Court counsel for the appellant submitted that the evidence of patients and medical practitioners demonstrated both that it was unlikely that the appellant would again come under suspicion and that it would better serve the public interest to allow him to continue to practise. It is important to bear in mind that the appellant bears the onus of persuading the court that the penalty imposed was too severe. Furthermore, the court necessarily must give weight to the fact that the Tribunal is an expert body specifically charged with the task of policing its own profession. Counsel for the respondent in his submissions reminded the court of the need to afford weight to the decision of the Tribunal and submitted that the need for the order to have a deterrent effect which fostered in the community an understanding that fraudulent conduct of the type in which the appellant engaged would not be tolerated pointed strongly in favour of the correctness of the decision of the Tribunal. I agree with these submissions which are supported by the decision of this Court in Desai v Rodgers (NSW Court of Appeal, 29.7.81, unreported). In that case the court, having noted that the evidence demonstrated that the appellant was unlikely to repeat her previous misconduct and that there was impressive evidence from patients and other medical practitioners of her competence and caring nature, went on to say: "However, giving the appellant full credit for the matters favourable to her, it is difficult to come to any conclusion other than that to which the Tribunal came. The appellant's fraudulent abuse of the system was limited in time and extent, but it stopped only upon discovery, and was quite inconsistent with and involved a repudiation of her responsibility as a medical practitioner. Medical benefits schemes depend upon the integrity of medical practitioners. Without that integrity, the schemes must fail or become a burden 4 UNREPORTED JUDGMENTS upon the community. Moreover it is critical that members of the medical profession should be aware of the need for and importance of that integrity. The conviction of the appellant for twenty-seven offences involving fraudulent intent necessarily involved her having adopted a fraudulent course which contradicted this most basic and obvious requirement." Ihave cited this passage because it seems to me to be entirely apposite to the present case. The appellant engaged in systematic fraud over a lengthy period continuing until shortly prior to the discovery of his misconduct. It seems to me that, giving full weight to the factors in his favour, his systematic abuse of his position and his failure to observe basic tenets of integrity demonstrate that the order made by the Tribunal was appropriate in all the circumstances of this case. I would make two further observations. In the first place I would regard an order permitting the appellant to continue to practise upon condition that he undertook employment in a hospital as inappropriate in the circumstances of the present case. Even if it be accepted that the appellant is unlikely to transgress again, the nature and gravity of his misconduct is such that the public interest is best served, in my opinion, by an order removing his name from the Register. In the second place I have considerable reservations that the evidence demonstrates that it is unlikely that the appellant will, if permitted to continue in practice, offend again. In saying this I have not overlooked the character evidence nor the fact that he has apparently not contravened proper standards since 1982. My reservation arises out of his failure to appreciate, even before the Tribunal, that he had involved himself in misconduct. He claimed total innocence asserting that he was the victim of the system of law and the fraud of his previous secretary. The verdict of the jury seem to me to deny the validity of those claims and to require that the court approach the appeal upon the basis that he was guilty of systematic fraud. On that basis his continuing claims of innocence tend, at the very least, to suggest a failure to appreciate the nature of his transgression. If he has failed to recognise that his conduct involved significant departures from proper standards then there must, in my opinion, be real doubt as to whether he will not transgress again. The appeal should be dismissed; Order that the appellant's name be removed from the Register and that the appellant pay the respondent's costs of the appeal. Counsel for the Appellant: J Foord QC and Dalton Counsel for the Respondent: S Littlemore Solicitors for the Appellant: William P O'Brien Solicitors for the Respondent: H K Roberts, State Crown Solicitor