EDMOND v NEW SOUTH WALES HEALTH DEPARTMENT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and SHELLER JJA 12 December 1994, 21 December 1994 [1994] NSWCA 88 MEDICAL TRIBUNAL — PROFESSIONAL MISCONDUCT APPEAL FROM MEDICAL TRIBUNAL — two complaints concerning professional misconduct and improper and/or unethical conduct — a third complaint concerned Medicare claims for services which had not in fact been provided — all complaints found proved — order that appellant's name be removed from the Register — appeal as argued confined to third complaint — question whether sufficient evidence that appellant aware of false Medicare claims. Held: on the evidence before it the Tribunal was entitled to be satisfied that the appellant had submitted Medicare claims for anaesthetic services in the name of another doctor in the knowledge that no such services had been provided and with the intention of obtaining a financial benefit for himself; no ground was shown for altering any of the Tribunal's orders. ORDERS Appeal dismissed with costs. Priestley JA The Medical Tribunal (the Tribunal) constituted by the Medical Practice Act 1992, by a notice dated 22 April 1994 addressed to Dr Edmond Edward Edmond, told him of two complaints made against him of professional misconduct and/or unsatisfactory professional conduct as defined in that Act. On 27 April 1994 the Medical Board made an order suspending Dr Edmond from practice. By notice dated 3 June 1994 the Medical Tribunal informed Dr Edmond of a third complaint against him of improper and/or unethical conduct relating to the practice of medicine. The Medical Tribunal heard the three complaints, together with an appeal by Dr Edmond against the suspension order and on 15 July 1994 found the three complaints proved, dismissed the appeal against the suspension order, ordered the name of Dr Edmond to be removed from the Register of Medical Practitioners of New South Wales and made ancillary orders. Dr Edmond appealed to this court against the orders of the Tribunal. Complaint 1 was a consequence of earlier proceedings before the Medical Tribunal concerning Dr Edmond which had resulted in the imposition upon him of a number of conditions on his right to continue to practise medicine in New South Wales. Amongst these conditions were the following: "1. A register of operative and anaesthetic procedures to be kept and to contain such information as is required by the Medical Board. 2. The recovery area to comply with the standards laid down in "Report and Recommendations on Day Surgery" September 1991, Appendix C "Recovery Area" para6.1-para6.9 inclusive... 3. No anaesthetics are to be administered to babies or children without paediatric trained and experienced staff and proper paediatric equipment. 4. Two registered medical practitioners to be in attendance in the procedures room at all times while procedures are being performed. 5. Only a registered medical practitioner to monitor anaesthetics. 2 UNREPORTED JUDGMENTS 6. The recovery area to be supervised continuously whilst patients are there by registered nurses and/or registered medical practitioners only. 8. The practitioner shall keep a record of the names, addresses and qualifications of all persons working at premises from which he carries on practice as a medical practitioner. 10. No prescription drugs to be supplied from the practice; prescriptions to be dispensed by pharmacists. 12. The practitioner shall provide to the Medical Board quarterly reports of all matters required by these conditions to be recorded in such form as the Board shall require. First report to be submitted on or before April 1993 until 31 December 1995." Complaint 1 was that Dr Edmond was in breach of each of those conditions. By an amendment to the original notice made on 11 May 1994, the period during which the breaches were alleged to have occurred was said to be 14 December 1992 to 28 April 1994. Complaint 2 as amended on 11 May 1994 was that between 1 January 1993 and 28 April 1994 Dr Edmond carried out procedures under general anaesthetic and/or complex sedation at premises at Bankstown not licensed under the Private Hospitals and Day Procedures Act. The complaint in the notice dated 3 June 1994 was that between 28 July 1993 and 12 April 1994 Dr Edmond submitted Medicare claims for anaesthetic services in the name of Dr RJ Pillans in the knowledge that no such services had been provided by Dr Pillans and with the intention of obtaining a financial benefit for himself. I will call this Complaint 3. A date for hearing of the complaints was fixed by the Medical Tribunal after the matters had been listed on various occasions for directions. On these occasions Dr Edmond was represented and at least once was himself present. The date fixed for hearing was 11 July 1994. Dr Edmond did not appear on that day. He sent a fax to the Tribunal saying he was not going to come. There was sufficient material before the Medical Tribunal to enable it to be quite sure that Dr Edmond was aware that the hearing of the complaints was to proceed on that day and had decided not to appear. On the second day of the proceedings evidence was put before the Tribunal of inquiries from Australian Federal Police Portwatch at Sydney Airport which advised that Dr Edmond had left Australia on 5 July 1994 and that there was no record of his having returned. On 11 July 1994 the Tribunal, satisfied that Dr Edmond had full and proper notice of the proceedings and was not going to attend, decided to go on with the hearing. This was done on the footing stated by the Deputy Chairperson Judge Sinclair that even though Dr Edmond Edmond had decided not to attend, it was preferable for the Tribunal to hear all the evidence that should be called and decide the matters on the merits. Because of the way the appeal proceeded before this court, it is not necessary at this point to say any more about complaints | and 2 than that there was ample evidence before the Tribunal justifying its decision that the complaints were proved. In regard to Complaint 3 the Tribunal was of the view that in regard to it also there was ample proof. In its reasons for determination, delivered 15 July 1994, the Tribunal set out in detail the factual matters upon which the complaints were based. Towards the end of their reasons the Tribunal stated the circumstances concerning Complaint 3. In URJ = EDMOND v NEW SOUTH WALES HEALTH DEPARTMENT (Priestley JA) 3 these circumstances, they said, the departure of Dr Edmond from Australia and his failure to appear before the Tribunal strongly suggested the flight of a man with a guilty conscience in relation to the charge of defrauding the Health Insurance Commission. This comment seems to me to have been fully justified by the circumstances to which they referred. The Tribunal then went on to summarise their conclusions: "The respondent is aged 46, he is married man with three children. he graduated with a degree of Bachelor of Medicine from Cairo University in 1975 and came to Australia in 1979. He has been in private practice as a general practitioner since 1982 and has been performing day surgery procedures in his surgery since 1984. In July 1992 seven complaints of misconduct were laid against him by the director General of the new South Wales Department of Health. The Medical Tribunal, after a hearing which involved six days of evidence, found that four of the complaints had been established and constituted professional misconduct. The respondent was fined $25,000.00 and was allowed to continue in practice subject to thirteen conditions of which seven have been referred to in the course of this judgment. In the course of this hearing it has been firmly established that the respondent has flagrantly ignored the orders of the previous Medical Tribunal imposing such conditions for very good reason in the interests of the protection of the public. Further, he has carried on his practice unlawfully and in conflict with specific directions given to him by officers of the Department of Health in respect of his application for a licence under the Private Hospitals and Day Procedures Centre Act. Further the facts before this Tribunal disclose that the respondent is guilty of a serious offence, a criminal offence, of obtaining money by false pretences. In the opinion of the Tribunal there can be no doubt that the manner in which the respondent carried out his surgical procedures over a substantial period of time was such that his patients were in jeopardy of death or serious injury. The respondent has now left the country rather than face a Tribunal including his peers. He has not even paid the fine or costs imposed by the earlier Medical Tribunal." The Tribunal then made the formal orders I have earlier mentioned and in addition made O.4 in these terms: "4. Pursuant to s63(5) of the Medical Practice Act the Tribunal orders that an application for review of O.2 may not be made until the expiration of 10 years from today. Lest there be any misunderstanding about this order the Tribunal wishes to make it clear that it is not to be inferred from the making of this order that upon the expiration of that order the respondent is entitled to be registered again as a practitioner. In our opinion, but without binding any other Tribunal, the nature and extent of the misconduct proven against the respondent is such that he should never be re-admitted to practice in New South Wales." Pursuant to s90 of the Medical Practice Act 1992 Dr Edmond appealed from the decision of the Tribunal. S90 permits an appeal against a decision of the Tribunal with respect to a point of law. The grounds of appeal by Dr Edmond against the Tribunal's decision were eighteen in number and with the possible exception of grounds 15, 16, 17 and 18 did not raise any points of law. Grounds 16 and 17 raised questions relating to the denial of natural justice. Grounds 15 and 18, assuming in their favour that they could be with respect to a point of law, did not, in view of the material that had been before the Tribunal, appear to have any prospect of success. 4 UNREPORTED JUDGMENTS When the appeal was called on for hearing counsel for Dr Edmond showed a practical and realistic grasp of the problems with the appeal. He did not seek to pursue any ground of appeal against the findings of the Tribunal in regard to complaints 1 and 2. He confined the argument to complaint 3. For the purposes of the argument he conceded that he could not contest in the appeal the findings of the Tribunal that 228 claims had been made to Medicare for anaesthetic services in the name of Dr Pillans, that to the knowledge of Dr Edmond Dr Pillans had not performed any of the anaesthetic services for which claims had been made, that cheques in satisfaction of the claims had been sent by Medicare to Dr Edmond, that the cheques were made payable to Dr Edmond and that they had been banked to the credit of Dr Edmond's account. The point of the argument was that there was no material before the Tribunal upon which it could satisfy itself that Dr Edmond had been aware that the system in his practice, operated by his staff, was bringing about the result that he was getting the benefit of the payment by Medicare for services allegedly performed by Dr Pillans which in fact were not performed by him. Counsel's submission was that if the court accepted this contention, then although the order dismissing the appeal against the suspension order of 27 April 1994 and the Tribunal's order that Dr Edmond's name be removed from the Register of Medical Practitioners would both have to stand, this court would either remove altogether the order that no application for re-registration could be made by Dr Edmond within ten years, or alternatively reduce the ten year period, and should also delete the comments made by the Tribunal to the effect that the facts before the Tribunal disclosed Dr Edmond was guilty of the criminal offence of obtaining money by false pretences; the court should also delete the Tribunal's observation, even although it did not have any legal effect, that they did not think Dr Edmond should ever be re-admitted to practice in New South Wales. In seeking to make good the submission that there was nothing before the Tribunal justifying a finding that Dr Edmond was aware that the system in his practice was yielding to him the unjustified benefits in question, counsel took the court in some detail through the procedures by which claims were made to Medicare. This was helpful to the court in enabling us to understand in a little detail the way the paperwork in the practice was carried out. One result of this is that it will be possible to state quite briefly what emerged as the salient points relating to the submission made on behalf of the appellant. One of the principal complaints against Dr Edmond was that he carried out surgical procedures on patients under anaesthesia without a registered medical practitioner in attendance to monitor the anaesthetics. The factual findings of the Tribunal show not only that Dr Edmond persistently carried out surgical procedures without a registered medical practitioner in attendance to monitor the anaesthetics but that his practice in this respect was seriously below the standard required in New South Wales, to the extent that, in the Tribunal's words, "his patients were in jeopardy of death or serious injury". Various official visits to Dr Edmond's practice in 1993 had led to suspicion that Dr Edmond's practice in regard to anaesthesia was in breach of proper standards. On 3 February 1994 officers of the Department of Health again attended Dr Edmond's premises in the company of Dr J McIntosh. Dr McIntosh, in a written statement in evidence before the Tribunal and also in oral evidence this visit that when the visitors arrived a procedure was apparently under way on a female child. No medical practitioner was in attendance with Dr Edmond. Dr Edmond left the procedure room and returned with Dr Pillans. Dr Edmond said the procedure had not started URJ = EDMOND v NEW SOUTH WALES HEALTH DEPARTMENT (Priestley JA) 5 when the visitors arrived and that Dr Pillans had come to assist during the procedure. Dr Pillans immediately contradicted Dr Edmond. Later during the visit, after the officers had inspected a register recording that Dr Pillans had been the assistant during many procedures and when this was shown to Dr Pillans, he said "These records are invalid, I have never assisted'. Dr Pillans gave evidence of these incidents before the Tribunal. He said that, contrary to Dr Edmond's assertion during the visit, he (Dr Pillans) had never given any assistance during procedures or monitored the administration of anaesthetics. On the facts as found by the Tribunal the inescapable conclusions are that Dr Edmond was conscious of the conditions which had been imposed upon him concerning the administration of anaesthetics and the presence of a registered medical practitioner, was conscious that he was in breach of that condition, dishonestly tried to create the impression that Dr Pillans was fulfilling the required function and made an inept attempt on 3 February 1994 to maintain the pretence in the presence of the officials. Consistently with this pretence, claims were made to Medicare for the never performed anaesthetic services of Dr Pillans. On counsel's analysis of the evidence before the Tribunal concerning the way in which records were kept in the practice and claims compiled and submitted to Medicare, it is broadly true that nothing showed direct participation by Dr Edmond in his staffs management of these matters. Counsel sought to draw from this the conclusion that the Tribunal had not been entitled, even on the civil standard of proof, which counsel acknowledged was the accepted standard in matters before the Tribunal, as explained in Bannister v Walton (1993) 30 NSWLR 699 at 711-712, to find that he was guilty of the fraud charged. I do not think this submission can succeed. There was satisfactory evidence before the Tribunal that claims were made to Medicare on a form accompanied by a bundle of claims, that when these reached Medicare a summary list of all the separate claims was prepared by Medicare and that when cheques were sent by Medicare to the practice they were accompanied by a list of the claims against which, inter alia, the item numbers were shown indicating what service was being claimed for. Evidence as to what happened when the cheques and the accompanying statements reached Dr Edmond's premises, before the Tribunal and accepted by it, was as follows: "Q. All the statements that came with the cheques were they all seen by Doctor Edmond as far as you know? A. Well he just, you know, he just tear the cheque off, right, and put on the statement in a folder and then he got it with something else and I hardly saw him go through and read the whole statement." The position therefore was that Dr Edmond was the owner of the practice; he was the employer of the staff; he was responsible, in a general sense, for the system operated by his staff concerning the payment of accounts, even if he did not know the day to day detail of what his staff were doing; he knew that claims were regularly made to Medicare; he saw the cheques in payment of Medicare claims as the cheques came in; to each cheque was attached a statement showing what the payment was for; he must be taken to have known the item numbers for anaesthetic services and therefore to have known that he was receiving payment for anaesthetic services by a medical practitioner other than himself; he knew that no medical practitioner other than himself was performing anaesthetic services; he had dishonestly tried to deceive departmental officers into believing that Dr Pillans was performing anaesthetic services when he was not; the cheques were paid into his account. By application of the required onus of proof before the 6 UNREPORTED JUDGMENTS Tribunal, it seems to me that the Tribunal was well entitled to be very comfortably satisfied that, to use the words of Complaint 3, Dr Edmond had submitted Medicare claims for anaesthetic services in the name of Dr Pillans in the knowledge that no such services had been provided by Dr Pillans and with the intention of obtaining a financial benefit for himself. It was perhaps unnecessary for the Tribunal to go beyond finding the complaint proved and add that Dr Edmond was guilty of the serious criminal offence of obtaining money by false pretences, but nevertheless, that remark, so long as it is remembered that the Tribunal was operating on the civil onus of proof not the criminal, seems to have been accurate. In any event, I do not think that this remark by the Tribunal affects in any way the validity of their decision on the complaint, nor do I think it bears upon the appropriateness of the orders they made. I do not think that the submission put on the appellant's behalf can be accepted. That being so, I see no reason for changing any part of the orders made by the Tribunal, nor, if they were to be reconsidered, would I be in favour of altering them. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Priestley JA. Sheller JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: BT STRATTON QC/L MUSTON Instructed by: MACELBING AND ASSOCIATES Counsel for the Respondent: HG MURRELL Instructed by: DAVID SWAIN, NSW HEALTH DEPARTMENT