Health Ombudsman v Brennan[2024] QCAT 466

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral to the Tribunal in respect of conduct by the respondent which the applicant says is professional misconduct.  The respondent does not disagree with that categorisation.

The conduct the subject of the referral

2. [2]
   As per the Statement of Agreed and Disputed Facts (‘SOADF’):

Between 1 December 2015 and 4 May 2017, the respondent submitted 1,381 ‘bulk-bill’ claims to Medicare, in which she represented that she had rendered a professional service to a patient meeting the requirements for the [medical benefits scheme (‘MBS’)] item claimed.  However, the respondent had not rendered a professional service to the patient meeting the requirements for the MBS item claimed, as a compliant professional service had not been rendered.^[1] 

3. [3]
   The conduct involved over 245 patients.  The total amount of the respondent falsely obtained from Medicare was $107,270.70.^[2]  That amount has been fully repaid.^[3]
4. [4]
   The respondent pleaded guilty in the Brisbane District Court on 29 March 2022 and was sentenced to three years imprisonment to be suspended after the respondent served six months imprisonment, on the condition that the respondent be of good behaviour for the remainder of the sentence.  The operational period of the sentence is three years, which means it is still extant and does not expire until 29 March 2025.  The conduct here is objectively serious conduct.  As I said, the respondent agrees that it amounts to professional misconduct.
5. [5]
   In the sentencing remarks, Chief Judge Devereaux SC noted the respondent made an early plea.  In respect of the respondent’s criminal conduct, his Honour noted:

It is, not least, a seriously unprofessional act, and a dishonest one, and an imposition on the whole community.

But there is yet another layer to it, which is that it carries the real risk of, at least inconvenience, if not serious problems, for the people you falsely named, because there are regulations about how many times a person can use Medicare over a period of time for certain services.  Leaving all of that aside ... is the sheer invasion of privacy and inconvenience that a person might have to know that their account with the government is inaccurate.  Your conduct has affected 245 real people.  I have to sentence you too on the basis that it was a deliberate course of conduct.

Discussion and Sanction

6. [6]
   A number of issues have been identified between the parties in which they do not wholeheartedly agree.  The major issue, and this is one in which they do not agree, is whether one of the orders that the Tribunal makes should be for a suspension for any length of time of the respondent’s registration.
7. [7]
   A subsidiary argument relates to the six months that the respondent served in custody.  The respondent argues that, while the fact of a practitioner serving a sentence was considered an irrelevant matter in the Health Ombudsman v Harirchian (‘Harirchian’),^[4] the practical effect of the respondent being imprisoned means that she has undergone a period of de facto suspension.
8. [8]
   The applicant replies that while it may be taken into account to a limited extent, it should not be applied on a one-to-one basis because it was an involuntary cessation of practise resulting from her criminal conduct rather than voluntary cessation indicative of remorse, or due to a suspension by Ahpra or the Board.
9. [9]
   The Tribunal agrees that it may take into account the time which the respondent was in custody and not practising but does not need to do so on a one-to-one basis or a purely mathematical way.
10. [10]
    The second area in which the parties are not in total agreement is what is being called the Fleischmann principle, relating to Council for the Regulation of Health Care Professionals v General Dental Council and Anor (‘Fleischmann’)^[5] where Newman J made some comments in respect of the matter.  This was discussed in Health Ombudsman v OOD (‘OOD’):^[6]

Newman J described the effect of the Committee’s decision:

Since Mr Fleischmann had been sentenced to a Community Rehabilitation Order for a period of three years from December 2003 (with conditions), it followed that, if he was suspended for the maximum period of twelve months, he would be able to resume his practise before he had satisfied his sentence.^[7]

11. [11]
    And later:^[8]

I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practise until he has satisfactorily completed his sentence.  Only circumstances which plainly justify a different course should permit otherwise.

12. [12]
    Newman J gave some examples and said later:^[9]

I recognise that the variety of circumstances presented by individual cases must be weighed but, where grave and serious offences are under consideration, personal factors, such as character, previous history and the practitioner’s livelihood [as a health practitioner], will invariably be insufficient to produce a result different from that which would have applied had the individual been an applicant for registration.

13. [13]
    This was adopted in OOD.  Judicial Member Robertson, at paragraph 38 of OOD, said:

I agree with the applicant, by reference to the approach taken in similar Tribunals in other States in similar factual circumstances, that any period of disqualification from applying for registration should be co-extensive with the respondent’s remaining term of imprisonment.  I agree that it would be incongruous, and inconsistent with the important principles of deterrence and maintenance of public confidence in the profession, to permit her to apply for registration while she is still on parole for serious drug offending.

14. [14]
    There has been a question raised, too, as to whether there is a difference between a sentence involving parole and a partially suspended term of imprisonment with an operational period.  In that case, Judicial Member Robertson did not need to decide that as a final matter because he came to the view that the appropriate period of registration, applying either the bench book principle or otherwise, would have been until a date coinciding with the expiration of the sentence.
15. [15]
    There has been discussion of the question in a number of cases which have been discussed here this morning.  Another one of those cases was the case of Health Ombudsman v ICN (‘ICN’)^[10] before Judicial Member Reid, who said:

I note in this case that there is no issue of parole, but a suspended sentence. However, in my view, whilst where such a sentence is imposed it might perhaps be easier to digress from the general principle, the general principle still has application.^[11]

16. [16]
    We return to the proposition that it is permissible to move from the general principle where there are other factors calling for it in the interests of justice.
17. [17]
    There is another case that has been mentioned and that’s the case of Health Ombudsman v ANP (‘ANP’)^[12] in which Judicial Member McGill said in obiter that there was a difference between imprisonment with conditions of parole and a suspended sentence with the condition to be of good behaviour.  However, that was not expanded upon and is obiter rather than ratio.
18. [18]
    The way in which the applicant has framed its submissions is that if one looks at the guideline cases that have been presented to the Tribunal, first, no two cases are the same, but that an analysis of the cases, and particularly using the case Health Ombudsman v Saurels (‘Saurels’),^[13] which is in the folder containing the cases marked exhibit 1, would lead to the conclusion, all other things being considered equal, a term of suspension of nine to ten months would be appropriate.
19. [19]
    The applicant submits that it has considered a number of other matters in ameliorating that submission.  One is the time in custody.  Another is that the applicant has been subject to stringent conditions since she has resumed practise.  The third is the length of time from when the offences happened to the present time which, the applicant says, is no fault of the applicant or, indeed, of the respondent, but it doesn’t have an impact on the respondent.  But the applicant says that, even taking into account those ameliorating factors, there should still be a period of suspension in order to uphold public confidence.
20. [20]
    Regarding the argument of a suspended sentence as against parole, both are sentences subject to conditions.  Both are sentences that are extant and still alive until the parole is finished, or the operational time is over in a suspended sentence.  A breach of the requirement to be of good behaviour can result in a number of things and is always judged against the questions of how long into the operational time the breach occurred and what is the nature of the breach.  Particularly in the case of a similar offence, it can lead to an order that the whole of the term of imprisonment be suspended.  It may be that there’s an order that part of it be suspended.  In some cases, if the breach is minor and it’s towards the end of the operational period, it may be that there’s an extension of the operational period for a period of time, and there are cases where the order that part of the sentence be served, amounts to an order that the person is sentenced to the rising of the court; but that’s in the least of the cases.  So, there is still a liability to serve time of imprisonment while the operational period is not exhausted.
21. [21]
    In respect of the orders sought by the applicant, counsel for the applicant referred to the case of Nursing and Midwifery Board of Australia v Williams (‘Williams’),^[14] which appears in exhibit 1, where the respondent was sentenced to six months wholly suspended.  The order imposed by the Tribunal was that her registration be cancelled, and she be prohibited from applying for registration for a period of two years.  The charges there were different, and it seems to me that there were some much lesser fraud charges from here but more seriously, she recklessly claimed to have a Diploma in Enrolled Nursing when she didn’t, to obtain employment at a particular hospital.  We were referred to paragraph 30 by the applicant and that was advanced on the basis that it was a statement of principle relating to the primary purpose of hearings such as this. 
22. [22]
    In the present case, the respondent’s arguments were that the following factors are mitigating:

    1. she has shown insight and remorse;
    2. she pleaded guilty and accepted that it’s professional misconduct during these proceedings;
    3. it has had an impact on her, her patients, on her family;
    4. she has repaid the amount involved;
    5. she has undergone rehabilitation in that she has undergone an extensive course in ethics, mentoring; and
    6. she has, subject to the conditions imposed via immediate registration, been audited regularly while she has been working.
23. [23]
    The respondent pointed to Saurels, which is in the bundle, and the case of Health Ombudsman v Kennedy (‘Kennedy’),^[15] which was a matter before Judge Allen QC, particularly what was said at paragraph 55:

There is no good reason why the respondent should not be regarded, for the purpose of determining sanction, as having been effectively precluded from practise for a period of four and a-half years as a consequence of her conduct.  That is a significant factor to be taken into account in determining whether any further preclusion from practise is required to address considerations of denunciation and personal and general deterrence.

24. [24]
    The way in which that came about is that, in 2015, the applicant decided to take immediate registration action and suspended the respondent’s registration from that time.  So up until the time of the judgment in October 2019, that accounts for the four and a half years referred to. 
25. [25]
    The respondent also referred to the case of Psychology Board of Australia v Nguyen (‘Nguyen’),^[16] in which the respondent was a registered psychologist and over a three-year period she fraudulently invoiced WorkCover and Transport Accident Commission to a total of approximately $65,000.  In the end result, the extensive orders were made which perhaps reflect some of the matters which were of concern.  The respondent’s registration was suspended for three months and stayed for a month but the other conditions were that:

    1. her practise be supervised on a monthly basis for two years;
    2. she had to undertake further educational training set out in quite some detail;
    3. the practice had to be subject to six monthly inspections for two years;
    4. audits, in effect, were to be conducted;
    5. she had to refrain from having anything to do with the billing side of her practice for two years;
    6. she had to undergo counselling with a psychiatrist or another suitable psychologist for a minimum of 12 months and for a further 12 months if recommended by that person; and
    7. she was cautioned and reprimanded. 
26. [26]
    These were stringent orders and the only point that can be made is that the suspension was for three months.
27. [27]
    The respondent says any suspension here would be punitive, particularly if it were over three months and raised, at the end, the question to allow a period of transition.
28. [28]
    At the end of the day, the Tribunal is satisfied, although the parties agree, it’s up to the Tribunal to independently come to a view on these matters and make a determination.  The Tribunal is satisfied that this amounts to professional misconduct.  The Tribunal is not satisfied that there are matters which take this matter outside the guidance of the Fleischmann principle.  However, the Tribunal is satisfied that looking at the guideline cases, the conduct here and hearing the submissions, it is appropriate also to give time for the transmission and it is noted that the applicant does not object to such a time.
29. [29]
    If the Tribunal therefore, as it is going to do, orders that there be a suspension until 29 March 2025, but allows that it not take place until a month from today, that is 21 October 2024, would mean that the suspension is effectively for a period of five months.
30. [30]
    The Tribunal has come to this view that although there is not a real need for specific deterrence here, and while it is true that these proceedings are not punitive in nature,  it is also true that these proceedings are primarily to protect the public.  In the interests of protecting the public, and one of the ways in which it extends to protecting the public, is to make orders by way of sanction against a health practitioner who has behaved in a way that constitutes professional misconduct, which sends out a message to other practitioners who might be likeminded that they risk this type of sanction.  So, it is our view, as it was in Williams, that it is necessary to make it clear not only to the respondent, but the profession and to the public, that her conduct was unacceptable. 
31. [31]
    It is the decision of the Tribunal that: 

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded, which the Tribunal recognises is not a trivial penalty.
3. Pursuant to section 107(3)(b) of the HO Act, conditions are imposed on the respondent’s registration in the form of annexure A to this decision.
4. Pursuant to section 109(2) of the HO Act, part 7, division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
5. Pursuant to section 109(3) of the HO Act, the review period for the conditions is six months.
6. Pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended from 21 October 2024 until 29 March 2025.
7. Pursuant to section 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman 30 May 2023 is set aside as and from 21 October 2024. 
8. No order in relation to costs.

Annexure A

Schedule of Conditions – Ms Jeanette Brennan – PSY 0001402258

Audit of Practice

1. The practitioner must submit to an audit of their practice (the audit), including any supporting records, within 28 days of the Psychology Board of Australia (the Board) approving an auditor, and thereafter on a three monthly basis for a period of one year (at least four audits in total), by permitting an auditor (the auditor) approved by the Board to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the practitioner’s billing records and associated patient records with respect to Medicare compliance and must include, at a minimum, 25% of billings from a random selection of patient records.

Reporting to Ahpra

2. Within 28 days of resuming practice, the Practitioner must provide to Ahpra:

1. a nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Psychology Board of Australia;

2. acknowledgement, on the approved form (HPN12), that Ahpra will seek reports form the approved auditor at the conclusion of each audit; and

3. acknowledgement, on the approved form (HPNA12), from the nominated auditor.

Approval of Auditor

3. Within 14 days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining the form the audits will take and how the area of concern (being Medicare billings) will be addressed. The audits will take the form determined by the auditor.

4. The first audit of the practitioner’s practice must commence within 28 days of the approval of the auditor.

5. In the event an approved auditor is no longer willing or able to provide the audits required, the Practitioner must notify Ahpra within 14 days of becoming aware of this and provide a new nomination of a proposed auditor to the Psychology Board in the same terms as the previous nomination of the auditor.

Other requirements

6. All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Review of conditions

7. Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to these conditions.

8. The review period for these conditions is six (6) months.