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Thursday, 31 May 1984
Page: 2234

Senator WALTERS —My question is directed to the Attorney-General. It relates to medifraud. Has the Attorney-General been asked by the Department of Health for a legal opinion-

The PRESIDENT —Order! I cannot hear Senator Walters.

Senator Gareth Evans —I can, Mr President, and I will gladly swap you.

Senator WALTERS —The Attorney-General acts in his usual flippant manner. He should listen to the question although he might not desire to look after his portfolio. Has the Attorney-General been asked by the Department of Health for a legal opinion on ways in which generalised evidence can be presented in courts hearing charges against doctors of fraudulent practice under Medicare? If so, what is his answer?

Senator Bolkus —Why doesn't your husband get his own lawyer?

Senator GARETH EVANS —Having recovered from Senator Bolkus's interjection-

The PRESIDENT —The interjection was out of order because Senator Bolkus was not in his seat.

Senator GARETH EVANS —Get back to your seat, Senator Bolkus. I do have a recollection of that issue being raised last year with my Department as part of a review that the Department of Health, in conjunction with my Department I think, was conducting.

Senator Durack —What does 'generalised evidence' mean?

Senator GARETH EVANS —I appreciate that it might be some distance from your experience in these matters, Senator Durack, unlike Senator Walters's. I will do my best to explain what I think her question was about and give an answer. One of the matters that was considered was, when it comes to the making of a penalty , the determining of a penalty, whether or not the court should be allowed to be given at that stage evidence reflecting the kind of performance profile of the doctor in question, not in regard to the particular series of instances that may have been the subject of direct evidence and the actual conviction. If the pattern of practice of the doctor in question-and now that computer technology is available, the pattern of practice of the professional can be compared with other medicos in a similar field-showed a substantially higher claim rate than was the norm for that kind of practice, there would be some prima facie suspicion that the particular individual instances, the subject of conviction for fraud, were in fact part of a larger pattern of activity.

Senator Messner —Another brilliant Evans idea.

Senator GARETH EVANS —Just listen. The suggestion was that it might be appropriate, at the stage of determining penalties, for the court to be able to take into account evidence of that kind. The view was taken, with due respect to Senator Messner-'Missner' is not a bad description really; 'missnering' on all four cylinders.

Senator Messner —As long as it's not missionary.

Senator GARETH EVANS —I see you adopting that position pretty often in this chamber.

The PRESIDENT —The Attorney-General will ignore the interjections.

Senator GARETH EVANS —What I am trying to say is--

Senator Walters —Not very successfully.

Senator GARETH EVANS —That is true, Senator Walters. I do go to pieces whenever you ask me a question; I acknowledge that. What I was trying to say was that we did consider, as one possible option, a rather innovative approach to sentencing in this way. But it was felt it would have a number of difficulties in principle and as such was not proceeded with. I do not know what the status of that proposal is, or indeed others so far as possible further legal responses to medifraud are concerned. I shall endeavour to find out from my Department where it is all at and advise the senator further.

Senator WALTERS —I ask a supplementary question of the Attorney-General. Is he aware of the dangers of what has been asked of him because mere suspicion of practice might be--

Senator Grimes —Are you worried about anyone in particular?

The PRESIDENT —Order! Senator Walters is trying to ask a supplementary question.

Senator WALTERS —I should like to know whether that interjection came from Senator Grimes.

The PRESIDENT —Order! Will the Senator ask her supplementary question and not worry about interjections.

Senator WALTERS —I am worried about Senator Grimes's action in this matter. What I am suggesting is that there is considerable risk attached to the Department's presuming that certain patterns of practice could lead to even suspicion of over -servicing and medifraud.

Senator GARETH EVANS —I will answer the question to the extent I can understand it. I do take the point to be that there are problems in principle with the admission of that kind of evidence. If that is the view of Senator Walters, for once I share her view.