GA 2021/0125
Answer
No.
Context
Doctor B had received written advice from askMBS which he believed was not only wrong, but likely illegal. He wanted to know if he could rely on the advice.
The Medicare website states the askMBS service provides ‘accurate, authoritative and up-to-date’ advice, though it falls short of stating the advice is legally correct and able to be relied upon as a defence in contested legal proceedings. There are many good reasons for this:
- The department cannot provide legal advice. You will note on the bottom of every MBS facts sheet the departmental disclaimer stating the information is general only and you should seek your own legal advice.
- For the information to be legally binding there would need to be a law similar to Division 357 of the Taxation Administration Act 1953 (Cwth) which provides protection for reliance on certain written rulings provided by the ATO. It states inter alia: “A ruling binds the [Tax] Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.” No equivalent law exists in relation to information provided to you by Medicare.
- Under Australian law, the Latin maxim ignorantia juris non excusat (ignorance of the law is no excuse) operates, and citizens can be found guilty even in circumstances when their mistake about a law was based on a genuinely held and reasonable belief, and even if the illegal action was based on erroneous advice from a government official.
- Remember also that the department [Medicare] is subject to the law, and it is our judicial system that is the final arbiter of those laws.
Let’s now review what our judges have said on this issue.
High Court authority
In the 2004 High Court case of Ostrowski v Palmer, Mr Palmer had obtained a commercial fishing licence and was found guilty of fishing for rock lobsters in a place where that was prohibited. However, before he did this, Mr Palmer had first sought advice from the relevant state government department, which led him to believe he was allowed to fish there. Mr Palmer raised this as a defence when the case was in court but was unsuccessful. The court held firm on the principle of ignorance being no excuse of the requirement to comply with law. The court stated:
“Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute…In a society in which many personal, social and commercial activities are closely regulated, and the schemes of regulation are frequently changed, the detail of regulation may be difficult for citizens and their lawyers to keep up with. Courts themselves normally require evidence of regulations as distinct from statutes.”
While a mistake of fact may constitute a defence for some offences, Mr Palmer’s mistake was a mistake of law rather than of fact. The court held:
“Mr Palmer could not rely on the defence of mistake of fact under s 24. His mistake was one of law: he erroneously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of a Fisheries WA employee.”
In regard to the incorrect advice from the government official, the court said:
“It is irrelevant that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts…Accordingly, the bare fact that the adviser or official may have been mistaken as to the state of the law does not convert the defendant’s mistake into one of fact. Both the adviser or the official and the defendant operate under a mistake of law.”
Relevant Federal Court cases
In addition to the binding High Court authority in Ostrowski, two Federal Court decisions add further weight to the risks of relying on advice from Medicare.
In Stirling v Minister for Finance, Dr Stirling was a GP and Phlebologist, who conducted ultrasound examinations on his patients. He had sought telephone advice from Medicare in 2005 concerning whether he was eligible to claim two relevant MBS ultrasound item numbers for these services. The recorded telephone conversation (which was later admitted into evidence) led Dr Stirling to believe he was eligible to claim the two MBS items. After the phone conversation, Dr Stirling wrote a letter to Medicare confirming the contents of the recorded telephone conversation (also admitted into evidence) in which he summarised the telephone conversation and informed Medicare he understood he was eligible to claim items 55246 and 55054 and intended to commence doing so. He billed and received Medicare benefits for these two uncontroversial services for the next five years. In 2010, Dr Stirling received a letter from Medicare informing him of its intention to audit his billing. Medicare subsequently determined he was not eligible to claim items 55246 and 55054, had never been, and would be required to repay a debt of $332,541.30 to the Commonwealth. However, he successfully appealed, and the matter was remitted to the Minister for further consideration.
At the time of the 2005 phone call it appears Medicare was apparently unable to answer what was a fairly straight forward question – could he claim the item numbers or not? – but Dr Stirling was expected to have known the answer. Further, Medicare’s conduct in paying Dr Stirling’s claims for over five years, rather than invoking available rejection codes, may have ratified his belief that he was billing correctly, and entrapped him into guilt.
His Honour Justice Tracey, was scathing in his criticism of the Delegate of the Minister for Finance who had made the initial determination. Judge Tracey set aside the decision and remitted the matter for further review.
In Nithianantha v Commonwealth of Australia, Dr Nithianantha unsuccessfully sought to rely on email advice from Medicare, relating to when urgency is determined for an afterhours service – is it determined during initial contact when a patient calls requesting a home visit, or only later once the medical practitioner has attended and physically examined the patient? This was a critical point in the case.
NB: The email advice from Medicare was not addressed to Dr Nithianantha but had been provided to him from another medical practitioner who had sent the question to Medicare. This fact caused this critical piece of written evidence to be disallowed, because the email was not addressed to Dr Nithianantha, had been provided at a time which put it outside the scope of the investigation, and in any case, according to the PSR, the advice was wrong.
Other Relevant Materials
Read what your colleagues said during qualitative interviews which included questions around accessing advice from Medicare and the quality of that advice: Wading through Molasses: A qualitative examination of the experiences, perceptions, attitudes, and knowledge of Australian medical practitioners regarding medical billing.
The evidence from that study suggests that the likelihood of receiving incorrect advice from Medicare is unfortunately quite high and would likely lead a mistake of law (rather than a mistake of fact) which would not enable an exculpatory defence in contested legal proceedings.
Examples and other relevant information
Given the Nithianantha decision, the best advice is that you should NEVER pass answers you receive from ‘askMBS’ around amongst your colleagues. Such answers are intended for the named recipient only and even then they can be wrong.
The PSR and the Federal Court made very clear in Nithianantha that because the email advice was not addressed to Dr Nithianantha, he could not rely on it. There were other reasons as well, but that was one of them. This has created a precedent and represents the current state of the law. This applies even if the advice, on any logical reasoning, should apply to all doctors in a particular class – it makes no difference – the advice in the email Dr Nithianantha sought to rely on contained generic advice that on any reasonable interpretation should have applied to him and to everyone – yet he could not rely on it.
Please also read answer OH 2020/064 which provides more detail on the Nithianantha decision.
Who this applies to
Everyone
When this applies
Always, but definitely since the 2004 High Court decision of Ostrowski.