1. Having conducted a hearing into allegations referred to the Tribunal and having, on 17 April 2012 found, under section 77(1)(a) of the Health Professions Registration Act 2005 (the HPR Act) that the respondent has engaged in professional misconduct and unprofessional conduct as defined in section 3(1) of the HPR Act, the Tribunal makes the following determinations under section 77(4) of the HPR Act.
2. The respondent's registration as a Chinese Medicine Practitioner in divisions of acupuncture and Chinese herbal medicine is cancelled.
3. The respondent is disqualified from applying for registration as a Chinese Medicine Practitioner for a period of three years from the date of this order.
4. The Respondent is reprimanded.
5. The Respondent is fined $8,000, payable to the Chinese Medicine Board of Australia on or before 31 March 2013.

1. In June 2002, Mr Reza Ghaffurian was registered under the Chinese Medicine Registration Act 2000 as a Chinese Medicine Practitioner in the Division of Acupuncture and Chinese Herbal Medicine. From 1 July 2007, the Chinese medicine profession became regulated under the Health Professions Registration Act 2005 (HPR Act). Mr Ghaffurian's registration continued under the HPR Act.
2. In December 2010, a patient of Mr Ghaffurian (the Notifier) notified the Chinese Medicine Registration Board of Victoria (the Vic Board) about treatment Mr Ghaffurian provided to her.
3. The Vic Board investigated. In March 2011, it suspended Mr Ghaffurian's registration.
4. In October 2011, under section 59(2)(g) of the HPR Act, the Vic Board made a referral to the Victorian Civil and Administrative Tribunal (VCAT) for a hearing.
5. VCAT held the hearing over 6, 7 and 8 February 2012. On 17 April 2012, it found Mr Ghaffurian had engaged in professional misconduct and unprofessional conduct. VCAT published its findings and reasons (Chinese Medicine Registration Board of Victoria v Ghaffurian (Occupational and Business Regulation) [2012] VCAT 478).
6. VCAT scheduled a further hearing to hear submissions on jurisdiction to make determinations and appropriate determinations. However, in March 2012, Mr Ghaffurian suffered a serious stroke, delaying the further hearing until 20 November 2012.
7. On 1 July 2012, the National Law came into force. The applicant's identity changed to be Chinese Medicine Board of Australia.
8. At the 20 November hearing, Mr Clements submitted that given a lacuna (a "gap") in the HPR Act, VCAT has no power to make determinations concerning Mr Ghaffurian. Dr Freckleton made contrary submissions.
9. We first deal with this preliminary issue.

VCAT's jurisdiction re determinations in this proceeding

1. Where a question of law arises in a VCAT proceeding before a panel, the question is to be decided by the presiding legal member of the Tribunal, in this case Senior Member Proctor.
2. It is common ground that:
   • (a) When on 14 December 2010, the Vic Board received the notification concerning Mr Ghaffurian's conduct, the HPR Act was still in force, and the Vic Board commenced dealing with the notification under that Act.
   • (b) On 1 July 2012, the HPR Act was repealed, the Vic Board was abolished and the health profession of Chinese medicine has been governed by the Health Practitioner Regulation National Law (the National Law).
   • (c) Under section 289(2)(b) of the National Law, the notification concerning Mr Ghaffurian's conduct is to be "dealt with under the HPR Act" and this VCAT proceeding may be dealt with, as if the HPR Act had not been repealed, as VCAT has dealt with the proceeding to date.
   • (d) Therefore, if the health practitioner is a registered health practitioner, VCAT may impose one or more of the determinations provided in s 77(4) of the HPR Act.
3. However, Mr Clements submitted that neither suspension nor cancellation is available determination in this case because Mr Ghaffurian's registration has been suspended since 24 March 2011. Therefore, he has no registration which the VCAT can suspend or cancel. He submits this is because:
   • (a) On 24 March 2011, the Vic Board suspended Mr Ghaffurian's registration under section 40 of the HPR Act. It has been suspended ever since;
   • (b) This is because, under section 40(3) of the HPR Act, the registration is to remain suspended until,
     • (i) any investigation or any hearing into the matter is completed and the relevant Board "is of the opinion that the there is no serious risk that the health and safety of the public will be endangered as a result of the Respondent practising as a health practitioner"; or
     • (ii) the suspension is otherwise revoked.
   • (c) Neither the Vic Board, nor the National Board, has reached the opinion referred to in sub-paragraph (a) above, or otherwise revoked the suspension of his registration.
   • (d) Under section 35 of the HPR Act, a health practitioner whose registration is suspended to be treated as not being registered for the period of that suspension.
   • (e) That outcome is not altered by section 3(2)(b) of the HPR Act (see contrary submissions below). There is nothing in the language of that section which either states, or has the effect, that for the purposes of proceedings under Part 3 or Part 4 of the Act, a health practitioner whose registration has been suspended is to be treated as if his or her registration has not been suspended.
   • (f) Because VCAT must deal with this matter as if the HPR Act had not been repealed, it follows from the above that:
     • (i) since the suspension of Mr Ghaffurian's registration on 4 March 2011, he is to be treated as not being registered;
     • (ii) therefore, he has no registration to suspend or cancel;
     • (iii) therefore, VCAT does not have the power to impose a determination of suspension or cancellation; and
     • (iv) VCAT also does not have the power to impose a determination of disqualification from applying for registration for a specified period of time, because pursuant to s77(4)(o) of the HPR Act, such a determination can only be imposed where the Tribunal has first cancelled the registration of the health practitioner.
4. I reject that submission.
5. Section 77(4) of the HPR Act provides VCAT's powers to make determinations including to reprimand, cancel registration and to disqualify from applying for re-registration for a specified time. It says,

(4) VCAT may make one or more of the following determinations with respect to a health practitioner -

(f) impose a fine on the health practitioner of not more than $50 000 to be paid to the responsible board;

(h) cancel the registration of the health practitioner;

(o) disqualify the health practitioner from applying for registration under section 4 within a specified period if the health practitioner's registration is cancelled by the Tribunal or by a health practitioner registration authority of another State or Territory of the Commonwealth or of New Zealand.

1. I agree with Dr Freckleton's submission, on which the following is in part modelled.
2. Mr Ghaffurian's suspended registration under the Act lasted until 30 June 2012. I note a printout from the AHPRA website (www.ahpra.gov.au), provided under cover of an affidavit from the solicitor acting for the Board. This was provided after the hearing, as evidence of ongoing registration to 30 June 2012 was not available at the hearing.
3. From 1 July 2012, with the National Law in place, under section 289(2)(b) of that law, this proceeding is to be heard and decided as if the HPR Act is still in force.
4. Mr Ghaffurian's registration status as at 1 July 2012 is to be determined under the transitional provisions in Part 12 of the National Law. Section 269 of the National Law says,
   • (1) This section applies to a person who, immediately before the participation day for a participating jurisdiction, held general registration (however described) in a health profession under the law of that jurisdiction.
   • (2) From the participation day, the person is taken to hold general registration under this Law in the health profession.
   • (3) In this section general registration includes -
     • (a) full registration, unconditional registration and registration without conditions; and
     • (b) enrolment, unconditional enrolment and enrolment without conditions.
5. Mr Ghaffurian held general registration for the purposes of Part 3 and Part 4

of the HPR Act immediately before the participation day, that is on 30 June

2012. His general registration is therefore capable of transition pursuant to

s269 of the National Law on 1 July 2012. 6. This status is consolidated by virtue of the following provisions which apply similar restraints on Mr Ghaffurian's registration pursuant to the National Law as that which existed prior to transition: * (a) Section 290 of the National Law provides that a practitioner who was suspended immediately before the participation day is taken to be suspended under the National Law; and * (b) Section 207 of the National Law, which provides that the effect of a suspension is that the person is taken not to be registered under the

National Law, other than for the purposes of Part 8, which deals with the health, performance and conduct of practitioners. 7. Under section 35 of the HPR Act for the purposes of that Act, Mr Ghaffurian whose registration was suspended was "to be treated as not being registered for the period of his registration". 8. However, s3(2)(b) of the HPR Act says,

A reference to a registered health practitioner in relation to any matter or proceedings referred to in Part 3 [Investigations and Panel Hearings] or 4 [Proceedings and Review at VCAT], is to be taken to include a reference to a person who has ceased to be or is no longer a registered health practitioner or whose registration has been cancelled or is suspended.

1. Section 35 of the Interpretation of Legislation Act 1984 (Vic) says that in the interpretation of a provision of an Act or subordinate instrument, a construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object.
2. A "main purpose" of the HPR Act is to protect the public by providing for the registration of health practitioners and a common system of investigations into the professional conduct, professional performance and ability to practise of registered health practitioners.
3. To further that purpose, the preferred interpretation that when read together, the effect of s35 and s3(2)(b) is that as at 30 June 2012:
   • (a) Mr Ghaffurian was registered for the purposes of Part 3 and Part 4 of the HPR Act; and
   • (b) Mr Ghaffurian was to be treated as not registered for the purposes of all other parts of the HPR Act.
4. Any other interpretation results in bizarre and presumably unintended, by parliament, results such that a practitioner who is suspended subject to the outcome of the dealing with a notification may not be subject to the full range of determinations under section 77 of the HPR Act, while a practitioner not suspended may be. Such a result would hardly operate to protect the public, as it would provide a disincentive to suspension in appropriate cases.
5. The impact of both s3(2)(b) of the Act and section 207 of the National Law is that for the purposes of disciplinary hearings by VCAT Mr Ghaffurian is to be taken to hold general registration for VCAT's purposes.
6. This leaves open to the Tribunal the option of cancelling his registration, further suspending it or imposing conditions upon it by reference to the law applying at the time of his conduct, the HPR Act.

1. As we detail in Chinese Medicine Registration Board of Victoria v Ghaffurian (Occupational and Business Regulation) [2012] VCAT 478, VCAT found Mr Ghaffurian has engaged in professional misconduct with reference to most of the Board's allegations and unprofessional conduct with respect to others.
2. He treated a patient suffering a very serious disease. He held himself out to her as both a Chinese Medicine Practitioner, which he was at the time, and a Western medical practitioner and surgeon (although not registered as such through his own choice), which was not true. He induced her to undertake a range of treatments outside the scope of Chinese medicine about which there is little if any scientific evidence to support their efficacy. He failed to enable her to either give or withhold informed consent based on advice from him about either issue.
3. When his patient raised the issue that she did not perceive one of the 'light therapy' to be providing a benefit, without clinical justification, he induced her to continue saying if she stopped her health would deteriorate. His desperate patient agreed to continue.
4. Mr Ghaffurian injected undiluted Vitamin C directly into the Notifier's vein, without being qualified to do so.
5. He offered stem cell therapy and attempted to induce the Notifier to accept the therapy by in part providing her with a testimonial from someone described as a nurse.
6. He failed to keep adequate medical records of his treatment of the Notifier. This in itself is a serious departure from accepted standards and a threat to the welfare of a patient should the treating practitioner be unable to recall the treatment provided or for some reason become unavailable to provide treatment.
7. Further, he failed to provide any reasonable form of documentation and/or labelling with respect to herbal mixtures he gave the Notifier.

New information - prior adverse findings and determinations

1. At the VCAT hearing on 20 November 2012, Dr Freckelton advised (and Mr Clements for Mr Ghaffurian did not dispute) that on 30 August 2007, a Formal Hearing Panel of the Board of Victoria found that Mr Ghaffurian had engaged in unprofessional conduct of a serious nature by:
   • (a) Using testimonials and failing to follow a direction from the Registrar of the Board;
   • (b) Targeting cancer patients and promotion of "cancer products"; and
   • (c) Prescribing for patients without seeing them (remote consultations).
2. The Panel also found Mr Ghaffurian to have engaged in unprofessional conduct by:
   • (a) Making misleading claims in relation to his qualifications; and
   • (b) His sub-standard practices in relation to dispensing and labelling of herbal medicines.
3. The Panel fined Mr Ghaffurian total of $4,000, reprimanded him, cautioned him and placed a condition on his registration whereby he was required for 12 months commencing on 1 October 2007 to attend fortnightly sessions at his own expense with an experienced practitioner mentor chosen in consultation with the Board, the mentor reporting to the Board after the 12 months.

1. Having made our findings as set out in Chinese Medicine Registration Board of Victoria v Ghaffurian (Occupational and Business Regulation) [2012] VCAT 478, we have determined that:
   • (a) Mr Ghaffurian's registration as a Chinese Medicine Practitioner in divisions of acupuncture and Chinese herbal medicine be cancelled;
   • (b) He is disqualified from applying for registration as a Chinese medicine practitioner for a period of three years from the date of this order;
   • (c) He is reprimanded; and
   • (d) He is fined $8,000, payable to the Chinese Medicine Board of Australia on or before 31 March 2013.
2. We are aware our task is not to punish. Our purpose is to protect the public and uphold the standards of the Chinese Medicine profession.
3. In Chinese Medicine Registration Board of Victoria v Wardha (Occupational and Business Regulation) [2010] VCAT 2128 (20 July 2010) VCAT reiterated its decision in Dr Mark Pearson Gilles v Chiropractors Registration Board [2006] VCAT 436, where it considered what Parliament intended the HPR Act to achieve. The relevant provisions of the HPR Act are in similar terms to the Chinese Medicine Registration Act 2000 and what is stated there equally applies in this situation. It is there stated at paragraph 147,

Thus it is apparent that the Act was designed to protect the public and looks at the interest of the community. In Robbins v Business Licensing Authority (2000) VCAT 457 (29 January 2000), Kellam J considered the public interest in the context of the Motor Car Traders Act. For this purpose, I do not consider there is any real difference between public interest in relation to the Motor Car Traders Act or in relation to the Chiropractors Act. At p 4 of that decision, his Honour considered the public interest and what it meant. He stated :

It is apparent that the term 'public interest' embraces matters, among others, of standards of human conduct acknowledged to be necessary for the good order and well-being of the public, and in the circumstances of this case, those members of the public who buy and sell motor cars. Accordingly, the function of the Business Licensing Authority (and this Tribunal on an application to review a decision of the Authority) is entirely protective, not punitive. The Authority (and this Tribunal) may only grant permission for a person who has a conviction for a serious offence within the last ten years to be employed in a customer service capacity, if satisfied that to do so will not be contrary to the public interest.

As Murphy J said in Inglese v Estate Agents Board & Anor (unreported Supreme Court of Victoria, 15 August 1988):

If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business.

1. We note that tragically since the first hearing in this proceeding, Mr Ghaffurian has suffered a stroke. Apparently, he is unlikely to return to practice. We make our decision in order to protect the public by giving a strong message to Chinese medicine practitioners of the consequences of types of practices Mr Ghaffurian undertook.
2. If Mr Ghaffurian had planned to return to practice, our (same) decision would also be based on the necessity of preventing him from doing so in order to protect the public. Given Mr Ghaffurian's demeanour when giving evidence before us, his apparent lack of insight into the gravity of his conduct and his unreliability as a witness, we would have seen little prospect that his behaviour would change.
3. Our view would have been reinforced by the fact that Mr Ghaffurian has had previous adverse findings and determinations against him for apparently somewhat similar conduct, as described above.
4. We have considered but do not accept Mr Clements' submission that Mr Ghaffurian's conduct should be considered from the perspective that he is an honest person who perhaps does not have, "a sufficiently high index of scepticism" about the efficacy of various forms of treatment promoted to him and that he passionately believes the treatments provide benefits to his patients.
5. In our view, the standards of Chinese medicine practice must be upheld by preventing people who will use their standing in that profession to promote and provide treatment of dubious efficacy.

1. We have disqualified Mr Ghaffurian from applying for registration as a Chinese medicine practitioner for a period of three years from the date of this order.
2. We see our decision as consistent with range of cancellation periods ordered in the following cases, both in Australia and the United Kingdom, as cited by Dr Freckelton in submissions. We set them out in order of the most serious to less serious sanctions imposed.
3. First, as Samuels, Priestley and Meagher JJA observed in Childs v Walton (Unreported, NSW Court of Appeal, 40252/1990) the practice of unorthodox medicine is not itself unprofessional. They said,

A departure from a generally accepted procedure does not necessarily constitute professional misconduct. There may be different schools of medicine and disputes between them. Adherence to the practice of a minority group does not alone entail professional misconduct. 'Every innovation has to be performed for a first time. That something has not been done is not proof that it ought not to be done.' But a new departure in professional practice or technique must conform to the ethical standards of the profession. It will be a question of fact in each case whether criticism provided to no more than professional dissent or conservative distaste for novelty, or, on the other hand, to the professional reprobation which founds professional misconduct.

1. However, there are unfortunately various examples of unorthodox unprofessional practice.
2. Starting in Queensland, in Medical Board of Queensland v McFarlane (unreported, Health Practitioners Tribunal of Qld, 15 December 2000), the Tribunal dealt with a practitioner who provided polypharmacy to patients she believed had viral illnesses with a "demonstrated preparedness to experiment on them". She made no concessions whatever in relation to her conduct and was intransigent in her belief that her professional conduct had been justified. The Tribunal cancelled her registration and directed that she never be re-registered by the Medical Board.
3. In the United Kingdom, in Re Dr Trossel, a decision of the Fitness to Practise Panel of the General Medical Council of the United Kingdom (29 September 2010) Dr Trossel, used stem cell therapy to treat patients with Multiple Sclerosis. This was not justifiable based on the available scientific or clinical medical evidence. The Panel found:
   • (a) his conduct failed to make the care of his patients his first concern;
   • (b) he failed to respect the rights of his patients to be fully involved in decisions about their care, and
   • (c) he abused his position as their doctor.

The Panel found Dr Trossel's treatment was informed by anecdotal and aspirational information but was not supported by scientific or clinical evidence. He relied upon patients' subjective impressions about whether they were improving. His follow-up procedure was inconsistent and inadequate. While the Panel concluded Dr Trossel was not dishonest, in literature he gave his patients, he seriously exaggerated the benefits of treatment and the claims made were misleading and exploited patients' vulnerability. He failed to warn of the potential risks of stem cell therapy. Dr Trossel repeated that he believed in the efficacy of his treatments, although he accepted that there was no scientific or clinical evidence to underpin his claims. He continued to believe that his actions were in the best interests of his patients: The Panel erased his name from the Medical Register.

1. Again in the United Kingdom, in Re Dr McDonogh a decision of the Fitness to Practise Panel of the General Medical Council of the United Kingdom (19 May 2010), Dr McDonogh used of "Live Blood Analysis", "Electrodermal testing" and "Armour Thyroid" for patients with suspected sensitivity to allergens. The Panel found that the testing did not rely on validated evidence. The literature Dr McDonogh provided to patients did not inform them objectively about the validity of the tests, the potential risks and did not describe alternative tests. The Panel found Dr McDonogh's conduct constituted professional misconduct. It noted his status as a registered medical practitioner was likely to add weight to the credibility of the tests and the readiness with which patients accepted his advice. Dr McDonogh continued to deny the allegations relating to the inappropriateness of the tests and the diagnoses reached. The Panel applied English law, which is consistent with Australian law that "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." It ordered the erasure of Dr McDonogh's name from the Medical Register.
2. Returning to Australia, Traill v Medical Board [2006] VCAT 1920 involved a medical practitioner treating a patient suffering cancer with hypothermia and microwave treatment. VCAT found that in recommending and administering unproven treatments to patients, failing to inform them adequately of the proposed treatments, wrongly characterising infusions as chemotherapy and charging for them on that basis, as well as charging excessive fees for the treatments, Dr Traill's conduct represented a deliberate and sustained departure from accepted standards, and portrayed indifference and an abuse of the privilege which accompanies registration. VCAT cancelled Dr Traill's registration, noting that he had given no clear indication that be would not practise forms of unconventional medicine if he believed they would have an effect and precluded his reapplying for registration for five years.
3. Medical Board of Queensland v Tarvydas [2010] QCAT 246 involved a medical practitioner providing stem cell treatment to a patient with adhesive arachnoitis, an inflammatory condition. The Queensland Civil and Administrative Tribunal found that he held out to prospective patients the hope of relief they were not getting from conventional medical treatment. He told them he was conducting a trial and that his treatment would stimulate the growth of their stem cells and revitalize them. QCAT found Dr Tarvydas failed to assess and monitor his patients' condition, provided no information about his treatment, conventional options, and the risks associated with both and made no attempt to obtain informed consent. QCAT was not satisfied that Dr Tarvydas accepted his responsibility to conduct himself properly into the future, cancelled his registration and precluded his reapplying for registration for three years.
4. In Health Care Complaints Commission v Gorman [2011] NSWMT 7, the Medical Tribunal of New South Wales found Dr Gorman believed virtually all pathologies can be challenged by spinal manipulation before recourse is had to orthodox treatment, such that the majority of patients who walk in the door of a general practice are likely to respond beneficially to spinal manipulation. He did not communicate the eccentricity of his views to his patients and that to the extent he obtained consent from his patients, it was misinformed. The Tribunal concluded Dr Gorman was not competent to practice, removed his name from the register and precluded him from reapplying for registration for three years.

6. In Medical Board of Australia v Raddatz, (Unreported, Health Practitioners Tribunal of Qld, 8 September 2000), Dr Raddatz provided complementary medicines for which there was no evidence of efficacy and had a financial interest in doing so. The Tribunal cancelled his registration for two years and allowed him to only re-apply for registration after he had demonstrably decided to return to the views of his peers and abide by all ethical standards, policies and practices.
7. In Medical Board of Australia v O'Sullivan [2011] QCAT 135, Dr O'Sullivan provided bicarbonate of soda treatment to a patient (at her request) who had breast cancer. QCAT disapproved of unconventional medical practises that lie beyond the range of conventional practice given insufficient scientific evidence of their efficacy and safety. Dr O'Sullivan was co-operative at the QCAT hearing. QCAT imposed a series of determinations, including six months suspension and conditions on Dr O'Sullivan, emphasizing the practitioner's responsibility to ensure that her patient was properly advised, regardless of how informed and resolute she appeared to be.
8. We view Mr Ghaffurian's misconduct as sitting at the higher end of the range of misconduct as shown in the above cases. Thus, our determination is at the higher end of the available determinations.

1. We reprimand Mr Ghaffurian, viewing this as a serious form of censure. As Marks J said in _Peeke v Medical Board of Victoria (_Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p6) a reprimand, "certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner."

1. Finally, we see an $8,000 fine as appropriate (the Board submits $10,000 is appropriate), particularly in the context of Mr Ghaffurian previously being fined $4,000 for conduct of a somewhat similar nature. Again, we view this as protecting the public by upholding professional standards. The sympathy we have for Mr Ghaffurian given his current ill health is outweighed by the fact that in our view his unprofessional conduct was motivated by financial considerations. In any case, the fine imposed is at the lower end of range, the maximum under section 77(4)(f) being $50,000. Given Mr Ghaffurian's ill health, we have allowed him until 31 March 2013 to pay the fine.