1. Having conducted a hearing into allegations referred to the Tribunal, the Tribunal finds, 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 s3(1) of the HPR Act as described in the following reasons for decision.
2. The principal registrar is directed to list this proceeding for a further hearing (allow one day), to enable the parties to make submissions concerning the appropriate determination/s following the above findings.

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 HPR Act.
2. In December 2010, a patient of Mr Ghaffurian (the Notifier) notified the Chinese Medicine Registration Board of Victoria (the Board) about treatment Mr Ghaffurian provided to her.
3. The Notifier had consulted Mr Ghaffurian from June to December 2010 at the Energy Medicine Clinic. She was suffering from a serious illness called sarcoidosis. Her initial complaint was that in December, Mr Ghaffurian offered to treat her with stem cell injections from sheep and cattle and further that bottles of herbs he provided her had no labelling. She had told a friend, who is a general practitioner, about the proposed stem cell treatment. She said, "he was horrified and told me to report it before there is a serious problem". She said Mr Ghaffurian told her he is a general medical practitioner and surgeon, trained in Italy, who has chosen to work in alternative medicine.
4. The Board investigated. In March 2011, it suspended Mr Ghaffurian's registration.
5. Whilst he does not now hold himself out as a Chinese Medicine Practitioner, we understand Mr Ghaffurian continues to offer 'health' treatment to the public from the Energy Medicine Clinic.
6. In October 2011, under section 59(2)(g) of HPR Act, the Board made a referral to the Victorian Civil and Administrative Tribunal (VCAT) for a hearing.
7. VCAT held the hearing over 6, 7 and 8 February 2012. Both parties were legally represented.
8. The Board alleged Mr Ghaffurian:

1. Provided excessive, unnecessary, incompetent or clinically unjustified treatment; 2. Made misleading representations and/or caused unreasonable expectation of beneficial treatment;

1. Failed to obtain informed consent from the Notifier and an investigator engaged by the Board to pose as a patient and consult Mr Ghaffurian;

1. Failed to make and keep adequate patient records; 2. Engaged in professional misconduct in that he repeatedly breached the Board's guidelines for the practise of Chinese herbal medicine; 3. Engaged in professional misconduct in that he failed to ensure his practice and the clinic complied with infection control requirements; 4. Failed to issue receipts; 5. Made inaccurate and/or false representations to the Board's investigator; 6. Engaged in professional misconduct in that his advertising created an unreasonable expectation of beneficial treatment; and 7. Engaged in professional misconduct in that his advertising contained testimonials.
2. Mr Ghaffurian contested most of the allegations while making concessions concerning keeping of patient records and issuing receipts.

1. During the hearing, the Tribunal heard evidence from:

1. The Notifier; 2. AB, an investigator engaged by the Board who posed as a patient and consulted Mr Ghaffurian;

1. Ms Debra Gillick, Executive Officer of CMBA and former Registrar of the Board, who when employed by the Board investigated Mr Ghaffurian; and

1. Dr Lim, an expert witness qualified in both Chinese and Western medicine; and 2. Mr Ghaffurian.

1. The Notifier gave the following evidence.
2. In mid June 2010, she was diagnosed with sarcoidosis, which at that time disabled her to the extent that she was having difficulty performing everyday tasks such as crossing the road, moving around the house and doing housework. Western medical advice was that there is no cure and the only treatment to reduce symptoms is steroids, which for other reasons she was unable to use.
3. A friend recommended her to see Mr Ghaffurian, saying he might be able to help her. While the witnesses' recollections as to the exact sequence of events, which led to her seeing Mr Ghaffurian, differ, she had her first consultation in September 2010.
4. She told Mr Ghaffurian she suffered from sarcoidosis and extremely high blood pressure. He said he could cure anything. He asked lots of questions. He did not measure her blood pressure. She showed him the prescribed medication she was taking. He did not appear to be interested. He predicted after 3 months treatment, she would feel much better.
5. Mr Ghaffurian treated her with Dimethyl Sulfoxide Solution (DMSO), Chinese herbal medicine and so called "light therapy". He advised her DMSO is a solution to be applied anywhere on her body where she experiences pain.
6. After the first consultation, the Notifier requested a receipt. Mr Ghaffurian said he was not registered with her health insurance fund. Therefore, there was no point in giving one. Mr Ghaffurian did not issue a receipt for any of the following 14 consultations between September and December 2010.
7. After the first consultation, she said felt better.
8. At a second consultation, the Notifier asked what was in the herbal treatment. Mr Ghaffurian said it was specially blended for her and she did not need to know the ingredients. While she did not, "feel right about his answer, [she] was feeling so sick at the time [she] just agreed to take it". She was not given a prescription for the herbs and could not see any label on the bottle identifying the ingredients.
9. During consultations in October and November 2010, Mr Ghaffurian told the Notifier he was a qualified general practitioner and surgeon and that he completed his training in Italy. He said the Medical Board had asked him to register in Australia as a doctor because there was a shortage of doctors. He said he chose not to register so he could continue providing alternative treatments. He also said he did his Chinese medicine herbal training in China.
10. In October 2010 Mr Ghaffurian provided, "treatment for metal toxicity using the BICOM Machine". He said the machine tested toxicity to a variety of metals and would then cure the toxicity by removing or neutralising toxic metals.
11. After six consultations, probably in October 2010, the Notifier told Mr Ghaffurian she did not think the light therapy was improving symptoms. She suggested the treatment stop. Mr Ghaffurian said she should continue it. He said if she stopped, the symptoms would deteriorate. This frightened her and she continued. She said in retrospect she should have stopped treatment at this time. However, "she was clutching at straws". Also, her decision was influenced by her belief that Mr Ghaffurian was qualified to be a general practitioner.
12. In November 2010, Mr Ghaffurian recommended an injection of Vitamin C. The Notifier agreed. She had never received such treatment from any person, but agreed because she understood Mr Ghaffurian held the qualifications to be registered as a general practitioner. She said after several failed attempts to find a vein in her arm, he began to inject the Vitamin C directly into a vein. The pain was intense and her arm throbbed. She complained, asking if this was normal. Mr Ghaffurian said he could not stop having started the injection, which would normally be given by diluting the Vitamin C in a saline solution and injecting it via an intravenous line. The Notifier refused to have a second injection. She suffered bruising from the injection.
13. During the last consultation in December 2010, Mr Ghaffurian offered the Notifier animal stem cell therapy. He gave her documents containing lists of people who had received such therapy and described the results achieved. One testimonial was from a nurse. Mr Ghaffurian did not give her copies of these documents to keep. Mr Ghaffurian said six injections would cost $6,000. He suggested if she could not afford it, that she raised the money from family and friends. He said during treatment and for some weeks after she would be unable to eat red meat. The suggested treatment alarmed the Notifier and she complained to the Board.

1. AB gave the following evidence.
2. In investigating Mr Ghaffurian, the Board engaged an investigator to seek treatment from Mr Ghaffurian and report on the experience. We call him AB. He saw Mr Ghaffurian in January 2011 and falsely claimed he was experiencing chest pain and swelling. Mr Ghaffurian took a medical history and checked AB's pulse and tongue. They moved to the examination room when Mr Ghaffurian used his hands without washing, checked his chest and tried to find a sore point. He then used a hand-held 'scanner' about the size of a torch, shining light on AB. He said the device had three beams of light, comprised of two colours. Mr Ghaffurian said the two green lights would shine on AB's upper chest and the red light would be directed to the left of his abdomen. Mr Ghaffurian said this would help reduce swelling and reduce chest pain. After the treatment, Mr Ghaffurian advised AB he had "a lot of pressure points". Mr Ghaffurian also provided AB a bottle of DSMO solution. He described it as a painkiller.
3. A week later, AB returned to see Mr Ghaffurian, saying he felt better. While Mr Ghaffurian recommended ongoing treatment, AB declined and collected his herbs. Mr Ghaffurian gave AB a prescription for the herbs and a receipt for his fee payment.
4. In March 2011, Ms Gillick asked AB to return to Mr Ghaffurian, requesting acupuncture. AB made an appointment. When he asked for acupuncture, Mr Ghaffurian said he does not provide that service. He physically examined AB and said he would do a treatment similar to acupuncture. He administered "light therapy". He gave AB a receipt for his fee payment.

1. Ms Gillick gave the following evidence.
2. In December 2010, when the Notifier notified the Board, Ms Gillick was the registrar of the Board. On 1 August 2011, she took the position of Executive Officer of CMBA.
3. In mid-December 2010, Ms Gillick interviewed Mr Ghaffurian at the Energy Medicine Clinic to discuss the Notifier's notification. According to Ms Gillick's notes and evidence at the hearing:

1. Mr Ghaffurian first described stem cell therapy as being about nutrition; 2. He provided three plain pieces of paper with his handwriting as the Notifier's patient records;

1. He could not describe the Western medications the Notifier was taking when receiving treatment from him;

1. The treatment rooms, which Mr Ghaffurian said he used, were carpeted; 2. He described the light treatment as a form of acupuncture, saying he does not use needles for his acupuncture, "only machine acupuncture"; 3. He freely discussed offering stem cell therapy, saying it costs $1,000. He said he had only treated a few people including "Farmer Barry and his wife Janette" for a prostate enlargement and bowel problem and another man with health problems; 4. Mr Ghaffurian provided Ms Gillick with patient records for the Notifier, a certificate from the Australian College of Nutritional and Environmental Medicine certifying his attendance at a postgraduate training course in "injectable nutrients" dated 9 July 2010 and documents titled "Sample Summary of Treatments" and "Testimony to Stem Cell Injections - [name of person] - Practice Nurse Manager". The Notifier later identified those documents is being among the ones Mr Ghaffurian showed her at the consultation; 5. He denied holding himself out to the Notifier as a general practitioner and surgeon, trained in Italy; 6. He confirmed the only receipts he provides were EFTPOS receipts, of which there were hundreds in a folder; and 7. He did not have a hand basin in, or near to, the treatment rooms.
2. In March 2011, Ms Gillick met Mr Ghaffurian at his "home pharmacy" in Blackburn, Victoria. Ms Gillick records in her notes rambling answers from Mr Ghaffurian. They include;

1. Mr Ghaffurian saying, "live/stem cell therapy" is for people that have tried everything and treatments have not worked. 2. He said he had taken six courses himself and found it effective to prevent disease such as common colds;

1. He denied using a box of butterfly needles in his practice, saying he was given them at the postgraduate course in injectable nutrients which he attended, saying people at the course practised injecting each other; and

1. he claimed the Notifier experienced "an immediate rise in energy" after the Vitamin C injection.
2. After AB had first consulted Mr Ghaffurian, Ms Gillick compared the bottle containing herbal medicine and the bottle containing DMSO given to AB, with the bottles given to the Notifier. They were identical except that each patients' names are written on the top of the bottle caps.
3. In January 2011, Mr Ghaffurian provided Ms Gillick with an invoice from a company called Ovitech for the purchase of live products and articles which he relied on to demonstrate the reliability of the treatment he provided. This relates to the 'stem cell issue'.
4. In March 2011, a company called "Biological Therapies" which supplied restricted products to Mr Ghaffurian, including the provision of Vitamin C injectables, advised in writing that it had supplied Mr Ghaffurian because it was under the impression he was a registered medical practitioner.
5. In March 2011, the Australian College of Nutritional and Environmental Medicine (which provided Mr Ghaffurian with a postgraduate certificate in "injectable nutrients") advised it was under the impression that Mr Ghaffurian was a registered medical practitioner and was holding himself out as such. Further, it advised the course was not designed to provide practitioners with certification in intravenous administration.
6. In March 2011, Ms Gillick reviewed the website for the Energy Medicine Clinic which in part stated,

BICOM Bioresonance therapy is especially effective in the treatment of amongst other things, allergic illnesses, chronic inflammation and diseases of the internal organs;

The BICOM Bioresonance Machine can successfully treat amongst other things, depression, fertility issues, weight loss, back pain, fatigue and the contrary;

... almost all illnesses can be treated with the help of the BICOM Bioresonance therapy with varying results.

1. In March 2011, the Board suspended Mr Ghaffurian's registration. Ms Gillick and the President of the Board attended Mr Ghaffurian's rooms to serve the notice of suspension and did so. Ms Gillick noted the only hand washing facility located near the clinic, that Mr Ghaffurian showed her, was in a common area near the elevators outside the Clinic.

1. The Board called Dr Lim as an expert, able to give his opinion concerning the treatment Mr Ghaffurian provided to the Notifier and AB. He is an impressively qualified academic, holding a position with University of New South Wales Faculty of Medicine, general registration with the Medical Board of Australia and registration as a Chinese medicine practitioner with the Board.
2. He based his opinion on information provided to him from the Board, including the information described above, as well as Mr Ghaffurian's statements.
3. He was "severely critical of Mr Ghaffurian disregarding the responsibilities placed upon him by regulatory legislation, the Board and fundamental professional standards". In his opinion:

1. Mr Ghaffurian's failure to provide any prescription information for the herbs he prescribed fell significantly short of the standard expected of a registered Chinese medicine practitioner. He put his patient (and potentially other persons) at risk of harm or injury. For example, if the Notifier suffered an adverse reaction after taking the herbs, neither she nor healthcare providers would know what herbal medicine she had consumed. This could lead to delayed diagnosis or incorrect treatment; 2. Mr Ghaffurian's patient record with respect to the Notifier was significantly deficient. It did not record dates of visits, past or current medical history, current medications, physical examination, patient's family or social conditions, form of Chinese medicine diagnosis or syndrome differentiation of patient's condition, why Chinese herbal therapy or acupuncture was commenced nor advice given to the patient;

1. Mr Ghaffurian failed to obtain informed consent from the Notifier and AB, regardless of whether he treated them with herbal medicines, DSMO, Vitamin C injections or the BICOM Bioresonance Machine. In particular, Mr Ghaffurian should not have injected the Notifier with Vitamin C unless he was a registered medical practitioner or a registered nurse in Australia. Chinese Medicine Practitioners do not ordinarily have the required skills. Administering this treatment without telling the patient of his lack of qualification or skills to do so is unacceptable and invalidates any consent given;

1. Neither the Di-Resonance Electronic Energy Machine nor the BICOM Bioresonance Machine are listed under the Therapeutic Goods Administration of the Commonwealth of Australia to be used as a therapeutic machine on humans. Further, there is no published, evidenced-based literature in peer reviewed scholarly journals which assess the machines' therapeutic or scientific effectiveness in treating or detecting any diseases in humans, including sarcoidosis and hypertension. If a practitioner wished to use either of the machines on humans, the practitioner is expected to disclose the above information to the patient and to carefully explain the potential risks prior to asking for informed consent; 2. Mr Ghaffurian's infection control practices concerning Chinese medicine, preparation of Chinese herbs, acupuncture and the work area of the Clinic are unacceptable. Dr Lim was severely critical of him and believes such conduct falls significantly short of the required standard of professional conduct; 3. Mr Ghaffurian can be severely criticised for using testimonials to persuade the Notifier to accept stem cell therapy; 4. Mr Ghaffurian's failure to issue receipts to the Notifier is conduct of a significantly lesser standard that is expected by peers of a registered practitioner of Chinese medicine; 5. Mr Ghaffurian should be severely criticised for making false claims about his qualification as a registered medical practitioner in Australia by using the term "Dr" inappropriately; 6. Mr Ghaffurian's provision of light therapy, DSMO, bioresonance therapy and proposed provision of stem cell therapy fall outside the scope of Chinese medicine. They also represent a severe departure from the principles of evidence-based medicine. In his view Mr Ghaffurian's use of unproven treatments constituted conduct of the significantly lesser standard than is reasonably expected of a registered practitioner of Chinese medicine; and 7. Mr Ghaffurian over serviced the Notifier in continuing to provide light therapy when there was no evidence of improvement.

1. Mr Ghaffurian's evidence about his treatment of the Notifier, relevant to the allegations was:

1. He wrote details about the notifier on blank paper because he had run out of his patient record forms; 2. The Notifier did not come to him in the hope of having her sarcoidosis treated. He did not provide light therapy, Chinese herbal medicine and the Vitamin C treatment for the Notifier's sarcoidosis. He was responding to her Chinese medicine diagnosis;

1. He admits he should have made a note of his Chinese medicine diagnosis, the medications the Notifier was taking, and the name of her general practitioner; that his patient record keeping in respect of the Notifier was deficient and amounted to engagement in unprofessional conduct within section 3(1)(a) of HPR Act;

1. The Notifier did not advise him of her extremely high blood pressure, nor that this was a major concern for her. Based on taking her pulse, he decided she was not suffering from extreme high blood pressure at the time. He did not measure her blood pressure with a conventional or any machine; 2. The 'Di-Resonance Electronic Imaging Machine' administers light therapy which, "generates polarised light which stimulates a gem stone to release its medicinal effect". 3. He gave specific instructions with respect to how to use DMSO. We note his admission that it is unacceptable that he was providing a product, which could only be lawfully provided by a medical practitioner. 4. At the end of the first consultation, he gave the Notifier an EFTPOS receipt for the payment, not an itemised receipt in respect of services provided. 5. At the second appointment he provided the Notifier with a piece of paper on which he had handwritten a list of ingredients and the weights of each which was in the herbal medicine he provided her; 6. He denies that the Notifier advised him after five or six light therapy treatments, that she did not feel she was getting any benefit and that he said if she stopped treatment, her symptoms may deteriorate. Every time she came to the clinic she said symptoms are improving; 7. He told the Notifier the BICOM Bioresonance Machine would remove the toxicity from the body and produce no side effects. He says the machine works by the patient holding a brass electrode and a dial on the machine giving an electromagnetic frequency reading, taken from the body and from substances. 8. He denied holding himself out to the Notifier as a qualified general practitioner and surgeon, who had chosen not to be so registered in order to practice alternative medicine;

1. The Notifier advised she had previously received a Vitamin C injection from a general practitioner. He suggested she had the injection to boost her immune system;

1. He was appropriately qualified to give such injections by way of medical studies in Italy between 40 and 27 years ago, work experience in an Iranian hospital as a medical student, an internship at Nanjing University of Chinese Medicine in China and a recent two-day course, apparently designed for qualified medical practitioners; 2. He denied it took him several attempts to find a vein and that the Notifier complained of extreme pain; 3. He washed his hands in a room at the clinic before treating the Notifier; 4. He did not offer the Notifier stem cell therapy but rather was having a general discussion about the therapy called "live cell therapy". He did not offer this to her because he knew she could not afford it. He denied showing her testimony from a Practice Nurse Manager.
2. Concerning Mr Ghaffurian's evidence about his treatment of AB:

1. He used a patient record form; 2. He washed his hands in another room before treating him;

1. He used light therapy in the same way as he administered light therapy to the Notifier;

1. He gave AB instructions on how to use DMSO. 2. He gave AB handwritten document being a prescription for herbal medicine; and 3. He advised AB he did not perform invasive acupuncture at his clinic.
2. Concerning Mr Ghaffurian's statements to Ms Gillick:

1. He said he truthfully told her he did not currently practice injectable nutrients, in a context where he intended to do so in the future and the only time he gave a patient injectable nutrients was when injecting the Notifier with Vitamin C; 2. He said he truthfully told her he did not purchase a stock of Vitamin C and Vitamin B injections;

1. He denied offering the Notifier animal stem cell treatment;

1. He denied misleading the Notifier into believing he was a registered medical practitioner; and 2. He denied publishing misleading information on his website about BICOM Bioresonance. He simply republished information from the manufacturer.

1. As the relevant conduct occurred after HPR Act came into force on 1 July 2007, we may find whether, or not, Mr Ghaffurian has engaged in unprofessional conduct or professional misconduct. HPR Act's purposes are set out at section 1 and include 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; and

(1) After it has completed a hearing under this Division in relation to an application in respect of a health practitioner VCAT may make a finding as to whether or not -

(a) the health practitioner has engaged in unprofessional conduct or professional misconduct; or

(b) the health practitioner's ability to practise as a health practitioner is affected; or

(c) the health practitioner's performance has been unsatisfactory; or

(d) the health practitioner is not of good character.

(2) VCAT may find a practitioner has engaged in unprofessional conduct even though the application alleged professional misconduct.

1. A finding of professional misconduct involves a more serious departure from accepted standards than a finding of unprofessional conduct.
2. Professional misconduct is relevantly for these purposes defined in section 3 of HPR Act as:
   • (e) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
   • (f) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and
   • (g) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession;
3. The definition (b) is similar to what Mandie J referred to in Campbell v Dental Board of Victoria 1999 VR 617 at 622 where His Honour referred to Adamson and the Queensland Law Society 1991 QR 498 at 507. It was there stated the test to be applied is whether the conduct violates or falls short to a substantial degree the standard of conduct observed or approved by members of the profession of good repute or competency.
4. Unprofessional conduct is defined under section 3 of HPR Act as including:
   • (a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;
   • (b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;

(d) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for that person's well-being;

(e) influencing or attempting to influence the provision of health services in such a way that client care may be compromised;

1. Unprofessional conduct, whether under the HPR Act requires the application of reasonable standards of the community and of professional peers of good repute and competence. In Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 at [33] Morris J said:

[N]either the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.

1. Section 77(4) of HPR Act provides VCAT's powers to make determinations including ordering a health professional to undergo counselling, cautioning and/or reprimanding, ordering a fine be paid and suspending or cancelling registration. Given our findings, we will make determinations after giving the parties the opportunity to make submissions on the issue.

1. Dr Freckelton SC submitted the preferable approach was to assess the evidence, and make our findings by reference to section 140 of the Evidence Act 2008, rather than applying the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
2. In Medical Board of Australia v Samaddar, Hampel J, sitting as a vice president of VCAT, favoured applying section 140. She said (at para 19)

The Evidence Act 2008 now applies to all proceedings in a Victorian Court. Victorian Court is defined to include "any person or body (other than a Court) that, in exercising a function under the law of the State, is required to apply the laws of evidence"[1]. Although by s 98(1)(b) of the VCAT Act the tribunal is not bound by the rules of evidence, if rules of evidence are to be applied in a particular case, then there is a strong case, in my view, for holding that the relevant rules of evidence should be the same as those governing proceedings in courts or other bodies which are required to apply the rules of evidence and which are now governed by the Evidence Act 2008.

In one sense, this may be an academic argument, as in my view, applying s 140, and calling in aid the reasoning in cases such as Briginshaw and Neat Holdings, will likely lead to the same result as if Briginshaw, as explained in cases such as Neat Holdings, but without reference to s 140, were applied. If there is any real difference in approach, in this case we are satisfied the same result flows whether Briginshaw and Neat Holdings are considered without reference to s 140, or whether that line of authority is called in aid in interpreting to s 140.

1. Mr Clements submitted VCAT should apply Briginshaw.
2. In this case, we follow the approach taken by VCAT's recently past president, Ross J, that it is unnecessary for us to enter the debate about whether VCAT should now determine such matters by reference to s 140 and not the common law. Either approach would have led us to making the findings set out below.
3. In ABY, ABZ v Patient Review Panel [(Health & Privacy) [2011] VCAT 1382 (29 July 2011) Ross J said (para 72),

... In this context counsel made reference to the 'Briginshaw standard' and s 140 of the Evidence Act 2008 (Vic).

Counsel's reference to the 'Briginshaw standard' is a reference to the well known statement of Dixon J in Briginshaw v Briginshaw (Briginshaw). It is important to state at the outset that Briginshaw does not create any third standard of proof between the civil and the criminal. The standard of proof in this proceeding is the civil standard, proof on the balance of probabilities. Hence, expressions such as the 'Briginshaw standard' should be avoided as they have a tendency to mislead. As the High Court observed in Rejfek v McElroy, 'the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact whose existence the mind is to be persuaded are not to be confused'. Briginshaw is authority for the proposition that the strength of evidence necessary in determining that the standard has been discharged may vary according to the circumstances. As their Honours Mason CJ, Brennan, Deane and Gaudron JJ said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

Briginshaw finds modern expression in s 140 of the Evidence Act 2008 (Vic):

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

• (a) the nature of the cause of action or defence; and
• (b) the nature of the subject-matter of the proceeding; and
• (c) the gravity of the matters alleged.

This provision is intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. Given the congruence between s 140 and the position at common law it is unnecessary for us to enter the somewhat arid debate about whether the Tribunal should now determine such matters by reference to s 140 and not the common law.

1. We found the Notifier to be a careful, truthful, reliable witness. She appropriately described what she could recall and, given the passage of time, what she could no longer recall. We accepted her evidence in all but minor detail, such as the exact date which she first met Mr Ghaffurian.
2. It follows we did not accept Mr Clements' submission, on behalf of Mr Ghaffurian, that we should view the Notifier as an honest witness whose memory has been clouded by time. We accept that on some peripheral issues her recollection may not be accurate. However, on the central issues we view her as having very good recollection.
3. We found AB, the investigator, to be a careful, truthful, reliable witness. We accept his evidence.
4. We found Ms Gillick to be a careful, truthful, reliable witness. She described how, before visiting Mr Ghaffurian to interview him about the allegations, she wrote a series of questions. During the interview, she took notes. She commented at times it was very difficult to understand the content of his answers. This was not due to language difficulties. After the interview, she returned to work and typed a record of the interview. She gave careful and considered evidence at the hearing.
5. We accept her evidence. We did not accept Mr Clements' submission that we should regard her notes of her interviews with Mr Ghaffurian with caution.
6. We found Dr Lim to be an impressive expert witness. He expressed strong views. We considered his views in the context of him only having access to the Tribunal books that were before VCAT. We did not accept Mr Clements' submission that Dr Lim is not an impressive witness, who shows a lack of even-handedness and balance in giving his evidence. We do not view Dr Lim as an advocate for the Board rather than an expert witness.
7. We did not find Mr Ghaffurian to be a reliable witness. On most issues, where his evidence was contradicted by another witness or by the documents before us, we did not accept his evidence.
8. In submissions, Dr Freckelton, on behalf of the Board, provided helpful examples of the reasons to doubt Mr Ghaffurian:

1. During the hearing, Mr Ghaffurian gave evidence he does not provide acupuncture. Receipts from him for acupuncture services were then produced. His excuse, that light therapy treatment (see below) is a form of acupuncture, is extraordinary; 2. Again, with respect to Mr Ghaffurian's evidence that he does not provide acupuncture, he was asked to explain why for years when he sought renewal of registration with the Board he declared he had maintained his recency in the practice of acupuncture. He claimed, for the first time, he provided needle acupuncture at a nursing home. The nursing home he named was not where he claimed it was. While he had the opportunity, he failed to produce any documentary evidence of him providing that acupuncture;

1. His evidence that he bought products from Bio Therapies, not to use in Australia but to take them to Europe for discussions was lame and implausible; and

1. In spite of saying he held a clinical file concerning the Notifier at his home pharmacy, he failed to produce it.

1. As we detail below, we find Mr Ghaffurian has engaged in professional misconduct with reference to most of the Board's allegations and unprofessional conduct with respect to others.
2. Our findings of professional misconduct are on the basis that the definitions set out at paragraphs (a) and (b) of the definition of "professional misconduct" in HPR Act.
3. Fundamentally, we find Mr Ghaffurian has 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.
4. When his patient raised the issue that she did not perceive 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.
5. Mr Ghaffurian injected undiluted Vitamin C directly into the Notifier's vein, without being qualified to do so.
6. When he offered stem cell therapy, he attempted to induce the Notifier to accept the therapy by in part providing her with a testimonial from someone described as a nurse.
7. Mr Ghaffurian also failed to in any sense 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.
8. Further, he failed to provide any reasonable form of documentation and/or labelling with respect to herbal mixtures he gave the Notifier.
9. We note here that Mr Ghaffurian's treatment of AB was different. He kept a patient record, gave a prescription, etc. However, we note he saw Mr Ghaffurian after the Board had commenced its investigation. Had Mr Ghaffurian improved his practices because of that?
10. We do not find Mr Ghaffurian failed to provide services in a hygienic manner, in terms of hand washing.
11. Our detailed findings with respect to each Allegation follow.

Allegation- "Providing excessive, unnecessary, incompetent or clinically unjustified treatment"

1. The Board alleged[2], that during consultations with the Notifier, Mr Ghaffurian engaged in "professional misconduct" within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, "unprofessional conduct" within the meaning of paragraph (a) and/or (b) of s 3(1) of the HPR Act, in that he provided the Notifier with treatment which was not clinically justified, excessive, unnecessary and/or incompetent.
2. With respect to that allegation, we find that during consultations with the Notifier, Mr Ghaffurian engaged in "professional misconduct" within the meaning of paragraphs (a) and (b) of section 3(1) of HPR Act in that he provided the Notifier with treatment which was not clinically justified and was excessive and unnecessary.
3. We find the Notifier came to Mr Ghaffurian in the hope of having her sarcoidosis treated. This was her central motivation. Mr Ghaffurian either provided the various 'treatments' for sarcoidosis or he led her to believe that was the treatment's purpose;
4. Mr Ghaffurian used light therapy, DMSO and the "BICOM Bioresonance Machine" to diagnose and/or treat the Notifier when there is no scientific or clinical evidence or proof that the treatments can diagnose and/or treat such conditions.
5. Mr Ghaffurian failed to advise the Notifier that light therapy, DMSO and the BICOM Bioresonance Machine are not part of Chinese medicine and are not scientifically proven;
6. We do not accept that Mr Ghaffurian gave specific instructions with respect to how to use DMSO. We note his admission that it is unacceptable that he was providing a product which could only be lawfully provided by a medical practitioner.
7. Mr Ghaffurian repeatedly treated the Notifier with the "light therapy" with no or minimal therapeutic benefit to her, as perceived by her.
8. Mr Ghaffurian failed to appropriately modify the Notifier's treatment plan when it was or should have been evident that she was not responding to the "light therapy" treatment;
9. When after six treatments she asked why the treatment should continue because she felt she was not improving, Mr Ghaffurian advised that she had to continue or her health would deteriorate. Mr Ghaffurian gave no evidence to support the continuation of the treatment, given to the Notifier's report of little if any improvement nor any evidence to support his warning that her health would deteriorate if she stopped.
10. Mr Ghaffurian inappropriately injected the Notifier with undiluted Vitamin C into her vein despite not being suitably qualified or skilled to administer such treatment. He told her he suggested she had the injection to boost her immune system. It took him several attempts to find a vein causing her extreme pain (of which she complained at the time) and bruising;
11. We do not accept Mr Ghaffurian's opinion that he is suitably qualified to administer injections by way of claimed medical studies in Italy (no documentary proof provided) between 40 and 27 years ago, work experience in an Iranian hospital as a medical student (no documentary proof provided), an internship at Nanjing University of Chinese Medicine (which would have concerned intramuscular injection methods) and a recent two-day course, apparently designed for qualified medical practitioners.
12. The Notifier had not advised Mr Ghaffurian she had previously received a Vitamin C injection from a general practitioner.
13. Mr Ghaffurian inappropriately recommended that the Notifier undertake a course of six stem cell injections to treat her sarcoidosis, despite not being suitably qualified and/or skilled to justify the use of and administer such treatment.
14. Mr Ghaffurian promoted "stem cell therapy". He gave the Notifier the 'Practice Nurse Testimonial'. We note other documentation shown to the Notifier refers to stem cell therapy. The Notifier immediately went to the Board complaining about the recommendation of "stem cell therapy". It is more likely than not that stem cell therapy was offered to treat sarcoidosis. There was no logical reason to propose it in response to a Chinese medicine diagnosis.

Allegation: Misleading and/or deceptive representations to the Notifier and creation of an unreasonable expectation of beneficial treatment.

1. The Board alleged[3], during consultations the Notifier, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) and/or (b) of s 3(1) of the HPR Act in that he made misleading and/or deceptive representations to The Notifier and/or created an unreasonable expectation of beneficial treatment.
2. With respect to the allegation, we find that during consultations with the Notifier, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and (b) of section 3(1) of the HPR Act. He made misleading and/or deceptive representations to the Notifier and created an unreasonable expectation of beneficial treatment.
3. Mr Ghaffurian told the Notifier he was a "qualified" western doctor and a "surgeon" (on a number of occasions) when he is not and never has been a GP or a surgeon and has never been registered as or qualified to practise as a western doctor.
4. He told the Notifier he could cure anything. As Dr Lim observed, such a statement is absurd.

Allegation: Failed to obtain properly informed consent from the Notifier, prior to rendering treatment.

1. The Board alleged[4], during the consultations with the Notifier, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) and/or (b) of s 3(1) of the HPR Act in that he failed to obtain properly informed consent from his patient, the Notifier, prior to rendering treatment:
2. With respect to the Board's Allegation 10, we find that during consultations with the Notifier, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and (b) of section 3(1) of HPR Act in that he failed to obtain properly informed consent from her prior to rendering treatment.
3. In general terms, Mr Ghaffurian's most significant failure in proposing the various treatments, apart from herbal medicine, to the Notifier was his failure to advise her that while he thought she may derive benefit, his opinion is supported with scant if any credible scientific evidence. Further, he failed to advise her of potential risks of the treatment. Therefore, he failed to obtain informed consent. Also, we note Mr Ghaffurian failed to record any consent given by the Notifier.
4. In particular, with respect to the Notifier, Mr Ghaffurian:

1. Failed to explain the likely outcomes, advantages, disadvantages, side-effects, risks and alternatives of the "light therapy"; 2. Failed to explain the likely outcomes, advantages, disadvantages, side-effects, risks and alternatives of the Vitamin C injections;

1. Incorrectly informed her that there were no known side-effects for the Vitamin C injections;

1. Failed to explain the likely outcomes, advantages, disadvantages, side-effects, risks and alternatives of animal stem cell therapy; 2. Failed to explain that animal stem cell therapy is experimental; 3. Failed to explain the likely outcomes, advantages, disadvantages, side-effects, dangers, risks and alternatives of the Dimethyl Sulfoxide solution (DMSO) which he prescribed; and 4. Refused to answer the Notifier's questions about the contents of her Chinese herbal prescription.

Allegation: Failed to obtain properly informed consent from AB, prior to rendering treatment

1. The Board alleged[5], during the AB Consultations on 11 January 2011, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) and/or (b) of s 3(1) of the HPR Act in that he failed to obtain properly informed consent from his patient, AB, prior to rendering treatment:
2. With respect to allegation, we find that during consultations with AB, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and (b) of section 3(1) of HPR Act in that he failed to obtain properly informed consent from AB prior to rendering treatment.
3. Mr Ghaffurian failed to explain the likely outcomes, advantages, disadvantages, side-effects, dangers, risks and alternatives of the DMSO which he prescribed;
4. We do not accept Mr Ghaffurian gave AB proper directions for use of the DMSO.

Finding 5: Failure to make and keep adequate patient records

1. The Board alleged[6], during consultations with the Notifier, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act in that he repeatedly practised as a Chinese medicine practitioner without documenting Ms Whitehead's patient record properly and professionally in breach of his fundamental obligations to his patients and in breach of the Board's Guidelines on Patient Records (June 2007).
2. We note Mr Ghaffurian's admissions that he should have made a note of his Chinese medicine diagnosis, the medications the Notifier was taking, and the name of her general practitioner, that his patient record keeping in respect of the Notifier was deficient and amounted to unprofessional conduct within section 3(1)(a) of HPR Act;
3. With respect to the allegation, we find during consultations with the Notifier, Mr Ghaffurian engaged in unprofessional conduct within the meaning of paragraphs (a) and (b) of section 3(1)(a) of HPR Act. He repeatedly practised as a Chinese Medicine Practitioner without keeping an adequate patient record properly and professionally in breach of his fundamental obligations to his patients and in breach of the Board's Guidelines on Patient Records (June 2007).
4. Mr Ghaffurian's medical records, as evidenced by three pages of handwritten notes, fall severely short of what might be called adequate patient records. We do not accept Mr Ghaffurian's evidence that in addition to the notes provided at hearing he also kept other notes at what he describes as his pharmacy, which he claimed during cross-examination for the first time. We note that despite giving such evidence in cross-examination on the second day of the hearing, he did not produce such notes on the third day of the hearing. It is reasonable to assume it would have been a simple matter to do so if they exist.
5. We note his claim that at the first appointment he had the Notifier write details on blank paper because he had run out of his patient record forms. We also note that at no later stage did he transfer information to a patient record form;
6. The typed pages of patient records (Tribunal Book page 451, 454A) do not change our finding. He created them for the purpose of the hearing, at the request of his lawyers for these proceedings. He would not have otherwise created them.

Finding 6: Breach of the Board's Guidelines for the practice of Chinese herbal medicine

1. The Board alleged[7], between 14 September 2010 and 18 January 2011 Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) of s3 (1) of the HPR Act in that he repeatedly breached the Board's Guidelines for the practice of Chinese herbal medicine.
2. With respect to the allegation, we find between 14 September 2010 and 18 January 2011 Mr Ghaffurian engaged in unprofessional conduct within the meaning of paragraphs (a) and (b) of s3 (1) of the HPR Act in that he repeatedly breached the Board's Guidelines for the Practice of Chinese herbal medicine.
3. Between 9 September 2010 and 8 December 2010, Mr Ghaffurian failed to provide the Notifier with a prescription, adequate information and/or adequate labelling of the Chinese herbs he dispensed.
4. We do not accept that the second appointment Mr Ghaffurian provided the Notifier with a piece of paper on which he had handwritten a list of ingredients and the weights of each which was in the herbal medicine he provided her.
5. On 18 January 2011, Mr Ghaffurian failed to provide AB with a prescription, adequate information and/or adequate labelling of the Chinese herbs he dispensed to AB.
6. While Mr Ghaffurian gave AB a prescription, it contained no date, no usage instruction and no signature of the practitioner. This is significant, if a patient receives over time different bottles of different formulas and different undated prescriptions, how is the patient to keep track of which relates to which?

1. The Board alleged[8], during 2010 and 2011 Mr Ghaffurian engaged professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) and/or (b) of s3(1) of the HPR Act in that he provided services in the context of his Chinese medicine practice, at Suite 734, Level 7, 1 Queens Road Melbourne (the clinic), and failed to ensure his practices and the clinic complied with basic infection control requirements.
2. With respect to the allegation, we find during 2010 and 2011 Mr Ghaffurian engaged in unprofessional conduct within the meaning of paragraphs (a) and (b) of s3(1) of the HPR Act in that he provided services in the context of his Chinese medicine practice, at Suite 734, Level 7, 1 Queens Road Melbourne (the clinic), and failed to ensure his practices and the clinic complied a basic infection control requirement.
3. Mr Ghaffurian failed to provide in the premises floors made of smooth impervious materials for effective cleaning and maintenance.
4. This was required given the injections given to the Notifier, injections apparently given to 'Farmer B and wife' and the likelihood that he would have given the Notifier stem cell injections if she had agreed.
5. However, in our view, the evidence is not sufficient to safely find against him concerning alleged failure to have any hand washing facilities inside his clinic, failure to wash his hands before or after treating the Notifier and failure to wash his hands when treating AB. Contrary to the Board's allegations, it appears there was a hand basin in a room within the premises. The evidence is not sufficiently clear to contradict the possibility that Mr Ghaffurian washed his hands in the other room without the patients being aware of it.

1. The Board alleged[9], during the consultations with the notifier, Mr Ghaffurian engaged in unprofessional conduct within the meaning of paragraph (a) and/or (b) of s3(1) of the HPR Act in that he failed to issue his patient, the Notifier, with contemporaneous receipts for the treatments he rendered and which the Notifier paid for.
2. We note Mr Ghaffurian's admission that giving the Notifier an EFTPOS receipt for the payment, not an itemised receipt in respect of services provided amounted to unprofessional conduct within section 3(1)(a) of HPR Act;
3. With respect to the Board's Allegation 15, we find Mr Ghaffurian engaged in unprofessional conduct within the meaning of paragraphs (a) and (b) of s3(1) of the HPR Act in that he failed to issue the Notifier with contemporaneous receipts for the treatments he rendered and which she paid for.

Allegation: Inaccurate and/or false representations to third parties

1. The Board alleged[10], during the Board's investigation into Mr Ghaffurian's conduct, which commenced in December 2010, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act in that he repeatedly misled and made false representations to the Board's investigator.
2. With respect to the allegation, we find during the investigation of the Notifier's complaint, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and (b) of s 3(1) of HPR Act in that he repeatedly misled and made false representations to the Board's investigator, Ms Debra Gillick.
3. We accept the careful evidence of Ms Gillick. She prepares the questions before she sees the practitioner, takes as careful notes as possible and returns to her workplace to immediately create the written record. We note her care in acknowledging where she is relying on her memory for the record.
4. In particular, Mr Ghaffurian falsely stated to Ms Gillick that he does not practise injectable nutrients, did not purchase stock of Vitamin C and Vitamin B injections and he never offered stem cell therapy to the Notifier.

1. The Board alleged[11], in 2010 and 2011 Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) of s 3(1) of the HPR Act, or, alternatively, unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act in that his advertising created an unreasonable expectation of beneficial treatment in breach of s 94(1)(d) of the HPR Act.

1. With respect to the allegation, we find in 2010 and 2011, Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a) and (b) of s 3(1) of HPR Act in that his advertising created an unreasonable expectation of beneficial treatment in breach of s 94(1)(d) of HPR Act.
2. Between at least 14 December 2010 and 1 March 2011, Mr Ghaffurian advertised the BICOM Bioresonance Machine on the web-site www.energymedicineclinic.com.au which:

1. incorrectly suggested the machine is especially effective for treatment of allergic illnesses such as rash, asthma and hay fever, acute and chronic inflammation of the gastric mucosa, rheumatic diseases, diseases of the internal organs, migraine / all sorts of pains, injuries / scar interference fields, problems of the teeth / jaw region; 2. inaccurately stated the machine could treat "almost all illnesses...with varying results"; and

1. misrepresented that the machine could successfully treat depression, irritable bowel syndrome, eczema, bloating, fertility issues, weight loss, arthritis, back pain, candida, allergies, fatigue, acne and cholesterol & blood pressure.
2. Saying he merely republished information provided to him, does not justify his actions.

1. With respect to the allegation, we find Mr Ghaffurian engaged in professional misconduct within the meaning of paragraphs (a), and (b) of s 3(1) of HPR Act in that his advertising contained testimonials in breach of s 94(1)(c) of HPR Act.
2. Mr Ghaffurian advertised stem cell therapy to the Notifier by providing her with a written testimonial of "... - Practice Nurse Manager". This is advertising to an individual.
3. We take a similar view to that of a panel which held a Formal Hearing under section 26 of the Chinese Medicine Registration Act 2000 concerning Anotonia Dias-Ruhl (28 March 2007). It found the use of testimonials on her website constituted unprofessional conduct of a serious nature, as it fell short of the standard expected of a registered practitioner.

1. Having made the above findings, the parties should now have the opportunity to make submissions as to appropriate determinations by the Tribunal, under the HPR Act.
2. We have directed the principal registrar to schedule a further hearing.

[1] Section 3 Evidence Act 2008.