1. The Respondent's registration as a Chinese Medicine Practitioner is cancelled as from 1 August 2010.
2. The Respondent is fined five thousand dollars ($5,000.00) to be paid to the Applicant in four equal instalments of $1,250.00 each, commencing 31 December 2010 and quarterly thereafter.

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This is a proceeding brought by the Applicant Board against the Respondent. The Applicant alleged wrongful conduct occurring before and after the 1 July 2007. In relation to the alleged conduct that occurred prior to the 1 July 2007 the Applicant seeks determination pursuant to section 48 of the Chinese Medicine Registration Act 2000. In relation to alleged conduct after the 1 July 2007 the Applicant seeks determination pursuant to section 77 of the Health Professions Registration Act 2005. We note at this stage that we are concerned with both Acts because on the 1 July 2007 the Health Professions Registration Act supplanted a number of various health professions acts including the Chinese Medicine Registration Act. The procedure that has been adopted is that we sit as a panel pursuant to the Health Professions Registration Act but we must in relation to alleged offences that occurred prior to 1 July 2007 apply the Chinese Medicine Registration Act. In relation to alleged offences after that time the Health Professions Registration Act must be applied.
2. On the 1 January 2002 the Chinese Medicine Registration Act came into force which obliged practitioners that were practising in Chinese herbal medicine and acupuncture to apply for registration. It is noted that the Respondent at that stage was practicing as an acupuncturist.
3. The Chinese Medicine Registration Act and the current Act forbid practitioners from using titles or holding themselves out as being registered when they were in fact not so registered. We refer to section 61(1)(b) of the Chinese Medicine Registration Act and the similar provisions in the Health Professions Registration Act.
4. On the 1 September 2002 the Respondent applied for registration pursuant to the Chinese Medicine Registration Act. He applied for that registration as an acupuncturist. In an application for registration form that he signed, he declared in a statutory declaration that he would comply with the guidelines which included having a current policy for professional indemnity insurance. Each subsequent application for renewal of registration included that undertaking in similar terms to the declaration referred to above. The Respondent gave such undertaking each time he applied for registration. The required professional indemnity insurance cover was 2 million dollars.
5. The Applicant has made an application against the Respondent alleging a number of matters in relation to misconduct pursuant to both the Acts to which we have referred. It is clear that the Respondent did not become registered pursuant to the Chinese Medicine Registration Act until the 30 April 2003. That meant that he was unregistered from the commencement of the Act (1 January 2002) until 30 April the following year.
6. It is also clear that the Respondent failed to renew his registration and was removed from the register on the 1 October 2006. He in fact did not become reregistered until the end of that month being the 30 October 2006. The Respondent has stated that he did not breach the Act by not being registered in the periods to which we have referred because he did not practice in the field of Chinese medicine but he held himself out only practising with needles which is virtually another term for acupuncture but the term "needles" is a generic name and is not protected by either Act to which we have referred.
7. Section 61(1)(c) and (d) of the Chinese Medicine Registration Act reads as follows:

(1) A person who is not registered under section 6 or 7 as a practitioner must not -

(c) carry out any act which is required to be carried out by or under an Act by a person registered as a practitioner under this Act; or

(d) claimed to be qualified to practise as a Chinese medicine practitioner, a Chinese herbal medicine practitioner, an acupuncturist or a Chinese herbal dispenser.

1. The Respondent has denied that when he was not registered he used the word "acupuncture" in any of his advertising or in any of his material. However he has admitted that when he issued receipts to patients that attended him those receipts stated the Respondent's services were for acupuncture. He did that in order to allow his patients to claim benefits from private health funds. In particular we have been referred to schedules from Medibank Private and from an organisation called BUPF which we understand stands for British United Providence Fund (BUPF). We were told Ms Stenson from BUPF who gave evidence that that fund in Victoria trades under the name of HBA Health Insurance. It is clear from the records of HBA that the Respondent did write receipts that were claimed upon during both the periods he was not registered. Thus we find that alone is sufficient to put the Respondent in breach of section 61(1) of the Chinese Medicine Registration Act.
2. It is further clear that the Respondent used a business card. He gave evidence to us such business card was used towards the end of 2006. That card contained the Respondent's name plus the fact that he was registered with the Applicant which state registered CMRB764. We hold the view that the card was given to patients in October 2006. The Respondent did not deny this. Thus we find that the Respondent has further breached section 61 of the Chinese Medicine Registration Act.
3. It is alleged against the Respondent that he practised without insurance, that is, professional indemnity insurance. It is very important that practitioners who practise in the fields of Chinese medicine have indemnity insurance. This is a protection not only for the practitioner but also for the patients. It is not difficult to imagine a situation where a patient would have a successful claim against a practitioner and if the practitioner who was not insured was impecunious the claim would not be satisfied.
4. It is clear on the facts before us that in the periods alleged in the notice of application that is between the 1st of November 2003 and the 7th of January 2004 the 1st of November 2004 and the 30th of November 2004, the 1st of November 2007 and the 22nd of January 2008 and the 1st of November 2008 to the 1st of July 2008 that the Respondent did not have professional indemnity insurance. This is in spite of the requirement of each of the relevant Acts (including the applicant's guidelines) and the statutory declaration to which we have referred and the undertakings which the Respondent made to the Applicant.
5. It is also noted although it is not alleged, in the particulars, that the Respondent practised between the 31st of October 2005 and the 31st of October 2006 a period of 12 months without insurance. The only excuse that the Respondent could make for this is that he was not served or given renewal notices. We view this excuse as extraordinary. The Respondent put himself in a position where he was very difficult to contact. He practiced in his family practice at High Street Road Mt Waverley and he lived on his evidence an itinerate lifestyle staying some nights in his parent's home in Camelot Street Mt Waverley. When asked for his address he was unclear about the matter.
6. In cross examination the Respondent stated that he did not always receive material from the Applicant at the High Street Road practice because the administrative staff of that practice would open the mail and not give it to him. That practice was conducted by the Respondent's mother and his father and we find that the Respondent participated in that practice at times.
7. It is difficult to believe that the administrative staff of the practice, over such a long period, would not give the Respondent important material including renewal notices for registration and for insurance.
8. Given those circumstances, we do not accept the Respondent's excuse. In any event the Respondent has told us that he is efficient in computers, therefore we find it surprising that the Respondent did not diarise the renewals of insurance and registration in the computer or use some other method. It was clearly very important for him to do this and he did not do it. The excuse that the Respondent gave for not wanting to diarise the insurance is that he believed it was wrong that the insurance companies, who sold professional indemnity insurance, to an acupuncturist required a payment of a premium for one year in advance. He said that the insurance companies should have provided for a payment on a monthly basis. While it may be a good idea for those companies to provide such a method of payment there is no obligation on them to do so. However there is as very definite obligation on the Respondent to pay his insurance premiums when it falls due which he did not do.
9. Given the circumstances we find that the Respondent failed to pay his insurance premiums when the same fell due. We do not accept the evidence of the Respondent that the administrative task of the practice in High Street Road failed to give him the renewals. This is so unbelievable it does not make sense. While it could have happened once it was unlikely to have continued to happen in the way the Respondent described.
10. In taking this view it seems clear to us that the Respondent has been less than honest when giving his evidence.
11. The Applicant has also alleged that the Respondent has been dishonest with the Applicant in particular its Professional Standards Panel ("the PSP"). There was a hearing before this panel in October of last year. It was this panel that referred the present matters in relation to the Respondent to this Tribunal. At the hearing last year the Respondent stated to the PSP that he had not received the allegations that were against him and indeed he repeated that matter today to us. He stated that he did not receive any of the correspondence however he did receive the notice approximately 10 minutes prior to the panel convening in October last year.
12. As a result of the hearing on the 13th of October last year the Respondent signed a number of undertakings which he gave to the Applicant. Those undertakings are stated at page 199 of the Tribunal book. The schedule to the notice of allegations referred to those undertakings which are a proper summary of the same. It relevantly states words to the effect :
    • The Respondent agreeing to contact the Registrar of the Board and speak to her by the 28th of October 2009 to ascertain if there are any documents for collection.
    • Agreeing to respond as soon as possible to all telephone (and SMS) messages to confirm receipt of those messages.
    • Agreeing to personally collect any document or correspondence from the Board.
    • Agreeing to notify via the Registrar of the Board immediately when he has a reliable address for correspondence.
13. The matters contained in the body of the schedule of the application herein, in our view, have been adequately proved by the evidence of Ms Gillick from the Applicant. We accept that evidence. Because of comments we have made already about the evidence of the Respondent and his at times long prevarication and at other times refusal to answer the question or attempting to answer questions that he wanted to answer rather than questions that were asked; where there is any conflict between the evidence of Ms Gillick and the evidence of the Respondent we prefer the evidence of Ms Gillick. Ms Gillick gave her evidence in a clear and uncontradicted fashion and she referred to various notes that she had made in conversations and other documents which we find to be accurate.
14. In any event the matters contained in the body of the schedule which are part of the allegations against the Respondent which we find are correct stated as follows:
    • On 22 October 2009 the Registrar of the Board advised Mr Wardha by telephone that the PSP decision was ready for him to collect as per the terms of the Undertaking. (See paragraph 19 hereof).
    • On 2 November 2009 Mr Wardha advised the Registrar that he was unable to give a time for collection of the PSP decisions as he was waiting on someone to give him a lift.
    • On the 2 November 2009 Mr Wardha advised the Registrar that he could not collect the documents as he could not arrange transport.
    • On the 11 November 2009 Mr Wardha advised the Registrar that he was waiting for a lift from a friend to enable him to collect the documents from the Board.
    • On the 11 November 2009 Mr Wardha advised the Registrar that he had not found a place to live yet and therefore he could not provide an address to the Board.
    • On the 11 November 2009 Mr Wardha arrived at the Board's premises as a sole driver of a silver Mitsubishi registered no. UR0921 ("the car").
    • On the 13 November 2009 the Registrar of the Applicant asked Mr Wardha if he had a car. Mr Wardha advised the registrar that he did not and that he relied on friends for lifts.
    • On 13 November 2009 the Registrar advised Mr Wardha to visit the Board to collect documents for him. He said he would do so.
    • In November 2009 the Board sent Mr Wardha the document he failed to collect from the Board the clinic address (that is, the address in High Street Road, Glen Waverley).
    • In December 2009 the Board sent Mr Wardha the December newsletter to the clinic address.
    • On 20 January 2010 at approximately 3.50pm the Registrar sent Mr Wardha a SMS to his mobile "Amaresh, Debra Gillick here - did you receive the CMRB annual report? Do you have a reliable address to provide yet? Cheers".
    • On 22 January 2010 at approximately 4.06pm Mr Wardha replied to the Registrar by SMS "OK thanks for that. Have a great day".
    • On 20 January 2010 at approximately 5.48pm the Registrar sent a further SMS to Mr Wardha "Debra Gillick again. Did you receive the December CMRB newsletter and Annual Report? Cheers".
    • On the 20th of January 2010 at approximately 5.55 pm Mr Wardha replied to the registrar by SMS

"Yes I have received but I haven't had a chance to go through thoroughly. Any reason why I am being interrogated so much? Last meeting complete waste of time. U all get paid and I don't. So I don't have time for this nonsense. U all being very unfair and unreasonable. Please stop prying into my private life. Its not a good thing. Please make a record of this message.

• The car has been at all times registered to and in the possession of Mr Wardha.
• At all material times Mr Wardha has resided at 51 Camelot Drive, Glen Waverley. We have already noted that is the address of his parents.

1. In relation to the car registration what is stated in that Notice of Allegations is not exactly correct. Mr Wardha said that the car is in fact registered to a company of which he is the shareholder and director and he admitted he had sole use of it. He also informed us that he owned a 2002 Jaguar motor vehicle which he said is a car that he believes will be very valuable in time. The Jaguar is a sedan while the Mitsubishi motor vehicle we understand is a utility. We find it quite extraordinary that Mr Wardha ran two motor vehicles when continuously throughout this hearing he said that he was in financial difficulty and did not have the money to pay for important things like indemnity insurance and indeed his renewal of registration.
2. We find that Mr Wardha informing the Registrar that he did not have a car was not truthful. He clearly did have sole use of a motor vehicle. He said that what he really meant was that he was on a journey to do something else where he did not have the car available and another time he said the car was not available because he could not afford the petrol. We do not accept those statements as a real excuse. He had given an undertaking that he would attend the Applicant to collect documents. He breached that undertaking.
3. He also gave an undertaking that he would notify the registrar immediately when he had a reliable place to live.
4. On the 30 November there was an email sent to the Respondent by Ms Gillick in particular on behalf of the Applicant and that email stated we ("the Board") really need a valid address for the public register please. Please advise as soon as we have what you call a reliable address.
5. On the 30 November at 11.15 pm the Respondent stated "Hi Deborah the existing address for the public register is fine, thank you". It is noted that the Respondent stated he believed giving the Applicant his home address would lead to a breach of his privacy.
6. Ms Gillick on 1 December sent a further email to the Respondent which read as follows: "Do you mean 291 High Street Road?. This is the one we were using which you told the panel was unreliable and from which you did not receive your mail. Has something changed?" That was not answered.
7. We also note on the question of address, that the Respondent yesterday when giving evidence said that his only reliable address was his email address. However today when giving evidence the Respondent said that he could only access that email if he was at his parents' home. The Respondent said that he often does not stay at his parents' home. There is a difficult relationship between him and his parents and he is often not there, therefore we find it hard to accept the evidence of the Respondent that he gave yesterday that that he had a reliable email address. He said he could not afford to have other email addresses which would be accessed from other places. This again we find surprising as a number of email addresses are available to people that don't cost any money in particular we refer to addresses such as "Hotmail".
8. Before concluding the matter on the Respondent's evidence we find it very important that people who are registered should be able to be contacted on short notice and should not put themselves out of contact. The Respondent said that he had had is mobile phone number. We regard this as unsatisfactory as the Respondent said himself it is difficult to send long SMS messages and in any event we regard the reply that the Respondent gave to the SMS message that Ms Gillick sent on the 20th of January 2010 as non responsive and rude that is, "OK thanks for that have a great day". Clearly it did not answer the question and in our view was clearly an example where the Respondent was showing disregard for the Applicant.
9. We also note that in accordance with the allegations several days passed where the Respondent did not collect documents which he clearly could have collected.
10. Given these circumstances we find that the allegations are made out. It then it becomes a question of what category the Respondent falls into for a determination of this Tribunal. In section 48(1) of the Chinese Medicine Registration Act it is clearly stated:

1. Findings and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered practitioner the panel may find that -

(a) the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

(c) the practitioner has not engaged in unprofessional conduct.

1. Section 3 of that Act relatively defines unprofessional conduct to mean:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered practitioner by his or her peers; or

("a" and "b" above appear in similar terms in the Health Professions Registration Act. "c" is separately defined in that Act - see para 35 hereof).

1. The conduct of the Respondent, is conduct which is of a lesser standard than which the public might reasonably expect of a registered practitioner. The purpose of the existence of the Applicant is to regulate and supervise practitioners so that the public can have confidence in the profession and that the profession has respected standing. The Respondent's conduct brings disgrace on the profession and does what we believe can colloquially be described as "thumbing his nose to the Applicant". It is extremely important for any person who is governed by a professional board whether it be medical profession, the lawyers or accountants that those persons perform what is required by the guidelines of that Board and perform any relevant directives that the Board gives and comply with the relevant statute. The Respondent has failed to do this.
2. The Respondent's conduct is also of a lesser standard than that which might reasonably be expected of a registered practitioner by his or her peers. We have not in this proceeding heard any evidence from the peers of the profession however two members of this panel are respected members of that profession and Mr Davis is a lawyer who has sat on many of these cases. We have come to the conclusion that the conduct of the Respondent is far below that which might reasonably be expected by other practitioners.
3. The professional misconduct is common law misconduct and that is defined in the Health Professions Registration Act. We realise that that Act was not in being at the time of the Chinese Medicine Registration Act but, in our view, the definition in that Act is the proper definition of professional misconduct. It is there defined in section 3 of the Act as

(a) a unprofessional conduct of a health practitioner, where the conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or fall short of, a substantial degree, the standard of professional conduct observed by members of the profession of good repute and competency; and

(c) conduct of a health practitioner whether occurring in connection with the practice the health practitioners health profession or occurring otherwise that in connection with the practice of a health profession, that would, if establish, justify a finding that the practitioner is not of good character or otherwise not a fit and proper person to engage in the practice of that health profession.

1. This is a definition similar to what Justice Mandy used in Canvale 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. In our view the Respondent's standards falls short of that definition.
2. In our view, the conduct of the Respondent when looked at as a whole is nothing short of disgraceful. It may well be that each incident taken separately may have a different category altogether but, however, when one looks at the incidents together, it is clear that he did not take his obligations and the Board seriously which he should have. He said in his submissions and in his evidence that he has learnt from past conduct and will take the Board seriously in future. We note that during the Respondent's evidence he continually blamed other people for his wrongdoings, he blamed the system not being what he thought should be, he blamed people for not being as nice to him as what he thought they should be. In our view the Respondent has failed to take responsibility for his actions.
3. We thus find that the Respondent is guilty of professional misconduct and unprofessional conduct within the meaning of section 3(a), (b) and (c) of the Chinese Medicine Registration Act and is also guilty of professional misconduct within the meaning of sections (3) and 77(1)(a) of the Health Professions Registration Act as we have stated the requirements are similar.
4. There are allegations about the Respondent in relation to his character. In our view the fact of breaching the undertakings to what he referred and failing to take them seriously is a serious character flaw. That is something we believe the Respondent has lesser a character than what he should have in order to practice the profession.
5. Just returning for one moment to whether the Respondent's conduct should be found to be unprofessional conduct of a serious nature we refer to the case of Parr v the Nurses Board of Victoria that is an unreported VCAT decision of the 2 December 1998 and it is a decision of Justice Kellam who was then the President of the Tribunal. His Honour was there dealing with the term unprofessional conduct of a serious nature as viewed in the section 48(1)(a) of the Nurses Registration Act.
6. It is noted that that is a section of that Act that is in similar terms to section 48(1) of the Chinese Medicine Registration Act 2000. There His Honour commented on whether a person is found to have engaged in unprofessional conduct of a serious nature and he stated:

"Clearly such conduct would not be serious if it was trivial, or if monetary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure."

1. In our view the conduct of the Respondent was continuing conduct since 2002, it certainly was not momentary in effect. Failing to have indemnity insurance could have affected his patients detrimentally for the rest of their lives. Further in our view the conduct is a departure in a substantial manner from the standards which expected. We thus find the Respondent engaged in unprofessional conduct of a serious nature within the meaning of s 48(1)(a) of the Chinese Medicine Registration Act.
2. Now we turn to the question of what is the proper penalty or determination for us to make. Clearly we are not here to punish. Our purpose is to protect the public and uphold the standards of the Chinese medicine profession.
3. In a case of Dr Mark Pearson Gilles v Chiropractors Registration Board [2006] VCAT 436 which was a decision of Member Davis, who is a member of this panel, there set out what the design of the Act was to achieve. The Act there is 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. The above quotation was referred to by the same panel as the present on the 12th of April 2010 in the case of the Chinese Medicine Registration Board v Schulte (VCAT 12 April 2010). Given those circumstances we find that in relation to the Chinese Medicine Registration Act 2000 that the conduct of the Respondent was unprofessional conduct of a serious nature. In relation to the current Act, that is the Health Professions Registration Act, we find that the conduct of the Respondent is greater than unprofessional conduct and is professional misconduct and we have dealt with the tests already in relation to the other previous enactment and it falls within that category in the current enactment.
2. Given the seriousness with which we take the Respondent's conduct, the Respondent's registration to practice will be cancelled. The determination we make will uphold the standards of the profession, continue to give the public confidence in the profession and ensure that the Board itself has the respect that it has in fact deserves. We also believe that the conduct of the Respondent is such that in order to achieve the matters which we just have referred it is necessary that a substantial fine be paid. That fine we have determined will be $5,000.00. We will not set a time limit or a minimum time on which the cancellation should take effect because we believe that is a matter that is better left to the Board to decide. The terms and conditions of any future registration will be matters that happen in the future and we are of the view that the Board is well equipped to decide when and if the Respondent should be allowed again to practice in the profession.
3. We are unsure as to whether it will inconvenience any of the Respondent's patients if the cancellation was to take effect immediately. Therefore, in that circumstance, the proper time from the cancellation to take effect will be on the 1st August of this year and we believe that the Respondent should have time to pay the fine and that time should be determined by the Board unless we are asked by the Board to determine that ourselves. We will order accordingly.
4. The order is the Respondent is fined $5,000.00 to be paid to the Applicant in four quarterly instalments of $1,250.00 each commencing on the 31st December 2010 and quarterly thereafter.