Pharmacy Board of Australia (VCAT Proceeding No. Z417/2018)

Medical Board of Australia and Pharmacy Board of Australia v Lee (Review and Regulation) (Corrected) [2019] VCAT 311

1. On 12 June 2018, the Tribunal made the following Order in respect of each Proceeding No. Z192/2018 and No. Z417/2018:

Under s 146(4)(b) of the Victorian Civil and Administrative Act 1998 (Vic) the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.

1. On 14 November 2018, the Tribunal made Orders which included the following Order in respect of each Proceeding No. Z192/2018 and No. Z417/2018:

The Tribunal directs that proceedings Z192/2018 and Z417/2018 shall remain as separate proceedings but be heard and determined together.

1. We note that the references to medications in the material filed with the Tribunal contains a mix of proprietary and generic names, often used interchangeably.[1] By convention, generic names are not capitalised, whereas proprietary names are capitalised with the additional symbol ®. In the case of the Agreed Statement between the parties and where quotes have been included from cases and reports, the names of medications have not been changed. However, the Tribunal has otherwise sought to observe the naming convention as described.

1. Pursuant to s 196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal makes the following findings:
   1. In relation to Allegation 1, Dr Gyu Sung Lee has engaged in professional misconduct as defined in paragraph (c) of the definition of professional misconduct in s 5 of the National Law;
   2. In relation to Allegation 2, Dr Gyu Sung Lee has engaged in professional misconduct as defined in paragraph (c) of the definition of professional misconduct in s 5 of the National Law
2. Pursuant to s 196(2) of the National Law, the Tribunal makes the following determinations:
   1. Pursuant to s 196(2)(a), Dr Gyu Sung Lee is reprimanded;
   2. Pursuant to s 196(2)(d), Dr Gyu Sung Lee is disqualified from applying for registration as a medical practitioner for a period of 18 months commencing 1 March 2019.
3. In the event that Dr Gyu Sung Lee applies for registration as a medical practitioner, it is recommended that the Medical Board of Australia consider imposing the conditions set out below under 'Proposed Conditions for Registration.'

1. Pursuant to s 196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal makes the following findings:
   1. In relation to Allegation One, Dr Gyu Sung Lee has engaged in professional misconduct as defined in paragraph (c) of the definition of professional misconduct in s 5 of the National Law;
   2. In relation to Allegation Two, Dr Gyu Sung Lee has engaged in professional misconduct as defined in paragraph (c) of the definition of professional misconduct in s 5 of the National Law
2. Pursuant to s 196(2) of the National Law, the Tribunal makes the following determinations:
   1. Pursuant to s 196(2)(a), Dr Gyu Sung Lee is reprimanded;
   2. Pursuant to s 196(2)(d), Dr Gyu Sung Lee is disqualified from applying for registration as a pharmacist for a period of 2 years commencing 1 March 2019, such disqualification to run concurrently with any current disqualification.
3. In the event that Dr Gyu Sung Lee applies for registration as a pharmacist and/or a medical practitioner, it is recommended that the Pharmacy Board of Australia and the Medical Board of Australia each consider imposing the conditions set out below under 'Proposed Conditions for Registration.'

Prior to any grant of registration to Dr Gyu Sung Lee (the Practitioner) by either the Medical Board of Australia (MBA) or the Pharmacy Board of Australia (PBA) the MBA or the PBA, as the case may be:

Require the Practitioner to demonstrate requisite competency prior to commencement of practise; and

Any grant of registration to the Practitioner be subject to the following conditions, modified in each case as appropriate:

1. The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) may not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.

For the purposes of this condition 'substance' is defined as any illicit substance as well as any pharmacist only, prescription only and any controlled drug medication as contained in Schedule 3, 4 or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp.

1. Upon returning to practice, the Practitioner must commence random urine drug screening (UDS) and hair analysis for drug screening (hair analysis), including testing for: opiates, sedatives (including benzodiazepines), analgesics (including tramadol), and illicit substances; in accordance with AHPRA's [or MBA or PBA, as the case may be] protocol for UDS and hair analysis (the protocol).

The Practitioner must commence UDS and hair analysis at Group One frequency or as otherwise advised by AHPRA [or MBA or PBA] and must continue to attend at this frequency until the Board approves otherwise.

1. At least 14 days prior to returning to practice, the Practitioner must provide to AHPRA:
   1. Acknowledgement, on the approved form (HPF6), that they understand the requirements of the protocol as it pertains to urine and hair drug screening and they are aware of AHPRA's monitoring of this condition.
   2. The details, on the approved form (HPF6), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all prescribing practitioners who have, or are likely to, prescribe, approve or administer substances.

B - Supervised Practice and access to Controlled Drugs

Upon returning to practice the Practitioner must undertake a minimum of twelve months of supervised practice without direct access to Controlled Drugs, the latter as defined by Schedule 8 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

Upon returning to practice the Practitioner must undertake supervision commensurate with his qualifications and experience and consistent with the MBAs policy of recency of practice.

Suitable employment may be in a hospital setting at intern/resident level with increased frequency of progress reporting to the MBA if appropriate; and

Additional restrictions regarding access to and prescription of drugs of addiction, opiates, sedatives and analgesics including tramadol.]

1. Upon returning to practice the Practitioner must undertake treatment with treating practitioners, including, but not limited to, a General Practitioner, Addiction Medicine Specialist and Psychologist; and attend at a frequency determined by the treating practitioners, with the provision of regular reports from same.
2. At least 14 days prior to returning to practice, the Practitioner must provide the following to AHPRA:

1. The contact details, on the approved form (HPF3), of all treating practitioners. 2. Acknowledgement, on the approved form (HPF3), from the Practitioner that AHPRA may seek reports from the treating practitioners in relation to the treatment undertaken by the Practitioner: * (i) upon return to practice; and * (ii) on a 3 monthly basis thereafter.

1. Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware AHPRA may contact them to seek reports.

The Practitioner must, upon his return to practice, enrol in or continue his enrolment in the VDHP drug and alcohol rehabilitation and support program and procure the provision of regular reports from the appointed case manager to the MBA.

1. The practitioner must, upon his return to practice, be mentored by another senior registered health practitioner in relation to the following topics:
   • (a) The principles of ethical professional conduct;
   • (b) The requirements for professional behaviour as outlined in:
     • [in the case of pharmacy practice] the Pharmacy Board of Australia's (Board's) Code of Conduct, the Board's Guidelines for Proprietor Pharmacists, and the Pharmaceutical Society of Australia's Code of Ethics for Pharmacists;
     • [in the case of medical practice] the Good Medical Practice: A Code of Conduct for Doctors in Australia;
   • (c) The consequences of unethical professional conduct and its adverse impact on the reputation of the pharmacy profession and/or medical profession and patient trust; and
   • (d) Such other relevant professional matters determined by the Board.

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. The mentoring must consist of a minimum of 6 hours completed over six months and comprise of at least 6 sessions, with each session being of one hour duration and with no more than one session per calendar month
2. Within 14 days of the Practitioner notifying the Board of his return to practice, the practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3. Within 14 days of the Practitioner's return to practice and his notification to the Board of this fact, the Practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
   • (a) Every month;
   • (b) At the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
   • (c) Whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner conduct or professional performance; and
   • (d) When otherwise requested by AHPRA or the Board.
4. At such frequency determined by the Board, the Practitioner shall provide written reports to the Board, containing reflections and insight gained regarding current and future safe practice.
5. In the event an approved mentor is no longer willing or able to provide the mentoring, the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
6. Within 30 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that he has reflected on the issues that gave rise to the condition requiring his attendance for mentoring and which outlines how he has incorporated into his practice the lessons learnt from the mentoring

1. At least 14 days prior to the Practitioner returning to practice, the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Pharmacist Manager [Medical Supervisor] or equivalent (the senior person) at each current place of practice. In providing this form, the Practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner; and the Practitioner will be required to provide the same form within seven days of the commencement of practice at each and every subsequent place of practice, and within seven days of each and every notice of any subsequent alteration of these conditions.
2. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
3. Pursuant to section 196 (3) of the National Law, the review period for the conditions referred to above is 12 months.

Mr G. Gilbert SC with Mr D. Chisholm of Counsel instructed by Minter Ellison Solicitors

Ms R. Ellyard of Counsel instructed by Ball and Partners Solicitors

1. On 14 March 2018, in accordance with s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Medical Board of Australia (MBA) and the Pharmacy Board of Australia (PBA) jointly made referrals to the Victorian Civil and Administrative Tribunal (Tribunal), including a Notice of Allegations, because they reasonably believed that Dr Gyu Sung Lee (Dr Lee) had engaged in conduct that constituted professional misconduct in relation to the two Allegations made therein.
2. The parties reached an Agreed Statement of Facts set out below, which sets out the factual basis upon which the hearing may proceed together with proposed findings, certain agreed determinations and areas of disagreement.

1. The Notice of Allegations contains the Allegations relating to the conduct of Dr Lee on dates from between on or about 1 January 2016 to 21 November 2016, a period which is governed by the National Law. Section 193(1)(a)(i) relevantly provides:

A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if ... for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason ... the practitioner has behaved in a way that constitutes professional misconduct ...

1. Under s 6 of the National Law, the Tribunal is the responsible tribunal for the purposes of the National Law as it applies in Victoria.
2. Consequently, the Tribunal may hear and determine the Allegations presently before it, and the Tribunal may make the findings and determinations available to it under the National Law, which are described below.

1. Each of the MBA and the PBA referred to the Tribunal the Allegations set out under the Agreed Statement of Facts below, pursuant to s 193(1)(a) of the National Law. In summary, the Notices of Allegations concern two types of conduct engaged in by Dr Lee:
2. Allegation 1 concerns four criminal charges to which Dr Lee entered a plea of guilty at the Shepparton Magistrates' Court on 21 November 2016.

1. Three separate charges of obtaining property by deception on dates between 1 July 2015 - 2 October 2016; and
   1. One charge of possess a drug of dependence; [2] and

1. Allegation 2 concerns conduct in 2016, in which Dr Lee was affected by prescription medication whilst working in his capacity as a provisionally registered medical practitioner.[3]
2. In his formal response to the Australian Health Practitioner Regulation Agency (AHPRA), Dr Lee acknowledged being in possession of and using the Schedule 4 and Schedule 8 medications, without the requisite legal authority. Furthermore, in respect of the conduct alleged in Allegation 2, Dr Lee stated:

I acknowledge that I have previously worked as a medical practitioner whilst under the influence of medications that had not been prescribed to me by a medical practitioner. I believe that I may have been affected by Tramadol on occasions whilst working at Goulburn Valley Health.[4]

AGREED STATEMENT OF FACTS AND PROPOSED FINDINGS AND DETERMINATIONS

1. The Allegations are based upon the same conduct. Accordingly, the Agreed Statement of Facts and Proposed Findings and Determinations (Agreed Statement) in each proceeding are substantially the same. Following is the Agreed Statement between the PBA and Dr Lee. The additional clauses in the Agreed Statement between the MBA and Dr Lee are included in italics.
   1. Background
      • 1.1 Dr Gyu Sung Lee (Dr Lee) was first registered as a pharmacist on 23 August 2010.

Dr Gyu Sung Lee (Dr Lee) was first provisionally registered as a medical practitioner on 31 March 2015. On 30 March 2017, Dr Lee's provisional registration as a medical practitioner lapsed.

1.2 On 20 January 2017, Dr Lee's registration as a pharmacist was cancelled by the Victorian Civil and Administrative Tribunal (VCAT) for a period of three years. He is not currently registered as a pharmacist.

On 22 July 2016 Dr Lee applied for registration as a medical practitioner. On 1 March 2018, the Medical Board of Australia (MBA) proposed to refuse Dr Lee's application for general registration as a medical practitioner, following which Dr Lee decided to withdraw his application.

1.3 At the time of the conduct the subject of the referral, Dr Lee was provisionally registered as a medical practitioner as well as holding registration as a pharmacist.

As a result, Dr Lee does not currently hold registration as a medical practitioner.

1.4 At the time of the conduct the subject of the referral, Dr Lee was registered as a pharmacist as well as holding provisional registration as a medical practitioner.

1. Notification
   • 2.1 In August 2016, the Australian Health Practitioner Regulation Agency (AHPRA), on behalf of the Pharmacy Board of Australia (PBA) and Medical Board of Australia (MBA), received two notifications in respect of Dr Lee's professional conduct.
   • 2.2 On 9 August 2016, Dr Opelo Sefhore (Dr Sefhore), a former colleague of Dr Lee at Goulburn Valley Health in Shepparton, notified AHPRA on behalf of the PBA and MBA that Dr Lee had allegedly attempted to obtain Zolpiderm (Stillnox) (28 tablets with 2 repeats) using Dr Sefhore's name, prescriber number and a forged signature (00333595).
   • 2.3 On 10 August 2016, AHPRA received a mandatory notification (00333532) from Dr Carolyn Kamenjarin (Dr Kamenjarin), Director of Medicine at Goulburn Valley Health and then Dr Lee's direct supervisor. Dr Kamenjarin advised that on 5 August 2016, she had received a telephone call advising her that Dr Sefhore had notified the Director of Physician Training at Frankston Hospital that Dr Lee had attempted to obtain medication using a forged script. The Director of Pharmacy at Goulburn Valley Health, Liam Carter (Mr Carter), then contacted three pharmacies in Shepparton and was provided with approximately 11 scripts which indicated that Dr Lee may have obtained medication dishonestly over a protracted period of time.
   • 2.4 On 12 August 2016, the PBA [MBA] decided, pursuant to sections 160(1)(a) and 154(2) of the National Law, to conduct an investigation into Dr Lee's conduct and to deal with the notifications with the MBA [PBA] collaboratively.
2. Immediate Action

3.1 On 12 August 2016, the Immediate Action Committee (IAC) of the Victorian Board of the MBA and the IAC of the PBA each decided to take immediate action under section 156(1)(a) of the National Law, because they each reasonably believed that because of his conduct, Dr Lee posed a serious risk to persons and it was necessary to take immediate action. Each of the MBA and PBA accepted undertakings provided by Dr Lee not to practise as a medical practitioner or pharmacist, respectively.

4.1 The investigation undertaken by AHPRA revealed that on 21 November 2016, Dr Lee pleaded guilty in the Magistrates' Court of Victoria to:

(a) with respect to offending which concerned Priceline Pharmacy, Shepparton:

(i) an offence of obtaining property by deception contrary to the Crimes Act 1958 (Vic) whereby between 31/12/2015 and 15/07/2016 Dr Lee presented a forged prescription to dishonestly obtain prescription drugs, with the intention of permanently depriving Priceline Pharmacy of Lyrica, Tramadol Hydrochloride, Endone, Tramedol SR, Zolpidem Tartrate, Solone and Temaze;

(ii) an offence of possessing a drug of dependence contrary to the Drugs Poisons and Controlled Substances Act 1985 (Vic), whereby between 31/12/2015 and 15/07/2016, Dr Lee possessed Lyrica, Tramadol Hydrochloride, Endone, Tramedol SR, Zolpidem Tartrate, Solone and Temaze;

(b) in relation to Chemist Warehouse, Shepparton, an offence of obtaining property by deception contrary to the Crimes Act 1958 (Vic), whereby at Shepparton between 04/05/2016 and 21/06/2016, Dr Lee presented a forged prescription to dishonestly obtain prescription drugs, with the intention of permanently depriving Chemist Warehouse of Endone, Oxycodine SR and Zolpidem; and

(c) in relation to Chemist Warehouse, Riverside Plaza, Shepparton, an offence of obtaining property by deception contrary to the Crimes Act 1958 (Vic), whereby between 1/07/2015 and 2/10/2016 Dr Lee dishonestly obtained Oxycontin CR, Endone, Tramadole Sandoz SR and Zolpidem with the intention of permanently depriving Chemist Warehouse of Oxycontin CR, Endone, Tramadole Sandoz SR and Zolpiderm.

4.2 As a result, Dr Lee was released, without conviction, on an undertaking to be of good behaviour for two years with a special condition that he contribute $1,000 to the Court Fund.

4.3 Dr Lee provided a written response to the issues for investigation on 19 April 2017. Relevant to the Notice of Allegations, Dr Lee admitted:

(a) on 21 November 2016, he pleaded guilty to one charge of obtaining property by deception and three charges of possessing a drug of dependence, and was released without conviction on all four charges on an undertaking to be of good behaviour until 21 November 2018, and to pay $1,000 to the Court Fund; and

(b) he had previously worked as a medical practitioner whilst under the influence of medications that had not been prescribed to him by a medical practitioner and indicated that he believed that he may have been affected by Tramadol on occasions whilst working at Goulburn Valley Health.

4.4 On 23 June 2017 the PBA [On 22 June the MBA] determined to refer the matter of Dr Lee's professional conduct to the Tribunal, pursuant to section 193(1)(a) of the National Law, because it reasonably believed that he had engaged in conduct that constituted professional misconduct.[5]

5.1 The Allegations contained in the Notice of Allegations are as follows:[6]

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 21 November 2016, Dr Lee was found guilty in the Magistrates' Court of Victoria of four criminal offences.

(i) at all material times Dr Lee held provisional registration as a medical practitioner;

(ii) from 12 August 2016, Dr Lee was a registered pharmacist, subject to an undertaking to the PBA not to practise;

(iii) from on or about 20 July 2015 to 17 July 2016, Dr Lee was employed at Goulburn Valley Base Hospital in Shepparton as an intern;

(iv) on 21 November 2016, Dr Lee pleaded guilty to and was found guilty of the following charges numbered 1, 3, 6 and 9 on Magistrates' Court case number G12697195:

• (A) at Shepparton between 31/12/2015 and 15/07/2016, Dr Lee did by deception present a forged prescription to dishonestly obtain prescription drugs, with the intention of permanently depriving Priceline Pharmacy of Lyrica, Tramadol Hydrochloride, Endone, Tramedo SR, Zolpidem Tartrate, Solone and Temaze, contrary to section 81(1) of the Crimes Act 1958 (Vic); and
• (B) at Shepparton between 31/12/2015 and 15/07/2016, Dr Lee possessed a drug of dependence namely Lyrica, Tramadol Hydrochloride, Endone, Tramedo SR, Zolpidem Tartrate, Solone and Temaze, contrary to section 77 of the Drugs Poisons and Controlled Substances Act 1958 (Vic);
• (C) at Shepparton between 04/05/2016 and 21/06/2016, Dr Lee did by deception present a forged prescription to dishonestly obtain Endone, Oxycodine SR and Zolpidem prescription drugs, with the intention of permanently depriving Chemist Warehouse of Endone, Oxycodine SR and Zolpidem, contrary to section 81(1) of the Crimes Act 1958 (Vic);
• (D) at Shepparton, between 1/07/2015 and 2/10/2016 Dr Lee did by deception dishonestly obtain Oxycontin CR, Endone, Tramadole Sandoz SR and Zolpidem with the intention of permanently depriving Chemist Warehouse of Oxycontin CR, Endone, Tramadole Sandoz SR and Zolpiderm, contrary to section 81(1) of the Crimes Act 1958 (Vic);

(v) Good Medical Practice: A Code of Conduct for Doctors in Australia (version effective from 17 March 2014) provides that:

9.2.2 Seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment.

9.2.4 Conforming to the legislation in your state or territory in relation to self-prescribing;

(vi) Pharmacy Board of Australia: Code of Conduct (version effective from 17 March 2014) provides that:

(b) seeking expert, independent, objective advice when a practitioner needs healthcare and being aware of the risks of self-diagnosis and self-treatment

(d) for practitioners who are able to prescribe, conforming to the legislation in the relevant states and territories in relation to self-prescribing.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that during 2016, Dr Lee practised the profession of medicine whilst affected by drugs.

(i) at all material times Dr Lee held provisional registration as a medical practitioner;

(ii) from 12 August 2016, Dr Lee was a registered pharmacist, subject to an undertaking to the PBA not to practise as a pharmacist;

(iii) from on or about 20 July 2015 to 17 July 2016, Dr Lee was employed at Goulburn Valley Base Hospital in Shepparton in his capacity as a provisionally registered medical practitioner;

(iv) whilst working in his capacity as a provisionally registered medical practitioner at Goulburn Valley Base Hospital in 2016, Dr Lee was affected by prescription medications, including but not limited to Tramadol, which had not been prescribed to him by a health practitioner;

(v) Good Medical Practice: A Code of Conduct for Doctors in Australia (version effective from 17 March 2014) provides that:

Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy.

8.1 In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct;

(vi) Pharmaceutical Society of Australia: Code of Ethics for Pharmacists (version effective from September 2011) provides that:

1. A pharmacist upholds the reputation and public trust of the profession

A pharmacist will not abuse the trust and respect of individuals and society.

6.1 Dr Lee admits that he engaged in the conduct particularised in the Notice of Allegations, set out in paragraph 5 above.

6.2 Dr Lee admits that the conduct set out in Allegation 1 [in each referral] constitutes professional misconduct within the meaning of paragraph (c) of the definition of professional misconduct contained in section 5 of the National Law.

6.3 The Board will submit that the conduct set out in Allegation 2 constitutes professional misconduct within the meaning of paragraph (c) of the definition of professional misconduct contained in section 5 of the National Law.

6.4 Dr Lee does not admit that the conduct set out in Allegation 2 constitutes professional misconduct. Dr Lee also intends to make submissions/give evidence about the significance of, and what he meant by, the evidence that he gave before the Tribunal on 16 December 2016.

7.1 The parties jointly submit that an appropriate determination in this matter is that Dr Lee be reprimanded (section 196(2)(a)).

7.2 The Board will further submit that Dr Lee be disqualified from applying for registration as a pharmacist for a period of two years (section 196(4)(a)), and that this period of disqualification commence on the Tribunal's decision and run concurrently with his existing period of disqualification.

The Board will further submit that Dr Lee be disqualified from applying for registration as a medical practitioner for a period of two years (section 196(4)(a)).

7.3 Dr Lee will submit that no further disqualification period should be imposed on his registration.

Dr Lee will submit that he should be disqualified from applying for registration as a medical practitioner for a period of one year (section 194(4)(a).[7]

1. In respect of Dr Lee's conduct, it is open to the Tribunal to make the following findings pursuant to s 196(1):
   • (a) that Dr Lee has no case to answer and no further action is to be taken in relation to the matter (s 196(1)(a)); or
   • (b) one or both of the following:
     1. that Dr Lee has behaved in a way that constitutes unprofessional conduct as defined in s 5 of the National Law (s 196(1)(b)(ii));
     2. that Dr Lee has behaved in a way that constitutes professional misconduct as defined in s 5 of the National Law (s 196(1)(b)(iii)).
2. In this case, as indicated in the Agreed Statement, the parties have jointly agreed that Allegation 1 constitutes professional misconduct within paragraph (c) of the definition contained in s 5 of the National Law. Furthermore the parties have agreed that Dr Lee ought to be reprimanded for such misconduct.
3. The Tribunal must have regard to any such agreement reached between the parties and should not readily depart from an agreed finding and sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances.[8]
4. Furthermore, the High Court has in Commonwealth v Director Fair Work Building Industry Inspectorate[9] confirmed that:

1. there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;[10] 2. Barbaro has no application to cases of this kind;[11] and

1. upon persuasion of the accuracy of the parties' agreement as to facts and consequences, and that the penalty the parties' proposal is an appropriate one, it is a highly desirable practice for the Court to accept the parties' proposal.[12]
2. However, an agreement between the parties does not automatically determine the outcome. The Tribunal must reach appropriate findings and determinations after examining all the circumstances, including the Agreed Statement and applying the statutory definitions having regard to applicable standards of professional conduct.
3. For reasons more fully set out below, we find that Allegation 1 clearly constitutes professional misconduct and warrants a determination including a reprimand.
4. As indicated in the Agreed Statement, the Boards have jointly agreed that Allegation 2 also constitutes professional misconduct. However, Counsel for Dr Lee submitted that Allegation 2 as formulated, could not sustain a disciplinary charge. This submission will be dealt with as a preliminary objection below.

1. We note that Dr Lee is no longer registered as a pharmacist or a medical practitioner. Accordingly, the Tribunal will not have the ability to impose certain determinations under the National Law in respect of his registrations following any findings it makes regarding the Boards' Allegations. However, it will be open to the Tribunal to make recommendations as to appropriate conditions, in the event that Dr Lee seeks to be re-registered in either or both professions.
2. In the circumstances where Dr Lee is not currently registered in either profession, the Tribunal may make one or more of the following determinations pursuant to s 196(2) of the National Law:
   • (a) that Dr Lee be cautioned or reprimanded (s 196(2)(a));
   • (b) that a fine of not more than $30,000 be imposed on Dr Lee and made payable to the Board (s 196(2)(c));
   • (c) disqualify Dr Lee from applying for registration as a registered health practitioner for a specified period (section 196(4)(a)); or
   • (d) prohibit Dr Lee from using a specified title or providing a specified health service (section 196(4)(b)).

1. The law relating to the making of determinations was extensively considered and summarised in Medical Board of Australia v Jansz[13] and Medical Practitioners Board of Victoria v Naik[14] and can be summarised as follows:
   • (a) the purpose of the imposition of determinations is to protect the public;[15]
   • (b) determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;[16]
   • (c) determinations should in no way be punitive;[17]
   • (d) the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner;
   • (e) personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
   • (f) the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;[18]
   • (g) the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
   • (h) insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and
   • (i) any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a 'slap over the wrist'.[19]
2. In addition we acknowledge the further submission of Dr Lee's Counsel to the effect that appropriate determinations cannot be reached according to a set formula, rather, every case must be determined on its own unique facts;[20] including mitigating circumstances.[21] In appropriate cases, the Tribunal also recognises the need to impose determinations which support rehabilitation and give weight to periods of time already away from practice.
3. We will return to the above objectives below.

1. It is well established that the Board must prove its case on the balance of probabilities in accordance with the test in Briginshaw. [22] The Tribunal must reach a comfortable level of satisfaction in finding the matter(s) proved on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.
2. In Medical Board of Australia v Alkazali,[23] the approach to be applied by the Tribunal was recently restated:

In Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited [2013] VSCA 305 the Court of Appeal again had occasion to consider the Briginshaw test in the context s 140 of the Evidence Act 2008. The Court observed that while the considerations embodied in the Briginshaw test are now reflected in s 140 of the Evidence Act 2008, that Act only applies to proceedings in a Victorian court (Evidence Act 2008, s 4) which is defined to include persons or bodies required to apply the laws of evidence. The VCAT Act makes plain that the Tribunal is not bound by the rules of evidence. Accordingly:

...provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law... it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue (at [36]-[37]).

1. Dr Lee provided two written statements[24] and oral evidence before the Tribunal.
2. Dr Lee admitted that his conduct the subject of Allegation 1 was professional misconduct. However, in relation to Allegation 2, he sought to clarify a previous statement to AHPRA that he may have worked at Goulburn Valley Health while affected by tramadol:[25]

By this I mean that it would have been in my system when I was at work and would have shown up had I been drug tested. I did not mean that I was drug impaired at work. I do not believe I ever worked while drug affected in the sense of it affecting how I was able to care for my patients and do my work. No one at work ever noticed me being drug affected and I do not think I ever was. My supervisors, registrars, co-interns, other hospital staff and end of term reports can attest to this as there were no complaints made against my practice.

1. In our view, the above statement modifies his earlier statements. In particular:
   • (a) In his response to AHPRA's letter of 1 March 2017, Dr Lee included the following statement:[26]

I acknowledge that I have previously worked as a medical practitioner whilst under the influence of medications that had not been prescribed to me by a medical practitioner. I believe that I may have been affected by Tramadol on occasions whilst working at Goulburn Valley Health.

(b) Furthermore, in his statement made in support of his application for general registration as a medical practitioner, having been advised of the Board's expressed proposal to refuse his registration, Dr Lee said:[27]

I understand why the Board is concerned about my actions. It is clear to me that practising while in active addiction is of great concern for anyone who is involved with patient care. This is because the mental state of the practitioner, whether intoxicated outside or at the workplace, may be compromised and potentially lead to accidents and even death.

If the health practitioner's psychological state is adversely affected, it is not only the duty of the affected practitioner to seek help but also be limited in practice until well again.

I see that I have failed to seek help in both instances of using substances. To understand why this has happened, unfortunately, the nature of drug addiction and drug use veils the user as to whether they are adversely affected. I now fully understand I was unwell and in active addiction as well as fortunate enough not to have caused harm to others. [emphasis added].

If I was to tell the patient I am a doctor that cares for them, but is drug affected, I am sure that not one patient would want me as their treating doctor as it is clear that it may cause harm. It was a betrayal and a lie to be affected by medication and practice medicine - a lie to myself, my peers and to the patient. Therefore I am ashamed of myself.

1. Further in his earlier statement, Dr Lee refers to his use of tramadol thus: [28]

I admit I worked whilst affected by Tramadol. The prescription medications were used for immediate effect to suppress my worries, anxiety and despair about my family issues. It elevated my mood at work so that I could focus at work and sleep at night. The goal had always been with my drug use to stay functional and to push through troubled times.

I completely understand that working while under the influence is unacceptable no matter what the circumstances. I completely understand drug use is not something that can be controlled and that I was addicted to the use of these substances. I also know that I had a mental health illness and I was fortunate that I did not harm any patients. And finally, I understand that self-prescribing is detrimental to my health and safety.

1. In our view, Dr Lee has articulated in his earlier statements to AHPRA and particularly to the MBA, a better understanding of the nature and consequence of addiction. It necessarily clouds judgement in ways which the drug user rarely admits or appreciates at the relevant time. We will return to this circumstance below.

1. Dr Lee was born in Korea and has a younger brother. At age one the family moved to Malaysia and at age 16 they moved to the Queensland Gold Coast. He describes a difficult upbringing dominated by domestic violence of his father predominantly directed at his mother. Although he performed to a high level academically, he felt socially isolated and suffered stress and sleep disturbance which he says lead him to self-medicate, initially with illicit drugs such as marijuana and cocaine.
2. Once he was working in a pharmacy he had access to various discarded sleeping medications, which he took to assist with his insomnia and anxiety, although he now acknowledges that such medications would have been more detrimental. He describes his first period of offending in 2012 (prior to the Allegations the subject of this Hearing) as being precipitated by a particularly violent episode involving his father assaulting his mother, which resulted in police intervention and an intervention order being taken out against his father. He subsequently took a prescription pad from his hospital placement [he was still a medical student] and used it to obtain a range of different medications.
3. Dr Lee describes a period in 2014 when he says that he stopped using drugs, although he acknowledged that he 'kept various drugs for my later use in case things got bad again'.[29]
4. In his statement he describes his subsequent relapse into further offending [the subject of Allegations at this Hearing] as occurring in a context of his self-denial that he had an addiction problem.
5. Dr Lee commenced his medical internship at Goulburn Valley Health on 20 July 2015. He describes being able to cope with the stressors of medical practice. However, concerns for his mother overcame him when he learned that she had to move into a refuge to escape his father's violence. He felt despair and suffered insomnia. He says he initially asked his medical registrar to prescribe some sleeping medications but he subsequently self-prescribed.

I never took doses enough to be affected in a way that I was unable to focus at work. However, I used doses of sleeping medications, the last three months before I was caught, that did not make sense, which is one of the many reasons why I know I was in active addiction.[30]

1. In her report, Associate Professor Anne Hassett recorded that:

...during this relapse, Dr Lee reported that he used much higher doses of medications, especially Tramadol and Zolpidem. He said he was taking up to 7 tablets of Zolpidem at night and might supplement with up to 3 tablets of Temazepam. This was in addition to Tramadol which he took in varying doses. Dr Lee acknowledged that, during this period he was in "active addiction". He said he only stopped when he was "caught" in August 2016. He said, subsequently, he went "cold turkey" and had severe withdrawal symptoms for 2 to 3 months. He said he has not taken any medications, except paracetamol occasionally since that time.[31]

1. We will return to the observations of Assoc. Prof Hassett below.

1. Dr Lee confirmed in oral evidence that he is currently attending:
   • (a) Ms Dianne Abbott, Psychologist for counselling every fortnight;
   • (b) Dr Monheit, Physician, who specialises in addiction medicine, every 4 to 6 weeks;
   • (c) Dr Mead, General Practitioner, about once per month; and
   • (d) weekly meetings with a Caduceus peer group.
2. He also continues to engage with the Victorian Doctors Health Program (VDHP) and comply with the Case Management Agreement via Cheryl Wile.
3. Dr Frei reported[32] that Dr Lee's urine tests had been conducted through VDHP initially from 2017 and then ordered by Dr Monheit and Dr Mead from October 2017. All tests provided to Dr Frei were negative and appeared to be for standard drugs of misuse tested approximately twice weekly. Since about mid-2018 urine tests have been downgraded to random testing, which have continued to be negative. There have been no results of hair testing.
4. Dr Lee expressed gratitude for the support and insight he has gained through his association with the Caduceus peer group and his role as a support worker with drug and alcohol clientele:

I am so glad and grateful that I never overdosed or progressed further into more intense addiction and so grateful and relieved that I never harmed any patient.[33]

I admit I worked whilst affected by Tramadol. The prescription medications were used for immediate effect to suppress my worries, anxiety and despair about my family issues. It elevated my mood at work so that I could focus at work and sleep at night. The goal had always been with my drug use to stay functional and to push through troubled times.

I completely understand that working while under the influence is unacceptable no matter what the circumstances. I completely understand drug use is not something that can be controlled and that I was addicted to the use of these substances. I also know that I had a mental health illness and I was fortunate that I did not harm any patients. And finally, I understand that self- prescribing is detrimental to my health and safety.[34]

1. Dr Lee acknowledged in his statement that when he got caught the second time he attempted to persuade the medical registrar, whose prescription he had forged, to cover for his illegal actions. He expressed shame for reacting in this way and abusing his power by misusing his superior's prescriber number for self-gain. When subsequently he met with the hospital chief medical officer and his intern supervisor, he fully admitted his wrongdoings.
2. In his statement of 24 July 2017, Dr Lee expressed confidence that, after some 11 months of rehabilitation and recovery, he considered that he was now a fit and proper person to be registered for medical practice. This was not a view confirmed by Assoc. Prof. Hassett or Mr Newton in their respective reports referred to below.
3. In his oral evidence Dr Lee referred to two stressful circumstances which gave him the opportunity to apply new coping strategies:
   • (a) First in May 2017, there was a further aggressive incident involving his father where he had to be removed from the house;
   • (b) Secondly, whilst working at Windana, a close colleague died of a suspected heroin overdose.
4. In the context of each of these incidents, he dealt with his stress by talking to his support network and did not feel that he was at any risk of resorting to drugs.
5. Dr Lee described why he wanted to be a doctor in this way:

I enjoy working with people and helping them. I love problem-solving and the art of diagnosis. Because of my own experiences I believe I have a lot of empathy. I understand patients and their fears. I'm not hung up on status. I love forming good rapport with my patients and relish the challenge of facing patients and showing humility.[35]

1. Dr Lee said he intended to continue to attend his support doctors as long as they considered it necessary. Although he feels he is ready to resume medical practice, he acknowledges that his recovery is an ongoing process.
2. In relation to his earlier offending, he said that he now realises he had very little insight and did not appreciate the extent of his addiction. He said there was no reference to addiction in his counselling and he was told it was 'situational'. Even when he relapsed into reoffending within six months after his bond expired, he still did not accept that he had an addiction. He agreed that he misled doctors who supervised him after his initial offending and who were making reports to AHPRA that everything was fine.
3. Dr Lee said that the Tribunal could have confidence that he would not relapse now as he has since overcome worse stressors at work and at home. When asked about these stressors by the Tribunal panel, he referred again to the incident with his father in November 2018 and the death of a work colleague. He described his coping strategies, including, communicating both personally and professionally; undertaking physical exercise, such as calisthenics; weight training and meditation; cooking; catching up with his girlfriend and friends and other non-medical interests.
4. He perceives that the main stress triggers in the past related to family issues rather than work pressures. He believes that he can now identify early signs of potential relapse and also rely upon his support network to identify lack of engagement on his part.
5. Since the offending he has not taken any prescribed medication. He acknowledged that there was a connection between his early illicit use of drugs and subsequent unauthorised use of prescription drugs, believing he had some control.

1. Dr Lee currently lives with his mother and is in an ongoing supportive relationship with his girlfriend. He does not have any contact with his father.
2. Dr Lee says that he has dedicated himself to keeping fit physically and mentally and enjoys the company of family and close friends, all of whom know his circumstances.

1. In July 2018 he successfully completed a Graduate Certificate in Clinical Ultrasound; and has also completed short courses on radiology at the Alfred Hospital and on line. He also completed research projects referred to in his previous statement to the MBA.
2. He is currently a volunteer one night per week at the Queen Victoria Market distributing food to homeless people.
3. He also works as an Other Drugs support worker with Uniting Care ReGen.
4. Since July 2018, Dr Lee has been employed full time as a Harm Reduction Practitioner at Windana in St Kilda. This required him to undertake three months training and then shadow other employees before taking clients. He will see clients individually and also in conjunction with other team members. He is not involved in counselling but will take a history and link clients to other services.
5. Dr Lee disclosed his history of drug addiction to his prospective employers and is not in any way engaging in work which involves the practice of a pharmacist or medical practitioner.

1. Dr Lee expressed his desire to eventually reregister with the PBA [although in evidence he said he was in no hurry] on an academic basis and practise as a medical practitioner with an academic interest in clinical pharmacology.
2. He accepts that upon resumption of practice he would be subject to conditions such as restricted hours of work; continuing to engage in support services; mentoring and supervision; random drug screens; and prohibition upon access to or dispensing Schedule 8 drugs of dependence.
3. At various times since undertaking to cease medical practice Dr Lee has expressed a particular interest in specializing in Haematology and then Radiology. In light of his experience at Windana, he now expresses an interest in pursuing Psychiatry.
4. We note that Dr Lee's professional aspirations have changed quite markedly. However, Dr Lee has completed only one year as a Medical Intern and he clearly has plenty of time to gain further relevant medical experience in pre-vocational training before settling upon a suitable specialty.

Patrick Newton Clinical and Forensic Psychologist

1. Mr Newton conducted a psychological assessment on Dr Lee on 30 August 2016 in anticipation of the previous Tribunal hearing. At that stage, the investigation of the current misconduct now before this Tribunal was still continuing but Dr Newton nevertheless took a history encompassing such misconduct. We propose to make limited reference to Mr Newton's report in regard to aspects of the history given by Dr Lee as well as Mr Newton's psychological assessment.
2. In a detailed history Mr Newton records:[36]

Dr Lee reported that he had experienced symptoms of anxiety and depression since childhood. He told me that the primary cause of these had been the violence in his parents' relationship. Beyond this, Dr Lee noted that he had often experienced significant anxiety regarding his performance at study and work. He said that his anxiety had taken the form of insomnia and general irritability which had persisted for many years.

... When he was younger he had been able to manage his dysphoria effectively through distraction and engagement with recreational activities. He said that his ability to do so had deteriorated from 2011 - that is from his first year of medical studies.... He had found the demands of studying medicine and working as a pharmacist overwhelming... His concerns were magnified by his separation at that time from his parents and his concern about his mother's safety.

1. Mr Newton further records the progressive use of illicit drugs (amphetamines to boost alertness and cannabis to help him sleep) from 2011 to 2012 when, now working as a pharmacist, he used tramadol which had been handed in by a patient for destruction. Subsequently, following an incident of violence between his parents, he first misappropriated a prescription pad and wrote prescriptions for himself for various benzodiazepines, tranquilizers, opiates and other analgesics and stimulants. Dr Lee reported that he continued to 'cycle through' these drugs in an effort to manage his dysphoria until his arrest in late 2014. Although he underwent psychological counselling, which focused on both treatment for his depression and anxiety as well as addressing relapse prevention, he discontinued treatment once the mandated period had expired. In late 2015 and early 2016, following further conflict between his parents, he sought a prescription from his supervising medical practitioner for a tranquilizer (zolpidem) upon which he says he soon became dependent. Rather than raise his problem with his supervisor he again misappropriated a prescription pad and wrote prescriptions for tranquillisers (zolpidem and temazepam), analgesics (oxycodone, tramadol and Lyrica®) and various other drugs. Eventually his offending was detected and reported to police.[37] This latter offending is the subject of the Allegations now before the Tribunal.
2. Mr Newton's report is particularly insightful in placing Dr Lee's progressive addiction in a broader context. There is no question that the family violence perpetrated by his father provided a significant trigger for his unauthorized use of prescription medication. It is this circumstance which Dr Lee has emphasised in his oral evidence and written reports. However, the assessments made by both A.P. Hassett and Mr Newton paint a far more complex picture, which exposes Dr Lee's superior intelligence, perfectionism and underlying personality traits as forming an historic basis which set him up for his offending behaviour. In Mr Newton's opinion:[38]

Dr Lee has also experienced chronic difficulty coping with the demands of his work as a medical practitioner. While he said that he enjoys the practice of medicine, he acknowledged that since the beginning of his studies in the field he has found it difficult to manage the standards expected of him as a doctor. Some of his anxiety can be traced to his own adoption of perfectionist and rigid standards of conduct to which even the most functional medical practitioner would struggle to conform, but it is also clear that Dr Lee has experienced pervasive anxiety related to issues of workload and time management.

Dr Lee has experienced ongoing symptoms of depression and anxiety since childhood. In my opinion, he would meet DSM-5 criteria for the diagnosis of a Persistent Depressive Disorder (Dysthymia). This condition is superimposed on the obsessive personality traits which dominate Dr Lee's personality

Dr Lee's maladaptive personality traits are an entrenched part of his identity. They have been stable across his personality from adolescence and into his adult years. They have underpinned his offending and both rendered him vulnerable to depressive mood disturbance and exacerbated and prolonged that disturbance when it developed. I concluded that he would meet DSM -5 criteria for an Obsessive Compulsive Personality Disorder.

1. Mr Newton also usefully articulates Dr Lee's limited insight even after being detected for a second period of offending:[39]

Dr Lee's drug use was clearly intensely problematic. While his medical training had provided him with clear knowledge of the effects of the substances he abused - including their potential for dependence and misuse - he failed to apply this knowledge to himself. Rather, he rationalised that his superior knowledge about drugs would be sufficient to allow him to avoid the risks inherent in the use despite the mounting evidence to the contrary. During his interview with me it was apparent that even now he minimises the significance of his substance use: misunderstanding the medical and psychological risks it poses and rationalising its use as not having been hazardous since he did not harm any patient or fail in his medical duties.

Dr Lee thus appears to have adopted many of the rationalisations typical of drug using patients. Such issues are not uncommon in health professionals under stress and are typically a focus of professional supervision and appropriate modification of duties as needed. In Dr Lee's case, his perfectionism were such that he avoided discussing these issues with his clinical supervisors and maintained a veil of secrecy that further entrenched his addiction while undermining the very support which might otherwise have helped him to manage his work stress more effectively.

1. Finally, Mr Newton concludes, on the basis of his assessment in September 2016 that:
   • (a) Dr Lee's substance related problems remain at a very early stage of treatment;
   • (b) Dr Lee's mastery of alternative means to manage his psychological, family and stress-related problems is limited and poorly established; and
   • (c) Dr Lee has previously relapsed quickly after the cessation of prior treatment when stressors developed and despite the deterrent effects of the undertakings he had given to the PBA and the availability of support from his medical supervisors.
2. Mr Newton considered that Dr Lee's risk of relapse to problematic substance use will remain high for at least the next 1 to 2 years [until at least September 2018]. Mr Newton further recommended a further extended period of treatment for 12 to 18 months; drug abstinence for at least two years; and that any subsequent practice be subject to strict conditions including supervision by a senior colleague, which also extends to dispensing and/or prescribing practice; random urine testing; and reports of treating clinicians and supervisors.

Associate Professor Anne Hassett Consultant Psychiatrist (A.P. Hassett)

1. A.P. Hassett undertook an independent health assessment of Dr Lee in November 2017 at the request of the MBA. After recording a detailed history, A.P. Hassett reported that:[40]

In terms of insight, Dr Lee emphasised that he had progressed from having minimal insight about his substance use problems at the time his behaviour was problematic, to now having "in-depth" insight into his mental health issues. He considered that he now had adequate and more adaptive coping strategies to deal with his anxiety and family related stress issues and he would not relapse into further drug offending behaviour. He further considered that his experience of domestic violence in his family of origin and, perhaps a genetic tendency to addictive behaviours in his father's family, had been the main causes of his own drug misuse.

1. In conclusion, A.P. Hassett considered that Dr Lee was progressing well along his path of recovery but notwithstanding his level of confidence, she expressed a number of concerns, namely:[41]
   • (a) This is Dr Lee's second relapse in a relatively short period of time. By his account, he quickly became dependent on the medication he was taking in excessive amounts and he experienced withdrawal symptoms for several months;
   • (b) In both Dr Lee's relapses he does not seem to have appeared as anxious, depressed or under the influence of addictive medication, such as to be of concern to his general practitioner or supervising colleagues;
   • (c) Although Dr Lee considered depression to be a significant contributing factor to his first relapse, in particular, his symptoms appeared to resolve without intervention during 2014 before he was apprehended;
   • (d) Dr Lee appears somewhat overconfident about the level of insight he has developed with somewhat limited psycho therapeutic treatment;
   • (e) There appears to be a sense of entitlement and, perhaps, lack of 'moral compass' on Dr Lee's part that he would consider stealing prescriptions in order to self-prescribe medications to alleviate his stress and anxiety. There appears to be a degree of deliberate calculation in that he will also prescribe himself non-addictive medications in order to deflect suspicion from his deceptive activity;
   • (f) Dr Lee's continued attributing causation for his illegal behaviour to family issues and possibly genetic factors suggests that he may not yet have internalised the importance of personal responsibility regarding his professional behaviour.
2. In answer to specific questions A.P. Hassett replied:
   • (a) ... Although Dr Lee was stressed during his relapse in 2016, I am not convinced that depression was a significant factor in his second relapse. I accept that Dr Lee experiences anxiety and struggles with setting high standards for himself, traits not uncommon among health professionals.
   • (b) I consider that Dr Lee has now had two significant episodes of polysubstance abuse since 2013, with aspects of dependency, which only ended in August 2016 when he was apprehended by police. This suggests that Dr Lee remains vulnerable in this regard, even though he presents as committed to a recovery pathway and expresses confidence that he will not relapse.
   • (c) I consider that Dr Lee's vulnerability to relapses of substance abuse is the major factor detrimentally affecting his capacity to practice medicine. His two relapses have been significant, with criminal complications. I have concerns about his level of insight and that he does not have sufficient oversight by a psychologist or psychiatrist in terms of assisting him to consolidate more adaptive strategies to manage his anxiety and stressful personal issues.
3. We will return to the concerns raised by Mr Newton and A.P. Hassett below.

1. Dr Mead confirmed by letter dated 11 July 2018 that Dr Lee has consulted him as a GP at the University Health Service on a regular basis over the last 4 years.[42]

Dr Matthew Frei Physician and Addiction Medicine Specialist,

1. Dr Frei examined Dr Lee on 13 November 2017.[43]
2. In his report, Dr Frei concluded that:[44]

Dr Lee has clear evidence of aberrance related to prescribed drugs, in that he has self-prescribed anxiolytics and opioids fraudulently. He has a record of repeating this behaviour following disciplinary action/responses. This indicates (at least at the time of the re offending), a poor level of insight into the seriousness of his actions, features of impulsivity and lack of control. These behaviours are consistent with a diagnosis of substance use disorder.

1. Dr Frei also made the following interesting observation:[45]

I note in my interview with Dr Lee that he did not display emotion when relating his history and its consequences. I am not of the view that this is part of a picture of sociopathy or indicates absence of understanding of the seriousness of his drug use and associated criminal behaviour. His apparent aloofness may in fact be a cultural attitude and/or personality trait. It is often seen, in my experience, in those individuals recovering from the trauma of family violence.

1. Dr Frei considered that on balance, Dr Frei would have the capacity to return to full time clinical medicine, with appropriate limitations and safeguards, including:[46]
   • (a) Work within business hours and no on call;
   • (b) Oversight by a workplace supervisor;
   • (c) At least weekly biochemical testing and 3 monthly hair testing;
   • (d) Restrictions on the prescribing and administration of drugs of dependence;
   • (e) Regular reporting by a workplace monitor; and
   • (f) Reports from members of his treating team such as his addiction medicine specialist; psychologist and VDHP case manager.

1. The VDHP is a confidential supportive service for medical practitioners experiencing mental health and/or substance abuse issues.
2. Dr Lee first attended the VDHP in August 2016 at the direction of his workplace. He entered into a Case Management Agreement or 'care plan' tailored to his needs which contained the following conditions:[47]
   • (a) To be abstinent from all mind or mood altering drugs except those prescribed by his treating doctors;
   • (b) To attend regular appointments with Dr Bennie Monheit, addiction medicine specialist;
   • (c) To attend regular appointments with psychologist Valentina Markovska;
   • (d) To attend appointments with Dr Mead GP, as required;
   • (e) To attend the Caduceus group on a weekly basis;
   • (f) To attend regular follow up appointments with [Cheryl Wile]; and
   • (g) To undergo random urine drug screening.
3. In a letter dated 9 July 2018, Ms Cheryl Wile, Psychologist and Case Manager VDHP confirmed that:[48]

Dr Lee is well engaged with the VDHP, is in full compliance with his Agreement, and reports much improved emotional and physical health.

1. Ms Abbott provided a report dated 14 July 2018 in which she confirms having been Dr Lee's treating psychologist, upon referral from Dr Mead GP, since January 2018. Ms Abbott states:[49]

Treatment has involved assessment, psychodynamic therapy, cognitive behaviour therapy, mindfulness, reinforcement of healthy life skills and relapse prevention.

Dr Lee has developed a deep understanding of the issues and events that underpinned his substance abuse. He has explored and recognised the connection between the events of his childhood, stress and substance abuse. This in depth exploration together with the development of alternative strategies for stress has provided a well-defined sense of self awareness and stability that will provide the ability and self-respect to avoid any further abuse of drugs.

1. Ms Abbott provided a further report dated 4 February 2019 in which she confirms that she continues to see Dr Lee fortnightly. She states:[50]

Dr Lee shows every sign of stable and well-balanced mental health combined with optimal physical well-being.

His ability to function well in his current employment is a great indicator of the progress he has made and the positive path he is now on. There have also been two major challenges to his stability that further point to the positive way he is managing stressful situations.

1. Ms Abbott describes the situations concerning the sudden death of a work colleague of Dr Lee from a suspected heroin overdose, in October 2018; and his father's further domestic violence against his mother in November 2018, resulting in police intervention. In both instances, Ms Abbott considered that Dr Lee was able to utilise strategies effectively, including exercise, expressing his feelings and engaging with his supports.

Dr Benny Monheit Addiction Medicine Physician

1. Dr Monheit has been one of Dr Lee's supervisors for AHPRA. In his report dated 5/02/2019, he confirmed:

I have been seeing Gyu Sung Lee regularly since November 2016 for review of his drug compliance monitoring requirements. AHPRA arranges random urine drug screens on him every 2-4 weeks and I get a copy of the results. The urine tests over the past 2 years have all been clear of any illicit drugs. He used to be on more frequent tests, but the number has been reduced due to good compliance.

Gyu Sung Lee is physically and mentally in a good state. He is not using any unprescribed drugs as confirmed by his history, clinical examination and urine tests. He has kept himself busy with study for an ultrasound diploma course and is working as a harm reduction practitioner at Windana detox centre. He has remained drug free in spite of some personal difficulties with his father and with the unexpected death of a client at work. This shows, I think, that he has learnt to deal with stress in a much better way than he used to in the past.

I am supportive of his plan to return to work once he has met all the AHPRA requirements.

1. Dr Lee has been employed full time at Windana since July 2018, working with clients in drug and alcohol detox and rehabilitation. Ms Sandra Hocking, Manager Withdrawal and Coordinated Care, reports:[51]

...he has demonstrated qualities of leadership, reliability, honesty and integrity. He has taken initiative and trained staff in emergency response and use of life saving equipment. He has shown himself to be a great asset to the organisation. He works collaboratively with other local service providers and all reports back from them are consistent with our experience.

1. Ms Hocking also notes that Dr Lee has been open about his prior drug abuse and there have been no discrepancies with any of the medications or drugs of addiction which are accessible at the Windana centre.
2. Ms Maree Cations Program Coordinator Windana provided a similarly supportive letter and also confirmed that Dr Lee is knowledgeable and 'passes on his experiences in a constructive and supportive way'.[52]

1. Counsel for Dr Lee submitted that Allegation 2, as framed, cannot support a disciplinary charge. In particular, the Tribunal cannot be satisfied, on the balance of probabilities that Dr Lee engaged in conduct which constituted a breach of professional standards.
2. In summary, Counsel submitted that Allegation 2 is fundamentally flawed in merely relying upon an assertion that whilst Dr Lee was working at Goulburn Valley Base Hospital he was 'affected by prescription medications including but not limited to tramadol which had not been prescribed to him by a health practitioner.'
3. Furthermore, Counsel submits that:
   • (a) There is no allegation that the drugs were detrimental to Dr Lee's capacity to practise or that any patient was harmed;
   • (b) There is no evidence that the drugs (or tramadol in particular) were detrimental to Dr Lee's capacity to practise or what effect the drugs could or did have;
   • (c) There is no evidence that any patient was harmed or at risk whilst under Dr Lee's care;
   • (d) There is no evidence as to how being 'affected by drugs' is a breach of professional standards sufficient to warrant disciplinary intervention; and
   • (e) Dr Lee received positive assessments during the relevant period of work
4. As indicated during the Hearing, we are not persuaded that there is any merit or substance in these submissions.
5. Counsel for the Boards referred to evidence previously given by Dr Lee before the Tribunal in the earlier matter referred by the PBA. Under cross examination:[53]

Q: At any point have you ever worked when affected by drugs, prescription or otherwise?

Q: Is it your view that that's an extremely dangerous thing to do?

A: I believe that is. But it was - my drug use was never to a point where I was not functional, yeah. And as you can see in my reports.

Q: Your view is that - I suggest your drug use helped make you functional isn't it?

Q: so you think you performed better at times as an intern?

Q: but it certainly didn't cause you any detriment is your view?

A: absolutely, but it was not the right thing to do, that's absolutely correct.

Q: I appreciate you say it's not the right thing to do. What I'm trying to understand is do you think that it was dangerous or unsafe in any way to be taking unprescribed prescription medication and turning up to a hospital?

A: Um cause you're intoxicated and it can cloud judgement.

Q: you accept that hypothetically it can cause problems or Cloud judgement, correct?

A: I think it can definitely cloud judgement... Just I was lucky not to have been affected in that capacity.

Q: how did the prescription medication you were abusing in 2016 affect you?

A: Um it helped me sleep. It helped me not feel anxiety throughout work. That was the main reason for the use

1. When cross-examined about his earlier drug taking, in relation to tramadol, Dr Lee said he was using this (and indeed other unauthorized medications) for anxiety and depression, self-diagnosed.[54] Such purported use of tramadol is not consistent with those conditions for which such medication would ordinarily be prescribed.
2. In his assessment by Mr Newton, referred to at greater length above, Dr Lee clearly acknowledges that he considered that the 'affects of Tramadol' was to make him functional. Dr Lee makes similar acknowledgments in statements quoted above under his evidence.
3. Furthermore, the history given to A.P. Hassett includes an admission that his drug taking was so excessive prior to detection that he experienced withdrawal symptoms for several months.
4. Dr Lee has admitted to taking tramadol whilst working in a clinical context, he did so with the intention that it would relieve certain symptoms and that he was indeed 'affected' by such drug. In this context, in our view, it is not necessary to prove that Dr Lee was in fact adversely affected or that he did in fact place any patient at a material risk. It is also irrelevant that Dr Lee considered that he did not pose any risk to patients. The serious misconduct to which Allegation 2 is directed is twofold:
   • (a) First, an un-prescribed drug was taken by Dr Lee whilst working in a clinical context, where such drug is acknowledged to have the potential to impair judgement; and
   • (b) Secondly, a medical practitioner, whose judgement may be impaired, exposes patients to the very real and potentially serious risk, in terms of assessment, diagnosis and treatment, of adverse or even fatal consequences. Any such potential impairment may also adversely impact upon the working relationship with other health professionals.
5. Accordingly, in our view, Allegation 2, as currently formulated, is capable of supporting a finding of either professional misconduct or unprofessional conduct.

1. Professional Misconduct is defined in s 5 of the National Law as including:
   • (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
2. The definition does not preclude more than one sub paragraph applying to particular misconduct. However, in both proceedings, the parties have agreed that only paragraph (c) of the definition applies.
3. In respect of the conduct alleged in Allegation 1, Counsel for the Boards referred to the following circumstances:[55]

(a) On 21 November 2016, the Respondent entered a plea of guilty in the Shepparton Magistrates Court before His Honour Magistrate O'Callaghan to the following charges the subject of Allegation 1.[56]

1. Three charges of obtaining property by deception;[57] and

1. One charge of possess a drug of dependence.[58]

(b) The offending is serious and reflects poorly on the Respondent's character; and

(c) The offending was not isolated. It occurred on a number of occasions over an extended period of time.

The conduct reflected in the criminal charges, as particularised in allegation 1, is admitted as an allegation of professional misconduct. There can be no doubt about the seriousness with which that conduct would be viewed or its potential to reflect adversely on Dr Lee's suitability to practise as a pharmacist or medical practitioner.

1. We concur with the above characterisations of Dr Lee's conduct. Dr Lee engaged in calculated deceptive conduct which not only implicated and breached the trust of a supervising colleague but also wilfully transgressed his fundamental duties as a medical and pharmacy practitioner and his obligations generally to observe and uphold professional standards. It is a particularly aggravating feature of such misconduct that it occurred so soon after similar offending, for which he had already been investigated, prosecuted and had engaged in counselling.
2. Having regard to the admissions made by Dr Lee and other evidence presented before the Tribunal, we are comfortably satisfied, on the balance of probabilities, that Allegation 1 is proven and constitutes professional misconduct under paragraph (c) of the definition of Professional Misconduct in s 5 of the National Law. We are comfortably satisfied that the conduct as particularised in Allegation 1 is inconsistent with the practitioner being a fit and proper person to hold registration in the professions of both medicine and pharmacy.
3. In respect of the conduct alleged in Allegation 2, Counsel for the Boards referred to the following circumstances:

1. The Respondent admits that he has previously worked as a medical practitioner whilst under the influence of medications that had not been prescribed to him by a medical practitioner and believed that he may have been affected by tramadol on occasions whilst working at Goulburn Health;[60]

• (b) The Respondent has thereby demonstrated a lack of regard for those under his care and acted contrary to the following Professional Codes of Practice: 1. Good Medical Practice: A Code of Conduct for Doctors in Australia * 1.4 Professional values and qualities of doctor

Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy.[61]

8.1 In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct;

1. Pharmaceutical Society of Australia: Code of Ethics for Pharmacists (version effective from September 2011) provides that:
   1. A pharmacist upholds the reputation and public trust of the profession

A pharmacist will not abuse the trust and respect of individuals and society.

1. In our view, Dr Lee demonstrated a reckless disregard for the care and safety of patients by taking medication which had not been prescribed for him and which had the potential to impair his judgement. We do not accept that Dr Lee, at the relevant time, was capable of making a rational and informed assessment of whether in fact his judgement or performance was impaired. Furthermore, such conduct constituted an escalation in the misconduct for which he had already been investigated and prosecuted.
2. Having regard to the admissions made by Dr Lee and other evidence presented before the Tribunal, we are comfortably satisfied, on the balance of probabilities, that Allegation 2 is proven and constitutes professional misconduct under paragraph (c) of the definition of Professional Misconduct in s 5 of the National Law. We are comfortably satisfied that the conduct as particularised in Allegation 2 is inconsistent with the practitioner being a fit and proper person to hold registration in both the professions of medicine and pharmacy.

1. The parties helpfully referred the Tribunal to a number of cases. Following is a brief summary of the cases referred by Counsel for the Boards:[62]
   • (a) In Health Care Complaints Commission v Victoria Lau,[63] a pharmacist (L) admitted to the theft, supply and creation of false prescriptions. She also provided false and misleading information to the HCCC investigations. The Pharmacy Tribunal of New South Wales accepted the psychiatric evidence that L had an impairment including depression and a long standing eating disorder; and noted that she had made efforts at various times to seek medical and psychiatric treatment for her substance abuse. The Tribunal found that L had engaged in professional misconduct, cancelled her registration and disqualified her from reapplying for registration for 18 months;
   • (b) In Pharmacy Board of Australia v Chrenowski,[64] a pharmacist (C) admitted to the theft of drugs of dependence from multiple employers for personal use over a period of approximately 21 months. During this period, C misled the investigator during an initial investigation and his treating practitioners as to his ongoing drug use. Rather than dealing with the issue, C's abuse escalated. His registration was suspended in December 2010, from which time he apparently remained drug free. The Health Practitioners Tribunal of South Australia censured C for his professional misconduct, cancelled his registration and disqualified him from reapplying for registration for three years, effective from the earlier date when his registration had been suspended.
   • (c) In Pharmacy Board of Australia v Dougherty,[65] a pharmacist (D) admitted to the theft of drugs of dependence from his employer over approximately 21 months, including dexamphetamine sulphate, which he consumed and other S4 and S8 drugs for which he had no prescription. D voluntarily ceased practice, admitted drug and alcohol dependency and that his conduct amounted to professional misconduct. At the time of the hearing he did not hold registration and was still undergoing rehabilitation. The Tribunal found that D's conduct amounted to professional misconduct. He was disqualified from applying for registration as a pharmacist for two years, effective from the date he ceased practice. The Tribunal explained that the disqualification period would have been longer but took account of the circumstance that D was still in a rehabilitation centre and any future application for re registration would be considered by the Pharmacy Board in the context of expert opinion, which warned:[66]

...It would not be safe to allow a return to practice until he demonstrated a sustained period of abstinence...the crunch will come when he is no longer in that sheltered and controlled [rehabilitation] environment. He will need ongoing treatment and counselling and any return to practice would have to be supervised and monitored including by drug tests.

(d) In our view, a reading of the above decision in Dougherty's case indicates that given D's continuing incapacity and incomplete rehabilitation it was not possible for the Tribunal or indeed his treating practitioners, to predict when he might be a fit and proper person to again resume practice. Accordingly, that was a matter best left in the purview of the PBA.

(e) In Medical Board of Australia v Stark,[67] the parties reached a joint position and filed a statement of agreed facts and joint submission on sanction. The charges encompassed a range of misconduct. The Tribunal found that the practitioner's conduct constituted unsatisfactory professional conduct and professional misconduct_._ He had, inter alia, inappropriately prescribed medication and performed surgery while impaired. He was reprimanded and suspended for two years with extensive conditions, including: retraining; restrictions on his practice; restrictions on his prescribing rights; medical supervision; and internal and external monitoring.

(f) In Health Care Complaints Commission v XC,[68] a medical practitioner developed an addiction to Stilnox® through inappropriate use whilst at University. Subsequently, once registered as a medical practitioner, she forged prescriptions to obtain Stilnox®, temazepam and oxazepam. The Medical Board attempted to manage her misbehaviour and addiction by imposing conditions (including urine drug screens) on her registration. However, XC breached those conditions. She also made unauthorised use of her supervisor's prescription pads. Her registration was suspended on a number of occasions: October 2009 to February 2010; October 2010 to February 2011; and from 25 October 2011. She surrendered her registration shortly prior to the hearing on 22 October 2014. XC subsequently sought to overcome her addictions by in-patient admissions to several clinics for detoxification and subsequent outpatient treatment. The Tribunal found the conduct was professional misconduct and determined that had XC been registered, it would have cancelled her registration. She was disqualified from applying to be re-registered for 18 months. By the time of the Tribunal's decision, XC had been suspended or not registered for 3 years 4 months.

108 The above case summaries are merely intended to illustrate that each case necessarily is decided upon its unique set of facts and circumstances. It is noteworthy that in all of the above cases, unlike the present case, the practitioner was referred to the relevant tribunal on one occasion only. Furthermore, the periods of further disqualification currently proposed by the Boards are consistent with the determinations made in these cases. Whether the determinations take effect from the date of a tribunal's decision or from an earlier period when the practitioner had been suspended, is explicable by reference to a range of circumstances discussed in more detail in the relevant decisions.

1. Dr Lee's Counsel also referred to a number of cases, which are cited below.

1. In relation to the PBA proceeding, Dr Lee's Counsel submits that a reprimand, being a serious sanction in itself for a professional, [69] sufficiently serves the purposes of both specific and general deterrence, and preserving the standards of the profession and the community's confidence in it.
2. In light of Dr Lee's significant rehabilitation, Counsel submits that there is no protective purpose served in any further period of disqualification which extends beyond the disqualification to January 2020, previously imposed.
3. In relation to the MBA proceeding, Counsel submits that in addition to a reprimand, there is a proper basis to impose a period of disqualification. However, having regard to the two and a half years Dr Lee has already been away from medical practice; the evidence of his rehabilitation; and the views of the Board's expert in December 2017 that he would be potentially suitable to apply for registration by December 2018, then any period of disqualification ought to be no longer than 6 months.[70]

1. Counsel referred to Dr Lee's evidence and supporting materials which demonstrate that he has remained abstinent from drugs since August 2016, including clear urine screens; he has attended for psychological counselling and thereby learned new coping strategies; he has engaged in further study; and in community work, without relapsing.
2. In view of the above, Counsel submits that Dr Lee no longer poses a risk to the public in either his capacity as a pharmacist or his capacity as a medical practitioner. This is in marked contrast to when Dr Lee last appeared before the Tribunal in January 2017. Counsel concedes that in cancelling his license to practice pharmacy for 3 years at that stage, the Tribunal could have no confidence that Dr Lee would be fit to practise pharmacy at a future point. However, having regard to substantial evidence of rehabilitation, there is no longer, as there may have been at earlier times, the need to impose determinations for the purpose of specific deterrence. For reasons set out below, we disagree.
3. Counsel referred the Tribunal to a number of cases:

Quinn v Law Institute of Victoria Limited[71] concerned a disciplinary proceeding against a solicitor who had pleaded guilty to two charges of misconduct (charging 'grossly excessive legal costs') and two charges of unsatisfactory conduct (concerning 'wilful or reckless' contravention of Trust Account Rules). The only issue on appeal was whether the sentence of 12 months suspension of Quinn's practising certificate was excessive having regard to positive character evidence, his major depressive episodes; and an undertaking proffered by Quinn in relation to future billing of clients. In setting aside the suspension, whilst the Court acknowledged that the Tribunal's disciplinary orders are punitive as well as protective, the Court stated:

Critically, for present purposes, however, the Tribunal's protective function is paramount. This, where there is a choice of sanctions, it is to be expected that the tribunal will choose that sanction which maximises the protection of the public.[72]

1. The Court also emphasized that because the Tribunal's disciplinary jurisdiction is necessarily punitive, in the service of protecting the public, principles applicable to sentencing should apply:

Relevantly for present purposes, the analogy with sentencing means that the existence of any mental condition, either at the time of the offending or at the time of the Tribunal's hearing, or both, may be relevant in one or more of the various ways described by this Court in R v Tsiaras[6] and, more recently, in R v Verdins; R v Buckley; R v Vo.[7] In the present case, it seems to me, very real questions arose as to whether Quinn's history of depression reduced his culpability for the offending, and hence its gravity, and/or reduced the need for specific deterrence and/or made him an inappropriate vehicle for general deterrence. None of these questions was addressed by the Tribunal.[73]

1. In our view, Quinn's case does not provide a compelling analogy to Dr Lee. It has not been suggested that Dr Lee's culpability for his offending was reduced by reason of a mental condition or history of depression, at any stage. Furthermore, in Quinn's case the Court of Appeal accepted that the undertaking proffered by Quinn satisfied the objective of protecting the public from the previous misbehaviour committed by Quinn and thus served as an acceptable alternative to suspension.
2. In Stirling v Legal Services Commissioner[74] the Court of Appeal emphasized the importance of a determination which facilitates rehabilitation. The Court noted, in conclusion:

162 It follows from the preceding analysis that the appellant is not a fit and proper person to currently practise. His failure to comply with his obligations, refusal to cooperate with the respondent, continuing issues with tax compliance and failure to give an account of his failings at the Tribunal all point to this conclusion. The appellant's conduct attracts suspension. However, his circumstances are such that his future practice should be governed for a time by conditions that should assist his rehabilitation.

163 The imperfections in the course of his rehabilitation, and the uncharged subsequent conduct, do not preclude, but rather condition, how his subsequent rehabilitation to being a fit and proper person should be assessed and managed. Once it is accepted, as we do, that he has demonstrated his remorse, and is working hard at rehabilitation with reasonable prospects of achieving a return to being a fit and proper person, a disposition that encourages that outcome is consistent with the protective function of the jurisdiction.

1. The Court of Appeal set aside the 3 year suspension imposed by the Tribunal and in its place imposed a 30 month suspension, with 24 months of that suspended, and further imposed a series of conditions, to operate upon Mr Stirling's resumption to practise, for a period of five years.
2. There is a pertinent postscript to Stirling's case which Counsel, surprisingly, omitted to mention. Mr Stirling subsequently breached the conditions imposed by the Court of Appeal, whilst still subject to a suspended sentence. He was again presented before the Tribunal when he pleaded guilty to two further charges of professional misconduct. On that occasion, his practising certificate was cancelled for an aggregate period of 28 months, which included revocation of the balance of his suspended sentence.[75]

1. Whilst acknowledging the relevance and importance of general deterrence Counsel submits that even without further sanction by way of an additional period of disqualification, general deterrence already features strongly in Dr Lee's circumstances. Counsel referred to the periods during which he has already not practised medicine (since August 2016) and pharmacy (since March 2014); the process of re registration for each profession; and the previous determination of the Tribunal.
2. In our view, the fact that Dr Lee will, in the case of each Board, have to satisfy their respective requirements for re-registration, is a necessary incident of his current status. In each case there are particular circumstances which led to his medical registration lapsing and his pharmacy registration being cancelled. These are not factors in themselves which directly serve the objective of general deterrence.
3. In regard to the previous determination of the Tribunal, although the Tribunal was made aware of the nature of the matters currently before the Tribunal, by way of referral from both Boards, the Tribunal did not have before it the current Allegations or Agreed Statement or other relevant material now before this Tribunal. Furthermore, and most importantly, it is a mischaracterization of the Tribunal's earlier determinations to suggest that its decision encompassed the current offending and charged conduct. It did not and could not. Unsurprisingly, the Tribunal did take account of the fact that subsequent offending was brought to its notice and relevantly impacted, at that time, upon Dr Lee's insight into his prior offending and prospects of rehabilitation. However, Dr Lee has not been previously dealt with for the current Allegations before the Tribunal, which will now be the subject of this Tribunal's determinations.
4. Counsel also referred to Medical Board of Australia v GMZ[76] where the Tribunal was dealing with a medical practitioner who had over a period in excess of 6 years, self-administered schedule 4 poisons which had not been legitimately prescribed to him. In order to do so, he made false representations to obtain the drugs, and he forged prescriptions. He was in possession of drugs without authorization. He was charged and found guilty of multiple charges under the Drugs, Poisons and Controlled Substances Act 1981. GMZ was first registered as a medical practitioner in December 2006, committed his offending between September 2009 and November 2015; and gave an undertaking to the MBA in September 2014 not to practice medicine until approved to do so by the Board. In May 2015, conditions were placed upon his registration (and his undertaking was then revoked) and he remained compliant with those conditions.
5. In December 2016, the MBA referred the conduct of GMZ to this Tribunal and the matter was heard on 20 June 2017. In its reasons for decision the Tribunal noted:[77]

... Dr GMZ has fully cooperated with the MBA and sought to address his addiction problems. He has fully complied with conditions imposed on his registration and submitted to monthly drug tests. He has participated in clinical training and expressed shame and remorse in relation to his conduct.

It is in this context that the parties presented to us at the hearing a Statement of Agreed Facts and proposed determinations. Essentially, Dr GMZ accepts that he has engaged in unprofessional conduct and professional misconduct. However, the parties contend that in all of the circumstances of this case, it would be appropriate to enable Dr GMZ to continue his rehabilitation whilst remaining in practice.

1. In relation to determinations, the parties agreed that GMZ be reprimanded and be required to comply with the conditions on his registration. The Tribunal made orders to this effect.
2. The Tribunal further noted from expert reports that GMZ's addiction issues had developed after Stilnox® was appropriately prescribed for depression.
   1. As observed by Maxwell P in R v Vardouniotis [2007] VSCA 62 (3 May 2007), considerations which reduce moral culpability are also likely to reduce the weight to be given to general deterrence.
   2. But for the following considerations and mitigating factors, we would have imposed a significant sanction which would have impacted on Dr GMZ's registration status. We would have done so in order to send a message to Dr GMZ and the profession that this type of conduct is completely unacceptable and carries with it significant consequences.
   3. Nevertheless, whilst general deterrence plays an active role in many disciplinary proceedings, it needs to be counterbalanced in appropriate cases with other relevant considerations.
   4. We are satisfied that Dr GMZ has:
      1. fully cooperated with the Board;
      2. complied with the conditions imposed on his registration;
      3. worked successfully as a general practitioner registrar in accordance with the conditions on his registration;
      4. successfully participated in the clinical training required for him to become a general practitioner;
      5. been drug-free since 2015 having submitted to monthly drug tests;
      6. demonstrated insight. He now fully understand that those entrusted with the supply of potentially harmful substances must comply with the applicable statutory and regulatory regime and their professional obligations. Insight is an important factor in assessing whether an individual poses a continuing risk;
      7. expressed shame and remorse in relation to his conduct;
      8. has the support of those around him. His employment and character referees not only speak in extremely favourable terms about him, but detail the levels of contrition felt and articulated by Dr GMZ. We accept that Dr GMZ is performing well in both his employment and social endeavours;
      9. taken significant measures to address his personal issues in addition to becoming drug free. He has lost a significant amount of weight and has actively re-engaged in the community in a range of positive voluntary and recreational pursuits.
3. Whilst there are clearly a number of points of comparison between the circumstances of GMZ and Dr Lee, in regard to their respective efforts to rehabilitate, there are also some critical points of difference:
   • (a) Upon coming to the Board's attention, GMZ was cooperative and complied with all conditions placed upon his registration;
   • (b) GMZ came before the Tribunal on one occasion only;
   • (c) The parties had submitted agreed findings and proposed determinations; and
   • (d) The Tribunal accepted, on the expert evidence, that general deterrence could be appropriately moderated in light of prior addiction issues and depression.
4. In the matter of Pharmacy Board of Australia v Mak,[78] the Tribunal found Ms Mak, who was first registered as a pharmacist in 1990, engaged in professional misconduct (one charge) and unprofessional conduct (two charges) and ordered that she be reprimanded and that certain conditions be imposed on her registration. The only issue before the Tribunal was whether Ms Mac's registration ought to be suspended. The PBA had recommended a suspension of at least 3 months. Ms Mak, self-represented, submitted that any suspension would 'have a crushing effect upon her, effectively sending her back into bankruptcy'.[79]
5. The Tribunal made reference to a number of factors which it considered weighed in favour of a suspension, including prior similar offending. However, the Tribunal ultimately decided that a suspension for a relatively brief period would not serve any useful purpose and would rather operate more as a penalty, placing the viability of her business at serious risk of failure. The Tribunal also noted the absence of further aggravating features: she did not steal schedule 4 or schedule 8 drugs; there was no risk to any patient nor any direct harm to the public.[80]

We considered it preferable to impose determinations which focused on and facilitated her ongoing rehabilitation and the consequent protection of the public. There were a number of factors in this case that steered us in the direction of focusing on Ms Mak's future in pharmacy rather than looking backward at her conduct in determining how this matter should be determined.

We considered the most relevant features, in reaching an appropriate outcome to be - the context of the conduct - the state of Ms Mak's mental health and well-being; her remorse and insight, and her subsequent conduct. We were also mindful of the length of time that has evolved since these matters occurred.[81]

1. In our view, the circumstances described in the Mak case, although usefully highlighting relevant matters which must be taken into account, are readily distinguishable to Dr Lee's circumstances.
2. In Pharmacy Board of Australia v Maxwell,[82] Mr Maxwell was first registered as a pharmacist in 1988 and held an unblemished registration record until he started self-medicating in 2011 due to a chronic pain condition. In December 2015 he was charged with serious criminal offences relating to the self-supply and self-administration of prescription pain killers accessed by him during his work as a pharmacist. Mr Maxwell worked under supervision from December 2014 and had undertook not to practice as a pharmacist since July 2015. On 30 January 2018, the PBA referred Mr Maxwell's conduct to this Tribunal and after a compulsory conference the parties agreed upon a Statement of Agreed Facts and Proposed Findings and Determinations.
3. The Tribunal was persuaded to adopt the recommended findings and determinations upon hearing the evidence and accordingly made a finding of professional misconduct on each of five allegations and determinations including a reprimand, 12 month suspension of registration and extensive conditions imposed on his registration.
4. In its reasons, the Tribunal also made observations which distinguish Maxwell's circumstances from Dr Lee. In particular:
   • (a) We accept that Mr Maxwell had complex work pressures and a chronic, extremely painful varicose vein condition requiring multiple surgeries over many years. It was in this context that he started self-medicating from common analgesics progressing to Oxycodone. His complex issues were unlikely to be resolved overnight;[83]
   • (b) The Tribunal acknowledged Mr Maxwell's long and successful career as a pharmacist between 1988 and 2010. During that time, he had contributed much to his profession. The Tribunal also acknowledged outstanding character references.[84]
5. In accepting that a period of actual suspension was necessary and warranted, in order to protect the public and uphold the standards and reputation of the profession, the Tribunal further noted that:

In another 12 months, five years will have elapsed since the most recent of the episodes of offending set out in allegations 1 to 5 and over three years will have elapsed since the Tramadol incidents referred to in paragraph 17 of the Agreed Statement. Taking into account the lengthy period that Mr Maxwell has not been working as a Pharmacist, we agree that the further period of 12 months proposed by the parties is an appropriate one.[85]

1. In the Pharmacy Board of Australia v Hanna,[86] Mr Hanna was first registered as a pharmacist in January 2010. In May 2016 he pleaded guilty to serious criminal offences under the Drugs, Poisons and Controlled Substances Act 1981 and Regulations 2006. In February 2015, he undertook not to practice as a pharmacist, until approved by the PBA so that by the time of the hearing before the Tribunal, he had not practised for about 3.5 years. In June 2017, the PBA referred Mr Hanna's conduct to this Tribunal and after a compulsory conference the parties agreed upon a Statement of Agreed Facts and Proposed Findings and Determinations.
2. The Tribunal was persuaded to adopt the recommended findings and determinations upon hearing the evidence and accordingly made a finding of professional misconduct and determinations including a reprimand and extensive conditions imposed on the registration.
3. The Tribunal described Mr Hanna's misconduct as follows:[87]

Mr Hanna not only misappropriated Schedule 8 medications from three separate employers, but also created false and misleading dispensing records. He failed to record receipt of Alprazolam tablets delivered to a pharmacy where he was working. He knowingly dispensed a forged prescription and failed to comply with his obligation to report a forged prescription. He was untruthful or misleading in an interview with his employer regarding the misappropriation of the Schedule 8 medication and was untruthful or misleading in an interview with Drugs and Poisons Regulation as well as during a health assessment.

Mr Hanna's conduct took place over an extended period between May 2014 to February 2015. It did not stop until Mr Hanna was detected. Even when his conduct was detected, Mr Hanna, whilst cooperative to a degree, did not immediately admit to the full extent of his conduct.

We accept that Mr Hanna's conduct occurred in the context of an addiction to Alprazolam and that he has now been drug-free for some years.[88]

1. The Tribunal was otherwise satisfied from the evidence of Mr Hanna, highly supportive references and expert recommendations as to appropriate supervisory conditions on registration, that the proposed determinations were appropriate.
2. Finally, in the matter of Pharmacy Board of Australia v Balci,[89] Mr Balci was first registered as a pharmacist in 2013. His employment was terminated in July 2014 and he undertook not to practise without PBA approval. In February 2016 he pleaded guilty to 9 rolled up charges under the Drugs, Poisons and Controlled Substances Act 1981 and without conviction was placed on a Community Corrections Order for 15 months, with conditions, which he satisfied_._ By the time of the hearing before the Tribunal, he had not renewed his registration. In September 2016, the PBA referred Mr Balci's conduct to this Tribunal and at the hearing before the Tribunal the parties agreed upon a Statement of Agreed Facts and Proposed Findings and Determinations.
3. The Tribunal was persuaded to adopt the recommended findings and determinations upon hearing the evidence and accordingly made a finding of professional misconduct and determinations including a reprimand and recommended conditions in the event Mr Balci reapplied for registration.
4. The evidence disclosed that Mr Balci had been prescribed oxycodone for an injury in 2012 and subsequently developed a dependency upon oxycodone and alprazolam, when unable to cope with interfamilial conflict and work pressures as a young pharmacist. During the period when he was misappropriating the drugs, he did seek professional help from a general practitioner, but without fully disclosing the severity of his addiction. As soon as his offending became known, when his marriage had also failed, he again sought professional assistance from a general practitioner experienced in treating opiate dependence. He was immediately placed on a drug rehabilitation program, which he successfully completed and was also referred to a treating psychiatrist and treating psychologist.
5. The Tribunal accepted evidence relating to the extent of Mr Balci's rehabilitation; the assessed minimal risk he now posed to the community; his participation in the current treatment scheme; his extended period of abstinence from drug abuse; his expressed genuine remorse; and demonstrated insight into his conduct and its likely affect upon others. All of these factors together support a determination to reprimand without requiring a further period of disqualification.
6. However, the Tribunal was also influenced by the following concerns:

It is the Tribunal's view that the medical evidence indicates an ongoing vulnerability to stressors which could impact on his ability to practice as a pharmacist. This is a matter which bears upon the protection of the public and the profession's reputation.[90]

1. In consequence, the Tribunal ordered that should Mr Balci reapply for registration, then he should undergo independent psychiatric assessment, to satisfy the PBA Board that there is no impairment of his capacity and fitness to practise; and that any registration granted contain a condition that requires Mr Balci to undertake a minimum of nine months of supervised practice without direct access to controlled drugs, as defined by Schedule 8 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
2. In our view it is noteworthy that in each of the cases of GMZ, Maxwell, Hanna and Balci, the parties had agreed upon proposed findings and determinations which were subsequently endorsed by the Tribunal after a careful examination of the evidence. It is also noteworthy that in each of these cases, unlike the present case, the practitioner was referred to the Tribunal on one occasion only.

1. The Tribunal acknowledges that delay can be a relevant mitigating factor in disciplinary proceedings. In this case, Dr Lee's Counsel submits that there has been a substantial degree of delay in the investigation and proceedings which is relevant to what further time ought to be set by the Tribunal before Dr Lee can reapply for registration. For reasons set out below, we disagree.
2. The relevant timeline of critical events is already set out in the Agreed Statement. There is no suggestion that Dr Lee has contributed to any delay at any stage. However, there are a number of relevant circumstances which have not been adequately addressed in Counsel's submissions. In particular:
   • (a) It is quite inappropriate and unhelpful to conflate the previous hearing before this Tribunal and the current joint proceedings. As indicated above, the Tribunal was made aware of the offending which subsequently gave rise to the current Allegations but was not and could not deal with such offending conduct. The MBA was not a party to the previous hearing and at that stage had not completed its investigation into the current Allegations;
   • (b) The Tribunal acknowledges that there was a delay of approximately 9 months between the decision of the Boards to refer matters to the Tribunal and the actual referrals taking place. However, we do not regard this delay or any delay in listing the proceedings for Hearing as inordinate or a source of prejudice to Dr Lee; and
   • (c) As indicated above in his application for medical re registration and in his assessment by A.P. Hassett, Dr Lee considered that he was already ready to resume practice. In our view, on the evidence, this was clearly not the case. Dr Lee has used the intervening period constructively and necessarily continued his rehabilitation.

1. As indicated above, the Boards' submissions as to determinations under each referral are:
   • (a) A reprimand pursuant to section 196(2)(a) of the National Law; and
   • (b) Disqualification from applying for registration for a period of two years, to commence at the time of the Tribunal's decision pursuant to section 196(4)(a) of the National Law.
2. The Respondent is currently disqualified from applying for registration as a pharmacist until 20 January 2020. The period of disqualification was imposed by the Tribunal following a separate proceeding and set of allegations. In respect of the current Allegations, the Boards submit that in order to achieve the purposes of determinations, the proposed period of disqualification from applying for registration as a pharmacist should run concurrently with the existing period of disqualification. The practical effect of this will be that Dr Lee will be disqualified from applying for registration as a pharmacist for an additional nearly 14 months, following the cessation of the existing disqualification period, if the determinations were to take effect from the date of this decision.
3. In relation to Allegation 1, the Boards submit that a period of removal from practice is warranted for the following reasons:[91]

• (a) Seriousness and extent of criminality - Dr Lee entered a plea of guilty to three counts of obtaining property by deception and one count of possession of a drug of dependence. The offences involved dishonesty, which is at odds with the need for the public to repose trust in registered health professionals;
  • (b) Breach of trust - Dr Lee's offending involved using prescriptions that belonged to his colleagues. He also engaged in the further misconduct whilst his supervisors were unaware of such conduct and various health professionals were providing him with support;
  • (c) Connection to practice - the connection is clear. Dr Lee was both a registered medical practitioner and a pharmacist. The prescribing, dispensing and administering of prescription medication are central to those roles. It showed a willingness to disregard the regulatory framework applicable to the dispensation and use of prescription medications;
  • (d) Insight into conduct - notwithstanding that Dr Lee admitted the conduct engaged in, he has demonstrated a lack of complete insight into the nature of his conduct. In particular, the conduct the subject of the notification:
    1. occurred while Dr Lee was being investigated and/or the subject of disciplinary proceedings by the PBA for similar conduct;

1. occurred after Dr Lee had already been sanctioned by a criminal court for similar offending;[92]

1. did not voluntarily cease. It only ceased upon involvement of the Victoria Police; and

1. during this period, Dr Lee continued to present prescriptions while also seeking professional treatment, ostensibly in relation to his initial offending. However, he failed to disclose any contemporaneous misconduct to his health professionals or raise any difficulties he was having and instead presented a picture of compliance and good health.[93]

(e) Repeat conduct - protection of the public requires a further period of removal from practice because the criminal offending is repeat misconduct; and

(f) Contravention of professional standards:

1. the conduct contravenes Good Medical Practice: A Code of Conduct for Doctors in Australia, which provides that:[94]
   1. 9.2.2 Seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment.
2. the conduct contravenes Pharmacy Board of Australia: Code of Conduct, which provides that:[95]
   1. 9.2 (b) "s_eeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment._"
   2. 9.2 (d) "for practitioners who are able to prescribe, conforming to the legislation in the relevant states and territories in relation to self-prescribing."

1. We endorse each of the above submissions and characterizations of misconduct made by the Boards.
2. In relation to Allegation 2, the Boards submit that the Tribunal can find that the conduct engaged in by Dr Lee warrants a period of disqualification from obtaining registration because of the following factors:[96]

• (a) Insight into conduct - Dr Lee lacks insight into the nature of his conduct for the reasons outlined above. This is particularly serious in the context of the discharge of his of duties as a medical practitioner.
  • (b) Patient Welfare - Dr Lee's actions potentially placed patients at a risk of their health care being compromised. This may have included risks of misdiagnosis, mistreatment and miscommunication. His behaviour shows a lack of proper regard for his patients' safety and welfare.
  • (c) Connection to practice - the connection is clear, as already described under Allegation 1;
  • (d) Contravention of Standards -
    1. the conduct involves a contravention of Good Medical Practice: A Code of Conduct for Doctors in Australia, which provides that:

1. 1.4 "Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy." [97] 2. 8.1. "In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct." [98] 3. Pharmacy Board of Australia: Code of Conduct provides that:[99] 1. 3 "A pharmacist upholds the reputation and public trust of the profession. A pharmacist will not abuse the trust and respect of individuals and society."51
2. The Boards acknowledge that Dr Lee has already been the subject of criminal sanction for the conduct alleged in Allegation 1. Despite this, it is submitted that a disqualification period is appropriate. In circumstances where a respondent faces disciplinary action for conduct for which they have already being punished under criminal law, Holmes CJ, Philippides and McMurdo JJA in Nursing and Midwifery Board of Australia v Faulkner[100] stated:

In general, the practitioner's punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public. It is recognised that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. There is a deterrent element involved in the protection of the public in this context. In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant. But its relative importance will obviously depend upon the facts and circumstances of the particular case.[101]

1. A similar view was expressed by Horneman-Wren J in Nursing and Midwifery Board of Australia v Dibbs,[102] in which his Honour stated that:

The nature of proceedings such as these is not to punish, or further punish, Mr Dibbs for his criminal conduct. Their purpose is protective. They are intended, through the sanction imposed, to protect the public, uphold the standards of the profession and maintain the public's confidence in the profession.[103]

1. We again concur with the Boards' submissions in relation to Allegation 2.
2. It is not suggested by any party that separate determinations should be made in relation to each Allegation. Rather the determinations will be made on a global basis, having regard to the totality of the misconduct.

1. The nature and gravity of Dr Lee's misconduct has been described at some length. The subject misconduct occurred within a relatively short period of time after he had already faced criminal charges for initial offending of a similar nature, albeit whilst registered only as a pharmacist. Nevertheless, he was capable of misleading his medical supervisors that he had been rehabilitated and conceal the nature and extent of the serious addiction to which he had succumbed.
2. The process of formulating appropriate determinations can be a difficult balancing act. In this case, we do take into account the periods during which Dr Lee has effectively not practised as a pharmacist and then subsequently also not practised as a medical practitioner. We are mindful that absence from practice, particularly for a junior and inexperienced practitioner, can make re-entry into the profession more difficult and prolonged. We do not wish to extend this period any longer than absolutely necessary, having proper regard to the protection of the public, continuing perceived risks of recidivism and the need for a period of continuing rehabilitation. In light of the grave nature of Dr Lee's reoffending, we also consider that an appropriate determination must send a strong message of general deterrence.
3. As detailed above, we acknowledge that Dr Lee has undertaken appropriate academic studies, to enhance his medical expertise; has engaged in relevant and constructive workplace activities; has continued ongoing psychological and other supportive therapies and social engagements; and has received highly complementary and supportive recommendations from all parties involved. He is clearly highly intelligent, articulate and motivated. These attributes have facilitated his favourable presentation to supervisors in the past, even whilst in the grip of re offending during 2015 and 2016.
4. Whilst Dr Lee's impatience and indeed enthusiasm to return to medical practice, in particular, is understandable, we do not consider that it is in the interests of the public that Dr Lee be eligible to return to practice within the short to medium term. There are serious concerns which remain. In particular, we are not convinced that the reservations previously expressed by Mr Newton and A.P. Hassett have been resolved. We are not satisfied that Dr Lee has demonstrated a level of insight commensurate with an appropriate recognition and understanding of his risk factors, once he returns to medical and/or pharmacy practice.
5. Although Dr Lee has spoken in terms of a continuing rehabilitation and enhanced appreciation of his serious drug addiction, equally he has consistently demonstrated a tendency to minimise risk factors associated with the impact of work pressures or time management or professional expectations and performance and attribute his risk factors wholly or predominantly to family violence issues. His lack of insight was apparent to Mr Newton in September 2016 and A.P.Hassett in December 2017; and in his accompanying statement in support of his reregistration as a medical practitioner, at which time he considered he was already fit and proper to return to practice.
6. Although Dr Lee has identified two specific stressors whilst working for Windana, which he suggests illustrate his capacity to apply appropriate coping strategies, these circumstances in themselves provide limited evidence of Dr Lee's readiness and capacity to deal with the intense workloads and related stressors of decision-making in medical practice or the immediate temptation of ready accessibility to medications, as a pharmacist.
7. The overriding objective of determinations in this case is protection of the public. To that end we consider that periods of disqualification are warranted in each proceeding. This being the second referral by the PBA, the objective of both specific and general deterrence warrants a relatively longer period of disqualification.
8. Accordingly, in addition to a reprimand in each proceeding:
   • (a) in relation to the referral brought by the PBA, we propose to disqualify Dr Lee from applying for registration as a pharmacist for a period 2 years, commencing on 1 March 2019, such disqualification to run concurrently with the disqualification to which Dr Lee is currently subject; and
   • (b) in relation to the referral brought by the MBA, we propose to disqualify Dr Lee from applying for registration as a medical practitioner for a period 18 Months, commencing on 1 March 2019.
9. In addition, we propose to recommend that in the event that Dr Lee applies for re-registration as a medical practitioner and/or a pharmacist that the MBA and PBA respectively consider imposing certain conditions upon registration, consistent with Dr Lee's continuing rehabilitation and to ensure, as far as practicable, appropriate protection of the public. These recommended conditions are set out under the final Orders.

1. Pursuant to s 196(1) and s 196(2) of the National Law the Tribunal makes the Orders as to findings and determinations, as set out in detail at the commencement of these Reasons.

[1] We note also that more than one name may be used for a particular medication, for example: Temaze ® = temazepam; Lyrica ® = pregabalin; zolpidem tartate= Stilnox®; Endone ® , Oxycontin ® = oxycodone hydrochloride; Tramadol ®, Tramedo SR ®, Tramadol Sandoz = tramadol hydrochloride; Solone ® = prednisolone.

1. [2] Joint Notice of Allegation, TB Tab 1, pg. 6.
2. [3] Joint Notice of Allegation, TB Tab 1, pg. 7.
3. [4] Respondent's response to investigation, TB Tab 16, pg. 192.

[5] The actual referrals were not made until 14 March 2018.

[6] These are the allegations in respect of Dr Lee referred to the Tribunal by both the MBA and the PBA pursuant to s 193(1)(a) of the National Law.

[7] At the Hearing, Counsel for Dr Lee submitted that no further disqualification period should be imposed for applying for registration as a medical practitioner.

1. [8] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16]; See also Medical Board of Australia v McGrath [2014] VCAT 641 at [20]; Medical Board of Australia v Fox [2016] VCAT 408 at [16]; and Medical Board of Australia v Lai [2011] VCAT 1754 at [14].
2. [9] [2015] HCA 46; (2015) 326 ALR 476 (Commonwealth v DFWBII).
3. [10] Commonwealth v DFWBII at 489 [46].
4. [11] Commonwealth v DFWBII at 489 [50].
5. [12] Commonwealth v DFWBII at 491 [58].

[13] [2011] VCAT 1026 at [358] - [373] (per Judge Jenkins and Dr Fabris and Dr Burge).

[14] [2009] VCAT 755 at [60] - [61] (per Coghlan DP, Dr Shanahan and Dr Clarke).

[15] Ha v Pharmacy Board of Victoria [2002] VSC 233 at [91].

[16] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637; Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97].

[17] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183;

[18] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J at p13.

[19] Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1993).

[20] Physiotherapy Board v Amerasekera [2013] VCAT 1727 at [76]

[21] Nursing & Midwifery Board of Australia v Jackson [2013] WASAT 140 at [48].

1. [22] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[23] [2017] VCAT 39 per Judge Jenkins at [36].

[24] Supplementary TB Tab 2, Statements dated 24 July 2017 and 5 July 2018 and attachments.

[26] TB 191, Dr Lee's letter to AHPRA dated 18 April 2017.

[27] Supplementary TB Tab 2, Statement dated 24 July 2017 [4]-[6] & [10].

[32] Supplementary TB Tab 4, Report dated 11 January 2018, also refer below.

[36] Dr Newton's report dated 5 September 2016, TB 244-245.

[40] Supplementary TB, tab 3, [40], Report of A.P. Hassett dated December 3 2017 p 5.

[41] Supplementary TB, tab 3, [41], Report of A.P. Hassett dated December 3 2017 p 6.

[43] Dr Frei is the Clinical Director, Turning Point Eastern Health.

[44] Supplementary TB, tab 4, Dr Frei's report dated 11 January 2018 p 5.

[46] Supplementary TB, tab4, Dr Frei's report dated 11 January 2018p 6.

[47] Supplementary TB, tab 5, VDHP letter dated 9 July 2018 [49].

[48] Supplementary TB, tab 5, VDHP letter dated 9 July 2018 [50].

[49] Supplementary TB, tab 8 Dr Dianne Abbott letter dated 14 July 2018, [53].

[50] Supplementary TB, tab 8 Dr Dianne Abbott letter dated 4 February 2019.

[51] Letter dated 5 February 2019 from Ms Sandra Hocking.

[52] Letter dated 5 February 2019 from Ms Maree Cations.

[53] TB 47-47, Transcript 16/12/2016 p 47-48.

[54] TB 119, Transcript 16/12/2016 p 53.

[56] Certified Extracts, TB Tab 10, pg. 57 - 65.

1. [57] Certified Extracts, TB Tab 10, pgs. 57 (referable to Allegation 1, particular (iv)(A)) and Certified Extracts, TB Tab 10, pgs. 62 and 65 (referable to Allegation 1, particular (iv)(C) and (D)).

[58] Certified Extracts, TB Tab 10, pgs. 59.

[59] Submissions on behalf of Dr Lee [4].

1. [60] Dr Lee's response to investigation, TB Tab 16, p 192.
2. [61] Good Medical Practice: A Code of Conduct for Doctors in Australia, MBA TB Tab 21, p 318.

[62] Outline of Submissions by Counsel for the Boards [35].

[63] [2011] NSWPHT 2.

[64] [2011] SAHPT 26.

[65] [2014] SAHPT 6.

[67] [2016] QCAT 175.

[68] [2015] NSWCATOD 9

[69] Peeke v Medical Board of Victoria [1995] Vic SC 7 at [6].

[70] The Agreed Statement of Facts suggested 12 months but this period was revised during the Hearing.

[71] [2007] VSCA 122.

[74] [2013] VSCA 374 at [162]- [164].

[75] Victorian Legal Services Commissioner v Stirling (Legal Practice) [2018] VCAT 516.

[76] [2017] VCAT 902.

[78] [2017] VCAT 901.

[81] Ibid [44]-[45]. It was 4 years since the offending and 3 years since the criminal proceedings [52].

[82] [2018] VCAT 1857.

[86] [2018] VCAT 1817.

[89] [2017] VCAT 1309.

1. [92] PBA v Lee [2017] VCAT 87 at [28]: TB Tab 12.
2. [93] PBA v Lee [2017] VCAT 87 at [80] - [84] and [88] - [89]: TB Tab 12.
3. [94] Good Medical Practice: A Code of Conduct for Doctors in Australia, MBA TB Tab 21, pg.335.

[95] Pharmacy Board of Australia: Code of Conduct, TB Tab 21, pgs. 345 - 346.

[96] Outline of Submissions [32]-[34].

1. [97] Good Medical Practice: A Code of Conduct for Doctors in Australia, MBA TB Tab 21, pg.318.
2. [98] Good Medical Practice: A Code of Conduct for Doctors in Australia, MBA TB Tab 21, pg.331.
3. [99] Pharmacy Board of Australia: Code of Conduct, TB Tab 21, pgs. 345 - 346. 51 Pharmaceutical Society of Australia, TB Tab 21, pg.318.
4. [100] Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97.
5. [101] [2018] QCA 97 at [51].
6. [102] [2015] QCAT 241.
7. [103] [2015] QCAT 241 at [18]; see also NMBA v FH [2010] QCAT 675.