Medical Board of Australia v Dr Kioussis (Review and Regulation) [2019] VCAT 1961

1. Under s 196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal finds the respondent engaged in:
   1. Professional misconduct with respect to the Allegations 1 and 2 in this proceeding; and
   2. Unsatisfactory professional performance with respect to the Allegations 3 and 4 in this proceeding;

1. Under s 196(1) of the National Law, with the consent of the parties, the Tribunal makes the following determinations:
   1. The registration of the respondent as registered health professional is today cancelled; and
   2. The respondent is reprimanded.

1. With respect to s 196(4), with the consent of the parties, the Tribunal does not disqualify the respondent for any specified period from applying for registration as a registered health practitioner.

In person (13 June 2019): Mr A. Smith, Solicitor (1 November 2019)

1. This proceeding results from the Medical Board of Australia (the Board) under the Health Practitioner Regulation National Law (the National Law)[1] in March 2018 referring allegations to VCAT, against Dr John Kioussis, a registered medical practitioner from 1984 to 2019.

1. By the time this case reached hearing, the Board's allegations[2] were as follows.

1. That between 15 August 2013 and 20 May 2016, Dr Kioussis engaged in professional misconduct and/or unprofessional conduct in that he ignored conditions imposed on his registration. The Board set out the following particulars.
2. On 15 August 2013, the Board's Performance and Professional Standards Panel (the First PPSP) found Dr Kioussis had behaved in a way that constituted professional misconduct and/or unprofessional conduct as defined in the National Law. The Panel cautioned Dr Kioussis and imposed conditions on his registration including:

Dr Kioussis is to undertake further education with an experienced general practitioner for one hour each fortnight for a period of six months in relation to the following issues:

Dr Kioussis is to provide the Board with the name of the proposed educator for approval by the Board before commencement of the education sessions.

1. Between 10 September 2013 and 4 December 2013, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to, and telephoned, Dr Kioussis about the conditions. He failed to respond to these attempts to contact him.
2. On 11 June 2014, AHPRA made contact with Dr Kioussis and advised that it could assist him with identifying an educator.
3. On 15 September 2014, AHPRA advised Dr Kioussis that the Board had approved Dr Karen Price to provide the education required.
4. On 13 November 2014, Dr Price informed AHPRA that Dr Kioussis had not attended their first scheduled meeting on 23 October 2014[3] and had not made any further contact.
5. On 14 November 2014, AHPRA wrote to Dr Kioussis asking him to advise of the dates of any education sessions and did not receive a response.
6. On 24 July 2015, AHPRA wrote to Dr Kioussis and advised that because he had not complied with the conditions, it was making a report to the Board.
7. On 20 August 2015, the Board wrote to Dr Kioussis notifying him that it had referred him to a Performance and Professional Standards Panel (the Second PPSP).
8. As at 20 May 2016, Dr Kioussis had not commenced the education required by the conditions.
9. On 22 June 2016, the Second PPSP found that Dr Kioussis had chosen to ignore the conditions on his registration.
10. As at 26 March 2019, Dr Kioussis still had not commenced the education required by the conditions.

1. Between 17 July 2014 and 19 June 2015, Dr Kioussis in his treatment of patient DT engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance in that he twice failed to refer her in a timely manner to a specialist gynaecologist for diagnosis and treatment in circumstances where appropriate management of patient DT's condition required an urgent referral to a specialist gynaecologist. The Board set out the following particulars.
2. On 17 July 2014, patient DT saw Dr Kioussis complaining of a two week history of vaginal bleeding, every two to three days.
3. On 26 July 2014, a pelvic ultrasound performed on patient DT was reported by Dr J P Steg to show "an oval area of altered echogenicity ... consistent with a fibroid". The report concluded:

Fundal fibroid and abnormal endometrium possibly an endometrial mass. Gynaecological opinion is indicated.

1. Dr Kioussis received Dr Steg's report and recorded its contents in his clinical notes on 26 July 2014.
2. Dr Kioussis did not refer patient DT for gynaecological opinion as recommended by Dr Steg.
3. On 16 March 2015, patient DT attended upon Dr Kioussis complaining that a few days earlier, she had experienced a further episode of vaginal bleeding.
4. On 25 March 2015, a second pelvic ultrasound performed on patient DT was reported by Dr Lawrence Lau to show "2 slightly echogenic fibroids measuring 32 and 13 mm." The report concluded:

Abnormally thickened post menopausal endometrium. Gynaecologic follow up recommended.

1. Dr Kioussis received Dr Lau's report and recorded its contents in his clinical notes on 17 April 2015.
2. On 17 April 2015, Dr Kioussis wrote a letter of referral addressed to "Gynaecology of Sandringham (RWH)", which set out patient DT's relevant medical history.
3. Dr Kioussis:
   1. Did not send the letter of referral dated 17 April 2015; and
   2. Did not make any arrangements for patient DT to attend upon a specialist gynaecologist at Sandringham Hospital.
4. On 6 June 2015, Dr Kioussis advised patient DT to attend upon Dr Rajeswari Nair, gynaecologist, for specialist gynaecological assessment and treatment.
5. On 16 June 2015, Dr Kioussis wrote a letter of referral to Dr Nair.
6. On 19 June 2015, patient DT saw Dr Nair.
7. When patient DT saw Dr Nair on 19 June 2015, Dr Kioussis had not sent the letter of referral dated 16 June 2015 to Dr Nair.
8. On 19 June 2015, a copy of the letter of referral dated 16 June 2015 was sent by fax from Dr Kioussis' clinic to Dr Nair.
9. On 19 June 2015, Dr Nair advised patient DT that she required a hysteroscopy and curette procedure.
10. On a date to be confirmed, Dr Phillip Thomas, gynaecologist, performed a hysteroscopy and curette procedure on patient DT.
11. On a date to be confirmed, the hysteroscopy and curette procedure performed on patient DT was reported by the medical practitioner who made the diagnosis and whose identity is to be confirmed, to reveal stage I clear cell endometrial cancer.
12. The Board referred to and repeated particulars set out in relation to Allegation 3 below.
13. Dr Kioussis' failure to refer patient DT was a breach of Criteria 4.3, 4.5 and 8.4.7 of the Code of Conduct for Doctors in Australia published by the Medical Board of Australia in March of 2014 (the Code).

1. Between 15 August 2013 and 7 June 2017, Dr Kioussis engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance in that he failed to establish and maintain an adequate system for ensuring that test results and other clinical correspondence received by him were acted on in a timely manner. The Board set out the following particulars.
2. Dr Kioussis failed to:

1. Establish and maintain a system for follow up of test results and other clinical correspondence that complied with Criterion 1.5.3 of the Standards for General Practices: 4th Edition published by the Royal Australian College of General Practitioners in October of 2010 (the Standards). 2. Establish and maintain a system for follow up of test results and other clinical correspondence that complied with Criterion 6.2 of the Code.

1. Put in place a written policy describing the review and management of test results and other clinical correspondence, as recommended by Criterion 1.5.3 of the Standards.

1. Put in place a system that protected against his failing to remember to follow up on test results and other clinical correspondence, as recommended by Criterion 1.5.2 of the Standards. 2. Establish or participate in any system of quality assurance or improvement, as recommended by Criterion 6.2.2 of the Code. 3. Establish and maintain any system to reduce error and improve patient safety, as recommended by Criterion 6.2.4 of the Code.
2. The Board referred to and repeated particulars set out in relation to Allegation 2 above.

1. Between 15 August 2013 and 7 June 2017, Dr Kioussis engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance in that he failed to establish and maintain an adequate system for recording clinical notes. The Board set out the following particulars.
2. Dr Kioussis:

1. Failed to maintain for each of his patients an individual patient health record containing the health information held by his practice about that patient that complied with Criterion 1.7.1 of the Standards. 2. Failed to maintain clear and accurate medical records that complied with Criterion 8.4 of the Code.

1. Failed to maintain a dedicated individual patient health record for each of his patients, as recommended by Criterion 1.7.1 of the Standards, and recorded clinical notes relating to multiple patients in the same patient health record.

1. Maintained an active hybrid paper and electronic system for recording clinical notes, but did not ensure in relation to each of his patients that a record was made in each system indicating where relevant clinical notes were recorded, as recommended by Criterion 1.7.1 of the Standards. 2. Did not routinely record in his clinical notes the person whom each patient wished to be contacted in the event of an emergency, as recommended by Criterion 1.7.1 of the Standards. 3. Did not maintain a current health summary and medication list for each of his patients, as recommended by Criterion 1.7.2 of the Standards. 4. Did not maintain clinical notes in a form that could be understood by other health practitioners, as recommended by Criterion 8.4.1 of the Code.

1. Between 5 August 2013 and 7 June 2017, Dr Kioussis engaged in professional misconduct and/or unprofessional conduct in that the matters alleged in Allegations 1, 2, 3 and 4 above, when considered together, amount to:
   1. A course of conduct that, when considered as a whole, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience to Dr Kioussis; and/or
   2. A course of conduct that, when considered as a whole, is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.

1. By the date of the VCAT hearing, Dr Kioussis had not responded to the allegations.
2. At the VCAT hearing, lawyers represented the Board. Dr Kioussis represented himself. He had not advised the Board before the hearing that he sought to cross examine its witnesses. Therefore, none were available at the hearing. He expressed no wish to cross examine them.
3. The Board relied on a Tribunal book of documentary evidence and made submissions as to the findings we should make. Dr Kioussis gave evidence and effectively made some submissions explaining some of his conduct and refuting elements of the Board's allegations.
4. At the end of the hearing, we were concerned that Dr Kioussis should have an opportunity to respond in writing to the Board's submissions, which he had heard for the first time at the hearing. We were also concerned that he had not advised his medical indemnity insurer of this VCAT proceeding, which he advised us of at the hearing.
5. We made directions that on or before 9 April 2019, Dr Kioussis was to advise VCAT and the Board as to whether he had obtained legal representation in this proceeding (at the hearing we strongly advised him to notify his insurer, which could have led to him obtaining legal representation) and gave him an opportunity to make a written submission in response to the Board's submissions. If he made submissions, the Board was invited to make submissions in reply. If he did not respond either by advising he had obtained legal representation or making submissions, we would make findings without further notice.
6. Neither VCAT, nor the Board, as advised in its letter to the Tribunal dated 10 April 2019, copied to Dr Kioussis, received further correspondence from him.
7. On 23 May 2019, the Board's interim action committee suspended Dr Kioussis from registration as a medical practitioner due to his ill-health.
8. On 13 June 2019, VCAT held a directions hearing and announced its findings, providing written reasons as to findings set out below, scheduling a determinations hearing on 9 August 2019.
9. Shortly before 9 August, the Tribunal received an adjournment application, being advised lawyers had commenced to act for Dr Kioussis. Medical evidence was provided that he was unfit to attend hearing until late in the year. The determinations hearing was converted to a directions hearing and with the Board's consent, the determinations hearing was scheduled to take place on 1 November 2019.
10. These reasons now deal with Allegation 1 to Allegation 4. With Allegation 5 being a global allegation encompassing the other four allegations, we have not considered it. Given our findings on the other allegations, it adds nothing of substance in terms of findings.

1. In summary, Allegation 1 is that from 15 August 2013 to 20 May 2016, Dr Kioussis failed to comply with conditions imposed on his registration as a medical practitioner by the First PPSP on 15 August 2013, out of concern that he had not dealt with organisational problems affecting his medical practice or addressed issues arising from his professional workload.

1. We summarise the Board's evidence, largely adopting a summary that the Board provided to us, as set out in affidavits of Ms L. Graham, Investigator, AHPRA, and Ms J. Coleman, Manager of Notifications, AHPRA.
2. In August 2012, a lawyer notified the Board that Dr Kioussis had failed to provide his client with a medical report that the client had requested in July 2011.
3. On or about 20 June 2013, the Board decided to establish the First PPSP to consider allegations that Dr Kioussis:

1. Failed to prepare the requested medical report within a reasonable time or at all; 2. Did not facilitate the requested access to records within a reasonable time; and/or

1. Did not cooperate with the Board's investigation of his conduct.
2. In August 2013, Dr Kioussis appeared before the First PPSP. We quote from the First PPSP decision, which described Dr Kioussis telling the PPSP:
   • He has been in the practice in Carnegie since 1991. He has an associate working with him. He grew up in the area, knows it well and has a loyal following of patients, the majority now are in the 65 to 85 year age group. They usually have multiple clinical problems and there is hardly ever a straightforward consultation. He has a heavy workload and writes a lot of reports.
   • This patient has been attending the practice of 15 years, she is a friend of his parents. She did ask him a number of times about the report but did not press him on the matter. He thought she understood his personal circumstance, in that his father died last year after a long illness. He was devastated by the loss, he felt he had "hit a brick wall", was not coping with the workload and probably was suffering burnout.
   • He did not discuss these problems with anybody else nor did he seek professional assistance. He just pushed himself to keep on going. For the last 12 months he has tried hard to get his mind in gear.
   • He receives about 20 request for reports in a six-month period. He usually works on them at home but frequently he stays back at the clinic until 10 PM. He writes thorough reports and considers himself a bit sensitive about them. He is constantly behind with reports, but he manages to get them done on time when there is a definite timeframe.
   • This was an isolated incident. The patient and her husband were injured in a car accident. She suffered a sub dural haematoma and attended various specialists post operatively. She was anxious about any symptoms she experienced attended infrequently for pain relief and mainly for reassurance.
   • He has now completed the report, but it is waiting on his secretary to type it. She has been away because of family problems. He handwrite[s] his reports as the practice is not computerised. There have been administrative pressures in practice. Messages are left on yellow sticky papers and notes of home visits have to be transcribed into the medical record later. He eventually sent a copy of the report record to the solicitor. It had taken a while to get all the pieces of paper together.
   • He works long hours, usually seeing 40 patients a day from 9 am to 6 or 8:30 pm without a break. He works until mid afternoon on alternate Saturdays and has a day off on Thursdays when he usually just stays at home to recover. The practice has not taken new patients for five years.
   • He knows that things [have] been disorganised, he even allowed his medical registration to lapse briefly which reflects his state of mind then. He also failed to lodge tax returns for three years and is in trouble with the ATO. His priorities [have] been patient care, paperwork took backstage. He found it difficult to organise his thoughts and put things in writing.
   • He should have sought help for himself, he sees that now, but his family responsibilities really did not allow him time to organise everything. He battled on as best he could. He believes he is in a better state mentally now with the passing of time.
   • He is not using this as an excuse, just an attempt to explain what happened. He knows he should have done the report. He accepts all that the notifier has said about his lack of response to written and verbal requests. He will ensure it is typed and sent as soon as possible. He also agrees it did not respond to the many written and verbal requests from AHPRA in relation to the notification.
3. On 2 September 2013, the First PPSP found the allegations against Dr Kioussis proven and decided under s 191(3)(a) of the National Law to impose the conditions set out in Allegation 1.
4. The First PPSP was concerned that Dr Kioussis was only part of the way towards dealing with organisational problems in his practice and addressing his own workload issues. The PPSP decided he would benefit from having an experienced general practitioner as a mentor.
5. On 4 September 2013, Ms Graham, Hearings Coordinator of AHPRA wrote to Dr Kioussis, advising him of the PPSP's decision to impose the conditions, enclosing its reasons for decision.
6. On 10 September 2013, Ms Graham wrote to him requesting that he advise her of the name of the registered medical practitioner who would be providing him with the further education required by the conditions.
7. Between 8 October 2013 and 28 May 2014, Ms Graham contacted Dr Kioussis five times, asking that he provide information relating to his compliance with the conditions. He did not provide the information.

On 11 June 2014, Ms Graham spoke with Dr Kioussis. She advised she would make inquiries for the purpose of identifying an available medical practitioner who could act as his educator for the purposes of the conditions.

On 15 September 2014, after Ms Graham had approached a number of potential educators, she wrote to Dr Kioussis, advising him that the Board had approved Dr Karen Price to act as his educator for the purposes of the conditions.

1. On 24 September 2014, Dr Kioussis emailed Ms Graham, advising that he had arranged an initial meeting with Dr Price, for 23 October 2014. However, this meeting did not take place.
2. Between 14 November 2014 and 24 July 2015, Ms Graham contacted Dr Kioussis four times, asking that he provide information relating to his compliance with the conditions.
3. On 26 August 2015, Ms Graham emailed Dr Kioussis, attaching a letter from Ms Veronica Urh, Manager Notifications, AHPRA, advising him that the Board had decided to establish the Second PPSP, to consider whether he had failed to comply with the conditions.
4. On 20 May 2016, Dr Kioussis appeared before the Second PPSP.
5. On 22 June 2016, the Second PPSP decided Dr Kioussis may have behaved in a way that constitutes professional misconduct and that the matter must be referred to VCAT under s 193 of the National Law.
6. On 29 August 2016, AHPRA wrote to Dr Kioussis advising him of that decision.
7. As at 24 September 2018, Dr Kioussis had not met with Dr Price or undertaken any of the training required by the conditions, nor complied with the conditions imposed by the First PPSP.

1. On 26 March 2019 Dr Kioussis gave the following evidence.
2. Concerning the delayed medical report which gave rise to the notification to the First PPSP, Dr Kioussis spoke of his father dying in July 2013 after a year of palliative care in which Dr Kioussis was deeply involved. The lawyer who made the notification was at his father's funeral and told him given the circumstances not to rush the report.
3. In 2016, his wife underwent extensive surgery to address melanoma/basal cell carcinoma and also underwent a knee reconstruction. In 2013/2014 his partner at the medical practice was away for a period of eight weeks and another period of four weeks to undergo major surgery.
4. These events were in the context of Dr Kioussis growing up and going to school in Carnegie and joining his partner in their medical practice in 1996. The practice largely caters to local patients and has always been very busy. Over the years, the patient population has aged. About a year ago, 73 percent were aged 60 or over and 56 percent were 70 or over. Ninety percent of the patient population are Greek speaking.
5. Dr Kioussis said he realised years ago that the practice workload was not sustainable, to the extent that they ended bulk billing in 2001/2002. This did not materially reduce demand.
6. The workload was demonstrated by Dr Kioussis' past daily work. He arrived at work at about 8:30, downloaded medical test results, and soon after started seeing patients until approximately 6:30 to 7pm, followed by paperwork to as late as 10:30pm, averaging about 8pm.
7. The practice had not used locum general practitioners for 15 years.
8. In an attempt to manage workload, for the last two years the practice has employed a part-time practice manager.
9. Dr Kioussis agreed that he had not responded to the conditions imposed by the PPSP. He first attributed this to being extremely introverted and highly embarrassed at having to contact a fellow medical practitioner to act as his educator because the Board had imposed conditions on his registration.
10. He said he had spoken to a couple of fellow general practitioners asking if they could identify someone, but they could not assist. He had spoken to his partner in the medical practice about how they might improve the practice's efficiency, including the feasibility of information technology such as speech dictation software, iPad or similar, or some form of hybrid hardcopy/soft copy files. They concluded there was really no feasible way to transfer the data from the hardcopy file system about which Dr Kioussis gave evidence, which we summarise below.
11. Concerning non-compliance with the conditions on his registration, Dr Kioussis described being hurt by allegations made by the Board about him that he lacked insight into the difficulties he faces. He described himself as having insight but no way to deal with the difficulties he faced in the practice. He saw a psychiatrist for 18 months until December 2017 to relieve anxiety and stress. Antidepressant medication caused him to gain weight and made him apathetic and disinterested. He had to stop taking the medication. He described himself as clinically depressed.
12. Concerning his understanding of the conditions on his registration, Dr Kioussis gave evidence that while appearing before the First PPSP was a highly stressful experience, he understood the conditions imposed on his registration. While he does not recall the extent of his understanding of the importance of complying with them, he says he now understands.
13. He acknowledges receiving the correspondence from the Board seeking compliance with the conditions. He spoke of receiving such letters causing him to become anxious and nauseated, not then understanding the consequences of non-compliance. He spoke of "being a wreck for days" after receiving correspondence.
14. He spoke of having in previous times scoffed at the concept of work burnout, only to discover, as he acknowledged to the First PPSP, its insidious effects on him as he became less energetic and less proactive in his practice.
15. In his opinion, the long-term workload of the practice, falling behind in his work with his father's illness and death and the need to catch up with his work, at the same time dealing with matters to do with the Board and the tax department magnified the consequences of the burnout.
16. While he acknowledged that the Board was trying to assist him by way of the conditions, at the time he thought he could get himself out of his problems. Dr Kioussis is firm in his opinion that he has no real option but to carry on with his current workload, that undertaking education will not help and that it is not an option to bring another general practitioner into the practice, given that new general practitioners would probably be unwilling to deal with the workload.
17. Returning to the issue of non-compliance with the conditions, and with respect to him not participating in this proceeding, Dr Kioussis described this as in a way him punishing himself, acknowledging the non-compliance with the conditions has been "idiotic" and "silly". When pressed, he spoke of not believing complying with the conditions would help his work situation, his overwhelming shyness, such that it is very difficult for him to speak with a psychiatrist. These factors, in his view, lead to compliance with the conditions being a mountain which he cannot climb. He considers his main consideration was to continue to look after his patients.
18. Dr Kioussis rejected that further treatment for any underlying mental illness (our words) could assist him. He described the psychiatrist he saw until the end of 2017 as not helping his condition, beyond prescribing medication. He acknowledged he could have obtained a medical report relevant to this proceeding, but it is "not in my nature". He said the best way to him to move forward is to get on with his work.
19. Dr Kioussis said that looking back now at how he has conducted himself with respect to complying with the conditions, it seems unbelievable. He spoke of complying with any decision by VCAT, such as counselling or relevant to practice management. He sought our understanding of his situation, saying that any doctor with his patient workload would struggle.

1. The first question before us was whether, under s 192(1) of the National Law, with respect to Allegation 1, we should find Dr Kioussis engaged in, as alleged:
   1. Professional misconduct within the meaning of paragraph (a) and/or (b) of the definition in s 5 of the National Law; or
   2. Unprofessional conduct within the meaning of the National Law.
2. Section 5 relevantly defines professional misconduct as:
   1. 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/or
   2. 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.
3. Section 5 defines unprofessional conduct as "professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers."
4. While not alleged with respect to Allegation 1, it is convenient here to note that s 5 defines "unsatisfactory professional performance" of a registered health practitioner as meaning that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
5. The failure by a health practitioner to comply with conditions imposed on his or her registration will generally go to the health practitioner's conduct, not to his or her professional performance. It is a serious matter and may constitute professional misconduct. That this is so is reflected in the terms of paragraph (b) of the definition of unprofessional conduct in s 5 of the National Law and in the note to s 84(1).
6. In the context of the Health Practitioner National Law (NSW), the Civil and Administrative Tribunal of New South Wales has said in Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 at [33]:

Prima facie a failure to comply with a practice condition may arguably be of a sufficiently serious nature to justify suspension or cancellation, because it constitutes a breach of the statutory regime established to regulate health practitioners in New South Wales.

1. Similarly, VCAT has in Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340 at [69] said:

A failure to comply with a condition on registration is a very serious matter as it suggests the practitioner is not willing to observe the law and act consistently with the requirements of the relevant registration body. It is not open for a professional person to decide which conditions they chose to comply with or to disregard restrictions which have been placed on their registration.

1. Whether a particular failure to comply with a condition constitutes professional misconduct depends on all of the circumstances surrounding the imposition of the practice condition and its admitted breach.

1. The Board bears the onus of proof, it must prove the allegations it makes.
2. Concerning the standard of proof, in Karakatsanis v Racing Victoria Limited[4] the Supreme Court of Victoria Court of Appeal approved a formulation of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as it applies to tribunals in that for a matter to be proven, the tribunal must reach a:

... comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.

Decision concerning Allegation 1 - professional misconduct

1. Dr Kioussis' conduct in not complying with the conditions imposed on his registration as set out in Allegation 1 is proven and in our view clearly constitutes professional misconduct. His conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience within the meaning of subsection (a).
2. His conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
3. There is no doubt that Dr Kioussis failed to comply with the conditions on his registration. He said his failure to comply was partly due to overwork and poor administrative organisation. However, he did not to appreciate the potential adverse impact his poor organisation on care delivery. We therefore consider that, despite his claim to the contrary, he continues to have no insight into the potentially serious risk to patient care his conduct carries with it, a risk that almost certainly would have been mitigated had he complied with the conditions.
4. There is no excuse for his non-compliance with conditions intended to assist him to improve his medical practice in the interests of the safety and welfare of his patients and in the interests of his welfare as a medical practitioner. His non-compliance is clearly substantially below the standard reasonably expected of a registered health practitioner.
5. While we have sympathy for the plight Dr Kioussis finds himself in, his situation is also no excuse. His determination to "soldier on" ignoring the reality facing him concerning work burnout, mental health issues and the daunting work pressures he deals with, was unsustainable. The Board was right to act in 2013 with the First PPSP and, when faced with ongoing non-compliance, right to refer the matter to VCAT in 2018.

1. In summary, Allegation 2 is that between July 2014 and June 2015, Dr Kioussis in his treatment of patient DT engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance in that he twice failed to refer her in a timely manner to a specialist gynaecologist for diagnosis and treatment in circumstances where appropriate management of patient DT's condition required an urgent referral to a specialist gynaecologist.

1. The evidentiary material relevant to Allegation 2 which the Board had provided was:

1. The witness statement of the daughter of the late patient DT, dated 23 September 2018. 2. The clinical file kept by Dr Kioussis concerning patient DT.

1. The clinical file kept by Dr Anne Kelmann, general practitioner, who began treating patient DT in June of 2015; and

1. The expert report of Dr Cameron Loy dated 30 September 2018. Dr Loy is a highly qualified long experienced medical practitioner with general registration and specialist registration in general practice. He holds a number of positions in the profession, including being the director of the Royal Australian College of General Practitioners and chair RACGP and chair RACGP Specific Interests. His opinion provided in this case was limited to his role as a General Practitioner.
2. The Board submitted the evidence reveals the following.
3. Patient DT was born in Greece in 1942 and was aged 74 years at the time of her death in August 2016. She spoke limited English and was Dr Kioussis' patient, from September 1997 until June 2015, both because his practice was close to her home and because he conducted medical examinations in Greek.
4. On 17 July 2014, she saw Dr Kioussis, complaining of a two-week history of post-menopausal bleeding, occurring every two to three days.
5. On 22 July 2014, a pelvic ultrasound ordered by Dr Kioussis was performed on patient DT. It was reported to reveal the following:

Fundal fibroid and abnormal endometrium possibly an endometrial mass.

1. On 26 July 2014, Dr Kioussis recorded the results of the pelvic ultrasound in patient DT's clinical notes. He also wrote the words "ref faxed Alfred gynae OP", indicating that he had sent a referral letter to a specialist gynaecologist at the Alfred hospital in relation to patient DT.33
2. However, the Daughter's evidence is that:

1. Around the time of patient DT's consultation with Dr Kioussis on 26 July 2014, her mother told her that Dr Kioussis had said he had referred her to a specialist gynaecologist; and 2. Patient DT did not see, and was not contacted by, any specialist gynaecologist in 2014; and

1. Patient DT treated doctors as "god-like" and that she "would have done whatever Dr Kioussis asked her to do".
2. Dr Kioussis' clinical notes do not contain any copy of a letter of referral faxed to the Alfred Hospital concerning patient DT in 2014. They do not contain any record of any correspondence from the Alfred Hospital relating to any such referral. As at July of 2014, the Alfred Hospital did not have a specialist gynaecology department.

From 26 July 2014 to 16 March 2015, patient DT attended Dr Kioussis on 20 October 2014, 8 December 2014, 9 January 2015 and 16 March 2015, when patient DT returned to Dr Kioussis complaining of further vaginal bleeding.

On 25 March 2015, Dr Kioussis ordered a second pelvic ultrasound. It was reported to reveal the following:

Abnormally thickened post menopausal endometrium. Gynaecologic follow up recommended.

1. Dr Kioussis recorded the results of the second pelvic ultrasound in patient DT's clinical notes.
2. On 17 April 2015, patient DT again saw Dr Kioussis. He told her that the Alfred Hospital no longer had a gynaecology department and that he would refer her to Sandringham Hospital for specialist assessment. Dr Kioussis drafted a handwritten letter referring patient DT to "Gynaecology of Sandringham RWH". However, his clinical file does not contain any correspondence from Sandringham Hospital with respect to this referral letter.
3. The Daughter's evidence is that patient DT did not attend a specialist gynaecologist or tell her that she had been referred to a specialist gynaecologist at this time.
4. On 6 June 2015, patient DT saw Dr Kioussis with her husband. He referred her to Dr Rajeswari Nair, gynaecologist, and gave her a handwritten note stating the date, time and location for an appointment with Dr Nair.
5. On 19 June 2015, patient DT saw Dr Nair with her daughter. At the time they arrived at Dr Nair's rooms, Dr Kioussis had not sent a letter of referral to Dr Nair.
6. After Dr Nair telephoned him twice, Dr Kioussis sent a handwritten letter of referral dated 16 June 2015 to Dr Nair's rooms. According to the Daughter, Dr Nair explained to patient DT and her that Dr Kioussis had told Dr Nair that he had previously told patient DT to pick up the referral letter from his rooms before attending her appointment with Dr Nair. Patient DT denied this.
7. After examining patient DT and reviewing the results of the ultrasound performed on her on 25 March 2015, Dr Nair advised patient DT that she required a hysteroscopy and curette procedure. After this consultation, patient DT advised her daughter that she intended to no longer see Dr Kioussis.
8. At no time while she was under the care of Dr Kioussis did patient DT express to her daughter any concern that she might have cancer or some other comparably serious medical condition.
9. On 23 June 2015, patient DT saw Dr Kelmann. On 24 June 2015, Dr Kelmann referred patient DT to Dr Phillip Thomas, gynaecologist, stating: "She requires urgent hysteroscopy". On 29 June 2015, patient DT saw Dr Thomas, who booked her for a hysteroscopy and curettage.
10. On 7 July 2015, Dr Thomas performed the hysteroscopy and curette procedure. Pathology of the curettings was reported to reveal "clear cell carcinoma (Grade 3) of endometrium (focally involving polyp)."
11. On 15 July 2015, patient DT attended on Dr Thomas, who advised her of her diagnosis of 'Grade 3 clear cell endometrial carcinoma' and that she would require a hysterectomy.
12. In July of 2015, Dr Thomas referred patient DT to Associate Professor Thomas Jobling, gynaecological oncologist, to review her "recently identified high grade endometrial cancer". Associate Professor Jobling ordered a further CT scan, which was performed on 30 July 2015 and was reported to reveal probable neoplastic change affecting patient DT's uterus.
13. On 2 September 2015, Dr Shih-Ern Yao performed a total laparascopic hysterectomy on patient DT.
14. On 16 June 2016, a CT scan was performed on patient DT's abdomen and pelvis. This was reported to reveal "ascites and omental disease, consistent with transcoelomic malignancy", most likely representing a "recurrence of her high grade endometrial carcinoma". A further CT scan performed on 2 July 2016 showed a probable bowel obstruction "due to extensive omental and peritoneal metastatic disease".
15. Patient DT died on 6 August 2016, with clear cell endometrial carcinoma being a cause.
16. The expert evidence of Dr Loy is that where a patient presents to a general practitioner with post-menopausal bleeding:

1. "the presumption is that this patient will have endometrial cancer until proven otherwise"; 2. Endometrial cancer is a "serious disorder that cannot be missed", meaning that it requires the application of a "low threshold for referral";

1. It requires "close follow up until diagnosis is confirmed or excluded" and "shared decision making so that the patient [understands] what [is] being done and why."

1. Dr Kioussis spoke of the death of patient DT causing him to consider retiring from medicine and continuing to adversely affecting him.
2. He had no recall of the events in question. His evidence was reconstructed from patient file notes and based on how he described the practice's procedures in dealing with referrals concerning urgent and serious matters.
3. Drawing from the file notes, he referred to the 17 July 2014 consultation where patient DT presented with pelvic bleeding. He described patient DT as a lovely lady and someone he and his staff took seriously. He assumed that on his instructions, his staff booked her in for the pelvic ultrasound.
4. At the next appointment on 26 July 2014, he would have discussed the results saying they needed to be acted on. Dr Kioussis wanted to refer her to the private system, avoiding delays in the public system. The patient preferred the public system. Given that the bleeding had settled down, waiting for the public system was a reasonable option.
5. He said that when he saw the results of the first ultrasound, which required urgent action, he would have given patient DT a broad indication that this was a matter that needed attending to. However, he would not have been explicit about the potential seriousness of her condition so as not to unnecessarily scare her. He said that in retrospect this may have explained why, after the attempted referral to the Alfred Hospital, she did not return to ask what had happened to the referral. Dr Kioussis agreed patient DT was a patient who complied with her general practitioner's advice.
6. The referral to the Alfred Hospital had to be made in writing. There was no capacity to telephone and book an appointment on behalf of a patient. He was confident that the first referral letter (and the second) were sent. In his view, if he had written in the file that the letter had been sent it would have been sent. He said, unfortunately, one of the realities of this system is referrals do go missing. The practice did not place fax receipts on file.

1. Concerning the times patient DT saw Dr Kioussis between the Alfred Hospital referral and the discovery that patient DT had not been seen at the hospital, Dr Kioussis said he wished he knew why she had not raised with him the fact that she had not gone to the Alfred. He agreed there are no notes at the interim consultations that he had asked what happened concerning either the referral or the bleeding. Commenting that it is easy to criticise from a distance, he said he has no recollection of why he would not have asked.
2. When it was discovered that the referral of patient DT to the Alfred Hospital had been unsuccessful, a referral was made to Sandringham Hospital on 17 April 2015. Dr Kioussis said he would have ordered a second scan, as a check on the accuracy of the first scan. When it was put to him that he ordered the second scan because his patient files did not alert him to the fact of the first scan, he doubted that would have been so.
3. He explained the presence on his file of the second referral letter, to Sandringham Hospital, but not of the first referral letter to the Alfred Hospital, because it was his practice to remove a first referral from the file and dispose of it where that referral was redundant.
4. Dr Kioussis said that he would have given patient DT a stronger indication that this was a serious matter which needed urgent follow-up. He speculated that the reason the daughter gave evidence that her mother had not related such advice to her was that probably patient DT did not want to alarm her daughter.
5. Once again, the referral was unsuccessful, with Dr Kioussis not able to explain the reason apart from relying on his usual practice with referrals.
6. Concerning the third referral, this time to Dr Nair, Dr Kioussis believes that, consistent with his usual practice in urgent matters, he would have requested patient DT to pick up the referral and take it to Dr Nair.
7. Dr Kioussis was not in the position to refute the evidence of the Daughter, as recounted above.
8. In broad terms, while expressing great regret about the outcome for his patient, Dr Kioussis did not accept responsibility for the possibility that failures in his medical practice in terms of referral and backup systems contributed to patient DT's death. He pointed out that no system is perfect, including his file management system and modern computer management systems. He spoke of the tragic outcome here being by far his worst experience of a negative outcome for a patient related to his medical practice and a failure in referral. He regards any suggestion that if he had complied with the education conditions placed on his registration, changes may have been made to the practice which would have prevented the tragic outcome concerning patient DT, as speculation. He resented the implication arising from this speculation.

1. The Board submitted that the evidence in relation to Allegation 2 showed Dr Kioussis failed to refer patient DT to a specialist gynaecologist in a timely manner, in circumstances where her test results revealed a real possibility of a serious diagnosis that required immediate specialist investigation. This failure occurred against the backdrop of Dr Kioussis' failure to put in place and maintain any formal protocol or system for ensuring that test results and correspondence were followed up. This was precisely the type of defect in Dr Kioussis' methods of practice management that could have been eliminated (or at least alleviated) if he had complied with the conditions and taken steps to improve his practices, following the First PPSP decision.
2. Concerning the failed Alfred Hospital referral, the Board submitted that given the evidence:
   1. The proper inference is, whatever Dr Kioussis' intentions may have been, he did not in fact send a referral letter to a specialist gynaecologist in respect of patient DT in July of 2014; and
   2. The only alternative inference is he sent a referral letter to a hospital with no gynaecology department, did not follow up the referral and failed to give patient DT sufficient information to enable her to follow up the referral herself.
3. Concerning the failed Sandringham referral, the Board submitted the proper inference is Dr Kioussis again failed to send a referral letter to a specialist gynaecologist in respect of patient DT. Again, the only alternative inference is Dr Kioussis sent the letter of referral, but neither followed the referral up, nor gave patient DT sufficient information to follow it up for herself.
4. Concerning events as they unfolded at Dr Nair's rooms, the Board submitted that given the Daughter's evidence that patient DT treated doctors as "god-like", VCAT should accept patient DT's denial that Dr Kioussis had told her collect the referral letter.
5. The Board submitted the significance of Dr Kioussis' failure to make a timely referral in respect ofpatient DT must be considered in light of Dr Loy's evidence that:
   1. Endometrial cancer is a serious disorder not to be missed; and
   2. That patient DT's symptoms were such that Dr Kioussis should have presumed she was suffering from that condition unless and until the diagnosis was excluded.
6. In these circumstances, the Board submitted that VCAT should find that in relation to Allegation 2, Dr Kioussis behaved in a way that constituted professional misconduct and departure from the expected standards, given Dr Kioussis' level of training and experience. Alternatively, the Tribunal should find that Dr Kioussis has behaved in a way that constitutes unprofessional conduct or unsatisfactory professional performance.

1. Implicit in Dr Kioussis' presentation before us at hearing is his view that while the outcome of his treatment of patient DT is tragic and he has deeply reflected on its implications for his practice, including asking himself whether he should leave practice, he has concluded his conduct was acceptable. To an extent he attributed the failures of referral to other elements in the system, and to the Patient.

Decision concerning Allegation 2 - professional misconduct

1. In our view, Dr Kioussis' conduct as alleged with respect to Allegation 2 amounts to professional misconduct in that he twice failed to refer patient DT in a timely manner to a specialist gynaecologist for diagnosis and treatment in circumstances where appropriate management of patient DT's condition required an urgent referral to a specialist gynaecologist.
2. We use the term "failed to refer" in the sense that Dr Kioussis failed to take action to ensure in a very serious situation his attempts at referral resulted in the patient actually seeing a gynaecologist.
3. Given the evidence before us, it is difficult to be comfortably satisfied as to precisely what went wrong in the process. Either referrals to the Alfred and Sandringham hospitals were never sent from his practice or, if they were sent, they did not reach their intended recipient and his practice never followed up the referrals.
4. However, no matter which scenario unfolded, what is clear is that Dr Kioussis failed to have in place a system which ensured effective referral of patient DT, that fact demonstrated by the repeated failures to refer.
5. We are comfortably satisfied, and find, Dr Kioussis never sent a referral to Dr Nair and never requested patient DT to collect the referral from his practice. We prefer patient DT's evidence as relayed through her daughter, in the context that we accept patient DT was a highly compliant patient, who did whatever her doctor asked.
6. Dr Kioussis accepted failure to refer occurred in this case, but rejected the concept that it reflected poor organisation. His belief again demonstrates lack of insight that his disorganisation and poor systems adversely affect patient care and were at least partly responsible for the delayed diagnosis. Again, the outcome may have been improved had he attended the education sessions as directed.

1. Allegation 3 is, in summary, between August 2013 and June 2017, Dr Kioussis engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance in that he failed to establish and maintain an adequate system for ensuring that test results and other clinical correspondence received by him were acted on in a timely manner.
2. On or about 29 April 2016, AHPRA received a complaint from the Health Services Commissioner regarding Dr Kioussis. It was alleged that in about June 2014, solicitors acting for a patient of Dr Kioussis had requested a medical report regarding their client. It was alleged that despite numerous follow up requests, and payment for a report, no report was received.
3. Following receipt of this complaint, the Board decided under s 169 of the National Law to require Dr Kioussis to undergo a "performance assessment". It appointed Dr Loy and Dr Tanya Scott to perform the assessment. Dr Scott is another highly respected well-qualified general practitioner.
4. On 7 June 2017, they conducted a performance assessment of Dr Kioussis' record keeping and practice management and reviewed ten of his patients' clinical files.
5. They conducted the performance assessment with reference to the Code and to the Standards.
6. Between its publication in July 2010[5] and 7 June 2017, the Code provided that a medical practice should have in place systems of quality assurance to reduce error and improve patient safety (Sections 6.2.2 and 6.2.5).
7. Section 6.2 of the Code says:

Good medical practice in relation to risk management involves:

Being aware of the importance of the principles of open disclosure and a non-punitive approach to incident management.

Participating in systems of quality assurance and improvement.

Participating in systems for surveillance and monitoring of adverse events and 'near misses', including reporting such events.

If you have management responsibilities, making sure that systems are in place for raising concerns about risks to patients.

Working in your practice and within systems to reduce error and improve patient safety, and supporting colleagues who raise concerns about patient safety.

Taking all reasonable steps to address the issue if you have reason to think that patient safety may be compromised.

Between about October 2010 and 7 June 2017, the Standards provided that a medical practice should have a system for ensuring that:

1. Timely handover of patient care is ensured (Criterion 1.5.2); and
2. Test results are followed up and acted upon (Criterion 1.5.3).

1. Dr Kioussis did not have any automated system or practice protocol in place to ensure that correspondence and test results were followed up;
2. There was no dedicated staff member who was responsible for ensuring that this occurred;

1. Rather, the 'safety netting' surrounding Dr Kioussis' s practice was reliant on Dr Kioussis' memory and on "paper-based communication, eg notes in his in-tray."

1. According to Dr Loy, this system did not comply with the Standards or the Code and was not adequate in all the circumstances.

1. Given the interrelationship between this allegation and Allegation 2, we do not repeat, but took into account, Dr Kioussis' views on the efficacy of his system for dealing with referrals.
2. Dr Kioussis rejected the suggestion made in the audit that rather than rely on clinical files, he relies on his very good memory to service patients. He described his memory as not that good and there being too much information for that to be possible. In his view, he relies on the clinical file system as described above, not memory.
3. Dr Kioussis spoke of dealing with test results as follows, this system being implemented since 2017:

1. Patients were encouraged after they underwent a test to contact the practice by telephone to obtain the results over the phone; 2. In that context, by the time they telephoned, Dr Kioussis would have received and looked at the results and where the matter is not urgent, left a note for the staff as to the appropriate response to the incoming phone call;

1. If the results were normal, practice staff advised the patient over the phone and the patient could decide whether to seek an appointment;

1. If the results revealed a non-urgent issue, the patient was asked to make an appointment; 2. If the matter was urgent, the patient was asked to come in urgently or in extreme cases go to emergency; 3. If required, Dr Kioussis would ring the patient directly; and 4. This system was complemented by a logbook kept at reception to record referral information issues.

1. In Dr Kioussis' opinion, if a new medical practitioner came into the practice, once the practitioner understood the file system that practitioner could obtain all relevant information ensuring continuity of care. In particular, the care plan which exists for patients with complex needs would be a key document. Also, in his view, if a doctor took over the practice that doctor would need to form his or her own conclusions, not overly relying on his notes.
2. Dr Kioussis said being described as a concerned and caring but disorganised doctor had hurt him. He asked whether that description was better than a person being a non-caring but highly organised doctor.
3. He spoke about reflecting deeply on this issue and concluding that system failures were not one of his flaws.
4. Dr Kioussis was not persuaded that moving his current system into an electronic file system would improve the service provided to patients. First, transition would be very difficult; second all systems are imperfect to some degree; and third some general practitioners have experienced significant problems with software failure and, of course, such systems are subject to power failures. He had heard of some practitioners essentially being "blackmailed" by software providers as to the cost of ongoing service of the software.

1. The Board submitted that the evidence of Dr Scott and Dr Loy must be considered together with:
   1. Dr Kioussis' evidence before the First PPSP on 15 August 2013; and
   2. Our findings with respect to Allegation 2.
2. In the Board's submission, those findings should include a finding that Dr Kioussis failed to follow up test results that clearly indicated that patient DT required urgent referral to a specialist gynaecologist.
3. On the basis of these matters, the Board submitted that we should conclude that during a period beginning no later than 15 August 2013 and concluding no earlier than the performance assessment of Dr Kioussis' practice by Dr Scott and Dr Loy, Dr Kioussis failed to put in place or maintain any adequate system for ensuring that test results and correspondence were followed up, let alone a system that complied with the Standards or the Code.
4. At all times material to these proceedings, appropriate professional conduct on the part of a medical practitioner required that he or she implement a formal protocol or system to ensure that correspondence and test results (particularly test results suggesting the need for urgent action) are followed up.
5. The Board submitted that the evidence in this case showed that Dr Kioussis had no such system in place:

1. When he appeared before the First PPSP in 2013, 2. During the course of his treatment of patient DT in 2014 and 2015; and

1. When Dr Scott and Dr Loy conducted their performance assessment on 7 June 2017.
2. It was submitted that the proper conclusion to draw from these facts is that Dr Kioussis did not at any time between 15 August 2013 and 7 June 2017 have in place any formal protocol or system for ensuring that correspondence and test results were followed up, let alone a system that complied with the Standards and/or the Code.
3. The Board submitted this was a serious failure to comply with appropriate standards of professional conduct, which are informed by the Code and the Standards, under which results and correspondence require a review and timely action if needed with focus on risk management. It was compounded by the fact that at any time after the first panel decision, Dr Kioussis could easily have taken steps to implement a system for ensuring that test results were followed up; and if he had complied with the conditions, any education he received may have prompted and assisted him to do so. However, he failed to take any steps to comply with the conditions.
4. By reason of the above, in relation to Allegation 3, the Board submitted we should find Dr Kioussis has behaved in a way that constitutes professional misconduct, the departure from the expected standard is significant, given Dr Kioussis' level of training and experience. Alternatively, VCAT should find that the respondent has behaved in a way that constitutes unprofessional conduct or unsatisfactory professional performance.

1. Implicit in Dr Kioussis' presentation before us at hearing, is his view that his systems are fit for purpose and he has not departed from professional standards.

_Decision concerning Allegation 3 ‑ unsatisfactory professional

1. Allegation 3 describes alleged departure from professional standards, in part made with reference to alleged specific description of failure regarding patient DT, being the subject of Allegation 2.
2. With respect to this allegation, we prefer the objective expert evidence put before us, not challenged by Dr Kioussis where he had the opportunity to cross examine, as offered to him by the Board in correspondence before the hearing, to Dr Kioussis' subjective view of his files supported in terms of evidence to us only by his oral description of the situation concerning his clinical files.
3. We regard the evidence concerning patient DT as a specific example of the results of these system failures, which adds to the evidence supporting Allegation 3.
4. There is no doubt that Dr Kioussis had unsatisfactory processes in place to address this key area of risk management.
5. However, while the evidence from Drs Loy and Scott is compelling, their criticism of Dr Kioussis' practice was based largely on his failure to meet the RACGP Standards.
6. While not irrelevant, those Standards are designed to set a desirable target for quality of care and risk management in general practice rather than a universal code of conduct such as Good Medical Practice. The Standards are therefore a desirable benchmark more applicable for the purpose of voluntary accreditation rather than a minimal set of professional principles enforceable under the National Law.
7. While we can take into account any extant professional guidelines, we note that Dr Kioussis' practice is not accredited.
8. In our view, the standards described in the Code are more applicable in this case, with failure to meet the RACGP Standards having less relevance.
9. Accordingly, our view is that section 6.2 of the Code regarding risk management is the appropriate standard to apply.
10. We consider Dr Kioussis' failure as a failure of practice process rather than clinical management, more accurately described as unsatisfactory professional performance rather than unprofessional conduct (although the latter may also apply). While the distinction may not be critical, it may influence the determination, in that corrective action to address unsatisfactory professional performance may provide greater focus on education and practice supervision to ensure satisfactory systems and processes are implemented.

1. Allegation 4 is, in summary, that between August 2013 and June 2017 Dr Kioussis engaged in professional misconduct, unprofessional conduct or unsatisfactory professional performance, in that he failed to establish and maintain an adequate system for recording clinical notes.

1. Between its initial publication and 7 June 2017, the Code provided that a medical practice should maintain patient records that record relevant details and that are sufficient to facilitate continuity of care (Section 8.4).

Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:

Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.

Ensuring that your medical records are held securely and are not subject to unauthorised access.

Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.

Ensuring that the records are sufficient to facilitate continuity of patient care.

Making records at the time of the events, or as soon as possible afterwards.

Recognising patients' right to access information contained in their medical records and facilitating that access.

Promptly facilitating the transfer of health information when requested by the patient.

1. Between October 2010 and 7 June 2017, the Standards provided that:

1. A medical practice should be able to facilitate safe continuity and handover of care (Criteria 1.5.1 and 1.5.2). 2. Each patient of a medical practice should have an individual health record containing all of the practice's information about the patient, including the name of any person the patient wishes to be contacted in the event of an emergency (Criterion 1.7.1).

1. Each patient of a medical practice should have a health summary recording the patient's current medications (Criterion 1.7.2).
2. When Dr Scott and Dr Loy conducted the "performance assessment" of Dr Kioussis, they found that:

1. Two patient files each contained clinical notes relating to three different patients. 2. None of the patient files contained a summary of the patient's current medication regime.

1. None of the patient files clearly documented the name of the person whom the patient wished to be contacted in the event of an emergency.

1. The patient files were contained in a hybrid electronic and paper form that did not clearly indicate in each file where specific patient information was stored.
2. According to Dr Loy, it followed from these features of Dr Kioussis' medical record management that, as at 7 June 2017, his system for recording clinical notes did not comply with the Standards or the Code and was not adequate in all the circumstances.

1. Dr Kioussis described the system by which he created and maintained physical handwritten files, of which there are approximately 7,000, for his patients, very often long-term patients with complex needs given their age and health status.
2. Concerning patients with complex needs, such as patient DT, he kept a single file for the patient. Where he treated a small family, comprising, say, of two healthy adult parents and two healthy children, all the relevant patient information may sit on a single family file.
3. Irrespective of which type of file was kept, critical medical history information, such as allergies and medications, was kept on the first page on the file. Importantly, concerning most elderly patients, is that they would have a formal care plan in place. It sits to the right-hand side of the file behind the clinical notes and is also kept in electronic format. Next of kin information was kept with the practice's receptionists.
4. Dr Kioussis referred to his clinical notes system being complemented by receiving medical reports etc online each morning, and that information transferred into the files via a tray system.
5. Concerning the audit of his practice, Dr Kioussis said if essential information was missing from some of the ten files examined, this would be an exception. He questioned the statistical validity of using a sample of ten files to make conclusions about his entire clinical record system.
6. Dr Kioussis rejected the suggestion made in the audit, that rather than rely on clinical files, he relies on his very good memory to service patients. He described his memory as not that good and there being too much information for that to be possible. In his view, he relies on the clinical file system as described above, not memory.
7. Dr Kioussis relied on his evidence that a new medical practitioner coming into the practice could provide continuity of care, his hurt at being described as a concerned and caring but disorganised doctor, reflecting deeply and not being persuaded that moving his current system into an electronic file system would improve service to patients.

1. The Board submitted that, again, Dr Scott and Dr Loy's findings must be read together with:
   1. Dr Kioussis' evidence before the First PPSP on 15 August 2013; and
   2. VCAT's findings with respect to Allegation 2.
2. The Board submitted that our findings should include a finding to the effect that Dr Kioussis' clinical notes in respect of patient DT, as an example of the state of his clinical files, were maintained in such a way that it cannot be determined conclusively by looking at them whether Dr Kioussis wrote or sent a letter of referral to the Alfred Hospital in July 2014, or whether he ever sent his handwritten letter of referral dated 17 April 2015 to Sandringham Hospital.
3. That is, Dr Kioussis' clinical notes in respect of patient DT were recorded in such a way that a new general practitioner would have been unable to take over her care and Dr Kioussis was himself apparently unaware of whether he had taken appropriate action in respect of her ultrasound results.
4. In light of these matters, the Board submitted that we should conclude that during a period beginning no later than 15 August 2013 and concluding no earlier than 7 June 2017, Dr Kioussis failed to put in place or maintain a system for recording clinical notes that complied with his obligations.
5. The Board submitted the evidence established that at all times material to these proceedings, appropriate professional conduct on the part of a medical practitioner has required that he or she maintain patient records in a manner that, at a minimum, enables continuity of care. That is, a medical practitioner must maintain medical records in a way that:

1. Enables a medical practitioner taking over treatment of a patient to find the patient's medical records; 2. Enables a new medical practitioner to know the patient's current medications;

1. Enables a new medical practitioner to know what test results have been actioned, what specialist referrals have been made and whether any further referrals need to be made; and

1. In the case of a hybrid paper and electronic record-keeping system, enables a new medical practitioner to know which part of the systems contains what classes of information about a patient.
2. It was submitted the evidence of Dr Scott and Dr Loy is that as at 7 June 2017, an inspection of ten randomly chosen patient files revealed that Dr Kioussis' medical record-keeping practices did not comply with these requirements. This was indicative of a problem that long predated the performance assessment itself. In this regard, patient medical records were created through the accumulation of information over a period of time - they are not made instantaneously - and Dr Kioussis has been operating at his current practice since 1991.

1. The proper inference to be drawn from the results of Dr Scott and Dr Loy's "performance assessment" is that Dr Kioussis had failed to observe appropriate medical record-keeping practices for a lengthy period leading up to June 2017; 2. The evidence in relation to Allegation 2 confirms this. In this regard, the fact that it is not possible to determine conclusively from an inspection of patient DT's medical records whether any referral letter was sent in relation to her in July 2014 or April 2015 shows that during that period, Dr Kioussis was not maintaining patient medical records in a manner that would have enabled a new medical practitioner to determine what referrals had been made in respect of a patient and what referrals were still required.

1. This view is also supported by the First PPSP decision, which records that by 15 August 2013, Dr Kioussis understood that his practice had become disorganised and told the first PPSP that notes relating to house calls were not being systematically entered into patient records during consultations.
2. The Board submitted we should find that between 15 August 2013 and 7 June 2017, Dr Kioussis failed to put in place and maintain a system for keeping patient medical records that complied with appropriate professional standards and that, in relation to Allegation 4, he has behaved in a way that constitutes professional misconduct. Again, the departure from the expected standard is significant, given Dr Kioussis' s level of training and experience. Alternatively, the Tribunal should find that Dr Kioussis has behaved in a way that constitutes unprofessional conduct or unsatisfactory professional performance.

1. Again, implicit in Dr Kioussis' presentation before us is his view that his systems are fit for purpose and he has not departed from professional standards.

_Decision concerning Allegation 4 - unsatisfactory professional

1. Allegation 4 is a broad allegation of departure from professional standards with respect to the keeping of clinical files.
2. With respect to this allegation, again we prefer the objective expert evidence put before us, not challenged by Dr Kioussis who had the opportunity to cross examine, to Dr Kioussis' subjective view of his files supported in terms of evidence to us only by his oral description of the situation concerning his clinical files.

1. We consider s 8.4 of the Code is more applicable than the RACGP standards as the appropriate reference.
2. Given the expert evidence which we accepted, and the corroborating evidence described above, the allegation is clearly made out.
3. As we discuss above concerning Allegation 3, the departure from professional standards with respect to the keeping of clinical files is best classified as unsatisfactory professional performance.

1. Once VCAT has made findings in a proceeding such as this, the next step is to make the determinations necessary to protect the public and uphold the profession's reputation under s 196(2) of the national law.
2. We agree with the Board's submission that a passage from VCAT's decision in Medical Board of Australia v Alkazali (Review and Regulation) [2017] VCAT 286, well sets out principles to be applied when making this decision. The next paragraphs are directly drawn from the Alkazali decision.
3. The principles which guide VCAT in formulating appropriate determinations are uncontroversial. However, their application to any particular case requires careful consideration not only of the nature and circumstances of the misconduct but also relevant prior misconduct and the subsequent behaviour of the practitioner. Each of these matters is considered below.
4. The dominant purpose of the disciplinary regulation of the medical profession and the primary aim of determinations, following a finding of professional misconduct or unprofessional conduct, is the protection of the public, through the combined ends of maintenance of appropriate professional standards; and the protection of the profession, in the sense of maintaining its stature and integrity in the eyes of the public.
5. Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations
6. The function of any determination is not to punish per se. A determination must not be as harsh as in reality to be punitive or retributive. If a determination is harsher than would be necessary to achieve the desired ends of protection of the public, through the means referred to above, it might be regarded as a form of punishment.

1. In Craig v Medical Practitioners Board [2001] SASC 169 at [41] in dealing with a psychiatrist who had entered a personal relationship with his patient, Doyle CJ usefully summarized the approach to be taken in disciplinary cases as follows:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

1. It is also appropriate to draw upon objectives applied in sentencing in the criminal jurisdiction. Accordingly, in addition to the primary objectives of protecting the public and maintaining proper professional standards, the following principles need to be taken into account and carefully balanced:

1. Specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; 2. General deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and

1. Facilitation of rehabilitation on the part of the practitioner.
2. The importance of specific deterrence and prospects for rehabilitation are also a function of an assessment of the ongoing risk of repetition of the professional misconduct by the practitioner. Relevant to this question is the degree to which the practitioner understands or accepts the impropriety of the impugned conduct. This notion of 'insight' has repeatedly been held to be relevant to the appropriate determination as it is relevant to the continuing risk posed by the practitioner.
3. As observed by the Tribunal in Medical Practitioners Boa__rd of Victoria v Grolaux [No. 2] [2009] VCAT 978 at [8]:

In context, this "insight" might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or the willingness to take measures to identify risk factors and to avoid similar behaviour.

1. Also relevant is the need of medical disciplinary decisions to uphold the reputation of the medical profession.
2. The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the misconduct.
3. In cases where either cancellation of registration or suspension of registration are alternatives, the proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice. Cancellation is appropriate where the Tribunal cannot be so satisfied.

1. In written submissions received before the determinations hearing, the Board submitted Dr Kioussis' registration as a medical practitioner should be cancelled and he should be reprimanded. Dr Kioussis submitted his registration should be suspended, with conditions imposed such that he would only be able to return to practice once his health permitted and he was again fit to resume medical practice.
2. On the morning of the hearing, the parties advised that their positions had changed. Dr Kioussis agreed to the determinations sought by the Board, that his registration be cancelled, with no minimum time imposed before he would be eligible to apply for reregistration, if his health and other factors permitted and that he be reprimanded.
3. With this not a matter where VCAT makes a decision simply based on the parties' submissions, we considered new evidence provided to us before the hearing, a further medical report provided at the hearing and heard submissions from counsel.

1. In a report dated 21 October 2019, Dr Malcolm Hopwood, Consultant Psychiatrist, wrote of seeing Dr Kioussis twice over September and October, first for an initial assessment and then in order to identify an appropriate psychiatrist to provide ongoing treatment. He diagnosed Dr Kioussis as suffering a major depressive episode of moderate severity, probably present for at least five years and potentially longer, which had very likely impacted on his work as a general practitioner.
2. In Dr Hopwood's opinion, it was "extremely likely" that Dr Kioussis, if treated, would at some point in the future be again capable to practise as a medical practitioner.
3. In a report dated 31 October 2019, Mr Jeffrey Cummins, Consulting and Clinical and Forensic Psychologist, said that Dr Kioussis self-referred to him for psychological treatment from late July to mid October 2019.
4. Mr Cummins advised that he was aware of the background evidence to this case. He summarised recent history, including that on 23 May 2019, the Board suspended Dr Kioussis' registration as a medical practitioner by way of immediate action under s 156 of the National Law, due to the risk of him practising medicine given the state of his mental health. Dr Kioussis had on 16 May 2019 given an undertaking not to practise as a medical practitioner. By that time, he was no longer a partner at the practice at which he worked for over 27 years. He had left the Practice.
5. Mr Cummings wrote that Dr Kioussis hoped to, with continuing treatment, eventually resume working in some capacity as a treating medical practitioner or, in the alternative, as a medical examiner reviewing patient files and histories for third parties.
6. Mr Cummins diagnosed Dr Kioussis as suffering from a Major Depressive Disorder. In his opinion, this was most probably triggered by Dr Kioussis' father's death in 2013, his overwork at the practice, feeling trapped in his work pattern given his loyalty to his patients, his previous practice partner and his sense of responsibility to his family. This diagnosis was consistent with Mr Cummins' brief 7 August 2019 report, which led to the adjournment of the 9 August 2019 VCAT determinations hearing.
7. Dr Kioussis' wife, also a medical practitioner, provided a letter dated 9 October 2019. She described progressive changes in Dr Kioussis since the death of his father. She corroborated the evidence of Dr Kioussis' decline over the years, in the context of his feeling of entrapment by his responsibilities as a medical practitioner, a member of the Greek community and his family responsibilities.

1. After a short adjournment of the 1 November hearing, we returned to the hearing and announced our decision, consistent with the submissions before us, to cancel Dr Kioussis' registration, to specify no minimum time before he may make reapplication for reregistration and to reprimand him.
2. Dr Kioussis' failure, over years, to effectively grapple with the severe problems confronting him, with severe problems ongoing, clearly warrants cancellation of his registration as a health practitioner under them National Law.
3. That Dr Kioussis remain without registration as a health practitioner (his registration already suspended as discussed above) is warranted in the cause of specific deterrence, general deterrence and to maintain the reputation of the medical profession.
4. Concerning specific deterrence, Dr Kioussis must be deterred from further inappropriate conduct, that being him, when severely challenged engaging in professional misconduct and unsatisfactory professional performance as found in this proceeding.
5. Concerning general deterrence, this case is a stark example to other practitioners of the consequences of failing to deal with the challenges that may arise over a professional career.
6. Also, the strongest action must be taken to assure the public that appropriate standards are being maintained within the relevant profession. Dr Kioussis' failures put patients at risk and adversely affected the service he provided to patients.
7. Being conscious that patient DT's relatives are likely to read these orders and reasons, we are of course deeply concerned as to apparent failures of referral. That said, it is not our role in this case, to make findings about any causation between Kioussis' conduct and her death.
8. With Dr Kioussis exclusion from medical practice to continue, it is appropriate to cancel rather than suspend his registration.
9. While Dr Hopwood and Mr Cummins expressed some confidence as to Dr Kioussis' future health, in late December 2019 we cannot be confident that he will be fit to resume practice at the end of a period of suspension. Whether in the future he is to be reregistered will be a matter for the Board, if he seeks reregistration, based on the evidence at that time.
10. If Dr Kioussis had ultimately sought suspension, with conditions to be satisfied before return to practice, we would have rejected this. It is not necessary here to detail why we would have concluded, as the Board submitted, that it would not be feasible to foresee the future and fashion appropriate conditions.
11. What is appropriate is to cancel Dr Kioussis' registration, without imposing a minimum time in which he may apply to the Board for registration. In this case, the imposition of a minimum time, is more than is required and would constitute impermissible punishment.
12. If Dr Kioussis seeks reregistration at some point in the future, the Board will consider his application, equipped with the evidence of that time.
13. Finally, Dr Kioussis must be reprimanded for his conduct which in our view, constitutes professional misconduct and unsatisfactory professional performance. As often observed, reprimand is a serious form of censure and condemnation, combined with a finding of professional misconduct .[6]
14. We are particularly concerned that over the long course of events relevant to this case, Dr Kioussis regarded his views on medical practice as superior to that of the Board and medical practitioners who examined his practice, such that he chose not to comply with assistance he was offered, by way of conditions and supervision.

1. There is no excuse for those failures attributed to his health condition and surrounding pressures. It is those very factors which a health practitioner in those circumstances must recognise and seek help to deal with.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] Second and further amended allegations.

[3] While the particulars refer to 2015, it is clear from the context this was intended as a reference to 2014.

[4] [2013] VSCA 305; (2013) 306 ALR 125 [38] - [39] (Osborne and Beach JJA).

[5] Followed by its republication in March of 2014 in a form containing amendments that are not presently material.

[6] We note Marks J's comments in Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6, as quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52]. See also Medical Board of Australia v Fox at [63].