1. Dr Garland is reprimanded.
2. A condition will be imposed upon Dr Garland's registration, as outlined in the following paragraphs:

2.1 Dr Garland is to attend and complete six sessions of professional education, each of an hour in duration, covering the following content:

(i) recognising the signs of drug-dependence in patients;

(iii) professional communication with fellow health professionals, patients and their families.

(a) obtain the Board's approval of the educator prior to the commencement of the education, such an approved educator:

(i) to hold general registration as a registered medical practitioner for a period of not less than seven (7) years; and

(ii) not be in a close collegiate, social or financial relationship with Dr Garland;

(b) commence the education sessions within one (1) month of being advised that the Board has approved the educator and to conclude the education within six (6) months of the conditions being imposed;

(c) provide to the Compliance Department at AHPRA, within twenty eight (28) days of the date of completion of the education, a report which covers the following:

(i) Dr Garland's reflection on the issues raised by the notification;

(ii) a written summary of the outcomes/lessons learnt from the education sessions;

(iii) a written summary of how Dr Garland intends to apply this knowledge to his practice;

(d) advise the approved educator that, within twenty eight (28) days of the completion of the education, the Board requires a report stating:

(iii) whether or not Dr Garland has, in the opinion of the educator, satisfactorily participated in and understood the contents of the education.

2.3 AHPRA may communicate with the educator in relation to Dr Garland's compliance with the conditions on his registration. Included in such communication, AHPRA may provide the approved educator with a copy of these conditions and details of the notification made against Dr Garland prior to the commencement of the education.

2.4 The above reports and statements will be relied upon by the Board when determining whether Dr Garland has complied with the conditions on his registration.

2.5 If the Board is not satisfied that Dr Garland's report and that of the educator demonstrate to the satisfaction of the Board that Dr Garland has benefited from the education, Dr Garland may be required to provide a further report and/or undergo further education in respect of the matters referred to above.

2.6 Dr Garland is responsible for all the costs associated with these conditions including the cost of the report from the educator.

2.7 The education sessions attended pursuant to the conditions are over and above the Continuing Professional Development requirements in respect of Dr Garland's registration.

2.8 The review period in respect of these conditions is to be eight (8) months from the time that they are imposed.

1. Since 1978, Dr Garland has been a vocationally registered General Practitioner with no conditions, undertakings or reprimands on his registration.
2. However, during the period from March 2009 until 29 June 2010, Dr Garland:
   • Prescribed Schedule 8 Poisons in breach of sections 34C and 35 of the Drugs Poisons and Controlled Substances Act 1981 ("the DPCSA"). He also failed to notify the Secretary regarding the treatment of drug-dependent patients in breach of section 33(3)(b), of the DPCSA. (He was ultimately convicted and fined in the Magistrates' Court of Victoria of 36 offences related to prescribing in breach of the provisions of the DPCSA).
   • Failed to recognise signs of drug dependence in his patients; and
   • Prescribed drugs of dependency to various patients without consulting the medical practitioners who held appropriate permits to prescribe opioid replacement therapy to those patients.
3. On 27 November 2014, the respondent referred Dr Garland's conduct to this Tribunal.
4. On 15 April 2015, Dr Garland participated in a compulsory conference, which resulted in the parties subsequently filing an Agreed Statement Facts on 22 April 2015.
5. The hearing proceeded before us on 10 June 2015. We were assisted by the submissions of Mr Murray, who appeared for the Board, and Mr Cash, who appeared on behalf of Dr Garland. We had previously read the comprehensive material contained in the tribunal book, together with other materials filed by the parties.
6. We were satisfied that the following Agreed Statement of Facts accurately and comprehensively set of the facts in this case:
7. AGREED STATEMENT OF FACTS

1.1 On 5 March 2012, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification on behalf of the Medical Board of Australia (Board).

1.2 The notification received by AHPRA on 5 March 2012 was made by Mr Chris Falcke, a Senior Drugs and Poisons Officer with the Department of Health.

1.3 On 10 May 2012, the Board decided to investigate Dr Garland's professional conduct under section 160(1) of the Health Practitioner Regulation National Law _Ac_t 2009 (Vic) (National Law).

1.4 On 25 September 2012, Dr Garland pleaded guilty in the Magistrates' Court of Victoria to 36 offences related to prescribing in breach of the provisions of the DPCSA, for which he was convicted.

2. The conduct that was the subject of Dr Garland's plea of guilty

2.1 The conduct that was the subject of Dr Garland's plea of guilty to these offences is outlined below.

2.2 Section 34C of the DPCSA prohibits a medical practitioner prescribing a Schedule 8 poison to a person who is not drug dependent without holding a permit, or being otherwise authorised, if the total period of supply would be a continuous period greater than eight weeks, or a continuous period of greater than eight weeks taking into account prescription to or for that person that the practitioner has reason to believe has been, or is currently being prescribed by one or more other practitioners.

2.3 Dr Garland prescribed in breach of section 34C:

between 10 March 2009 and 27 May 2009 on 11 occasions to a patient, LB, taking into account prescribing of other practitioners;

between 3 June 2009 and 3 August 2009 on 11 occasions to a patient, LB, taking into account prescribing of other practitioners;

between 10 August 2009 and 19 October 2009 on 11 occasions to a patient, LB, taking into account prescribing of other practitioners;

between 23 October 2009 and 18 January 2010 on 12 occasions to a patient, LB, taking into account prescribing of other practitioners;

between 15 May 2009 and 17 November 2009 on 10 occasions to a patient, RH;

between 4 December 2009 and 6 May 2010 on 10 occasions to a patient, RH;

between 17 May 2010 and 29 June 2010 on 4 occasions to a patient, RH;

between 21 July 2009 and 23 June 2010 on 12 occasions to a patient, MT, taking into account prescribing of other practitioners;

between 3 April 2009 and 5 June 2009 on 11 occasions to a patient, EB;

between 12 June 2009 and 18 August 2009 on 11 occasions to a patient, EB;

between 24 August 2009 and 30 October 2009 on 11 occasions to a patient, EB;

between 9 November 2010 and 11 January 2010 on 10 occasions to a patient, EB;

between 15 January 2010 and 23 March 2010 on 10 occasions to a patient, EB;

between 11 March 2009 and 4 May 2009 on 10 occasions to a patient, BM;

between 18 May 2009 and 21 July 2009 on 10 occasions to a patient, BM;

between 23 July 2009 and 12 October 2009 on 10 occasions to a patient, BM;

between 14 October 2009 and 4 December 2009 on 11 occasions to a patient, BM;

between 14 December 2009 and 9 April 2010 on 11 occasions to a patient, BM;

between 15 April 2010 and 25 June 2010 on 10 occasions to a patient, BM;

between 6 May 2009 and 24 July 2009 on 10 occasions to a patient, GB;

between 6 August 2009 and 29 October 2009 on 10 occasions to a patient, GB;

between 5 November 2009 and 28 January 2010 on 11 occasions to a patient, GB;

between 28 February 2010 and 17 June 2010 on 11 occasions to a patient, GB;

between 7 July 2010 and 3 September 2010 on 5 occasions to a patient, RH;

between 2 July 2010 and 24 August 2010 on 9 occasions to a patient, MT, taking into account prescribing of other practitioners;

between 2 July 2010 and 30 August 2010 on 10 occasions to a patient, BM;

between 1 July 2010 and 2 December 2010 on 11 occasions to a patient, GB.

2.4 Section 35 of the DPCSA prohibits a medical practitioner prescribing a Schedule 8 poison to a patient, in respect of whom a permit has been issued, other than for the period specified in the permit or in excess of the quantity specified in the permit.

(a) on 7 May 2010 on one occasion for a patient, LB, other than for the period specified in the permit;

(b) between 26 May 2010 and 22 June 2010 on 5 occasions for a patient, EB, in excess of the quantity specified in the permit;

(c) on 29 June 2010 on 2 occasions for a patient, EB, other than for the period specified in the permit issued by the Secretary;

(d) between 23 March 2009 and 30 December 2009 on 11 occasions for a patient, WP, other than for the period specified in the permit;

(e) between 29 January 2010 and 17 June 2010 on 6 occasions for a patient, WP, other than for the period specified in the permit;

(f) between 6 July 2010 and 6 September 2010 on 10 occasions to a patient, EB;

(g) between 16 July 2010 and 3 December 2010 on 6 occasions to a patient, WP.

2.6 Section 33 (3)(b) of the DPCSA requires that a medical practitioner who has reason to believe that one of his or her patients is a drug-dependent person must give a notification of drug-dependent person to the Secretary if the medical practitioner intends to treat or is treating the patient with a Schedule 4 poison which is also a drug of dependence.

2.7 Dr Garland treated patients in breach of section 33(3)(b):

on or about 27 July 2009 in treating a patient, DB;

on or about 13 July 2010 in treating a patient, GI;

on or about 29 July 2010 in treating a patient, NM;

on or about 12 October 2010 in treating a patient, TC;

on or about 29 October 2010 in treating a patient, PK.

3.1 In addition to the matters that were the subject of Dr Garland's plea of guilty and his conviction for offences under the Drugs and Poisons Act, there were additional failures by Dr Garland, which are referred to in the paragraphs below.

3.2 In the period from March 2009 until December 2010, Dr Garland failed to recognise signs of drug dependence in patients RH, MT, EB, NM, DB, GB, G1, PK, NP and WP.

3.3 In the period from March 2009 until December 2010, Dr Garland placed patient safety at risk by failing to consult with relevant medical practitioners holding permits to prescribe opioid replacement therapy for their patients, before prescribing drugs of dependence to these patients.

1. Dr Garland's prescribing revealed multiple deficiencies in terms of monitoring the frequency, quantity and appropriateness of prescribing. Such prescribing has the potential to expose vulnerable patients to risk.
2. Where patients with a valid therapeutic need for drugs of dependence have a principal prescriber attempting to manage his/her medication regime, concurrent prescribing, particularly without consultation with the principal prescriber, may have detrimental consequences.
3. The permit system enables treatment with schedule 8 poisons to be co-ordinated and monitored to prevent concurrent prescribing by other practitioners and to reduce the possibility of deliberate misuse. Prescribing beyond the expiry date of a permit increases the risk that a patient will be able to obtain drugs concurrently from other medical practitioners. Failing to adhere to the requirements of the permit system undermines the integrity of the system.
4. Health practitioners need to remain vigilant at all times to the signs of drug-dependency. "Lost, stolen or destroyed" prescriptions are possible signs that there may be a drug dependency issue. Dr Garland was not alert to these signs.
5. The Drugs Poisons and Regulation Group publishes helpful material on its website and has a helpline. The Medicare Australia Prescription Shopper Information Service provides a similarly useful service. Dr Garland did not avail himself of these resources.
6. The conduct demonstrates serious shortfalls transcending a number of areas of practice. We find that Dr Garland's conduct fell substantially below the standard reasonably expected of a health practitioner of his level of experience.
7. In his evidence, Dr Garland conceded this to be the case
8. We make the following findings:

1. We find as follows:
2. In respect of his conduct in the period from March 2009 until 30 June 2010, and the other matters referred to above, Dr Garland engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 3 of the Health Professions Registration Act 2005 (Vic).
3. In respect of his conduct in the period from 1 July 2010 until 3 December 2010, and the other matters referred to above, Dr Garland engaged in professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct contained in section 5 of the National Law.
4. In respect of his conduct that was the subject of the convictions Dr Garland engaged in unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct contained in section 5 of the National Law.

1. It is well established that these types of proceedings are not designed to punish a practitioner. They aim to protect the public, uphold professional standards, maintain public confidence in the profession and provide guidance to the profession. In reaching the appropriate determination we must be mindful of these important factors.
2. The conduct, which is the subject of these proceedings, took place between 2009 to 2010. There have been a number of intervening years during which time there have been no further notifications or complaints of any description against Dr Garland. We are confident that the vigilant notifier would have been alert to any further misconduct of a like nature. We accept in any event the evidence of Dr Garland that he has put in place mechanisms by which to ensure his conduct will not be repeated and has undertaken significant further education to properly inform himself of his obligations. We accept that he has embraced the further learning, which he was readily able to articulate in his evidence before us. We accept that he is on high alert to the issues, which are the subject of these proceedings, and is determined that there should not be a repeat.
3. We are satisfied that Dr Garland's conduct is attributable to a number of factors.
4. We accept that during the period between 2009 and 2010, a number of very distressing events took place in Dr Garland's private life including the unexpected death of his father, the death of his father-in-law and the death of a family friend in tragic circumstances. Dr Garland's daughter also suffered facial injuries requiring surgery following an accident. We note he was himself diagnosed with hypertension and diabetes in July 2010. We accept that so many unfortunate episodes in a short period may have played some role in affecting his judgement.
5. We nevertheless also accept that Dr Garland had not kept himself fully informed and up to date in relation to his obligations as a general practitioner. Whilst we accept that Dr Garland has been in general practice for many years and that the prescription of schedule 8 drugs was not a high proportion of his practice it was incumbent on Dr Garland to keep himself informed. Dr Garland readily concedes that he did not do so.
6. Dr Garland participated in a recorded interview with the Drugs & Poisons Regulation Unit on 23 September 2011, during which he candidly admitted the prescriptions he had issued; that he had not recognised signs of drug-dependence and acknowledged a lack of diligence and assertiveness in his patient management. He also conceded ignorance of some important legislative requirements.
7. None of this sheds a particularly glowing light on Dr Garland. However, the first step towards ensuring there is not a repeat of past behaviour is recognising that the conduct fell below the standard expected. We accept that Dr Garland deeply regrets his conduct and has taken these matters very seriously. He was fully co-operative with the Board during the course of its investigation and acknowledged and accepted that his behaviour fell below the standard required of him. We are reassured by his level of insight that Dr Garland will make all endeavours to ensure there will not be a repeat of the conduct.
8. The evidence of Dr Garland impressed us.
9. Dr Garland has now attended numerous relevant courses to address his shortcomings over a period of years. He has attended courses dealing with schedule 8 drug use and abuse, chronic pain management and opioid use.
10. We accept that he has also read many relevant publications and articles and that he is actively engaged in meetings and conferences in an endeavour to stay up to date.
11. We accept that Dr Garland is much more careful when treating drug dependent patients. We accept that he is more assertive in his denial of medication to patients who might exhibit drug seeking or doctor shopping tendencies.
12. We accept that he is more aware of the need for multidisciplinary medical care for patients with chronic pain/addiction. We accept that he is now diligent in his practice in this area and that his permits are up to date.
13. We also accept that Dr Garland (and the practice generally) has implemented changes. We accept that Dr Garland and the rest of the practice now make appropriate use of computer generated warnings systems in relation to permit expiry dates.
14. The investigation, Magistrates' Court proceedings and these proceedings have been a taxing yet salutary experience for him.
15. Having been fined $10,000 and paid costs of $10,000 in the Magistrates' Court there has been a significant economic price to pay as well.
16. These factors provide both specific and general deterrence.
17. Dr Garland is now aged 60. We accept that Dr Garland has enjoyed a hitherto long and unblemished career.
18. We received glowing references from Dr Gingold who is a principal partner in the clinic from which Dr Garland practices, dated 10 September 2012 and 25 February 2015, respectively. Dr Gingold spoke of Dr Garland's diligence and dedication. He opined that Dr Garland provides a high standard of medical care to his patients and attends clinical meetings, conferences and lectures regularly. We accept this to be the case. There is no evidence to the contrary. We received a similarly excellent reference from Dr Wijesinha, dated 16 September 2012.

1. Having taken into account the above matters, we propose to impose the following determinations:

1. We accept the evidence of Dr Garland that he is embarrassed by the fact that there is a mark against his name. A reprimand provides specific and general deterrence and thereby protects members of the public.

2. A condition will be imposed upon Dr Garland's registration, as outlined in the following paragraphs.

2.1 Dr Garland is to attend and complete six sessions of professional education, each of an hour in duration, covering the following content:

(i) recognising the signs of drug-dependence in patients;

(iii) professional communication with fellow health professionals, patients and their families.

(a) obtain the Board's approval of the educator prior to the commencement of the education, such an approved educator:

(i) to hold general registration as a registered medical practitioner for a period of not less than seven (7) years; and

(ii) not be in a close collegiate, social or financial relationship with Dr Garland;

(b) commence the education sessions within one (1) month of being advised that the Board has approved the educator and to conclude the education within six (6) months of the conditions being imposed;

(c) provide to the Compliance Department at AHPRA, within twenty-eight (28) days of the date of completion of the education, a report which covers the following:

(i) Dr Garland's reflection on the issues raised by the notification;

(ii) a written summary of the outcomes/lessons learnt from the education sessions;

(iii) a written summary of how Dr Garland intends to apply this knowledge to his practice;

(d) advise the approved educator that, within twenty eight (28) days of the completion of the education, the Board requires a report stating:

(iii) whether or not Dr Garland has, in the opinion of the educator, satisfactorily participated in and understood the contents of the education.

2.3 AHPRA may communicate with the educator in relation to Dr Garland's compliance with the conditions on his registration. Included in such communication, AHPRA may provide the approved educator with a copy of these conditions and details of the notification made against Dr Garland prior to the commencement of the education.

2.4 The above reports and statements will be relied upon by the Board when determining whether Dr Garland has complied with the conditions on his registration.

2.5 If the Board is not satisfied that Dr Garland's report and that of the educator demonstrate to the satisfaction of the Board that Dr Garland has benefited from the education, Dr Garland may be required to provide a further report and/or undergo further education in respect of the matters referred to above.

2.6 Dr Garland is responsible for all the costs associated with these conditions including the cost of the report from the educator.

2.7 The education sessions attended pursuant to the conditions are over and above the Continuing Professional Development requirements in respect of Dr Garland's registration.

2.8 The review period in respect of these conditions is to be eight (8) months from the time that they are imposed.

1. The further education we have required Dr Garland to engage in will consolidate and focus his learnings. This will ensure the ongoing safety of the public. We have confidence that Dr Garland will undertake the further education with diligence.

Further condition jointly proposed by the parties

1. We were invited by the parties to impose the following additional condition.

Dr Garland may not prescribe, possess or administer Schedule 8 poisons until such time as the Board is satisfied that he has satisfactorily completed the professional education.

1. We were not persuaded that such a condition would serve any useful purpose. Dr Garland continued to prescribe Schedule 8 poisons in the intervening years following the notification. The Board did not see fit to exercise its immediate action powers at that time to require Dr Garland to show cause why such a condition should not be imposed. There is nothing to be achieved by doing so at this late stage. The significant delay in bringing Dr Garland before the Tribunal has given him an opportunity to show that he has redeemed himself. Dr Garland gave frank evidence that if we were to impose such a condition he would make every effort to ensure patients were not unduly disadvantaged. He would seek to refer relevant patients to his colleagues. We commend Dr Garland for his approach. Nevertheless we consider some vulnerable patients could potentially be disadvantaged. We do not consider this to be necessary.
2. The Board contended that we should not depart from a position agreed by the parties which was "within the range". This has become known as the Muto approach[1]. Much debate is enlivened by whether Muto's case remains good law in Victoria, a debate which we do not propose to enter here. Suffice to say that the Tribunal is never bound by an agreement reached between the parties. The Tribunal is not a rubber stamp. It must come to the correct and preferable decision. It would not be appropriate for the Tribunal to blindly accept an agreement reached by the parties, imposing a condition which, in the Tribunal's opinion, served no demonstrable purpose.

[1] Secretary to the Department of Planning and Community Development v Muto (General) [2011] VCAT 328 (4 March 2011)