1. This matter concerns professional disciplinary proceedings against Dr Bruce Heideman (the respondent).
2. The respondent is registered under the Health Practitioner Regulation National Law (South Australia) (the National Law)[1] as a medical practitioner.
3. On 5 September 2018 the Medical Board of Australia (the Board) referred this matter to the former South Australian Health Practitioners Tribunal under s 193 of the National Law. The matter was transferred to the South Australian Civil and Administrative Tribunal (SACAT) when SACAT became the "responsible tribunal" for the purposes of the National Law on 9 August 2019.[2]

1. The matter was first listed for hearing on 24 September 2019 but was adjourned due to perceived "federal diversity" jurisdictional issues. These were resolved by decisions of this Tribunal in other matters. We are satisfied that this Tribunal has jurisdiction to hear this matter, despite the fact that the respondent resides in Victoria.[3]
2. There was further significant delay due to concern that the matter was required to be heard in Victoria as some of the alleged conduct occurred in that State.[4] The parties eventually agreed that the allegations concerning conduct in Victoria would be removed from the complaint and that the matter would proceed in this Tribunal.
3. The matter was then listed for hearing on 18 May 2020. As a result of the respondent's solicitor and counsel withdrawing on the morning of the hearing, the respondent (who was participating by video link) sought a further adjournment. This was granted so that he could instruct new solicitors.
4. On 23 June 2020, after new solicitors had been instructed, a further hearing was scheduled for 26 August 2020.
5. On 4 August 2020 the respondent sought a further adjournment of the hearing until October or November 2020 in order that the respondent might attend the hearing in person. This application was considered by the presiding member on 19 August 2020[5] and was refused. Reasons for this decision were delivered orally at the time. In essence, the Tribunal noted that the allegations concerned alleged conduct many years ago, the matter had been before the Tribunal (or its predecessor) since September 2018 and that two previous hearing dates had already been abandoned. The respondent had not attempted to travel from Victoria for the hearing in May 2020. There was no certainty that he would be able to travel from Victoria later this year and no certainty as to when that might be possible. The Tribunal was able to arrange a video link which would enable the respondent's full participation in the hearing. There was no reason to think that the respondent would suffer any significant disadvantage by participating in this way. The Tribunal assured the respondent that it noted his keen desire to attend in person and would not of course draw any negative inference from his inability to do so.

1. An amended complaint had been filed on 7 February 2020. The complaint was detailed and extensive. In summary, professional misconduct was asserted on four broad bases:

(a) Improper prescribing of anabolic and androgenic steroidal agents (steroids), growth hormone releasing peptides (GHRPs), growth hormone releasing hormones (GHRHs), and other prescription drugs in circumstances where there was no therapeutic basis for the prescription and the prescribing put patients at risk;

(b) Boundary violations, including prescribing for, and treating, a family member and other persons with whom he had a close personal relationship;

(c) Failure to create and maintain adequate medical records; and

(d) Misleading conduct in his response to the investigation of the above matters.

1. The respondent filed an amended response (AR) dated 28 April 2020. In this response the respondent made partial admissions, but much of the detail of the complaint remained in dispute. The response suggested that no suspension or cancellation of registration was warranted.
2. A further amended response (FAR)[6] was filed on 15 May 2020. Further admissions were made in this document, but significant areas of dispute remained. The Tribunal was advised that evidence as to disputed matters would still be required from the complainant's expert and from the respondent. There were still significant disputes as to the allegations of misleading conduct. The position was maintained that no suspension or cancellation of registration was warranted.
3. On 6 August 2020 a statement of agreed facts[7] (SAF) was filed and the Tribunal was advised that there was no longer a dispute concerning the basis for disciplinary action or the relevant facts. The matter was to proceed as a hearing as to the appropriate disciplinary sanction.
4. In the SAF, the respondent admitted that:

(a) His admitted prescribing was inconsistent with him being a fit and proper person to hold registration as a medical practitioner[8] and was conduct substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training and expertise;[9]

(b) His admitted boundary violations were inconsistent with the Board's Code of Conduct[10] and constituted conduct of a lesser standard that that which might reasonably be expected by the public or his peers;[11]

(c) His admitted record-keeping failures were inconsistent with the Board's Code of Conduct and were not appropriate professional conduct or practice; and

(d) His admitted misleading conduct was conduct inconsistent with him being a fit and proper person to hold registration as a medical practitioner.[12]

1. The matter proceeded to hearing on 26 August 2020.
2. In addition to receiving the statement of agreed facts, the Tribunal had before it a Book of Documents[13] and a Supplementary Book of Documents.[14] The Board tendered a report of the Australian Crime Commission entitled "Organised Crime and Drugs in Sport".[15] We decided to receive this over the objection of the respondent, but acknowledge the limited relevance of this report. In particular, we make it clear that it is not alleged that the respondent has committed any criminal act and there is no suggestion of any link with organised crime. The report simply provides some background information which may be relevant to the need for strict controls on prescribing of some categories of drugs.
3. The respondent tendered a number of statements[16] and reports.[17] We decided to receive the statements over the objection of the Board and to give them appropriate weight as we thought fit. We received the reports (from Dr Wendiggensen and Dr Sullivan) subject to further consideration of the objection taken by the Board, but we have determined to receive them on the same basis; namely, that we will assess the weight to be accorded to them.
4. The respondent gave evidence before the Tribunal and adopted a statement that he had prepared.[18]

1. We make findings of fact in accordance with the Statement of Agreed Facts. Insofar as our findings go beyond what has been agreed, that will be apparent from these Reasons.
2. The following summary will be sufficient to explain our decision as to the disciplinary sanctions that we will impose.
3. The respondent was first registered as a medical practitioner in January 2003. From December 2013 he practised primarily as a medical practitioner in South Australia.
4. The improper prescribing of peptides and other drugs occurred between December 2013 and June 2016.
5. In August 2016 the respondent came to the attention of AHPRA due to the purchase of quantities of the injectable peptide GHRP-6 from a pharmacy in Ballina, New South Wales. The Board noted apparent prescribing of this substance to family and friends.
6. As a result of the prescribing of GHRP-6, the Board proposed to take immediate action against the respondent by imposing conditions on his registration.[19]
7. The respondent replied to the Board's correspondence by email dated 16 August 2016.[20] He stated:

I have run a part-time integrative medicine clinic since July 2014. It was run on a Saturday morning once per fortnight. It was run as a visiting medical service of which I operated the clinic within rooms located at 62 Sydenham Road, Norwood. The clinic offered health and well-being services using a holistic integrative medicine model.

1. The respondent suggested that the patients who attended the clinic were generally healthy adults who required advice regarding issues such as weight loss, fatigue, and lack of energy, and that all patients received an extensive history and physical examination. He suggested that the GHRP-6 was prescribed "to possibly assist the return of natural growth hormone to normal levels, based on symptoms suggesting a possible deficiency".
2. The respondent suggested that the clinic had since closed due to lack of demand. He stated that only 12 vials of GHRP-6 had been used during the history of the clinic. He denied that he had prescribed to friends and admitted only two prescriptions to a family member.
3. AHPRA sought further information about the clinic and copies of consultation records. The respondent replied by email dated 17 August 2016.[21] He indicated that the clinic operated under the name "Vitalrecomp" and that it had closed in September 2015. He stated that all clinical notes were hand-written entries in an A4 note-book which was in storage in Melbourne. He provided further information as to his approach to the prescription of GHRP-6.
4. On 19 August 2016 the Board decided to take immediate action by the imposition of conditions that prohibited the supply or prescription of any growth hormone related peptides.[22]
5. In a letter dated 19 September 2016 and addressed to the SA Health Practitioners Tribunal,[23] the respondent denied any misconduct or improper prescribing practice. He described the suggestion of improper conduct as "outrageous" and accused the notifier of conducting a personal "vendetta". He denied that he had prescribed to friends or that he had caused any harm to patients. He described the allegation of unprofessional conduct as "slanderous" and "nothing more than bullying and intimidation". He maintained that he had acted in the best interests of his patients in a professional and lawful manner.[24] These claims reflect very poorly on the respondent in the light of the serious misconduct that is now admitted. The respondent's appeal against the immediate action was eventually discontinued.
6. On 26 August 2016, an AHPRA investigator had required further information from the respondent. On 9 September 2016 the respondent responded by email. He stated that:

The clinic Vitalrecomp leased a room once per fortnight for a morning session at 62 Sydenham Road, Norwood. It was my own independent business.

1. The respondent attached to the email "the clinical notes as requested". Attached were purported clinical notes for a close family member and 8 other patients.[27] The notes were not in (or photocopied from) an A4 notebook as the respondent had previously suggested.[28] They were handwritten onto typed template sheets. The Tribunal considers it very likely that these notes were not contemporaneous records but were created in response to the AHPRA request for production.[29] The dates of consultations do not routinely appear in the notes. The notes confirm prescriptions of GHRP-6 but fail to record admitted prescriptions of other drugs (particularly steroids or GHRHs) to the same patients during the relevant period. In fact, on occasions, the notes record advice to the patients that steroids are not appropriate or are declined, whereas it is now admitted that the respondent prescribed steroids for those same patients. The Tribunal finds that the notes are likely to be inaccurate, misleading and self-serving in other respects as well.
2. The respondent was also dishonest in his responses concerning his Vitalrecomp Clinic. He did not lease rooms at 62 Sydenham Road, Norwood. That is the address of a gymnasium. He was a member of the gymnasium. He did not lease any rooms. He simply offered medical services to other members in the common area of the gymnasium. He now admits that the clinic was not an "integrated medicine clinic". It is admitted that the clinic was, and was promoted as, a "body recomposition" and "hormone optimisation" clinic and it was used to prescribe and supply drugs and other treatments to body builders, body sculptors and other persons for performance, image enhancing and/or other non-therapeutic purposes.[30]

1. It is specifically admitted that he knew, at the time of prescribing, that 7 named patients were competitive body-builders or body sculptors and he prescribed for the purpose of enhancing their body building or body sculpting performance.[31] The respondent admits that for these patients he did not genuinely believe that the drugs prescribed were beneficial to the patients.[32] He admits that all of the improper prescribing (for all patients) was, at least in part, for the purposes of body building, body sculpting or performance or image enhancement. There was no therapeutic indication for any of the improper prescribing.[33]
2. The detail of the improper prescribing is set out in Annexure A to the Amended Complaint.[34] As stated, there was no therapeutic purpose for the prescribing. The prescribing unnecessarily put the patients at risk.[35] We accept the views of Professor Wittert concerning the lack of therapeutic purpose and the risks to patients.[36] As summarised by Professor Wittert:[37]
   • There was no indication evident for any of the prescriptions and the available data are consistent with prescribing purely for the purposes purely of body building / body sculpting
   • There is no evidence a duty of care was exercised in relation to abnormal results that were incidentally found.
   • Sex steroids, thyroid hormone, sex steroid immune inhibitors, and various peptides were provided to men and women inappropriately and in dosages and circumstances where significant harm may result.
3. It is admitted[38] that, when engaging in the improper prescribing, the respondent:
   • Failed to conduct adequate clinical assessments;
   • Failed to formulate and implement a suitable management plan;
   • Prescribed and/or supplied steroids and other drugs that could potentially be used as performance and image enhancing drugs (PIEDs) for body building, body sculpting and/or other non-therapeutic purposes;
   • Failed to work within the limits of his competence and scope of practice insofar as he failed to adequately inform himself about the efficacy and potential risks associated with the drugs before they were prescribed;

The Tribunal accepts the opinions expressed by Professor Wittert concerning these matters.

1. It is also an agreed fact that the respondent failed to maintain appropriate boundaries with patients[40]. The evidence suggests that he befriended patients on Facebook, met them at and through the gym where he was a member, and acted as a mentor in their body building/body sculpting activities. He was described by one such patient as a "great mate".[41] Social media posts[42] in evidence before the Tribunal had the clear potential to bring the medical profession into disrepute. The respondent treated and prescribed for a close family member in circumstances where that was plainly unprofessional.

1. We have referred above to the clinical notes (for nine patients) provided to AHPRA in response to the initial request. It is admitted[43] that these notes:
   • Do not record the dates of many consultations
   • Do not accurately record what took place during consultations.
   • Fail to record prescription of steroids and other drugs to the patients
   • Refer to the respondent refusing to prescribe such drugs in circumstances where he has actually prescribed them.

It is further agreed[44] that particular deficiencies in these notes are detailed in Part 3 of Annexure A to the Amended complaint.[45]

1. It is further admitted[46] that the respondent claimed to have:
   • Kept no permanent appointment book or other records of consultations;
   • Stored clinical records in a concertina folder;
   • Intentionally destroyed some of the records shortly after he ceased operating the Clinic;
   • Posted the remaining records to AHPRA in January 2017 without obtaining a receipt or keeping any copies (such records were never received); and
   • Not undertaken any audit of such notes, so that he is unable to identify the patients or the consultations to which they relate.

1. It is convenient to set out the following matters, which we summarise from the Statement of Agreed Facts:[47]
   1. During the relevant period, the respondent failed to behave in an ethical and trustworthy manner, failed to appropriately cooperate with AHPRA and/or failed to disclose all relevant information when asked to do so by AHPRA.

• Portraying the clinic as an "integrative medical practice" that only prescribed GHRP-6 to a small number of patients as part of a trial of 'health and well-being services' using a holistic integrative medicine model;
• Not disclosing to AHPRA that the respondent was prescribing steroids, GHRHs, Anastrozole and other drugs that could be used as PIEDs to the patients prescribed GHRP-6, and to others, for body building, body sculpting and/or other non-therapeutic purposes;
• Presenting the respondent's notes to AHPRA as contemporaneous clinical records when they:
  • were not prepared (or completed) contemporaneously;
  • contained inaccurate or potentially misleading information about what took place during the relevant consultations;
  • did not record any prescribing of drugs other than GHRP-6 to patients despite the respondent having prescribed steroids, GHRHs, Anastrozole and/or other drugs on the same dates as the GHRP-6;
  • Contained statements suggesting that the respondent refused to prescribe steroids and other drugs (other than GHRP-6) to the patient in circumstances where the respondent in fact did prescribe those drugs to the patient; and
• Failing to correct the misleading impression the notes gave about the respondent's response to requests for steroids, GHRHs and other drugs even though the respondent knew AHPRA was investigating potential prescribing of medications for non-therapeutic purposes.

C. The following misleading statements were made to AHPRA:

• In his letter dated 16 August 2016:[48]
  • - He had run a "part-time integrative medicine clinic since July 2014".
  • - He operated the clinic "within rooms located at 62 Sydenham Road, Norwood".
  • - The clinic offered "health and well-being services using a holistic integrative medicine model".
  • - He had used 12 vials of GHRP-6 in the entire history of the clinic which was not excessive.
  • - He had prescribed GHRP-6 to a family member only twice.
  • - He no longer felt that use of GHR -6 was "a rational approach to the symptom improvement" he was trying to achieve.
• In his letter dated 17 August 2016:[49]
  • - The "decision to treat was based on mental and physical complaints that in the absence of other medical conditions may represent low normal growth hormone levels".
  • - He "was not treating growth hormone deficiency per se, but only aiming to increase low normal levels to high normal levels".
  • - Given its "limited efficacy I've come to the conclusion that any potential benefit is small and question if in fact the benefit outweighs the risks".
  • - "I believe I have at all times maintained safe prescribing practice and have acted in the best interests of my patients".
• In his email dated 17 August 2016[50] which stated:
  • - "all clinical notes were hand written entries in an A4 note book."
• In his emails dated 9 September 2016[51] where he claimed that:
  • - "the Vitalrecomp clinic leased a room once per fortnight for a morning session at 62 Sydenham Road Norwood. It was my own independent business".
  • - "The patients were treated in the leased room".
• In his letter dated 9 September 2016 addressed to the SA Health Practitioners Tribunal where he suggested there had been no improper conduct.

• The Clinic was operated from the common space within a Gym.
• There was no dedicated area or "clinic space".
• There was no lease arrangement or agreement.
• The Clinic operated on an ad hoc basis.
• The Clinic was not an "integrative medical practice" but rather a recomp clinic that provided drugs and other treatment to body builders, body sculptors, and others for non-therapeutic purposes.
• A significant number of the patients to whom drugs were prescribed were gym owners, gym managers, personal trainers, body builders, or body sculptors.
• The respondent prescribed steroids, GHRHs, Anastrozole, and other drugs that could be used as PIEDs to patients for non-therapeutic purposes despite the risks involved.
• He continued prescribing such drugs after September 2015, including GHRP-6 and CJC-1295 to a close family member on 26 March 2016, Anastrozole and Testosterone Cyionate to five patients on 20 March 2016, Thymosin Beta-4 to a competitive body builder on 20 March 2016, and Anastrozole to a competitive body builder on 22 June 2016.
• The respondent did not make (or retain) contemporaneous notes in an A4 note book.
• His notes were not made (or completed) contemporaneously and they do not accurately reflect what happened.
• He did not just prescribe GHRP-6 to a close family member on two occasions; he prescribed drugs and prescription medications to that person on other occasions as well.
• He deliberately prescribed steroids, GHRHs, Anastrozole and other drugs for non-therapeutic purposes, including to assist body builders and body sculptors with "body recomposition".
• He had not "refused to get into the body building and performance enhancing market" as claimed; he had participated in that market before and after September 2015.
• He had in fact crossed the "line" that he claimed he "did not wish to cross".
• His claimed reasons for destroying the majority of his clinical notes are not genuine.
• The respondent's notes do not record every prescription and in fact make no reference to prescription of drugs other than GHRP-6 even though other drugs were prescribed on the same dates as GHRP-6.

1. Looking at the totality of the evidence, it is impossible to escape the conclusion that the respondent well knew that his conduct of the Vitalrecomp clinic and his prescribing for non-therapeutic purposes was unprofessional. He attempted, over a lengthy period and in a variety of ways, to conceal the true nature of his conduct and to mislead AHPRA in its investigation. His misleading conduct reflects seriously and adversely on his character and his fitness to be registered.

1. The respondent obtained his medical qualifications from the University of Sydney in 2003. He was 27 years of age.
2. From 2003 to 2009 he practised as a resident medical officer within the SA public hospital system. From 2009 to December 2015 he practised at Corporate Health Group (CHG), in the area of workplace injury management. He was still working at CHG when he set up the Vitalrecomp Clinic.
3. The respondent described his situation following the closing of that Clinic.[56] He states that he obtained a position in September 2016 at North Adelaide as a trainee cosmetic surgeon. He trained under the tutelage of Dr Erfan Rahbar. His training included about 1500 hours of surgery. In May 2018 he secured a training position with Dr Gavin Chan at the Victorian Cosmetic Institute. He did about 200 hours of training in preparation for transition to independent practice. He did not earn an income during this period of training with Dr Rahbar or Dr Chan.
4. Since December 2018 he has practised independently as a cosmetic surgeon with admitting and operating rights at the Victorian Cosmetic Institute. He has performed in excess of 50 surgeries successfully.
5. During these years, the respondent has undertaken a variety of courses relevant to his current area of practice. He has also undertaken courses in "Prescribing: principles and practices" and "On the Record: medical records and documentation".
6. A statement was tendered from Dr Erfan Rahbar.[57] He described the respondent as a conscientious and proficient trainee. By the conclusion of the 12 months of training, he found the respondent to be very professional, competent and confident as a surgeon. He could perform surgery to a high standard. He was caring and attentive to the needs of patients.
7. Two statements were tendered from Dr Gavin Chan, the founder and Medical Director of the Victorian Cosmetic Institute.[58] He has known the respondent since 2018. He regards the respondent as a caring, thorough and competent practitioner who has provided good clinical care to his patients. His patients are well informed about treatment options and the risks and benefits. The respondent is a skilled cosmetic practitioner with excellent surgical technique. His medical records are meticulous. Dr Chan regards the respondent as trustworthy and honest.

1. A medical report was provided from Dr Paul Wendiggensen, consultant psychiatrist.[61] It is dated 22 July 2020. He first saw the respondent on 25 March 2020 and diagnosed him with "Adult Attention deficit Hyperactivity Disorder (ADHD), inattentive type of moderate degree". After commencement of treatment, the respondent reported significant improvement. The report suggests that this Disorder may have made it difficult in the past for the respondent to advance his medical career.
2. A further report was tendered from Dr Danny Sullivan, a consultant forensic psychiatrist.[62] It is dated 23 August 2020 and follows a single consultation on 11 August 2020. Dr Sullivan states that ADHD cannot be diagnosed without evidence of its presence during childhood. He did not obtain such evidence from the respondent but assumes that Dr Wendiggensen must have been satisfied of this. On this basis, he concludes that the diagnosis is consistent with the respondent's life trajectory and apparent level of adaptive functioning.
3. Dr Sullivan refers to the diagnostic criteria for the "inattentive subtype" of ADHD with which the respondent was diagnosed. These are suggestive that the effect on functioning might include failure to give attention to detail, careless mistakes, lack of focus, apparent absent-mindedness, failure to complete tasks, poor organisation, forgetfulness, distraction, and losing items.
4. Dr Sullivan describes the respondent's diagnosis as "mild in severity". He was asked how this might have affected the respondent's previous practice. He stated

In the absence of evidence about his previous practice, it is hard to determine this. ADHD is likely to impair practice through disorganisation and reduced capacity to focus effectively on specific tasks.

1. Dr Sullivan was asked about the possible effect on the respondent's ability to respond to the Notification process. He indicated it was likely to have limited his ability to respond in a timely and organised way. With respect to his communications with the Board (AHPRA), he states:

I can only speculate that if under treatment for ADHD he may have responded in a more effective fashion. Untreated ADHD of inattentive subtype is not likely to have affected his judgement, whereas the hyperactive subtype may be associated with impulsive and rash decisions. Whether treated or untreated, the diagnosis of ADHD would not have affected Dr Heideman's overall appreciation of the issues facing him, but may have reduced his ability to respond effectively. I do not consider that the diagnosis of ADHD would have impaired his capacity to appreciate the nature of his practice and to have responded accurately about this

(our emphasis)

1. The Board opposed the reception of these medical reports and, in the alternative, wished to cross-examine the writers. Neither Dr Wendiggensen nor Dr Sullivan was available to give evidence during the hearing. The Tribunal decided to receive the reports and give them appropriate weight.
2. The Tribunal is not satisfied that the opinions in the medical reports provide any significant excuse or mitigation for the misconduct in this case. They do not provide any basis for doubting the Tribunal's view that the respondent was well aware of the wrongfulness of his professional misconduct and deliberately attempted to conceal the true nature of that conduct and mislead the authorities. The misleading of the authorities was not due to impulsiveness, carelessness or inattention. It was a deliberate course of action, persisted in over a significant period of time. Whilst disorganisation might in other contexts explain poor record-keeping, we are comfortably satisfied that it is not the explanation for the misleading and incomplete medical records in this case. The subsequent diagnosis of ADHD in no way explains the improper prescribing which was entered into quite deliberately by the respondent.

1. In MBA v Singh [2017] WASAT 33 the Tribunal held that one matter to be considered when determining sanctions that may be appropriate is:

Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct a risk to the community.[63]

(Citations removed)

1. Through his deliberate prescribing for non-therapeutic purposes and his deliberate and persistent attempts to mislead AHPRA and the Board, the respondent has demonstrated serious character flaws, inconsistent with a fitness to practise medicine. In Ex parte Tziniolis (1966) 67 SR (NSW) 448, Walsh JA stated at page 461:

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.[64]

1. The respondent's counsel sought to persuade the Tribunal that such a reformation of character had occurred in this case. He pointed firstly to the fact that the respondent closed the Vitalrecomp Clinic and ceased the improper prescribing by at least June 2016, before his conduct was challenged by the authorities. This was because the respondent came to realise that the prescribing was not justified. We do not accept the respondent's evidence on this point. We find that he was always aware that his conduct was unprofessional. It appears to the Tribunal that the closure of the Clinic and cessation of prescribing was more likely for the other reason initially given by the respondent to AHPRA, namely that the demand was insufficient. Furthermore, we note that the conduct of misleading AHPRA and the Board occurred after this time and continued persistently over a significant period of time.
2. Counsel also referred to the proactive steps taken by the respondent since September 2016 to establish himself in a new area of medical practice. We acknowledge the evidence in that regard. The respondent does appear to have successfully retrained and commenced practice in the area of cosmetic surgery. There have been no concerns raised regarding his practice or conduct in that area. He is regarded highly by those who have provided information to the Tribunal. However, whilst he has been so engaged, he has continued to mislead the Board and to fail to take responsibility for his unprofessional conduct.
3. We note that much of the conduct now admitted was still in dispute until shortly before the hearing. In the Amended Response dated 28 April 2020[65] and the Further Amended Response dated 15 May 2020,[66] the respondent continued to dispute many of the allegations that have now been admitted. It is significant that the respondent had previously actively misled the Board and was still determined not to correct or acknowledge the misleading information he had provided.
4. The Statement of Agreed Facts was not signed until 6 August 2020. We consider that the eventual admission of facts was more likely due to pragmatic considerations (as the strength of the Board's evidence became apparent) rather than to true insight or contrition.
5. In his written statement to the Tribunal dated 24 August 2020, the respondent continued to claim that he acted in good faith in his conduct of the Vitalrecomp Clinic. He continued to claim that he believed he was practising in accordance with the literature. He described his prescribing misconduct as having made "". There is no acknowledgement that he deliberately and repeatedly prescribed to body builders and body sculptors for non-therapeutic purposes.

The statement encompasses the body recomposition and diet and exercise contribution that these people were interested in addressing.[70]

1. A further passage of cross-examination was as follows:[71]
   1. So you've referred throughout this document, this statement, to mistakes and errors and errors of judgement. Do you not accept that you made a deliberate and conscious choice to prescribe drugs for image enhancing purposes to people who were bodybuilders and body sculptors?
   2. My intent in prescribing was mainly to assist them in issues they were experiencing in taking performance enhancing drugs that they were not sourcing from myself.
   3. But they were sourcing performance and image enhancing drugs from you, were they not? You've admitted that.
   4. Some.
2. And further:[72]
   1. Then why didn't you say anything about a deliberate conscious decision that you made knowing that these bodybuilders were obtaining drugs for performance and image enhancing purposes to nevertheless go on prescribing them for them?
   2. Because it is encompassed in the point that prescribing was for dietary and exercise outcomes.
3. In our view, there was a continued reluctance on the respondent's part to truly own and acknowledge the nature of the prescribing conduct which he had formally admitted. This is an indication that the respondent's insight and contrition is limited.
4. The respondent was also questioned about his misleading conduct. It was put to him that part of this conduct occurred during his period of training with Dr Rahbar.
   1. So when he [Dr Rahbar] says that he didn't know you when you were engaging in the above conduct and the above conduct includes misleading conduct, is it fair to say that he hasn't appreciated that a lot of that misleading conduct that you were engaging in was engaged in at that time when you were spending all of that time together?
   2. I only recognised myself after the fact that the conduct was inappropriate and misleading in its effect, of which I'm profoundly sorry for.[73]
5. As demonstrated by the subsequent cross-examination,[74] this answer lacks any credibility. We have no doubt that the respondent realised, at all material times, that he was deliberately providing AHPRA with inaccurate, incomplete and misleading information in order to cover up his unprofessional prescribing conduct. He even went to the lengths of writing extensive self-serving and inaccurate patient notes and providing them as purportedly contemporaneous records. We emphatically reject the suggestion that it was only in hindsight that the respondent realised that his conduct was inappropriate and misleading.

1. The Board submitted that the respondent should be reprimanded and his registration cancelled. He should be disqualified from applying for registration for a period of five years.
2. The respondent's position as to sanction was initially that there should be a reprimand and perhaps a period of supervised practice.[76] At the oral hearing, however, it was conceded on behalf of the respondent that a period of deregistration was inevitable. The respondent submitted that a period of disqualification for two years would be appropriate.[77]

1. In Craig v Medical Board of SA [2001] SASC 169; (2001) 79 SASR 545, Doyle CJ (with whom Williams and Martin JJ agreed) stated as follows[78]:

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. After referring to the decision of the High Court in NSW Bar Association v Evatt 1968] HCA 20; (1968) 117 CLR 177, Doyle CJ continued:[79]

Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.

This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.

While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.

In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.

1. In Marin v Chiropractic Board of Australia [2020] SASCFC 74, the Full Court considered a submission that the Tribunal should leave issues of future fitness to practice to be determined by the Board on a reinstatement application. Kourakis CJ (with whom Peek and Nicholson JJ agreed) stated at [70] - [73]:

However, there are specific considerations to which a Tribunal must have regard in fixing a period of disqualification, which are informed by the material received in the disciplinary proceedings which may not be revealed on an application for readmission to a health profession. An order of disqualification must 'bring home to the practitioner the seriousness of the practitioner's departure from professional standards'. A Tribunal which finds professional misconduct and must fix the period of disqualification is best placed to make the assessment of the period necessary to achieve that purpose.

I accept that there is an overlap between the length of disqualification to be imposed for the purposes of enforcing professional standards and an evaluation of the suitability of the practitioner at a future time, but in assessing the suitability of an applicant it would duplicate the function of the Tribunal, and twice vex the disqualified practitioner, if a National Board were to ask itself whether an applicant, whose period of disqualification has ended, has been unregistered for a sufficient period of time to have learnt his or her lesson, and thereby to have become a suitable person for registration.

The Tribunal is responsible for professional discipline; its orders should be effectively final and not interim measures. A National Board should not have the function of second guessing the sanctions it imposes.

In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions. Even though that consideration has some analogy with general deterrence, its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed.

(citations omitted).

1. These cases recognize that disciplinary action, whilst entirely protective in nature, will be likely to have serious, adverse effects for the practitioner. Counsel for the respondent referred us to the principle that

No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose.[80]

1. We are guided by these general principles.
2. Counsel for the Board referred to various decisions which emphasise the serious nature of improper prescribing of drugs by medical practitioners.[81] Reckless prescribing or prescribing for non-therapeutic purposes is usually inconsistent with a fitness to practice medicine.[82] In Singh v MBA [2019] WASCA 51 the Court of Appeal in WA upheld a disqualification for a period of 10 years imposed on a practitioner who had prescribed steroids and other drugs without a therapeutic basis and had sought to mislead the authorities concerning his conduct. The disciplinary proceedings had been fully contested. On appeal, the Court concluded:

The appellant's conduct involved very serious breaches of the trust placed in him by the community, by virtue of his registration as a medical practitioner. One aspect of that trust concerned the authority, conferred by his registration, to prescribe drugs, which may carry the risk of side effects for patients. The community is entitled to expect that a medical practitioner will not prescribe such drugs in the absence of a proper therapeutic basis for doing so. The appellant breached that trust over many years, and in relation to a very large number of patients. In our view, it was open to the Tribunal in the exercise of its discretion to conclude that a period of 10 years disqualification was required.

1. There is some similarity with the conduct in this case, but important differences. We refer to this decision, not to be guided by a comparative outcome, but to signify the seriousness with which this type of misconduct is viewed.
2. Counsel for the Board also referred to the undoubted principle that health professionals must uphold the highest standards of honesty and integrity in dealing with health regulators. A failure to do so may not only amount to professional misconduct, it may also reflect directly and adversely on fitness to practise.[83]
3. In the respondent's written argument, there was a suggestion that a practitioner's registration should only be cancelled if the Tribunal finds that the practitioner is probably permanently unfit to practice. This suggestion was not pressed and we do not consider it to be a correct statement of principle.[84]
4. We find that the improper prescribing amounts to professional misconduct. The misleading of the authorities also amounts to professional misconduct. The boundary violations and record-keeping failures are serious matters but best viewed as part of the overall picture. The overall conduct of the respondent amounts to professional misconduct. It is conduct inconsistent with fitness to practise medicine. We consider that the degree of insight and contrition is limited. We are not convinced that the underlying character flaws have been addressed or that there has been a reformation of character. On the evidence before us, we are not convinced that the respondent is currently a fit and proper person to be registered.
5. We agree that there should be a reprimand and that the respondent's registration should be cancelled. We consider that there should be a disqualification for a period of 4 years from the date of this order. This is an appropriate period for the purpose of:
   • - Emphasising the serious nature of the misconduct and the Tribunal's emphatic denunciation of such conduct;
   • - Bringing home to the practitioner and other members of the profession that professional misconduct of this nature will not be tolerated and will be met with substantial disciplinary sanctions; and
   • - Assuring the public that standards will be maintained within the medical profession and the public will be protected from such behaviour.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010

1. The Tribunal finds proved all of the allegations of misconduct as set out in the complaint.
2. The Tribunal finds that the conduct described as improper prescribing amounts to professional misconduct.
3. The Tribunal finds that the conduct described as misleading conduct amounts to professional misconduct.
4. The overall conduct of the respondent amounts to professional misconduct.
5. It is appropriate to impose disciplinary sanctions as set out in this order.

1. Pursuant to s 196 of the Health Practitioner Regulation National Law (South Australia),
   1. The Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

3. The registration of the respondent is cancelled.

1. The respondent is disqualified from applying for registration as a registered health practitioner for a period of four years.

[1] The National Law is found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2013 (the Act). Pursuant to s 4 of the Act, the National Law forms part of the law of this jurisdiction.

[2] See s 6 of the Act and the Statutes Amendment (SACAT) Act 2019 s 112.

[3] MBA v Yu [2020] SACAT 3; FTU v NMBA [2020] SACAT 5. The parties both accepted that the Tribunal has jurisdiction in the matter (Exhibit C4 paragraph 18).

[4] See s 193(2)(a)(ii) of the National Law.

[10] This Code, entitled "Good Medical Practice: A Code of Conduct for Doctors in Australia" was developed and approved by the Board pursuant to ss 39-40 of the National Law and is admissible pursuant to s 41 of the National Law.

[24] See Annexure "A" to C4 and C1 page 145.

[28] He later claimed in July 2017 (C1 page 277) that he had been mistaken about the A4 book.

[29] The respondent's evidence at transcript page 49 appears to confirm this.

[31] See, for example C1 at pages 997 - 1010.

[36] Reports C1 at pages 59, 75 and 99.

[37] Report 14 December 2017, C1 at page 92.

[39] Good Medical Practice: A Code of Conduct for Doctors in Australia (revised 17 March 2014); C4 para 34.

[64] Cited with approval in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) NSWLR 630.

[68] In a final address, counsel submitted, on instructions, that the respondent used these terms to include deliberate conduct. However, we did not understand the respondent in his written or oral evidence to be acknowledging deliberate misconduct.

[76] Written Submissions paragraphs 87-89.

[78] [2001] SASC 169 at [41].

[80] NSW Bar Association v Meakes [2006] NSWCA 340 at [113].

[81] Health Care Complaints Commissioner v Nemeth [2012] NSWMT 4 at [51], citing Spicer v NSW Medical Council (unreported); Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 at [196]; Health Care Complaints Commission v Epstein [2015] NSWCATOD 21; Medical Board of Australia v Singh [2017] WASAT 33; Singh v Medical Board of Australia [2018] WASCA 125; Singh v Medical Board of Australia [2019] WASCA 51; Medical Board of Australia v Hadges [2018] SAHPT 6 at [54]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39; Medical Board of Australia v Tunbridge [2020] SACAT 34.

[83] Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [70] - [73] and cases cited therein; NMBA v Symons [2020] SACAT 28 at [34];

[84] Cf. Singh v Medical Board of Australia [2019] WASCA 51.