Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026

1. Pursuant to section 101(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998, any material or information arising from this proceeding which could reasonably lead to the identification of the deceased, any relatives of the deceased, any notifiers in relation to this application, or patients of the medical practitioner Dr Carl Radford George Jansz (Dr Jansz), shall not be published or broadcast or be made available to the public.
2. The Tribunal finds that Dr Jansz has engaged in unprofessional conduct of a serious nature; and professional misconduct; in each case as alleged in the Allegations contained in Annexure A to the letter of referral dated 25 August 2010 from the Medical Board of Australia (the Board) to the Tribunal.
3. Specifically, the Tribunal finds that:
4. Allegation One: Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a), (b) (c) and (e) of the definition of 'unprofessional conduct' in section 3(1) of the Medical Practice Act 1994 (MP Act) and the unprofessional conduct was of a serious nature, in that he prescribed and administered inappropriate and excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to a certain patient here designated as the Patient.
5. Allegation Two: Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a), (b) and (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and the unprofessional conduct was of a serious nature, in that his medical management of the Patient was inappropriate and inadequate.
6. Allegation Three: Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and the unprofessional conduct was of a serious nature, in that he failed to maintain adequate medical records by failing to document the medical rationale for the medication and the dosage and the frequency of medication prescribed and administered to the Patient.
7. Allegation Four: Between in or about 1999 and 29 March 2000, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and (b) and (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and the unprofessional conduct was of a serious nature in that he prescribed and administered drugs of dependence, including but not limited to morphine, to the Patient in circumstances where he did not hold a permit for such prescription and administration and where he knew or ought to have known that he was required to hold a permit for such prescription and administration.
8. Allegation Five Between December 2002 and December 2005_,_ Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and the unprofessional conduct was of a serious nature in that he post-dated prescriptions in respect of the Patient.
9. Allegation Six: Between on or about I July 2007 and 16 August 2007, Dr Jansz engaged in professional misconduct as defined in paragraphs (a) and (b) of the definition of 'professional misconduct' in section 3(1) of the Health Practitioners Registration Act 2005) (HPR Act) in that he prescribed and administered inappropriate and excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient.
10. Allegation Seven: Between in or about 1 July 2007 and 16 August 2007, Dr Jansz engaged in professional misconduct as defined in paragraphs (a) and (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act, in that his medical management of the Patient was inappropriate and inadequate.
11. Allegation Eight: On 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act in that he wrote a prescription for the Patient post-dated to 18 August 2007.
12. Pursuant to section 45A(2)(c) of the MP Act and section 77(4)(c) of the HPR Act, Dr Jansz is reprimanded for his unprofessional conduct and professional misconduct.
13. That the medical registration of Dr Jansz be immediately suspended for a period of 12 months until 1 June 2012.
14. Pursuant to 45A(2)(d) of the MP Act and section 77(4)(d) of the HPR Act, during the period of suspension of Dr Jansz's medical registration, Dr Jansz shall, at his own expense, complete, to the satisfaction of the Board, an intensive period of psychotherapy with a psychologist or psychiatrist, approved by the Board, comprising initially at least weekly sessions for a period of not less than 3 months and thereafter at least monthly sessions for the duration of the suspension, addressing the issues identified in the Tribunal's reasons for decision.
15. Pursuant to 45A(2)(d) of the MP Act and section 77(4)(d) of the HPR Act, during the period of suspension of Dr Jansz's medical registration, Dr Jansz shall, at his own expense, complete a Turning Point Individualised Structured Program to be formulated by an addiction medicine specialist and agreed by the Board which addresses the learning objectives identified in the Tribunal's reasons for decision. The following further conditions apply:

**(a) Dr Jansz shall use his best endeavours to obtain a report from the addiction medicine specialist or his or her nominee to be forwarded to the Chief Executive of the Board with a copy provided to Dr Jansz within three months of the completion of the Program addressing the learning objectives covered and the outcome of the Program and including any recommendations for further learning or refresher sessions;

(b) Dr Jansz shall attend any further education or refresher sessions as recommended by the addiction medicine specialist or his/her nominee; and

(c) The Board provide a copy of the Tribunal's reasons for decision to the addiction medicine specialist to assist in the formulation and conduct of the Program and the preparation and content of the report.**

1. Pursuant to 45A(2)(d) of the MP Act and section 77(4)(d) of the HPR Act, during the period of suspension of Dr Jansz's medical registration, Dr Jansz shall, at his own expense, undertake such further courses conducted by Turning Point and/or the Royal Australian College of General Practitioners or other suitable organisation, as required by the Board, dealing with the matters the subject of the learning objectives in the Individualised Structured Program and including if appropriate courses such as 'Making Sense of Experience: Evaluation and Reflective Practice'.
2. Pursuant to 45A(2)(e) of the MP Act and section 77(4)(i), (j) & (m) of the HPR Act, on resuming medical practice following the period of suspension, the medical registration of Dr Jansz shall be subject to the following conditions for a period of 12 months:

**(a) That Dr Jansz obtain employment with an accredited general practice;

(b) That Dr Jansz be under the supervision of and be mentored by an experienced full time senior general practitioner in the same practice, approved by the Board;

(c) That Dr Jansz shall only prescribe Schedule 8 drugs and Benzodiazepines under the supervision of his supervisor;

(d) That Dr Jansz shall not attend to more than 4 patients per hour; and

(e) That Dr Jansz shall report (during the 12 month period) in writing to the Board no later than at 3 months; 6 months and 12 months, detailing his ongoing professional education and development, including his development of insight and his ability to reflect upon his practice of medicine.**

1. The Respondent Dr Karl Radford George Jansz ("Dr Jansz") graduated from Monash University in 1993 with the basic medical degrees. He served his internship at the Frankston Hospital in 1994 and in 1995 he worked in various rotations in Frankston and in other areas rurally.[1]
2. He commenced training to become a Fellow of the Royal Australian College of General Practitioners in 1995 and over the next four years worked at the Frankston Hospital [until 1997] and for periods under supervision at various general practices. During this training he received general direction in relation to many areas of medicine, including dealing with drug dependent or drug addicted patients. However, prior to 1998 he had not treated or dealt with a drug addicted or drug dependent patient.[2]
3. In August 1998 he commenced working at a general practice at Medi7 in Bentleigh; and in 2001 he also practised in Durrant Street, Brighton. He become a Fellow of the Royal Australian College of General Practitioners in 1999. He currently continues to practice in Brighton and also in South Yarra.[3]
4. Dr Jansz comes before this Tribunal in relation to his management and treatment of one patient, who will be referred to as the Patient. Dr Jansz's conduct the subject of this application occurred from 1999 until 16 August 2007.
5. The Patient was born on 9 September 1953. It is common ground that she had a significant history of medical conditions for which she sought pain relief.
6. The Patient died on 16 August 2007 as a result of respiratory depression caused by the prescribed medications taken by her.
7. This application straddles two legislative regimes. The Medical Practice Act 1994 (the "MP Act") which applied until 30 June 2007; and the Health Professions Registration Act 2005 (the "HPR Act_"_) which applied from 1 July 2007. Accordingly, the MP Act is relevant in respect of conduct before 1 July 2007, and the HPR Act is relevant in respect of conduct after 1 July 2007.
8. The Medical Practitioners Board of Victoria ("MPBV") was abolished on 1 July 2010[4] and in its place was established the Medical Board of Australia (the "Board"),[5] which is the current Applicant.
9. On 27 December 2007 the MPBV received a notification in relation to the professional conduct of Dr Jansz.
10. On 19 December 2008 the MPBV received a further notification in relation to the professional conduct of Dr Jansz.
11. The MP Act conferred power on the MPBV to conduct an investigation and hearing into Dr Jansz's activities between 1999 and 30 June 2007.
12. The MPBV commenced but did not complete dealing with these notifications prior to 1 July 2010. In this circumstance the complaint or notification is taken to be a complaint or notification under the current legislative regime, namely the Health Practitioner Regulation National Law (Victoria) Act 2009 (the "National Act"). However, the Board otherwise deals with such notifications under the legislation applicable at the time of the alleged impugned conduct. Furthermore, any proceedings or appeal relating to the notifications may be dealt with under the HPR Act and any determination or outcome in respect to conduct prior to 1 July 2007 must be one that would have been available under the MP Act.
13. Section 59(2)(g) of the HPR Act provides:

(2) after an investigation is completed under this Division, and the investigator has made a report to the board, the responsible board may:

(g) in the case of a health practitioner, refer the matter to VCAT for a Tribunal hearing.

1. On 4 June 2009 the MPBV determined to refer the matters which were the subject of the two notifications to the Victorian Civil and Administrative Tribunal (the "Tribunal") for a Tribunal hearing.[6]

1. By letter of referral dated 25 August 2010[7] the Board referred to the Tribunal for Hearing the Allegations set out in Appendix A to that letter.[8] The eight Allegations against Dr Jansz are set out in Appendix A to these reasons and otherwise can be summarized as follows:
   • One and Six: That Dr Jansz prescribed and/or administered inappropriate and/or excessive drugs of dependence, including opiates, benzodiazepines and barbiturates to the Patient.
   • Two and Seven: The medical management of the Patient by Dr Jansz was inappropriate and inadequate.
   • Three: Dr Jansz failed to maintain adequate medical records by failing to document the medical rationale for the medication and/or dosage and/or frequency of medication prescribed and/or administered to the Patient.
   • Four: Dr Jansz prescribed and/or administered drugs of dependence to the Patient when he did not hold a permit and ought to have known that he was required to hold a permit.
   • Five and Eight: Dr Jansz post-dated prescriptions in favour of the Patient on 12 December 2002, 3 June 2004; 23 December 2005; and 16 August 2007.

1. Allegations one to five inclusive relate to conduct prior to 1 July 2007 to which the provisions of the MP Act apply. Accordingly, the role of the Tribunal is to determine whether the practitioner has engaged in unprofessional conduct as defined [section 3]:

**(a) of a serious nature [section 45A(1)(a)]; or

(b) which is not of a serious nature [section 45A(1)(b)].**

1. Allegations six to eight inclusive relate to conduct after 1 July 2007 (and before 1 July 2010), to which the provisions of the HPR Act apply. Accordingly, the role of the Tribunal is to determine whether or not the practitioner engaged in unprofessional conduct or professional misconduct as defined in s.3 of the HPR Act.
2. It is acknowledged that not every Particular to an Allegation needs to be established for the Allegation to be found proven by the Tribunal.

1. At all times the burden of proof remains with the Board and the standard of proof by which the Tribunal must be satisfied is the civil standard - the balance of probabilities.
2. Both Counsel made submissions in relation to the current interpretation and application of that standard. Implicit in their respective submissions is the proposition that there is a difference in the standard being endorsed by each Counsel.
3. The Respondent's Counsel submitted that the correct test to be applied by the Tribunal was formulated by Dixon J in Briginshaw v Briginshaw:[9]

"The truth is that, when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flying from a particular finding are considerations which must affect the answer to the question whether the issue had been proved to the reasonable satisfaction of the Tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences."

1. The Respondent's Counsel submitted that 'historically and currently, the approach of the Tribunal in proceedings of a disciplinary nature has been 'to apply the Briginshaw standard' and that this standard has been applied in every reported case conducted in the past 6 months in the Occupational & Business Regulation List at VCAT. Counsel described the Tribunal's approach in these terms:[10]

The standard of proof upon which each of the relevant factual matters which constitute the allegation made against the practitioner, is to be substantiated on the balance of probabilities, having regard to the seriousness and consequences of the matters alleged. In effect, the Tribunal must feel an actual persuasion of the occurrence or existence of any relevant particular fact before it can be found.

1. The Tribunal was referred to two cases:
2. In Psychology Board of Australia v Love,[11] the Tribunal said that the approach it had taken to the standard of proof was generally as stated in Briginshaw ie:

on the balance of probabilities bearing in mind the seriousness of the allegations. The seriousness of the allegations in this case requires a high level of satisfaction and an actual persuasion on our part in any findings as to the proof of disputed facts.

1. In MPBV v Hafizullah,[12] Misso J said:

The allegations made against the respondent are serious allegations which, if proven,may have serious consequences for him in terms of his reputation and standing as a medical practitioner. Therefore, it is necessary to observe that the Tribunal must be satisfied on the balance of probabilities by clear and cogent evidence that the conduct alleged did in fact occur. The most often quoted reasons on the subject of the standard of proof in such a case was dealt with in Briginshaw v Briginshaw.. .by Dixon J...

1. It is further noted that in MPBV v Swieca,[13] it was stated:

We agree with the parties that the approach to the standard of proof'is generally as stated in the oft-quoted decision in Briginshaw v. Briginshaw... - that is, on the balance of probabilities bearing in mind the seriousness of the allegation. The seriousness of the allegations in this case requires a high level of satisfaction and an actual persuasion on our part in any findings as to the proof of disputed facts.

1. It is not clear whether the Respondent's Counsel was advocating that the expressions used by Dixon J such as "feel an actual persuasion" which Counsel referred to in his submissions (in the passage from Briginshaw quoted by Counsel, Dixon J also used the expression "belief in its reality") have set a higher standard than that which is prescribed by section 140, or whether Counsel was merely emphasizing that the strength of the evidence required to attain the requisite standard of proof in civil cases including disciplinary proceedings (balance of probabilities) may vary depending upon the nature of the case and the seriousness of the allegations.
   1. The Board's Counsel contended that the applicable law is now contained in section 140 of the Evidence Act 2008 (Vic)[14] which provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account-

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. Both Counsel acknowledge that the Tribunal is not "bound by the rules of evidence" by virtue of section 98(1)(b) of the VCAT Act. The Board's Counsel submitted that the 'common law rules' (by necessary implication - the 'rule' in Briginshaw) have been superseded in Victoria by legislation (ie section 140) 'which in the relevant respect departs from the common law', and that 'the issue therefore is not so much whether the rules of evidence should be taken into account, but which rules of evidence'. The Tribunal endorses this approach.
2. It is worth noting that section 98 of the VCAT Act authorizes the Tribunal to admit evidence and conduct proceedings with the minimum of formality and without being bound by the rules of evidence and procedure which applies to courts. The conduct of this proceeding in these respects is unaffected by considerations of the applicable standard of the burden of proof. However, the applicable rules of evidence will always be relevant to the standard to which the Tribunal then scrutinizes the evidence before making findings and determinations.
3. The Board's Counsel referred to a number of authorities where judges have emphasized that the VCAT provision (section 98(1)(b)) or its equivalent does not have the effect of dispensing with the rules of evidence altogether. He noted in particular:

**(a) This provision was held to be a privilege "to be exercised with care":[15]

1. "The Tribunal can and frequently will gain assistance from reference to the rules of evidence."

(c) In discussing a comparable provision Higgins J observed that:[17]

1. "such provisions do not render the rules of evidence irrelevant. They should still be applied unless, for sound reason, their application is dispensed with."

(d) To similar effect Lockhart J in Pearce v Button[18] stated that:

1. ... a judge should be slow to invoke it [a power to dispense with compliance with rules of evidence] where there is a real dispute about matters which go to the heart of the case.

1. On the other hand, the Respondent's Counsel noted that Parliament has not amended section 98(1)(b), and has not indicated in any other legislation an intention to convey that section 140 should apply to VCAT.
2. Recently in Cobaw Community Health Services v Christian Youth Camps Ltd[19] this Tribunal had occasion to consider directly whether section 140 of the Evidence Act should now apply to Tribunal proceedings. Her Honour Judge Hampel said:
   1. Since 1 January 2010, the Evidence Act 2008 applies to all proceedings in a Victorian Court. It adopts with some small and relatively minor exceptions, the Uniform Evidence Act which has been in operation in other jurisdictions for many years now. Victorian Court is defined to include "any person or body other than a Court that in exercising a function under the laws of the State is required to apply the laws of evidence". Although by s 98(1)(b) of the VCAT Act the tribunal is not bound by the rules of evidence, if rules of evidence are to be applied in a particular case, then in my view, the relevant rules of evidence should be the same as those governing proceedings in courts or other bodies which are required to apply the rules of evidence. It would be anomalous to hold otherwise. There is considerable guidance from those jurisdictions which have been operating under the Uniform Evidence Act for some time.
3. Her Honour then refers to a number of authorities. One authority Her Honour refers to is Qantas Airways Ltd v Gama[20] Mr Gama complained that the trial judge erred by using the Briginshaw test when applying the balance of probabilities standard with respect to some of his allegations under the Racial Discrimination Act and the Disability Discrimination Act_._
4. Branson J observed that in a civil proceeding in a federal court section 140 applies:

...references to for example "the Briginshaw standard" or "the onerous Briginshaw test" and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved.[21]

1. French and Jacobson JJ endorsed these comments and added:

110 The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour's reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]- [61], concerning the application of s 140(2)(c) of the Evidence Act 1995 (NSW)[22] are consistent with her Honour's reasons. The first ground of cross-appeal therefore fails.[23]

1. Her Honour Judge Hampel referred also to Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission,[24] in which the Full Federal Court held that common law decisions such as Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[25] were of assistance in interpreting section 140.[26]
2. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd in a joint judgment their Honours said:[27]

...the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect should not however be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct...As Dixon J commented in Briginshaw v Briginshaw: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved...". There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misIeadling...

1. After referring to the above authorities Her Honour Judge Hampel concluded that the starting point is to consider the words of section 140, and then to consider what assistance the reasoning in Briginshaw and Neat Holdings provide to the interpretation of s 140. Her Honour said:

It is important to bear in mind that the standard remains satisfaction on the balance of probabilities. What s 140 and the judicial considerations of it say, in effect, is, having regard to the nature of the allegations, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary.[28]

1. The authorities have consistently reinforced that there is only one civil standard. Confusion has arisen by reason of different expressions (such as 'feel an actual persuasion', 'reasonable satisfaction' and 'high level of satisfaction') being used to describe that standard from time to time. In the Tribunal's view, the crucial principle in the context of disciplinary proceedings, consistent with the guidance given by the Briginshaw formulation and section 140(2), is that the strength of evidence required to attain that standard varies according to the seriousness of the allegations/issues.
2. The Tribunal sees no real difference between the Briginshaw formulation and section 140(2) in this respect. The Tribunal notes that having discussed Dixon J's comments in Briginshaw, Branson J in the Qantas case observed that s.140(2) 'was intended to reflect the common law position'. Similarly, it was observed in the Communications Electrical case that Dixon J's classic statement in Briginshaw 'appositely expresses the considerations that section 140(2) of the Evidence Act now requires a court to take into account'. Where disciplinary proceedings raise serious allegations of unprofessional conduct and professional misconduct clearly there are potentially serious adverse consequences for the practitioner concerned. In determining the strength of evidence required to attain the 'balance of probabilities' standard, the seriousness of such allegations must be taken into account.
3. In light of the above, the approach taken by Hampel J in Cobaw's case is appropriate, that approach being to consider as the starting point the words of section 140; then to consider what assistance the reasoning in Briginshaw and Neat Holdings provide to the interpretation of section 140; bearing in mind that, having regard to the nature of the allegations, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary.
4. In this case the conduct alleged, whether by act or omission, occurred over an extended period and for most alleged Particulars, up to 8 years. There have also been extensive factual admissions made by Dr Jansz. The body of evidence is extensive and includes compelling expert evidence.
5. Accordingly, for the purpose of the current Application it is not necessary to resolve any perceived differences between the Briginshaw formulation and section 140. The Tribunal has reached relevant findings and determinations after having carefully scrutinized the evidence and taking into account the likely impact upon and consequences for Dr Jansz.
6. The nature of the evidence in this case involves: both comprehensive admissions on the facts by Dr Jansz and undisputed facts; and a strength and cogency which forms the basis of the Tribunal's findings.
7. Accordingly, the Tribunal has made the findings set out below without equivocation and to a level of satisfaction which readily meets any perceived Briginshaw threshold of "actual persuasion" or "reasonable satisfaction".
8. The Tribunal notes that the status of the Briginshaw formulation with respect to section 140 may still warrant more detailed analysis, particularly with respect to section 140(1), in an appropriate case before the Tribunal.

1. Paragraph 1(a) of the MP Act sets out the main purposes of the Act which include:

"(a) To protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners."

1. It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Jansz. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards.
2. This principle is referred to in cases such as Craig v Medical Board of South Australia,[29] Mullany v Psychologists Registration Board,[30] and Morris v Psychologists Registration Board.[31]
3. Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating the professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole. This objective has been a key factor to the formulation of final orders, directed at the further education and rehabilitation of Dr Jansz.

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner [the Tribunal] may find that:

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

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

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

1. Section 3 of the MP Act defined unprofessional conduct, so far as it is relevant to this case, as follows:

unprofessional conduct means all or any of the following-

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

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

(c) professional misconduct; or

(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being; or

1. Professional misconduct was a term not defined in the MP Act but has been interpreted to encompass:
   • (a) First, conduct that was disgraceful or dishonourable from a perspective of peers of good repute and competency;[32]
   • (b) Secondly, conduct that was worthy of strong reprobation or criticism, again, from the perspective of peers of good repute and competency;[33] and
   • (c) Thirdly, conduct that constituted a violation or substantial departure from accepted standards of professional conduct.[34]
2. In relation to conduct after 1 July 2007 section 3(1) of the HPR Act defines unprofessional conduct and professional misconduct, so far as it is relevant to this case as follows:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;

* * * * *

(d) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for that person's well-being;

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

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

1. The test enunciated by Mandie J in Campbell v the Dental Board of Victoria[35] (see further below) has been effectively incorporated into paragraph (b) of the definition of professional misconduct.

1. Justice Morris (as President of the Tribunal) considered the meaning of "unprofessional conduct" in Vissenga v Medical Practitioners Board of Victoria:[36]

I wish to repeat the words of paragraphs (a) and (b) of the definition of unprofessional conduct. In both of these paragraphs attention is directed at professional conduct which is of a lesser standard than that which might 'reasonably' be expected of a registered medical practitioner by the public or by peers of the practitioner. In my opinion, neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.

The Meaning of Unprofessional Conduct of a Serious Nature

1. The Tribunal was referred to a number of cases where the term "unprofessional conduct of a serious nature" has been the subject of judicial interpretation.
   1. Lord Mackay of Clashfern for the House of Lords in Gee v General Medical Council[37] observed that persistence in unprofessional conduct is a factor to be taken into account in determining whether professional conduct should be designated as "serious":

Professional misconduct on a single occasion such as a failure to make a proper record of treatment for charging purposes might not amount to serious professional misconduct and yet if such failure were persisted in this might make the failures amount to serious professional misconduct: see, for example, Felix v General Dental Council [1960] AC 704, 721.

1. Significant to the Tribunal's assessment of whether Dr Jansz's conduct was serious and also whether it constituted professional misconduct as alleged, was the repetitive nature and extended period over which the relevant acts or omissions took place.
2. The conduct is to be assessed by its nature and not from its consequences.[38] However, when adverse consequences are reasonably foreseeable, these can properly be taken into account by the Tribunal in evaluating whether unprofessional conduct has been engaged in, including whether it is professional misconduct; whether the conduct is unprofessional conduct of a serious nature or not of a serious nature; and in the imposition of determinations. This is particularly relevant in this case where Dr Jansz has admitted a failure to reflect and a failure to advert to a range of risks from his prescription of a high level, and combination, of medications for the Patient, as well as his management regime generally, which posed foreseeable and significant risks to her.
3. The gravity of unprofessional conduct is not to be measured by reference to the worst case scenario, but rather by the extent to which it departs from the proper standard.[39]
   1. In Parr v Nurses Board of Victoria[40] His Honour Justice Kellam (as President of the Tribunal) commented that whether a person is found to have engaged in unprofessional conduct of a serious nature must depend on the facts of the case:

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

1. In Kozeniauskas v Dental Practice Board of Victoria[41] Justice Morris (as President of the Tribunal) referring to the distinction between unprofessional conduct of a serious nature and unprofessional conduct commented:

Clearly enough, the difference goes to the gravity of the conduct and must depend upon, not only the facts of the case, but also the assessment of the conduct in the context of the conduct of professional practice generally.

1. Accordingly, the relevant principles which will guide this Tribunal in determining whether unprofessional conduct is of a serious nature include the following:

• (a) the gravity of the conduct is to be taken into account;[42] * (b) the facts of the particular case are to be taken into account;[43] * (c) the conduct is to be assessed in the context of professional practice generally;[44] * (d) it is a question of degree and judgment;[45] * (e) persistence in unprofessional conduct is a factor to be taken into account;[46]

1. the relevant conduct will not be regarded as "serious" if it was trivial, or of momentary effect only, at the time of the commission or omission by which the conduct was so defined. Rather, unprofessional conduct of a serious nature must be a departure, in a substantial manner, from the standards which might reasonably be expected of a registered practitioner. The departure from such standards must be blameworthy (in the sense of being advertent or mindful rather than purely accidental) and must be deserving of more than passing censure;[47] and

• (g) in relation to "unprofessional conduct" generally, reference to the reasonable standards of the community and of professional peers of good repute and competence is required.[48]

1. The term "professional misconduct" is not defined in the MP Act and therefore the common law applies. The Tribunal was referred to a number of cases where this term has been the subject of judicial interpretation.
2. In Myers v Elman[49] Viscount Maugham affirmed that a solicitor could be struck off the rolls or suspended on the ground of "professional misconduct", words which he found...

have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency [emphasis added]".[50]

1. In Felix v General Dental Council[51] the Judicial Committee of the Privy Council held that it is not necessary in financial matters that the conduct of the professional be attended by moral turpitude or fraud or dishonesty for it to be appropriate for the practitioner to be found guilty of infamous or disgraceful conduct in a professional respect.
2. The approach taken in Myers v Elman has been followed in at least two decisions in Victoria.
3. In Re a Solicitor[52] Dean J held that "misconduct" "in a professional capacity" under s15 of the Legal Profession Practice Act 1958 (Vic) bore the same meaning as described by the House of Lords in Myers v Elman in respect of "professional misconduct".
4. Similarly, in Mullany v Psychologists Registration Board[53] Gillard J held that while "professional misconduct" was not defined in the Psychologists Registration Act 1987 (Vic) it had...

a well established meaning in this State in respect of the activities of professional persons. The word "misconduct" has been considered with reference to solicitors. Here we are concerned with "professional misconduct". The definition of "misconduct" which has been accepted in this State is that stated by Dean J in Re a Solicitor.

1. In Q_idwai v Brown_[54] Priestley JA held that the test for whether a practitioner has committed "misconduct in a professional respect"[55] was whether:

...the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence.

1. His Honour expressly applied the test enunciated by Sugarman J in Ex parte Meehan[56] and commented that the whole tenor of this test was to read "infamous conduct in a professional respect" in a sense corresponding to "misconduct in a professional respect".
2. The term "professional misconduct" was considered in Pillai v Messiter (No 2),[57] where it was held that misconduct in a professional respect, being the relevant statutory wording in that case, was not met by...

mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

1. A further version of the test was enunciated by Mandie J in Campbell v The Dental Board of Victoria[58] who followed the formulation of the Queensland Full Court in Adamson v Queensland Law Society Inc:[59]

The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

1. The Tribunal accepts the Board's contention that the above formulation of "professional misconduct" by Mandie J is:
   • (a) the most contemporary of the formulations;

(b) consistent with the essence of the two other formulations to which reference has been made; and

(c) consistent with the definitions of "professional misconduct" in s 3(1) of the HPR Act and s 3(a) of the National Act.

Permit Regime under the Drugs Poison and Controlled Substances Act 1981 ("DPCS Act")

(1) Any registered medical practitioner who has reason to believe that one of his patients is a drug dependent person shall give a notice in writing to the Secretary in the prescribed form.

(2) Any registered medical practitioner who considers it may be necessary to administer supply or prescribe any Schedule 8 poison or Schedule 9 poison to or for one of his patients for a continuous period of eight weeks or longer, ...shall forthwith upon considering it necessary so to administer, supply or prescribe..., give notice to the Secretary in the prescribed form...

1. The permit system under the DPCS Act is intended to enable treatment with Schedule 8 poisons to be coordinated and monitored with a view to preventing concurrent prescribing by multiple practitioners and to reduce the possibility of deliberate misuse or drug dependence.
2. In broad terms a registered medical practitioner is required to hold a permit prior to prescribing Schedule 8 poisons for a drug dependent person; he or she is required to hold a permit to prescribe sufficient quantities of a Schedule 8 poison to provide treatment for a period greater than eight weeks to a non-drug dependent person and, once a permit is granted, he or she must not prescribe a Schedule 8 poison for a continuous period other than that specified in the permit.
3. Schedule 8 poisons are, by their very nature, addictive and they include drugs such as amphetamines, barbiturates, cocaine, methadone, morphine, oxycodone and pethidine.
4. The annexed Tables (A, B and C) set out the permits issued by the Department of Human Services in respect of the Patient, to Dr Jansz and to other medical practitioners:
   • (a) Table A records the Schedule 8 permits held by Dr Jansz in relation to the Patient;

(b) Table B records the Schedule 8 permits held by other medical practitioners in relation to the Patient; and

• (c) Table C records all of the Schedule 8 permits held in relation to the Patient.

1. The working diagnosis of Dr Jansz was that the Patient was suffering from severe chronic pain as a result of cholangitis and pancreatitis.[60] He has emphasized that she seemed to him to be genuine in her complaints of pain.
2. As of mid-1999, the drug regime which Dr Jansz administered, included:
   • (a) Morphine Sulphate injections (30 mg) every 2-3 days, prescribed in boxes of 5 ampoules of 15 mg;
   • (b) Proladone (Oxycontin) suppositories, 30 mg pr as needed, up to 12 per week;
   • (c) Panadeine Forte, 1-2 4 hourly as needed (up to 8 per day);
   • (d) Promethazine as an anti-emetic;
   • (e) Ducene (Valium), 1-2, 3-4 times per day; and
   • (f) Temazepam.
3. On 6 February 2000 Dr Jansz added Prozac into the regime.
4. Dr Jansz did not hold a permit for the prescription of opiates until 29 March 2000.[61]
5. Dr Sungaila identified that by the time of the Patient's death, Dr Jansz was prescribing the following drug regime:[62]

Antenax (diazepam) 15 -20 daily

Codalgin forte (paracetamol and codeine 30mg in each tablet) 8 daily, (56 per week)

Morphine sulphate injections 30mg every 4 days.. It is not clear whether this is one ampoule or a box of ampoules every 4 days..

Ordine (morphine) mixture 5mg/ml 30ml (150mg daily) A bottle containing 200ml every 6 days

Phenobarbitone 7 at night. 25 every 5 days

Promethazine 50mg/ml, either 1 ampoule or 1 packet of ampoules every 3 days

Prozac (fluoxetine) 2 daily

1. Significant to the Tribunal's assessment of whether Dr Jansz's conduct was serious and also whether it constituted professional misconduct as alleged, were the circumstances in which he repeatedly failed to comply with his statutory obligations under the permit regime.

1. The evidence comprised material contained in the tendered Tribunal Books; oral evidence of Dr Jansz; together with oral expert evidence given on behalf of the Board by Dr Nicholas Carr General Practitioner; and on behalf of Dr Jansz by Dr Bella Freeman General Practitioner.
2. In the tendered material, in addition to various medical reports, Counsel for the Board referred to and relied upon:
   • Medicare printout of consultations;[63]
   • List of pharmaceutical items recorded for the Patient;[64]
   • Drugs Poisons and Controlled Substances section of the MPBV Guide for Medical Practitioners as at December 1999;[65] and
   • Clinical progress notes.[66]
3. Both Counsel also provided extensive written submissions following the conclusion of oral evidence.[67]
4. The Allegations and Particulars are detailed, alleging a range of serious misconduct over about 8 years. While Dr Jansz made certain admissions, he has also denied certain Allegations and/or Particulars altogether. He has also denied any professional misconduct.
5. In order to faithfully record the case presented on behalf of both parties and the basis for the ultimate findings made by the Tribunal it was considered necessary to summarize the evidence in some detail together with Counsel's submissions. Accordingly these reasons include the following:

**(a) A summary of the relevant medical reports and statements contained in the tendered documents;

(b) A summary of the evidence of experts: Dr Sungaila; Dr Carr; and Dr Freeman;

(d) Specific Allegations including submissions made on behalf of each party and including relevant evidence of Dr Jansz;

Summary of the relevant medical reports available to Dr Jansz

1. Associate Professor Dudley Gastroenterologist[68] reviewed the Patient on 10 May 1999 and reported that:

... she continues to be troubled by recurrent bouts of severe right upper quadrant abdominal pain which radiates to the back and the shoulder and regularly requires narcotic analgesia for relief. The pain would appear biliary in origin as it is associated with fluctuating abnormalities in her liver tests consistent with the diagnosis of choledocholithiasis. Despite this repeated imaging has failed to identify a specific biliary problem and the ERCP has been complicated by the development of pancreatitis.

1. Professor Dudley subsequently reported[69] that the Patient:

... continues to be troubled by abdominal pain and her symptom complex has recently been complicated by the development of recurrent nausea and vomiting.

1. Professor Dudley proposed further testing and raised the potential for exploratory surgery being undertaken.
2. Following tests Professor Dudley[70] noted that no abnormality was detected on a CT scan. Professor Dudley further noted that:

the Patient's use of narcotic analgesia for pain relief is of concern and difficult to reconcile with the laboratory and imaging results. I have been unable to formulate a definitive diagnosis and have suggested the following options for the Patient to consider:

reintroduction of Ursodeoxycholoic acid in an attempt to improve the biochemical cholestasis;

...a short trial of Prednisolone which could be expected to improve conditions such as granulomatous hepatitis or immune mediated hepatobiliary disease;

undertake a further liver biopsy, in an attempt to make a more definitive diagnosis and assess for disease progression;

obtain a surgical consultation regarding the role of an elective surgical sphincteroplasty to improve biliary drainage.

1. Mr Christophi Surgeon examined the Patient in July 1999 and reported[71] that in view of the lack of clear cut evidence of a definitive lesion or obstruction in the biliary system he would be reluctant to recommend surgery. A repeat liver biopsy was recommended to obtain a clearer picture of the underlying pathology.
2. Mr John Cox General Surgeon examined the Patient upon referral by Dr Jansz in September 1999. In his report[72] Mr Cox noted that the Patient had previously undergone a laparoscopic cholecystectomy and an ERCP for a retained stone in the duct that was complicated by pancreatitis in respect to which she has had ongoing problems. He also noted a chronic abscess on her right hip, which allegedly followed an injection and had not been responding to antibiotics and dressings for some two months. Mr Cox also treated a necrotic ulcer over her left hip which he debrided and dressed and recommended daily dressings.
3. In respect of her persisting gastritis Mr Cox said:

...it seems rather strange to me and it is more probable that she is suffering from an alkaline gastritis due to bile reflux...

1. The Patient's gastritis had failed to respond to Losec and Zantac and accordingly Mr Cox recommended that she take Prepulsid and Mylanta as required.
2. Mr Cox reviewed the Patient on 30 September 1999[73] and noted that the abscess on her left hip was healing slowly and recommended that she contact Professor Dudley in relation to her epigastric discomfort. Mr Cox continued to review the Patient in October and November 1999.
3. Dr Elisabeth Orbach General Practitioner was the principal practitioner at the Bentleigh Clinic.[74] By letter dated 30 November 1999[75] Dr Orbach noted that she had known the Patient for three years and she suffered from chronic cholangitis requiring narcotic injection for pain control. Dr Orbach reported that the Patient:

...has chronic inflammation of the biliary tree... which causes her severe chronic pain and requires her up to 3 weekly injections of morphine injections and proladine suppositories...

1. At that time surgery had been scheduled in approximately 2 weeks after which the pain was expected to abate and hopefully she would not require narcotics.
2. Following complaints of pain in the thoracic and lumbar areas, radiological investigation demonstrated:

...minimal degenerative disease at the T12/1 level. No other abnormality is seen...[76]

1. Robert Lansek Professor of Geriatric Neurology, examined the Patient upon referral by Dr Jansz in July 2000 following complaints of numbness in hands and feet and weakness in the right arm.[77] Professor Lansec concluded that the Patient's symptoms were not suggestive of any neurological event; her low blood pressure and use of narcotics and other medications were likely to induce hypotension which may produce a re-emergence of old symptoms associated with a past history of hemiparesis on the right. Her symptoms of pins and needles and numbness were more suggestive of a functional component such as hyperventilation.
2. Ultrasound of the Patient's neck on 2nd February 2001 demonstrated a palpable mass whose appearance was suggestive of a lymph node.[78]
3. Liver function tests were performed in 1998, 2000, 2001, 2003 and January 2007.
4. Dr Carolyn Arnold Consultant in Rehabilitation Medicine and Pain Medicine, examined the Patient on 20 June 2007 for review of her medication permit.[79] Dr Arnold noted that she had previously been assessed at the Clinic in March 2004. Dr Arnold noted that she could not determine whether the Patient was under the care of a gastroenterologist for her abdominal pain symptoms and had never received confirmation of the exact nature of her diagnosis. On examination the Patient complained of right upper quadrant pain which was bearable with the medication but she also experienced severe exacerbations. Dr Arnold noted widespread ulceration of her legs and buttocks and that she is severely disfigured by the scarring. Dr Arnold referred to the current medication regime and concluded:

I am never comfortable with the long-term use of injectable morphine for what is a chronic pain condition. I am concerned that there may be features of drug dependence here, which is also driving the continued use of injectable medication for the management of a chronic pain condition.

My recommendations for ongoing management would be that she is assessed by a doctor from a Drug and Alcohol Service to see if an alternative medication, either by oral or transdermal route could be trialled. Furthermore I am concerned about a high level of anxiety and emotional distress suggesting possible underlying anxiety and depression... Finally if she were to engage with treatment I would seek confirmation from her treating gastroenterologist as to the underlying diagnosis. I am reluctant at this point in time to confirm the ongoing use of injectable morphine and believe that several aspects of her treatment should be reviewed at this point in time.

1. Dr Arnold recommended to the Patient that she make an appointment to see the consulting psychiatrist at a multidisciplinary pain clinic and strongly recommended the services of Dr Benny Monheit, a specialist in addiction medication.
2. Dr Benny Monheit Drug and Alcohol Specialist[80] examined the Patient on 9 August 2007 and agreed with Dr Arnold's assessment. In particular, he reported:

It is of concern that the Patient is relying totally on two short-acting morphine medications - morphine injections and Ordine mixture... Even though she said she had been on lots of treatments in the past, on closer examination these were mainly to do with trying to treat her underlying pancreatitis rather than instituting appropriate chronic pain management therapy.

1. Dr Monheit noted that the Patient was adamant that she wished to remain on her current medications and seemed:

... extraordinarily resistant to trying to modify her medications to include an oral, long acting opiate instead of the frequent injections she was having. This made me suspect that she was using the injections as a quick analgesic but also as a mood enhancer-[which she denied].

1. Dr Monheit further noted the Patient's history of high anxiety with some depressive features and a range of underlying anger issues against the medical system for what she believed was its responsibility for causing her chronic pain in the first place.
2. Dr Monheit described her scars from the multiple injections as:

...really frightful to look at as they are quite disfiguring and probably also affect absorption of her morphine injections. There is also a risk of developing cellulitis and tissue necrosis in those sites.

1. Dr Monheit noted that he had a long discussion with the Patient about long-term opiate treatment and the new medications available, but she was not really interested in them because she wanted to remain on the injections and Ordine, which she said that Dr Jansz was willing to continue to give her two or three times per week or more often as required.
2. Dr Monheit acknowledged that:

...It is difficult to know what to do when somebody is so resistant to change in medication. She is likely to develop increasing tolerance as time goes on (her dose has already had to be increased from 30 mg injections to 45mg) and her quality of life is not great.

In my experience patients on frequent, injectable opiates will not accept any alternative unless it is forced upon them by their prescriber or by the Department of Human Services.

1. It is noted that Dr Jansz evidently did not receive Dr Monheit's report prior to the Patient's death.

1. The Patient's elder daughter [herein designated as Ms ED][81] made a Statement in which she says in part that around 1983, when she was about eight years of age, her mother suffered migraines and the local doctor would attend their home to give her morphine injections. By about 1986 or 1987 her mother would receive morphine injections from a Dr Newton. At that stage she had migraines, back pain and a stroke. Ms ED states...I don't remember a time when she wasn't sick". By 1995 her mother was still taking regular injections of morphine. Her mother was now seeing Dr Orbach and Ms ED thought that she was still complaining of migraine. In about 1996, Ms ED and her mother moved to Carnegie. Her mother's medication started to get stronger and she appeared dozy and often groggy.
2. According to her Statement by the time her mother started seeing Dr Jansz Ms ED observed her mother and a friend of her mother (also a patient of Dr Jansz) injecting each other with morphine. Ms ED stated that she would find boxes of various medications in her drawers.
3. In about 2000 Ms ED started finding more used syringes at her mother's house. She lived with her mother between July 2005 and March or April 2006 and observed her condition to be deteriorating. Her mother saw Dr Jansz nearly every second day and was always groggy:

... her body was full of hard tissue and ulcers. She would be constantly burning herself from when she passed out whilst holding a cigarette...

1. By March 2007 Ms ED thought that her mother's drug use was more obvious. Her mother became abusive toward her when she confronted her about leaving needles about, which her mother blamed upon the locum service.
2. The Patient's first cousin [herein designated as Mr FC][82] made a Statement in which he says in part that he became quite close to the Patient and was aware she was complaining of migraines and obtaining painkillers for the 30 years that he knew her. He states that she would attend doctors:

... stating that she had all different kinds of ailments, whether imagined or not.. [and even obtain money from her mother for prescriptions]... She appeared to be very groggy over the past five years or so...

1. Mr FC stated that a few weeks before her death the Patient fell in her house and received stitches near her eyes. He formed the belief that she was groggy as a result of her drugs but she would never admit to any psychological or addictive problems.
2. The Patient's youngest daughter [herein designated as Ms YD][83] made a Statement in which she says in part that in the period 2001 to 2007, when she was living with her mother, she noticed that her mother was taking a large amount of medication and her behaviour and appearance were getting worse.
3. In oral evidence she confirmed that in 2003:[84]

she wasn't daily showing signs of sleepiness ... she looked like a well person reasonably...She did have, ... yellowness in her eyes and she did have lack of care with her appearance and she did slur her words every second day and she did fall asleep every second day and she did have a bit of a hard time back then but it wasn't as often happening during the week as when ... I saw her, ... perhaps in, I think it was June 2007...

1. From about 2005 onwards Ms YD described her mother's appearance as follows:

she looked like somebody who has just had enough of her life in appearance wise as in her body was shutting down. It was evident. Her skin was yellow, she was hunched over, she had ulcerations all over her body, she had scars, she was dropping, she couldn't stand upright, she had a ...smell and it was just unpleasant and it was ... for any...normal person walking down the street who didn't know anything about this woman would be able to tell there and then that she was unwell.

1. In about 2004 or 2005 Ms YD said she tried to speak to Dr Jansz about her concerns:[85]

It was a consultation. I went to see Dr Jansz about myself and my surroundings at home became more surreal and I did seem to notice things a lot more often and when I went in for the consultation on a personal note, I did try and bring it up, the fact that I was concerned about the things I was seeing around my house or her appearance....I can't remember the correct dialogue...In general terms that I was just concerned about my mother's well-being.

He couldn't discuss it due to patient confidentiality.

1. Ms YD says that she did not get the opportunity to raise her concerns.
2. In Dr Jansz's medical records on 15 October 2004 there is noted a discussion between the Patient's children and himself on 14 October 2004.[86] Ms YD recalled having attended Dr Jansz with her elder sister Ms ED at which time Dr Jansz indicated to them that he was not in a position to disclose the Patient's medical history, due to confidentiality. He offered to have a conference between the Patient and family members to discuss any relevant issue. She agreed that they did not pursue this offer.[87]
3. She also expressed concerns about Dr Jansz's involvement in her family's life, including attending her brother's Bar Mitzvah, her grandfather's funeral and her sister's wedding.
4. Deputy State Coroner West conducted an inquest into the death of the Patient[88] on 5th and 6th November 2008. In his report he found that the Patient died following self ingestion of prescription medicine. Toxicological examination of body fluids revealed the presence of codeine; diazepam and oxazepam; morphine; paracetamol; phenobarbitone and promethazine.. He also noted the report of Dr Michael Burke Forensic Pathologist which stated that:

...the measured codeine concentration in blood of approximately 1.1mg/L is consistent with causing death as a result of respiratory depression...[89]

1. Dr Angela Sungaila Forensic Physician holds a Masters of Forensic Medicine and a Certificate in Addiction Medicine and is employed by the Victorian Institute of Forensic Medicine. She prepared a report for the Coronial Inquest.[90] The Tribunal notes her extensive post graduate qualifications and relevant experience, particularly in specialist general practice in addiction medicine and chronic pain syndromes.
2. Dr Sungaila notes that the Patient was found deceased at her home on 16th August 2007. The following prescription medication was found in the house, all prescribed by Dr Jansz except for one packet of MS Contin (morphine) in a different person's name. The items found were either empty or partially empty containers.. These consisted of:[91]

9 boxes of Promethazine (Phenergan) ampoules

2 boxes of Morphine 30mg ampoules

4 boxes of Morphine 15mg ampoules

11 packets of Codapane forte or Prodeine forte (all paracetamol 500mg/30mg codeine) tablets

5 containers of Promethazine (Phenergan) tablets

5 bottles of Morphine mixture

4 packets of Diazepam (Antenax) tablets

2 containers of Phenobarbitone tablets..

As well as the partially used items, 8 x 30mg morphine ampoules and 9 x 15mg morphine ampoules and 8 promethazine tablets were found near the deceased,.

Ampoules of Largactil were found in the letterbox placed there by the pharmacist.

1. In addition Dr Sungaila notes that 25 prescriptions were found in the deceased's handbag all dated between 28 June of 2007 and 16 August.[92]
2. Upon examining the patient's clinical records Dr Sungalia provided the following summary:[93]

Medical History of the Patient

The Patient consulted Dr Jansz approximately 250 times at Durrant Clinic between November 2004 and 14th August 2007. There are approximately 150 further consultations described for Bentleigh Medi 7 in the same time period. On the vast majority of the consultations an injection of morphine 45mg was given together with Phenergan 100mg. On most of the consultations prescriptions were written for morphine injections and mixture, diazepam tablets, phenobarbitone tablets and promethazine ampoules. The reasons for the consultations generally were described as "chronic pain". Some notes were made of "abscesses" and referrals to hospital for assessment of infections and scabs. The notes do not describe the extent or nature of these lesions.

Dr Jansz gave the Patient injections on both upper arms and both buttocks over a period of time. She developed ulceration and cellulitis of her right arm and cellulitis of her right buttock. There is frequent mention of treatment in the form of antibiotics for cellulitis but the sites are not clear in many cases.

Pathology tests recorded in the medical history provided are infrequent. The photocopy is inadequate to be sure of the results or dates of the tests.

The notes contain several records from a locum service indicating that they had visited the Patient and had given her injections of Morphine 45mg and Promethazine 100mg,. The dates and names of the doctors are not readable in the copy provided.

A referral was made to Dr Gijsper at Turning Point in January 2007. It is not clear if the Patient attended.

The Patient was seen by Dr Carolyn Arnold, consultant in Rehabilitation and Pain Medicine on 20th June 2007. Dr Arnold referred to an earlier assessment in 2004. At the recent consultation she described widespread ulceration of her legs and buttocks..."may be a complication of her injection therapy"... Dr Arnold was not in agreement with the ongoing use of morphine for the Patient's condition. Subsequently, Dr Janz referred the Patient to Dr Benny Monheit, a specialist in addiction medicine. It is unclear whether the Patient saw Dr Monheit, or even made an appointment to see him.[94]

Permits were obtained from Department of Human Services for the use of morphine. The last permit allowed the prescription for Injectable morphine at 45mg daily and morphine oral mixture at 150mg daily until October 16 2007. This was in response to a request from Dr Jansz for an extension of the permit until he was able to organize the interventions recommended by Dr Arnold.

Prescriptions dated 18th August 2007 were found in possession of the deceased on 16th August 2007.

1. Dr Sungalia noted that Dr Michael Burke performed an external examination of the body of the Patient on 20 August 2007 when he observed a large amount of scarring and ulcerated lesions on the deceased's upper arms, front of thighs. No autopsy was performed.
2. Dr Sungalia did not have access to any reports from specialists who may have investigated the Patient for her chronic pain condition; and it was not clear to her whether Dr Jansz or any other doctor visited the Patient at home apart from several records of visits by a locum service. She could also not explain how prescriptions dated 18 August were found on an earlier date.
3. Dr Sungalia made the following specific comments in relation to drugs prescribed by Dr Jansz:[95]

1. Morphine is a potent analgesic with a very high risk of dependence and tolerance. The prescribed dose of morphine was 45mg injected and it is unclear whether this was given every day by a doctor, every few days as the medical records suggest or was self administered by the Patient. The dose of oral morphine ranged from 20ml (100mg) to 7ml 6 times a day (210mg) as written on 2 prescriptions.. Oral morphine mixture is dispensed in a bottle and is readily overused by sipping or not measuring the dose accurately The total daily dose may have been in the order of 250mg or a much larger dose. Tolerance to very large doses of morphine occurs urging the user to exceed prescribed doses to achieve the desired effect.

Promethazine (Phenergan) injections

10. Promethazine is an antihistamine drug used for allergy. It is an effective anti-emetic and causes sedation. The recommended dose is 25mg --50mg. The reason for the higher dose given to the Patient is unclear. In this case it appears the drug was used for its anti-emetic effects primarily however sedation may have been a desired side effect.

Injectable promethazine is an irritant and should be given directly in to a muscle. If given subcutaneously (beneath the skin), it may produce ulceration and necrosis. In an individual with a large amount of fat there is the risk of an injection of promethazine being deposited in the subcutaneous area rather than reaching the muscle especially if self administered in inappropriate areas such as the abdomen.

It is likely that the ulceration and scarring described on the Patient's body was the result of promethazine injections. The possibility of the relationship between the injections and ulceration was not recorded in the notes despite an association of sites. The mechanism of the ulceration is that the drug destroys local circulation and in effect, causes a small area of gangrene; this in turn may become secondarily infected with bacteria and cause cellulitis. Recurrent cellulitis may cause complications such as bacterial endocarditis which is potentially lethal.

Paracetamol 500mg/Codeine 30mg tablets (Codapane Forte, Panadeine Forte. Prodeine Forte)

11 The Patient was prescribed a paracetamol/codeine tablet (paracetamol 500mg and codeine 30mg) in the dose of 8 daily. This is the maximum recommended dose because of the risk of paracetamol toxicity. Total daily prescribed codeine was therefore 240mg. Codeine is an opiate analgesic and causes dependence. Tolerance occurs which will require the user to take a larger number of tablets than prescribed to achieve the desired result. At the dose of 8 tablets daily regular liver function tests should be performed to exclude liver toxicity.

It is probable that the Patient was tolerant to a high dose of codeine because of her long term morphine and codeine intake. Morphine use causes cross tolerance to codeine.

Diazepam (Antenax)

12. The daily prescribed dosage of Diazepam was 15 to 20 tablets daily (75mg - 100mg) and is excessive. The drug is ideally used in small doses (1 - 2 tablets) for short term relief of anxiety. At this continuous dosage it would have almost certainly caused some depression and rebound anxiety.

Phenobarbitone

13. The reason for the use of phenobarbitone is unclear, The dosage of 7 tablets (210mg) each night is excessive, The drug is rarely used other than for epilepsy conditions. It is a potent sedative with a very long half life,. Overdose is often fatal and difficult to treat. The drug can produce dependence and tolerance and a severe withdrawal syndrome if discontinued abruptly.

Fluoxetine (Prozac)

14. Fluoxetine is an antidepressant drug. It is doubtful that it would have achieved any benefitcial effect in the presence of a large amount of depressant medication. The dose prescribed (2 daily) is appropriate.

1. Further observations and conclusions made by Dr Sungaila are included under the relevant Allegations and Particulars below.
2. Dr Nicholas Carr[96] is an experienced general practitioner with a particular interest in the Quality Use of Medicines. Dr Carr was asked to examine the clinical records of the Patient, including hospital records, specialist reports and diagnostic investigations. Dr Carr provided an expert report, in which he addressed a number of questions. He also gave oral evidence.
3. Dr Carr accepted that Dr Jansz inherited a very complex problem and that when his involvement commenced the Patient was already being prescribed addictive medications, including injections of morphine:[97]

... Thus Dr Jansz was not responsible for initiating her medication use. Over the subsequent years, Dr Jansz took increasing responsibility for managing the Patient, and after the departure of Dr Orbach assumed primary responsibility.

1. In reaching conclusions [referred to under the specific Allegations below] Dr Carr made the following factual findings:

The Patient consulted Dr Jansz at two clinics: at Bentleigh Medi 7 from approximately 1998 through to 2007, and in addition at Durrant Street Medical Centre from October 2004.[98]

Hospital letters indicate that the Patient had a cholecystectomy sometime in the mid-1990s and subsequently developed pancreatitis. This seems to have been the beginning of her experience of chronic abdominal pain. Evidence provided at the inquest suggests the Patient started using morphine well before this.[99]

The hand written GP records from 1998 are hard to read, but there are various entries mentioning abdominal pain, and opiates seem to have been used on at least some occasions By the end of 1998, there are regular entries noting that the Patient was given morphine and Phenergan, also Panadeine Forte and benzodiazepines such as diazepam and temazepam Many of the entries at this point and through 1999 contain little clinical information but simply record the drugs that were given. These consultations of 1998 to 1999 seem to have been with several doctors, but principally Dr Elizabeth Orbach and from mid 1999, Dr Jansz.[100]

On 3/1/1999 there is a note written by an unidentified doctor saying (in capital letters and highlighted); "TO LIZ I FEEL SHE SHOULD NOT HAVE ANY MORE INJECTIONS - either needs referral to pain control clinic or put on MS Contin" This suggests that it was obvious as early as January 1999 that there valid reasons for concern about her management.. Despite this note, Dr Orbach, and subsequently Dr Jansz, continued to give frequent injections of morphine without anything documented at that stage to suggest any attempt to address whether this was the most appropriate management and what the other options might be.[101]

There is a note a few weeks later by a Dr Smith, on 27/1/1999, which says, "Requesting Morphine/Phenergan. Addicted, long term use." Another note on 7/3/1999 says; "Lost script" and new scripts were written for Ducene (diazepam), Panadeine Forte and temazepam. All three of these are addictive medications known to be commonly abused, and `lost scripts' needing to be replaced should be a significant warning sign to any competent GP.[102]

Therefore it seems that by early 1999 it was apparent to the doctors involved in her care that the Patient was drug dependant This fact is noted on her handwritten summary sheet.[103]

A letter from Dr Frank Dudley of the 22 June 1999 says, "the Patient's use of narcotic analgesia for pain relief is of concern and is difficult to reconcile with the laboratory and imaging results. I have been unable to formulate a definitive diagnosis and have suggested the following options..." This is again consistent with the sense that, even at this relatively early point, there were valid reasons to be concerned about the Patient's drug use, particularly in the context of no firm diagnosis.[104]

Through the rest of 1999 she continued to receive frequent injections and prescriptions. On 8/12/99 she saw Dr Jansz, and under his handwritten notes is a scrawled note, by someone else, in large capitals, "the Patient HAD 2 SHOTS IN ONE DAY - NOT PART OF CONTRACT. CARL PLEASE WATCH - CAUT'ION." On 10/12/99 Dr Jansz records, "Discussion re above issues detailed. Stressed need for 3 injections/week maximum. " While I could find no evidence of a contract, this episode indicates again that it was clear that there were significant concerns in 1999 about the Patient's drug use and that Dr Jansz was well aware of these concerns.[105]

What the records indicate to me at this point is that the cause of her pain was unclear but that there were significant, legitimate and widely recognised concerns about her use of addictive medications. Some attempt seems to have been being made to regulate the supply of these, but in a haphazard and ineffective manner.[106]

There are no comments in the notes addressing her Panadeine (or Codalgin) Forte and benzodiazeprne use, and these seem to have been prescribed on a recurrent basis without any question or concern. For example, her diazepam dose began at 5 mg twice a day in 1999, was increased to 3 times a day in 2000 and increased again to 2 tablets three times a day in October 2000, and again in November 2003 to 2 tablets four times a day (a total of eight tablets a day), to 10 tablets a day and finally, in February 2007, to 15 tablets a day, without any notes to indicate the rationale for any of these changes. In the notes from Durrant Street medical centre, the dose of diazepam is even higher -- in 2006, 15 to 20 tablets daily. There are recurrent references to her tendency to vomit up diazepam tablets, but nothing to explain why this only seemed to apply to diazepam, not her other medication, nor why she needed such an increase in dose over the years.[107]

Similarly, she seems to have been prescribed Codalgin Forte (which contains codeine, which is metabolised to morphine) at up to 8 tablets a day for many years without anything recorded that I could find to explain the rationale for this, and nothing to address the obvious concerns and risks that this level of use presented.[108]

The first copy of a permit application that I could find by Dr Jansz was dated 27/3/2000, which seems a bit belated, as the Patient had been prescribed opiates by Dr Jansz for well over 12 months prior to this. The permit was granted for 12 months from 29 March 2000 for a maximum dose of injectable morphine of 120 mg weekly. In May 2000, Dr Jansz's handwritten notes indicate that the Patient had had nine injections in nine days between himself and the locum service, a clear indication that her medication use was escalating. Recognising this, on July 5, 2000 Dr Jansz referred the Patient to a pain clinic. In his referral letter, Dr Jansz says, "I fear she may have developed a physical and psychological addiction to these medicines" (Proladone and Morphine).[109]

It is not clear to me whether the Patient attended the pain clinic or not, but it seems that she probably did not. I was unable to find a copy of any letter from the pain clinic in response to this referral. There is no subsequent mention of this referral or its outcome in Dr Jansz's notes other than on 20 August 2000, "going to pain clinic appointment soon." Nothing is noted after this date to suggest that she did attend, and Dr Jansz has made no notes to suggest that he addressed this with the Patient.[110]

On 14 November 2000 there is a note, "Temazepam not helping, took four yesterday -- did not help" and Dr Jansz subsequently prescribed phenobarbitone. There is nothing written to suggest he discussed this unusual choice of hypnotic with the Patient or the possible risks or side-effects of its use, including its addictive potential.[111]

Throughout 2001 the Patient saw both Dr Orbach and Dr Jansz regularly. Most of Dr Orbach's consultations are recorded simply as a list of medications provided. In contrast, Dr Jansz at least recorded significant clinical information on many occasions. In approximately May 2003, Dr Orhach left the practice and Dr Jansz assumed responsibility for the management of the Patient.[112]

During 2001 and 2002 and subsequently there are several comments of the Patient presenting with either falls, injuries, or neurological symptoms similar to TIA. On 11 August 2002 she presented with unsteadiness and double vision. On 1 April 2003 Dr Jansz records, "Burn on forehead, doesn't use hairdryer, mysterious, patient cannot remember how she did it." Similarly, on 28 April 2004 there is an entry, "bruising to left eye after walking into wall corner" and subsequently "found herself in bed, can't remember how she got into bed, sounds like concussion." Again, on 20 May 2004, "fell over after tripping, a few minor grazes", and 31 May 2004, "fell in the street after tripping, injured right arm." On 13 July 2004, "balance has been poor of late (could be over the past 4 to 5 months)." On 20 July 2004 "still very unbalanced, speech slurred.. fell over on the way out." At this stage it does not seem to have been considered that the symptoms could very well have been explained by the large quantities of psychotropic medication she was being prescribed, which continued unchanged_._[113]

Finally, on 29 July 2004, there is the note, "CT scan NAD . symptoms she is having likely medication related, cumulative effect, needs medication though because of the severe chronic pain she has " Subsequently there are notes, on 2.0 January 2006, "fell over last evening, tripped over something outside the house... ", and on 26 February 2006, "experiencing memory loss, getting worse, side-effect of Morphine and other' meds she is on." [114]

In other words, it seems to me that the Patient may have been experiencing serious side-effects from the high doses of psychotropic medication, with resulting symptoms, falls and accidents, for several years without this being recognised by Dr Jansz. Even once this possibility was recognised, no effective steps were made to reduce her medication use, indeed if anything it increased, and the side effects seem to have continued_._[115]

On 6 June 200.3 Dr Jansz noted that the DPU required a specialist's letter and that he planned to refer her. It was at this time that he increased the strength of the morphine injections from 30 to 45 mg. On 11/9/03 Dr Jansz notes "refer pain management specialist". On 27/1/04 there is a note, "patient will be seen at the pain clinic next week".[116]

On 9 December 2003, there is a note to say that she is "still awaiting appointment (Caulfield pain clinic)". A letter was received by Dr Jansz from the Caulfield pain clinic on 9 March 2004, written by Dr Carolyn Arnold. This letter recommended continuation of the current medication, "in the short term, subject to an early review" . Nothing seems to have come of these recommendations, there does not seem to have been any review, and Dr Jansz continued to prescribe for her.[117]

On 21 August 2004, after some notes about confusion about some prescriptions, Dr Jansz wrote, "has been using more than she should, counselled, I will need to monitor closely" Despite this note, Dr Jansz 's prescribing seems to have continued unabated, and there is nothing in the subsequent notes to indicate any attempt to "monitor closely" On 18 December 2004 there is a note, "can't have her `misplacing' ampoules like this, will need to go on to daily pickups at Bentleigh Chemmart", then there is a subsequent note that this requirement was rescinded, On 28 June 2005 Dr Jansz notes, after detailing the number of prescriptions he has recently given her, "way too much morphine" His own notes show that, along with very large doses of all her other oral medications, over the course of nine days he prescribed 20 ampoules each of morphine 30 mg and morphine 15 mg injections. This is more than twice the quantity that she was supposed to be having. Furthermore, there is no comment about how she was supposed to be getting these injections, but the implication that she could have been self injecting is clear.[118]

On 30 August 2006 there is a note, 'patient wanting more scripts, reminded her that she had a full set of scripts on Sunday at Bentleigh and now that I have checked my records here it seems she has also had a full set of scripts on Saturday too" Dr Jansz subsequently went on to ring both the pharmacies involved. On 13 December 2006 there is a detailed note about the amount of medications the Patient is using, with again the advice that if she fails to comply with Dr Jansz's arrangements, she will have to go on to daily pickups.[119]

All of these entries reinforce the notion that it was abundantly obvious that the Patient was overusing, if not abusing, her medication, but that despite this, Dr Jansz took no effective steps to address this In fact, as one example, PBS data for August 2006 (under tab 4 in the papers supplied to me) show that Dr Jansz prescribed, and the Patient had dispensed, 55 ampoules each of morphine 15 and 30mg This is nearly twice the amount she was supposed to be having, and for which Dr Jansz had a permit. Despite having noted, at the end of' August, concerns about the number of scripts, Dr Jansz carried on prescribing at the same rate, so that in the next 2 months (Sept and Oct 2006) he wrote scripts far 105 ampoules of each strength of morphine, again nearly twice what she was supposed to be having.[120]

On July 21, 2005, I note that her phenobarbitone dose was increased from 120 mg to 150 mg at night.. There is nothing in the notes to explain the rationale for this change just seven days later, the dose was increased further to 175 mg at night with again no explanation Not until 14 September 2006 is there any comment about the amount of phenobarbitone that she is taking. This exceeds the maximum recommended dose for this drug when used for sedation (120mg a day).[121]

The doses that the Patient was supposed to he taking of her various medications is frequently unclear. For example, in November 2004, prescriptions from Dunnant Street specified phenobarbitone 4 tablets at night, whereas in the same month, prescriptions from Medi 7 for phenobarbitone were for 7 tablets at night. Similarly, in the same month prescriptions from Dunnant Street for Ordine mixture specified 15 mls daily, whereas prescriptions from Medi 7 in the same month were for 42 mls daily.[122]

Recurrently, the only clinical note that Dr Jansz makes for the consultations are words like, "chromic pain, usual characteristics" or similar. There are at times, however, quite extensive notes about the Patient's social and psychological conditions. For example, on 11 June 2006, there is a note, "the Patient needs to find a home for her eight-month-old German Shepherd... I will look into it and see if I too can come up with anyone I know who is suitable and would like a pet dog".[123]

There was never a clear diagnosis to explain the Patient's pain. It was labelled as possible pancreatitis, without this diagnosis ever been confirmed.. At one point, on 29 October 2005, there is a note, "chronic pain, fibromyalgia, usual characteristics" . As far as I can ascertain, this is the first mention of a new condition (fibromyalgia) but there is nothing to explain how this diagnosis was come by.[124]

Most of the referrals by Dr Jansz to specialists were for issues such as her recurrent ulcers and other matters, but not to investigate the cause of her pain.[125]

As discussed ... above, there were many indications that the Patient's primary problem was addiction to medications, not specifically a medical condition that was causing her pain.[126]

In his letter to the Board, dated 16 March 2009, Dr Jansz acknowledges that he supplied the Patient with a post dated prescription -- that he wrote a prescription on 16 August 2007 dated 18 august 2007. In the records, Dr Jansz also records on 23 December 2005 that he wrote prescriptions for seven medications post dated to 24/12/2005, on 3 Tune 2004 that he post dated some scrip is to 7 Tune 2004, and on 12 December 2002 he post dated scripts to 24/12/2002.[127]

Dr Jansz acknowledges in his letter to the Board that this was an inappropriate course to take and that he should have dated the prescriptions on the day they were written, and endorsed them for the day they were intended to be supplied.[128]

It is also clear from the notes that on each occasion that Dr Jansz provided a post dated prescription, this was a genuine attempt to provide medication to cover periods when he was unavailable to see the Patient because of' absence or holidays.[129]

The only possible reference I could find in the notes to an approach by the family was on 17 Tune 2004, when Dr Jansz recorded, "family issues, counselling of son, Ms YD and the Patient's, confidential matter's" . In his letter to the Board of 17 March 2009, Dr Jansz refers to the record of interview with Ms YD in which she stated that in about 2004 she and her sister MS ED both tried to talk to Dr Jansz. I could find no record of these contacts in the notes, nor any comment about their outcome.[130]

Dr Jansz himself says in his letter to the Board that he remembers a conversation that he believes was with Ms YD . He states, "I advised her that I was not able to discuss the Patient's condition without her consent and I suggested to the family member that a family conference with the Patient be arranged. However the family were reluctant to participate in such a discussion."[131]

While Dr Jansz is quite correct in saying that it would have been inappropriate to divulge any information concerning the Patient without her consent, there is no problem with receiving information from concerned friends or relatives. By 2004, approximately when this conversation is supposed to have occurred, it was obvious to Dr Jansz that the Patient had a major problem with addictive medications. It would potentially have been of enormous importance for Dr Jansz to hear what her family were concerned about, which I understand was not just the level of her use, but the fact that she was self injecting at home and sharing her drugs with others.[132]

The only actual referral to a specialist in addiction medicine occurred just before the Patient's death, when she was referred to Dr Benny Monheit. As discussed in more detail in my answer to question a), she was referred on three occasions to a pain management clinic, in 2000, 2003 and 2007.[133]

It appears that the Patient did not go to any appointment after the 2000 referral. There seems to have been no follow-up about this, and I've already been critical on this matter. Three years went by before Dr Jansz referred her again, and after she was seen in 2004, another three years went by before her final referral. ... both of these referrals seem to have been in response to issues with her permits, not because Dr Jansz was truly concerned about managing her pain syndrome.[134]

... the Patient was already being prescribed addictive medications for a presumptive diagnosis of pancreatitis well before Dr Jansz was involved. A disease like chronic pancreatitis has relatively few physical signs, and it is unlikely that recurrent examination would have revealed any useful clinical information, It is also my belief; again as previously discussed, that Dr Jansz was well aware the main issue with the Patient was her desire for addictive medications, not specifically her underlying medical problem.[135]

'When the Patient presented with other physical problems, for the most part Dr Jansz seems to have undertaken appropriate examinations. While it would undoubtedly have been appropriate to examine the Patient from time to time with regard to her supposed pain diagnosis, it is my opinion that this would not have materially affected the management that Dr Jansz chose. I am therefore of the opinion that Dr Jansz`s approach to examinations of the Patient was adequate.[136]

In general, Dr Jansz went to some effort to record information about his contacts with the Patient.. When he did perform a physical examination, he usually seems to have recorded the main findings. It is therefore my opinion that Dr Jansz's recording of his physical examinations of the Patient was adequate.[137]

Over the years there are multiple occasions when the Patient presented with cellulitis or abscesses. Some of these were managed by Dr Jansz himself; but there were also many occasions when she was referred either to hospital or to a specialist. On these latter occasions, there is often significant clinical information in the referring letter, which can substitute for recording this information also in the progress notes.[138]

It is very hard to ascertain with certainty from the records exactly how often Dr Jansz ordered liver function tests. I could find pathology reports on a fairly regular basis between 1998 and 2000 but there then seems to be a gap between 2000 and 2003. In 2003, there were at least three episodes where pathology was ordered, and then the next report I could find was in 2007. There were also times when results were available from hospital admission, such as a discharge summary from February 2005 which included liver function tests.[139]

In nearly all these occasions, the liver function tests were found to be raised The levels fluctuated, but there was no indication of progressive disease_._[140]

I understand from Dr Jansz's letter to the Board that the Patient was reluctant to have blood tests, also that it was difficult to obtain blood from her.[141]

If a patient has such severe disease that they require enormous quantities of addictive medications to deal with the symptoms, it would normally be expected that they require quite careful monitoring of their condition However, as discussed before, it is my opinion that Dr Jansz was aware that what he was dealing with was not so much a severe medical problem, but addiction to medication. I would accept that this therefore meant that close monitoring was less essential. Even so, given the very high quantities of medications which could potentially be affected by liver function, and the fact that the Patient was being prescribed, amongst other things, high doses of paracetamol, a medication which can affect the liver, it is my opinion that it would have been appropriate for Dr Jansz to monitor the Patient's liver function more frequently. However, it is also my opinion that his failure to do so made no material difference to her management or to the final outcome.[142]

1. Dr Bella Freeman General Practitioner prepared two reports on behalf of the Respondent[143] and also gave oral evidence. Dr Freeman has been involved in general medical practice since 1982, as a sole practitioner from 1991 to 2001 and has been in practice with another practitioner since then. During that time she has had experience in dealing with individuals who were drug dependent or drug addicted.
2. In her first report she states in part that the Patient appeared to have the following medical problems: a borderline personality disorder[144] manifesting with labile mood and intense anxiety and depression; epigastric pain; asthma; and fat necrosis from repeated intramuscular injections. Dr Freeman identified a number of factors which appeared to make her medical management difficult.
3. Dr Freeman postulated ...that it was not correct simply to call her drug addicted/dependent. Dr Freeman referred to many prescriptions and medications written in the deceased's name found at her home and suggested that a true drug addict would have consumed all of them probably on the day she got them. Dr Freeman seems to suggest that the Patient's repeated insistence on repeated injections and prescriptions was conduct more consistent with the deceased having a borderline personality disorder.
4. Dr Freeman noted the following circumstances relevant to the Patient's medical management:
   • (a) the Patient attended Dr Jansz at two clinics where he kept separate files. Dr Jansz was therefore dependent upon his memory of the patient's condition and circumstances when he came to see her at either one of the two clinics;
   • (b) Dr Jansz could not cancel repeat prescriptions once issued so that the patient could stop and restart antidepressants particularly without supervision or knowledge on his part;
     • (c) Dr Jansz could not be certain as to which scripts had been filled or lost; and
   • (d) Dr Jansz expressed difficulty in managing the Patient and in particular persuading her to attend specialist appointments.
5. By 2007 Dr Freeman perceived that Dr Jansz was faced with two options: either to terminate the therapeutic relationship, or to try to persevere and work with the patient.

In general, GP's do try to persevere and to work with the patient to gain understanding and insight into their problems.[145]

1. In her opinion Dr Jansz clearly chose the latter course and in doing so he had to contend with a patient who upon each presentation required attention for her immediate problem, making it harder for Dr Jansz to make clear assessments of each situation.
2. Dr Freeman then makes the following observations about the various prescribed medications:[146]

Promethazine was being used as an antiemetic because of the patient reporting that she was allergic to alternatives, including Stemetil and Maxolon. A predominant side effect is drowsiness, and it is undoubtedly the source of her repeated skin ulcerations and abscesses. Dr Freeman also observed that this medication is not available orally under the PBS system as a subsidised medication, and it may well have been that the patient's preference was to have the injections, rather than to pay for the medication in oral form.

The Morphine preparations were all short term analgesics and Dr Freeman was uncertain why Dr Jansz would have selected this kind of analgesia, and opined that perhaps it was for historical reasons.

Phenobarbitone, was originally prescribed by Dr Orbach as a hypnotic. It is no longer a fashionable drug, originally used in the 1960's and generally now has been superseded by benzodiazepines. Once started it is difficult to terminate because it requires slow and careful reduction of dose to wean safely;

Diazapam was used to induce sleep as well as for anxiety and the dose seems huge. The patient reported regurgitating tablets. It also seems as though the patient was not taking all of the tablets. Dr Freeman postulated that the Patient may have been taking half which is still a very large quantity;

Largactil, was apparently used either for its sedative effects or to reduce perceived reliance on Diazepam, as an antiemetic, or to help her sleep.

1. Dr Freeman noted that it seems to have been easy to start the Patient on medications, and very difficult to stop them. Dr Jansz did endeavour to have the Patient start on cognitive behavioural therapy, but the clinical notes do not indicate why he changed tack.
2. Dr Freeman questioned how much insight Dr Jansz may have had into the state of the Patient, but suggests that he felt stymied by her failure to take up offers of referral for psychological help. Dr Freeman concludes that:

... no harm had befallen the Patient prior to his caring for her, despite her consumption of large quantities of opiates, and he expected that no harm would befall her under his care. [147]

1. In her second report, Dr Freeman reiterated that Dr Jansz had inherited a complex difficult patient already receiving regular prescriptions of morphine injections. Dr Freeman surmised that she was suffering a multitude of psychological problems, including borderline personality disorder and that she believed she had chronic abdominal problems giving her pain. In this context:

...Dr Jansz succumbed to her manipulations[148]...Dr Jansz was supportive and kind. He seems not to have understand (sic) his patient very well. This ensnared him in her manipulations for opiates, preferably injectable"[149]

1. In relation to the prescribed medications Dr Freeman noted:

...the amounts of opiates [prescribed by Dr Jansz] are very high. The fact that only injections seem to control the pain should have been a concern...Like Dr Carr I do have concerns about the number and types of medications actually prescribed.[150]

1. Dr Freeman further noted that the Patient was addicted and quite opiate tolerant.

... I doubt that the quantities prescribed were essential.[151]

1. In relation to medical management generally, Dr Freeman noted that Dr Jansz:

...did not seem to have made a clear plan of her problems and his own goals for her. In this he did not need the Patient's permission... as the professional, it was his job to make a clear plan, at least for himself and endeavour to stick to the plan;[153]

...did not grasp that she had and (sic) addiction problem not a pain problem. Amongst all the many referrals offered, an addiction specialist was never offered or suggested or mentioned;[154]

1. In her oral evidence Dr Freeman:
   • (a) confirmed that the medications prescribed were at a very high level and such as to lead to habituation and significant levels of tolerance;[155]
   • (b) accepted that the medications were substantial in their constituent parts and remarkable in their aggregate;[156]
   • (c) accepted that the prescription of the combination of the medications was problematic in terms of safety, in particular because of the risk of sedation and respiratory depression;[157] and
   • (d) accepted that it should have been apparent to Dr Jansz that his patient was suffering side-effects from his medication regime.[158]

1. Dr Jansz made supplementary notes [undated] tendered during the Coronial Inquest[159] and provided a letter dated 16 March 2009 to the MPBV addressing the issues raised.[160] He also gave oral evidence.
2. Dr Jansz made the following referrals subsequent to commencing treatment of the Patient:
   • (a) in September 1999 to Mr John Cox General Surgeon examined the Patient upon referral by the Respondent;
     • (b) in September 2000 and February 2001 to Dr Lionel Chatz;
     • (c) in July 2000 to Dr Mendelson, a pain specialist and psychiatrist; and
     • (d) in July 2000 to Robert Lansek Professor of Geriatric Neurology.
3. Dr Jansz became the primary doctor for the Patient after Dr Elizabeth Orbach left the practice in 2003 and subsequently referred the Patient for opinion as follows:
   • (a) on 27 November 2004 to Dr Bernard Infeld;[161]
     • (b) on 30 August 2006 to Mr Kenneth Farrell;[162]
     • (c) on 30 August 2006 to Monash Medical Centre;[163]
     • (d) on 28 October 2006 to the Alfred Hospital;[164]
   • (e) on 12 February 2007 to Monash Medical Centre, Accident and Emergency Department;[165]
     • (f) on 17 February 2007 to Dr Gijsbers Turning Point;[166]
   • (g) on 8 March 2007 to Dr Caroline Arnold Pain Management Clinic at Caulfield General Medical Centre; and
     • (h) on 17 July 2007 to Dr Benny Monheit Drug and Alcohol Specialist.
4. In his statement and oral evidence in chief, Dr Jansz gave extensive evidence explaining the circumstances in which he: prescribed certain medication; failed to comply with permit requirements; and occasionally made referrals for investigations and/or specialist opinion.
5. His conduct was principally explained by his stated genuine belief that the Patient suffered chronic severe abdominal pain for which she required appropriate pain relief. In this regard he initially relied upon the pre-existing treatment regime instituted by his principal Dr Orbach, with whom he also discussed the Patient. He recognised that the Patient was an extremely difficult patient and he feared that if he did not continue to treat her that she would not be able to obtain treatment anywhere else. He endeavoured to refer her for appropriate investigations and specialist opinion, but she persistently failed to follow his advice. Dr Jansz evidence is further dealt with under the specific Allegations below.

1. Under cross-examination, Dr Jansz made a number of admissions and concessions.

• he prescribed excessive medication, including opiates and benzodiazepines for the Patient;[167]

• his practice of prescribing high levels of Diazepam on the basis of her claims of vomiting it up was not appropriate;[168]
  • the levels of medication that he prescribed and administered for the Patient were inappropriate and excessive;[169]
  • the effects of the medications that he prescribed were significantly sedating and he should have identified that her tolerance/addiction was building up to problematic levels;[170]
  • he was not sufficiently assertive in insisting the Patient attend pain management or addiction doctors;[171]
  • he was not sufficiently reflective in his management of the Patient's treatment;[172]
  • he "could have done better" in treatment planning;[173]
  • he was insufficiently alert to the side-effects of the medications for the Patient;[174]
  • he prescribed for the Patient while not being the holder of a permit and in excess of the permits he held;[175]
  • he failed to procure advice from specialists for his provision of treatment for the Patient;[176]
  • he should have more closely correlated locum attendance upon the Patient and his issuing of prescriptions for injectable opiates to her;[177]
  • his notes in a number of respects were poor and incorrect;[178]
  • he post-dated prescriptions for the Patient;[179]
  • he should have done more liver function tests than he did.[180]

1. Other relevant evidence given by Dr Jansz is dealt with under the specific Allegations.

1. Following are the specific Allegations with corresponding Particulars and a summary of the submissions made by each party together with reference to evidence upon which each party relied. The findings of the Tribunal in relation to each Allegation and Particular is also given.

Allegation One - Prescribed/administered inappropriate/excessive drugs of dependence

Between ... about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he prescribed and/or administered inappropriate and/or excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient in circumstances [outlined in the particulars set out below].

1. In respect of Allegations One and Six, Dr Jansz accepts that the matters alleged constituted unprofessional conduct of a serious nature (for the relevant time frame before 1 July 2007, and fell within paragraphs (a) and (b) only of the definition of "unprofessional conduct")); and within the definition of unprofessional conduct for the later period (Allegation six), but he does not accept the Applicant's submission that the matters alleged constituted professional misconduct.
2. The Tribunal accepts that Allegation One is clearly proven on the evidence. Specifically, the Tribunal accepts that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a), (b), (c) and (e) of the definition and constituted unprofessional conduct of a serious nature.
3. The Tribunal finds that Dr Jansz's prescription and administration of the combination of opiates, benzodiazepines and barbiturates (and Promethazine), objectively viewed, was seriously excessive and inappropriate[181] over a lengthy period of time.
4. In particular, the high levels of short-acting injectable and suppository and then oral opiates together with very high levels of diazepam were inappropriate and dangerously excessive.[182]
5. Further, Dr Jansz's cocktail of opiates, benzodiazepines and barbiturates, as well as Phernergan, all of which had sedative and respiratory depression side-effects was foreseeably dangerous and thereby inappropriate and excessive.
6. The Tribunal has had particular regard to the evidence of Dr Sungaila and Dr Carr, with whom Dr Freeman also agrees in key respects, who each give a damning assessment of the inappropriate and excessive prescription and administration of drugs of dependence.
7. Dr Carr concluded:[183]

While accepting that Dr Jansz inherited a very complex problem, and that he did take some steps to try and manage the Patient's medication use, it is my opinion that these steps were not adequate, and that the very high level of addictive medications prescribed over such a long period of time was not appropriate.

There are abundant indications from early on that it was clear to all the doctors involved that there was a problem with the amount of medication being prescribed for the Patient. The fact that she had no clear-cut diagnosis or proven chronic disease to explain her pain was a strong indicator that there was a high risk the primary problem was addiction to medications rather than a pain management issue. The notes indicate that this possibility was clear to the doctors involved.

Over the years, there are also indications that Dr Jansz was attempting to get some help (referral to pain clinic, referral to specialists) and also to monitor and manage her medication use However, there are also indications that these issues were not pursued vigorously enough: there was a significant delay before applying for his first permit; there was no attempt apparently to follow up why the Patient did not attend the pain clinic in 2000; Dr Jansz prescribed excessive quantities; there was a 3 year delay before referring her again to the pain clinic and then no attempt to act on the recommendations made when she finally did go to the pain clinic in 2004;

In addition, it is a major concern to me that, as well as injectable and oral morphine, large and increasing quantities of codeine containing compounds, benzodiazepines and phenobarbitone were prescribed with little evidence of a rationale for these and their various doses;

It is also of concern that Dr Jansz seems only to have re-referred the Patient to the pain clinic in 2003 and 2007 because of permit requirements, not because he felt it was needed in her management. My strong impression is that Dr Jansz was well aware that the primary problem with the Patient was not her underlying medical condition but her significant and increasing medication use.

1. With respect to the drugs prescribed, Dr Sungaila stated that:[184]
   1. Tolerance to a drug implies that as a regular dose is achieved, the desired effect of the drug lessens and craving occurs for a higher dose. This occurs inevitably with opiates, such as morphine and codeine, benzodiazepines such as diazepam and barbiturates such as phenobarbitone. For this reason, it is considered that none of these drugs should be used on a long term basis; in particular, morphine should not be used as a long term pain management strategy for most individuals with chronic pain. Inevitably long term use will lead to addiction and its associated problems.
2. Dr Sungaila concluded:[185]

It is difficult to find any redeeming features in Dr Jansz's prescribing behaviour.

The combination of several drugs which can cause sedation and respiratory depression is associated with the possibility of death from the combination. This possibility decreases as tolerance is achieved however associated intercurrent factors such as a respiratory illness or a metabolic condition may be sufficient to overcome tolerance and cause lethal cardio-respiratory depression.

It is unclear how much insight Dr Jansz may have had into the Patient's addiction illness. Unfortunately despite hundreds of consultations, he failed to demonstrate in his medical records that he was in any way aware of the seriousness of the Patient's addiction and the potency and adverse effects of the combination of drugs which he was prescribing and administering.

1. Dr Jansz said he prescribed Promethazine as an antiemetic, because the Patient had allergies to alternative medication; Diazapam for her chronic anxiety symptoms; and Phenobarbitone for her chronic severe insomnia. The drug combination for chronic pain relief was simply explained in terms of a genuine belief in an underlying organic cause. The expert opinion is very critical of the choice of medication, the high dosage; the combination of drugs and serious risk of dependency and side effects; and in the case of the Phenergan, the development of severe ulceration, scarring and cellulitis. In the Tribunal's view the expert opinions raise serious concerns as to Dr Jansz general level of appropriate knowledge in relation to each of the drugs prescribed, and particularly in their long term use.
2. The Tribunal further finds that in each case the conduct particularized ...falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency... and in each case constitutes 'professional misconduct' for the purposes of paragraph (c) of the definition of unprofessional conduct in section 3(1) of the MP Act.

there was no therapeutic need for such prescription and/or administration and/or the doses and/or the frequency of drugs of dependence so prescribed;

1. The Board contended that the context within which Dr Jansz prescribed and administered these drugs was an ambiguous diagnosis of unproven cholangitis and pancreatitis. While it is likely that the Patient was experiencing, and certainly was complaining vehemently and plausibly, of chronic pain, there was no established therapeutic need (eg from Associate Professor Dudley or any other gastroenterologist or similar specialist) for the prescription and administration of drugs at such high dosages.
2. Dr Frank Dudley, in a letter dated 22 June 1999[186] observed:

"the Patient's use of narcotic analgesia for pain relief is of concern and is difficult to reconcile with the laboratory and imaging results."

1. Dr Jansz was on notice from this point onwards of the concern of a medical specialist about the Patient's medication usage. However, his position to the Tribunal is that it was not until much later, if at all, that he became aware that the Patient was drug-addicted and seeking medications for reasons other than her experience of chronic pain - namely principally for her addiction.
2. The Tribunal accepts that the Board's assessment is consistent with the evidence generally and the expert opinion in particular.
3. Respondent's Counsel submitted that there was a therapeutic need for the medication in question as evidenced by the following:
   • (a) The therapeutic need arose by reason of the need to alleviate a genuine severe organically based pain;[187]
   • (b) Dr Jansz believed it was his moral obligation to treat the Patient because if he did not do so, she may not obtain appropriate treatment in respect of her pain levels;[188]
   • (c) The origin of the pain arose from an underlying diagnosis of chronic cholangitis and chronic pancreatitis. That diagnosis had been made by Dr Orbach, a very experienced general practitioner of many decades.[189] Dr Orbach knew the patient's medical history intimately. Dr Jansz had confidence in her knowledge;[190]
     • (d) It was accepted by Dr Carr that:
       • There was no doubt in his mind that the Patient was affected by a physical disorder which was troubling her. Further, there was no doubt that she was affected by a degree of chronic pain;[191]
       • The test results available in respect of the Patient, though not ultimately definitive of a final diagnosis, were consistent with the diagnosis of cholangitis;[192]
       • The conditions of chronic pancreatitis and chronic cholangitis can both give rise to severe and chronic pain;[193]
       • The failure of available medical tests to produce a positive diagnosis of a condition did not result in the conclusion that a patient complaining of the pain, who was the subject of the tests, did not in fact, suffer from genuine organic pain;[194]
       • If a person complained of chronic long term severe pain located in the right upper quadrant, that one of the forms of medication to be considered would be an opiate-based medication.[195] Though Dr Carr was concerned that the delivery of the morphine medication was by way of injection and in other forms;[196]
   • (e) The existence of a genuine organic pain affecting the Patient was based upon the propositions that:
     • The Patient presented consistently with a pain at consultation which did not vary in its location;
     • The quantity of the pain was constant and deep; and
     • Examination in the relevant area identified the presence of tenderness;[197]
   • (f) Dr Freeman also considered that the Patient had a therapeutic need for the drug and that medical practitioners in that circumstance feel obliged to relieve the pain suffered by the patient;[198] and
   • (g) In the above circumstances, the Tribunal ought safely to conclude that there was, in fact, a therapeutic need for the prescription and administration of the medication in question.
4. In the Tribunal's view the Respondent Counsel's submissions are misconceived and fundamentally ignore the expert opinions.
5. First, the issue is not whether the Patient had no organic basis for her pain and therefore no therapeutic need for pain relief but whether there was an organic basis for the particular drugs at the quantities prescribed.
6. Secondly, there was no evidence as to Dr Orbach's experience generally; her expertise in relation to chronic pain and drug dependent patients in particular; or the basis upon which she made any independent diagnosis of the Patient.
7. Thirdly, the evidence of Dr Carr to which Counsel referred has been taken out of context and in no respect represented an endorsement of the treatment regime administered by Dr Jansz. While Dr Freeman seemed more sympathetic to the predicament in which Dr Jansz found himself she ultimately agreed that the choice and combination of drugs was not appropriate and the dosages were excessive.
8. Fourthly, the expert evidence confirmed that:
   • (a) the organic basis of her pain had not been adequately investigated or explained;[199]
   • (b) medication was being used inappropriately, for instance injectable morphine for chronic pain; multiple highly addictive drugs; and the rationale for particular drugs was unclear, such as Phenobarbitone and Fluoxetine;
   • (c) the doses of medication were extremely high yet clearly not controlling the pain;
   • (d) the combination of highly addictive drugs at high doses would inevitably lead to dependency and increasing tolerance, with high risk of associated complications, respiratory depression and death; and
     • (e) Dr Jansz should have been aware of all of these risks and likely consequences.

where he knew or ought to have known the Patient was exhibiting drug-seeking behaviour;

1. The Board contends that the Patient's behaviour was that of a drug-tolerant addict who repeatedly sought medication at levels above what was prescribed for her. Dr Jansz's professional conduct should have been affected by this recognition. Dr Jansz should have identified, and evidently did from time-to-time at least identify, that the Patient was seeking from him more opiate medication than he was permitted to prescribe and more such medication than it was safe for him to prescribe. He has acceded to the fact that he should have identified these phenomena.[200]
2. The Patient engaged in many behaviours which individually and, in combination, should have alerted Dr Jansz that she was opiate and benzodiazepine dependent and endeavouring to procure additional amounts of drugs improperly from him.
3. The Tribunal accepts that the Board's assessment is consistent with the evidence generally and the expert opinion in particular.
4. An entry in the clinical notes of 8 December 1999 alerted Dr Jansz to possible excessive medication usage:

The Patient HAD 2 SHOTS IN ONE DAY - NOT PART OF CONTRACT. CARL PLEASE WATCH - CAUTION.

1. The following entries during 2000 alone are indicative of increasing drug tolerance and/or suggestive of drug-seeking behaviour:
   1. on19 May 2000, complaining that her injections had not been working as well lately;
   2. on 22 May 2000, not adhering to her allotted 3 morphine injections per week;
   3. on 1 June 2000, reporting she had lost an ampoule of morphine;
   4. on 7 June 2000, forgetting her ampoule of morphine;
   5. on 11 June 2000, attending for medication but being denied it as she had had 4 injections of morphine ion the previous 6 days;
   6. on 25 June 2000, claiming she had left a box of 5 ampoules for Dr Jansz with his receptionist, but this was not verified;
   7. on 4 July 2000, attending for medication but being denied it on the basis that she had had 4 injections in the previous 4 days;
   8. on 6 December 2000, being told by Ms ED about her perception of her mother's drug problems and that she was stealing money;
   9. on 14 December 2000, reporting that Temazepam was no longer working for her;
   10. on 14 December 2000, reporting that she had taken 4 Temazepam tablets the day before; and
   11. on 19 December 2000, complaining of again experiencing migraine headaches, Dr Jansz knowing that previously the Patient had been prescribed opiates for migraine pain.
2. The expert opinion is again clear and unequivocal.
3. Dr Sungaila noted that:

It is clear from the narrative of the Patient's medical history that she was heavily dependent on her medication. Patients with this degree of dependence and with probable lack of insight are exceptionally difficult to treat; nevertheless, medical management should not be complicit with their addiction.

1. Dr Carr concluded that Dr Jansz management of the Patient's medication fell considerably below the standard which might reasonably be expected of a competent medical practitioner:[201]

There was never a clear diagnosis to explain the Patient's pain It was labelled as possible pancreatitis, without this diagnosis ever been confirmed.. ...

Most of the referrals by Dr Jansz to specialists were for issues such as her recurrent ulcers and other matters, but not to investigate the cause of her pain

... there were many indications that the Patient's primary problem was addiction to medications, not specifically a medical condition that was causing her pain

...I can find little evidence of a therapeutic need for all the drugs of dependence that were prescribed to the Patient.[202]

1. By contrast, the Respondent's Counsel submitted that the Tribunal should not find that the Patient exhibited "drug seeking behaviour" as there was a demonstrated therapeutic need. The Tribunal rejects this submission for the same reasons indicated under Particular 1(a) above.
2. Alternatively, the Respondent's Counsel submitted that if the Tribunal determined that "drug-seeking behaviour" is indicative of a person, with a therapeutic need for medication, exhibiting behaviour which demonstrates a need for more medication than that which the practitioner is prepared to prescribe, then the following applies:
   • (a) An evaluation of the practitioner's medical records must not be undertaken with the benefit of hindsight. An appropriate analysis is to review the records chronologically as the events arise.
     • (b) Dr Jansz conceded that:
       • On a retrospective analysis of his clinical records, there were signs which he ought to have recognised.[203] However, he did not, at the time at which the events arose, appreciate that the Patient was providing him with invalid excuses for the purpose of obtaining more medication;
       • He did not appreciate at the relevant time that the Patient was effectively "spinning stories" in order to gain extra medication from him;[204]
       • He ought to have seen, at the time, that her tolerance was building to problematic levels;[205] and
       • He ought to have been more attuned to the fact that the Patient was seeking more and more medication;[206] and
       • The Patient was seeking to get more medication than she needed when she told him that the hospital had taken all her medication. However, at the time, her explanation was consistent with the experience of other patients which he had encountered in general practice.[207]
3. In the Tribunal's view Dr Jansz alternative explanation fails to address the primary criticism made by Doctors Sungaila and Carr. Their views were not predicated upon a retrospective analysis. Indeed, the Patient's drug dependency and drug seeking behaviour was very apparent at an early stage and probably from the time when Dr Jansz first commenced treating her. The signs were obvious and he failed to take any or any effective steps to address this behaviour.
4. The Tribunal finds it extremely difficult to understand how a medical practitioner of reasonable competence would have failed to realise that the Patient was exhibiting drug-seeking behaviour. Even extreme naivety and inexperience do not seem sufficient to explain this.
5. Dr Carr noted in his report that he believed there were multiple indications that the Patient had a serious problem with addiction to prescriptive medications, that Dr Jansz was well aware of this, and despite this he continued prescribing over many years at very high levels.[208]
6. Dr Sungaila was also critical of the practice of allowing a patient who potentially has a serious addiction to several medications, to keep those medications at home.

Invariably tolerance will occur and there will be the urge to take larger and larger doses and self medicate.

where he failed to take effective steps to reduce and/or properly manage the Patient's use of those drugs of dependence, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication; and/or

1. The Tribunal accepts that the evidence clearly demonstrates that it should have been clear to Dr Jansz that the Patient was, on occasions, overusing the prescribed medication[209] or was suffering adverse effects from the levels at which he was prescribing and administering it.
2. Dr Sungaila noted that sudden cessation of the highly addictive drugs would have caused a withdrawal syndrome sufficiently severe to threaten her life. Several options were open to Dr Jansz in this case:[210]

... one being to arrange in- patient rationalization of her drug use and slow reduction of medications, the other being to substitute an oral long acting opiate such as methadone or buprenorphine which requires daily pick up from a registered pharmacy and then to withdraw the other medications slowly. It is probable that the Patient would have to have been referred to a registered provider for the substitution to have occurred. The Department of Human Services Drugs and Poisons Unit will not authorize the use of methadone or buprenorphine for use with an individual who has chronic pain from an identifiable source however in the case of the Patient, no identifiable source of pain was demonstrated or reported and she could readily have been described as having an addiction illness. Referral to specialists were made in 2007 the latest being for the purpose of approval of ongoing treatment of morphine. It would have been reasonable that the medical practitioner having extensive contact with the Patient should have recognized the need for early referral to specialist care.

1. Dr Jansz accepts that he failed to take effective steps to reduce and properly manage the Patient's use of drugs of dependence in circumstances where it should have been clear to him that the Patient was over-using the medication in question.
2. However, the Respondent's Counsel submitted that Dr Jansz did take a variety of steps, including:
   • (a) counselling and/or lecturing the patient in relation to the medication, emphasising the need for her to accord with the prescribed treatment regime;[211]
   • (b) maintaining an appropriate form of interaction with locums in respect of the patient's drug usage;[212]
   • (c) referring the patient to appropriate pain management consultations, including Dr Mendelson, Dr Chatz, Dr Arnold and Dr Monheit;[213]
     • (d) liaising with pharmacies in respect of the patient's drug usage;[214]
   • (e) dispensing [query Counsel meant "annotating"] prescriptions so as to limit relevant access to medication;[215]
   • (f) imposing a daily pick-up regime from pharmacies on the patient [the Tribunal notes that the reference in Dr Jansz statement and oral evidence is to him threatening to go to daily pickups];[216] and
     • (g) encouraging the patient to attend pain consultation referrals;[217]
3. Dr Jansz accepted that the above steps were 'not ultimately effective'. In the Tribunal's view not only were the steps 'not ultimately effective', but the steps themselves were manifestly inadequate. The Tribunal is concerned that Dr Jansz seems to exhibit a serious lack of insight in this regard.. The opinions of experts in this case and other reporting doctors readily acknowledge the difficulties dealing with a patient such as the Patient.[218] Presumably no amount of counselling or lecturing was likely to be effective in the case of a seriously drug dependent patient. In any event, the clinical notes do not record either at all or in any detail the content of such conversations.
4. Under cross examination Dr Jansz tended to give non responsive answers -merely repeating that he should have been more forceful or he thought that she had genuine pain. He did not explain why he continued to prescribe excessive quantities of highly addictive drugs over such a long term.
5. In relation to the interaction with locums, Dr Sungaila's examination of the clinical records acknowledges that there are several notations confirming attendances by locums upon the Patient. However, apart from one record indicating a call to the locum on 12 May 2000 to stop further injections, there is no clear indication that Dr Jansz was following up the Patient's condition via the locum service or closely monitoring the frequency at which morphine was in fact being administered.
6. In relation to liaising with pharmacies, this seems to have been done at a very late stage and then sporadically.
7. In relation to the various referrals to specialists and hospitals with which the Patient did not comply, the Tribunal notes that Dr Jansz failed to follow up on such referrals. Instead of making compliance with the referrals a condition of any further treatment, he continued to prescribe the same cocktail of drugs and at increasing dosages. The Tribunal considers these to be very serious omissions in the Patient's care on his part.
8. It is acknowledged that Dr Jansz did concede that:
   • (a) He ought to have been more forceful in ensuring that the Patient attended upon pain management specialist consultants with a view to appropriately regulating the patient's use of medication;[219]
   • (b) Guidance should have been sought by him in respect of the difficulties which confronted him in endeavouring to control the Patient's usage of drugs of dependence;[220] and
   • (c) He ought to have been more reflective in his treatment and prescribing regime, a proposition freely conceded by him in cross-examination.[221]

... he failed to take effective steps to adequately ensure that drugs of dependence so prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was self-administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication;

1. The Board contended that the system that Dr Jansz had in place whereby he prescribed for the Patient multiple ampoules of injectable opiates, expecting locum doctors to administer it, but not being able to be sure whether they were doing so, opened up the potential for her to self-administer at foreseeable risk to her.. It is correct that there is no evidence that Dr Jansz "knew" that the Patient was self-administering injectable opiods.[222] However, the Tribunal considers that had he scrutinized the correlations between his records and those of the locum service, he would have suspected that she was self-administering injectable opiates and he should then have taken steps in relation to such a dangerous practice.
2. The Respondent's Counsel conceded that it is open to the Tribunal to determine that Dr Jansz ought to have known that there was a prospect that the patient was self-administering.
3. The Respondent's Counsel also conceded that a close correlation of his own records and those of the locum practitioners revealed "significant holes" which may have suggested that she was self-medicating with injectable opiods.[223] This is also supported by the evidence of Dr Carr[224] though his thoughts were also influenced in this regard by the development of abscesses which, in the absence of any likely cause noted in the clinical notes, raised the:

clear implication to me ... that they may be the result of infected self injection.[225]

1. Particular 1(d) as formulated has not been made out. However, in view of the admissions made by Dr Jansz and the concessions made by the Board, the Tribunal finds that the following formulation of this Particular has been proven on the evidence:

he failed to take effective steps to adequately ensure that drugs of dependence so prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he should have suspected or ought to have known of the prospect that the Patient was self-administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication;

1. A similar qualification applies to Allegations 2(c), 6(d), and 7(c) below.

... the doses of drugs of dependence so prescribed and/or administered to the Patient exceeded the doses that Dr Jansz was permitted to prescribe pursuant to permits held by him and/or the maximum recommended dosage for such medication.

1. For significant periods Dr Jansz administered and prescribed opiates to the Patient when he did not have a permit to do so. Both Dr Carr and Dr Freeman gave evidence that in circumstances of emergency, it can be quite reasonable for a doctor to prescribe in excess of a permit, but they should immediately thereafter inform the Department.[226] However, in this case there is no evidence that Dr Jansz acted in response to an emergency when he prescribed without a permit or in excess of the permit. Dr Jansz's non-compliance with his obligations under Schedule 8 permits was serial, serious and not mitigated by any actions on his part to acquaint himself with his legal and administrative obligations. Schedule 8 medications are, of their nature, dangerous and habit-forming/ dependency-inducing.
2. On multiple occasions, as Dr Jansz concedes, he prescribed and administered opiates at levels in excess of what was permitted according to permits issued either to him or to other doctors. He did so without seeking professional advice, either from pain specialists or addiction specialists, or from other senior colleagues and without notifying the Department of Human Services about what he was doing.
3. The Respondent's Counsel submitted that the reason he so prescribed was to alleviate the extent of the Patient's pain which he considered to be severe, chronic and organically based. Counsel admits that this does not excuse the proposition that he prescribed dosages of medication which were beyond the amount identified within the terms of the permit.
4. The Respondent's Counsel further submitted that it is not unusual for medical practitioners from time-to-time to prescribe drugs of dependence which constitute a technical breach of the permit held by them in circumstances in which the patient presents in severe pain in need of alleviation. This was the circumstance which confronted Dr Jansz. However, it is considered that in the circumstances he ought to have notified the Department of his actions and the reason for them. Further, in the event of further events of a similar nature arising, it is conceded that he should, in the circumstances, have sought to increase the range of medication identified within the permit.
5. In the Tribunal's view, for reasons further elaborated under Allegation 4, the above response demonstrates a serious lack of insight into conduct which was illegal and which posed a danger to the welfare of the Patient.

Allegation Two - Medical management of the Patient was inappropriate/inadequate.

Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that his medical management of the Patient was inappropriate and/or inadequate.

1. In summary Dr Jansz contends that aspects of the Particulars of this Allegation are not substantiated. Specifically, he denies particulars (e),[227] (g)[228] and partly denies particulars (c)[229] and (f)[230]. However, Dr Jansz accepted that, looked at in general, his medical management was inappropriate and inadequate and his level of prescribing of drugs of addiction was excessive.. He was endeavouring to alleviate what he believed to be a genuine organically based chronic pain condition, Further, whilst he did recognise that she was experiencing serious side-effects from the medication, certainly from 29 July 2004 and perhaps earlier than that date, he accepted that he ought to have done better in recognising the side-effects of the medication and the risks which they posed for her.[231]
2. In the circumstances, Dr Jansz accepts that Allegation 2 has been generally substantiated and that the conduct represents unprofessional conduct of a serious nature. [232] He denies that it constitutes professional misconduct.
3. The Tribunal accepts that Allegation Two is clearly proven on the evidence. The Tribunal finds that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a), (b) and (c) of the definition in section 3(1) of the MPA and the conduct particularized in each case, except Particular (h), constituted unprofessional conduct of a serious nature.
4. The Tribunal finds that the medical management of the Patient by Dr Jansz was seriously inappropriate and inadequate. The conduct particularized ...falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency... and in each case [except Particulars (g) and (h)] constitutes 'professional misconduct' for the purposes of paragraph (c) of the definition in section 3(1) of the MP Act.
5. While under Dr Jansz care, the dosages of opiates and benzodiazepines were initially already very high,[233] and increased dramatically over time with an attendant risk of adverse consequences from respiratory depression and sedation from the combination of prescribed drugs. Furthermore his efforts to moderate the Patient's consumption of addictive drugs were grossly inadequate.
6. In making these findings the Tribunal acknowledges that Dr Jansz:

**(a) admitted that he was not sufficiently reflective in his management of the Patient's treatment[234] and that he "could have done better" in respect of her treatment planning;[235]

(b) made some efforts to refer the Patient to pain management specialists. However, these efforts were far too few and mostly in response to difficulties generated in 2003 and 2007 in relation to renewal of Schedule 8 permits; and

(c) challenged the Patient on occasions, and set limits on her access to medications.[236] However, the efforts he made in this regard were seriously inadequate, as pointed out in detail by Dr Carr.**

1. The Tribunal found the evidence of Dr Carr, in both his written report and oral evidence, to be particularly thorough and insightful. Dr Carr acknowledged that Dr Jansz went to considerable lengths to provide appropriate care for the Patient;[237] and between 2000 and 2007 he made multiple referrals to specialists and hospitals. However, Dr Carr's was very critical of the choice of medication, the very high level of prescribing of addictive medications over a very long period of time, the failure of Dr Jansz to resist the Patient's demands and his failure to pursue appropriate alternative management.
2. In his oral evidence Dr Carr confirmed his views in relation to the specific medication as follows:

**(a) that injectable opiates should have been regarded by Dr Jansz as inappropriate for long-term use;[238]

(b) he could not understand the use of the anti-emetic Phenergan long term;[239]

"very, very high risk strategy in someone who has already demonstrated a highly addictive potential to other medications that she's already on"[240]

"I think you would find it very hard to find a practitioner in this country who felt that Phenobarbitone was the right treatment for chronic insomnia"[241]

I could find no indication of what the rationale was for using benzodiazepines ... There are very few indications for long term prescribing of Valium at such high doses. ... I could not find any reason any Valium was clinically justified for this person"[242]

1. Dr Carr also made the following pertinent observations:

"it is always within the doctor's perfectly legitimate bounds to say I will not continue this medication that is something I am uncomfortable about or is inappropriate unless we get some specialist help. .. it would have been something which within six months of the original referral he could have given her plenty of time to find another doctor she was happy with or to make rearrangements. A maximum of six months would have been enough for him to put his foot down and say this has to be done or we change the medication".[243]

"Dr Jansz was not so much proactive, he wasn't actually managing this condition. He was simply responding to a patient demand for whichever medication it was..."[244]

1. Dr Carr observed that Dr Jansz's efforts to moderate the Patient's drug usage were not:

... "followed up by seeing those actions through and sticking to those sorts of restriction."[245]

"As the practitioner, you have the right and the responsibility to treat that patient appropriately and that's the line that should have been drawn".[246]

1. Dr Carr rejected the proposition that it was a dilemma[247] for Dr Jansz to be assertive in this regard, particularly given that other members of his practice did not want to treat the Patient:

"... if she chose not to follow Dr Jansz's advice I'm sure she would have found some sort of solution elsewhere. A much more likely thing is that she might have found more appropriate health care from Dr Jansz if he had put his foot down."[248]

1. As already noted, Dr Carr reported that he believed there were multiple indications that the Patient had a serious problem with addiction to prescriptive medications, that Dr Jansz was well aware of this, and yet he continued prescribing over many years at very high levels. Dr Carr stated that the following steps could or should have been taken:[249]

Recognise that good pain management does not normally involve the long-term use of injectable morphine, particularly home use, and institute more appropriate measures.

Be more vigilant about the amount of injectable medication that she was using, monitor this more accurately and be more active in trying to find a more appropriate regime.

Be more cautious about the possibility that she was either self injecting, sharing her medication, or both.

Be more proactive about dealing with her apparent need over many years for very high doses of oral medication, not just painkillers but also benzodiazepines and phenobarbitone

Be more sceptical about her claims of vomiting diazepam (as opposed apparently to any other medication) and to pursue this more effectively

Document the rationale for her medications, and the plans for how these were to be managed;

Recognise earlier that the Patient was suffering severe side-effects from the high doses of medication, and having recognised this, take effective steps to deal with this rather than just continue prescribing;

To accept that as the prescriber, it was his responsibility to decide how much medication to prescribe and be prepared to limit this, and to insist that she follow through with investigations or referrals when needed to support his management;

Pursue referral for her problems with addiction more vigorously

Dr .Jansz failed to ensure that his prescribing and/or administration of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient was adequately and effectively coordinated with the prescribing and/or administering of the same or similar medication by other services, such as locum providers.

1. The Respondent's Counsel submitted that Dr Jansz had in place an adequate and effective means of communication with locum service providers. In particular:
   • (a) The means of communication involved receiving regular reports in written form from locum practitioners who attended the patient;
   • (b) It is evident from the clinical notes that Dr Jansz communicated with locum service providers in relation to the prescription of drugs of dependence to the Patient in the course of his management of her;
   • (c) Evidence of the existence of this interaction is apparent in respect of the consultation 12 May 2000[250] when Dr Jansz gave specific directions to a locum service provider in relation to the administration of narcotic injections by locum service providers; and
   • (d) Evidence of ongoing interaction is also apparent in relation to contact with Dr Tudor, a locum service provider on 17 May[251] when discussion took place between Dr Jansz and the locum practitioner relating to the management regime, the medication the Patient was taking, the potential side effects of the medication and the therapeutic need of the patient for the medication.[252]
2. Nevertheless, Dr Jansz accepted that there was a shortcoming in his practice in relation to his failure to suspect that the Patient was self-injecting, and his failure to conduct a closer correlation between his notes relating to the Patient's attendance on him and the attendance of locum service providers,. Dr Jansz accepted that in the circumstances, he ought to have been on his guard in relation to the potential for such an eventuality.[253]
3. The Tribunal finds that Dr Jansz's co-ordination with locums in respect of the Patient's consumption of injectable opiates was seriously inadequate and left open a risk, which he should have identified, that she was self-administering these drugs, to her considerable risk.[254] As Dr Carr observed:

"My concern about the possibility of self injection was looking at consultation dates between Dr Jansz and the locum service, seeing considerable gaps at times and making a possible inference that she was self injecting on those days".[255]

1. The entries in the clinical notes concerning his consultation with locums are minimal. There was a demonstrable need for close scrutiny and monitoring of the administration of the drugs and possible side-effects in a context where Dr Jansz:

**(a) should have been aware of the Patient's dependence and addiction to a number of the drugs; and

(b) should have recognized that she was likely to be suffering adverse effects as indicated by multiple reports from the Patient of incidents and symptoms [such as disorientation and falling over).**

Dr Jansz failed to take effective steps to reduce and/or properly manage the Patient's use of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication.

1. The Tribunal finds that the evidence clearly supports this Particular for the reasons already given.
2. Both daughters graphically described the deterioration in their mother.[256]
3. Dr Jansz failure to take any proper or effective steps to reduce the Patient's high levels of usage of the various medications he had been prescribing for many years is very difficult to understand in light of the clinical notes which record the Patient's falls and disorientation.
4. Dr Jansz gave evidence that the Patient:

"drug-seeking patient" based upon his stereotype of such patients.[258]

1. While the Tribunal accepts that drug addicts may go to considerable lengths to be well presented, as part of their manipulative drug seeking behaviour, in the Tribunal's view such evidence at least arguably calls into question Dr Jansz's candour. Furthermore, such evidence reflects upon his level of insight into his patient generally and the nature and effect of the prescribed medication in particular.
2. Dr Jansz accepted that it should have been clear to him that the Patient was over-using the medication and the steps which he took were not effective. However, the Respondent's Counsel contends that Dr Jansz still did take extensive steps, which are listed under Particular 1(c) above.
3. The Tribunal finds, for reasons already given, that each of these steps were inadequate and/or ineffectual and cannot in any way justify the manner in which Dr Jansz continued to treat the Patient.
4. The Tribunal acknowledges that Dr Jansz accepted that what he ought to have done in the circumstances, was to:

(a) be more forceful in ensuring that the Patient attended upon pain management consultants with a view to appropriately regulating the Patient's use of the medication;

(b) seek guidance from other practitioners, including specialists, in relation to action which should be taken to control the Patient's use of drugs of dependence; and

(c) be more reflective with respect to his treatment and prescribing regime in relation to the medication.

Dr Jansz failed to take effective steps to adequately ensure that drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was self administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication.

1. This Particular raises the same matters relevant to Particular 1(d) above.
2. In the Tribunal's view Dr Jansz failed to set in place adequate processes to ensure that a locum was always administering injectable opiates to the Patient, when he was not himself doing so. Dr Carr observed:

"there were times when neither the locum service nor Dr Jansz seemed to be the person providing the injections, the clear implication being that this patient was sometimes self administering injectable opiates, which is a very, very dangerous situation"[259]

"The risks of someone misusing, overdosing, taking more than they should be self-injecting at home are high. There's a very significant chance that if someone injects themselves they could be at risk of misadventure, falls, accidents, car accidents, not knowing how much medication they're getting at what time. And ultimately of course if you take too much of these things a person can in fact die."[260]

1. The Tribunal finds that this Particular as formulated is not made out but that it is proven in the following terms:

Dr Jansz failed to take effective steps to adequately ensure that drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he should have suspected or ought to have known of the prospect that the Patient was self administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication.

Dr Jansz's prescribing and/or administration of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient exceeded the doses that Dr Jansz was permitted to prescribe pursuant to permits held by him and/or the maximum recommended dosage for such medication.

1. Dr Jansz's prescription and administration of opiates on multiple occasions was in breach of permit conditions. This Particular is clearly proven and is also admitted by Dr Jansz, although he sought to provide an explanation for his conduct. This conduct is addressed more fully under Allegation 4.

Dr .Jansz failed to recognise that the Patient may have been experiencing serious side-effects, with resulting symptoms such as falls and accidents, from the high doses of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines he had prescribed and/or administered to her.

1. In the Tribunal's view the evidence, some of which has already been referred to above, clearly establishes this Particular.
2. Dr Jansz saw the Patient on multiple occasions where she informed him of symptoms which were highly likely to be the product of side-effects of the drugs which he was prescribing and administering to her. He appears either not to have recognized this connection or at least to have been inadequately aware and responsive to it.
3. The Patient reported to Dr Jansz many instances of accidents and disorientation, for which no clinical explanation otherwise was identified. These events should have put him on notice that she was significantly and dangerously adversely affected by the medication regime, including:
   • (a) on 19 July 2000, reporting a fall;
   • (b) on 24 August 2000, reporting having knocked her head on the door;

(c) on 6 December 2000, being told by Ms ED about her perception of her mother's drug problems;

• (d) on 14 February 2001, reporting a fall;

• (e) on 17 May 2001, the locum reporting concern about the Patient falling;

• (f) on 18 October 2001, the Patient falling;

• (g) on 11 August 2002, reporting unsteadiness and double vision;

(h) on1 April 2003, the Patient being unable to remember how she sustained a burn on her forehead;

• (i) on 28 April 2004, reporting bruising to eye after walking into wall coroner;

• (j) on 20 May 2004, the Patient reporting falling after tripping;

• (k) on 31 May 2004, the Patient falling in the street after tripping;

• (l) on 20 July 2004, the Patient reporting tripping in the street;

• (m) on 20 January 2006, the Patient reporting falling over outside the house; and

(n) on 26 February 2006, the Patient reporting memory loss ascribed to morphine and other medications.

1. Dr Jansz denies this Particular and his Counsel sought to place the evidence in the following context:

**(a) a number of entries in his contemporaneous clinical notes indicate that he did recognise that the Patient may have been affected by serious side-effects in relation to the medication prescribed by him,[261] namely at the consultations on: 4 November 2003; [262] 29 July 2004;[263] 31 July 2004;[264]and 26 August 2004;[265]

(b) Dr Jansz's clinical records indicate that he considered that there may have been an underlying physical basis to the various falls and injuries sustained by the patient. The consultation notes reveal that he:**

(i) referred the Patient for CT-Scans and MRI-Scans; and

(ii) referred the Patient for various neurological consultations.

(c) Dr Jansz's clinical notes record other causes consistent with the Patient's presentation:

• 18 October 2001, when the Patient's fall was attributed to tripping, consistent with viral symptoms;[266]
• 18 August 2002; symptoms were considered possibly to be due to multiple sclerosis; the Patient was referred for an MRI-Scan and to a neurologist;[267]
• 25 August 2002, the Patient sought further referral to another neurologist, which referral was made;[268]
• February 2003, CT-Scan of abdomen pursued in view of complaints made;[269]
• March 2003, physical complaints led to extensive blood tests being undertaken;[270]
• 1 April 2003, burn to forehead of the Patient who cannot remember how she did it; Patient reminded to have CT-Scan 6 April 2003;[271]

**(d) Dr Jansz was required to deal with the situation which was finely balanced between the need to relieve the Patient's genuine chronic organically based pain by use of medication and dealing with the side effects which that medication produced;[272]

(e) It is not appropriate for the Tribunal to undertake a retrospective analysis of the medical records in question, which may identify the development of side effects from the medication at an earlier point in time than was determined by Dr Jansz. Rather, the adequacy of his treatment of the Patient is to be reviewed on a chronological basis from time-to-time as events arise; and

(f) The actions were undertaken by Dr Jansz at the time of the complaint, on a belief reasonably open to him, that the history of the Patient's symptoms and events of injury may have been neurologically based.**

1. The Tribunal considers that whilst on occasion it may have been reasonable for Dr Jansz to attribute the Patient's presenting symptom(s) to a cause other than her medication, on very many occasions this was not the case and the failure to diagnose or suspect that the Patient was experiencing side-effects from the medication amounts to a serious omission in Dr Jansz's clinical care of the Patient. In the Tribunal's view, the suffering by the Patient of these side-effects highlights the extremely inappropriate treatment regime which Dr Jansz implemented over many years and his seriously inadequate management and monitoring of her deteriorating condition and signs of severe drug dependency and addiction.
2. The Tribunal is also concerned about the level of Dr Jansz's clinical knowledge of the medications he was prescribing, and his failure to demonstrate the capacity to reflect upon his treatment regime and his failure to review that regime. It is of concern to the Tribunal that Dr Jansz ordered investigations such as CT and MRI scans looking for a possible physical/neurological basis for the Patient's various falls and injuries when it should have been evident that the most likely cause was adverse effects from the medication.

Dr .Jansz failed to appropriately or adequately follow up referrals made for the Patient, and/or re-refer the Patient, to pain management clinics when she did not attend those referrals and/or, when she did so attend a referral or referrals, failed to adequately act on recommendations made as a result of that referral or those referrals.

1. In the Tribunal's view the evidence, some of which has already been referred to above, clearly establishes this Particular.
2. In respect of her usage of drugs for pain relief Dr Jansz referred the Patient to Dr Mendelsohn in 2000;[273] to Dr Chatz in 2001 and 2002; to Dr Arnold in 2003 and in 2007; and to Dr Gijsbers and Dr Monheit in 2007. However, his follow-up to the referrals prior to 2007 and his incidence of re-referrals were manifestly inadequate. It appears to have been reflective of a pattern of undue deference to his patient's wishes and a failure to assume active responsibility for managing his patient's reported pain symptoms and dependence upon prescribed medications. In the Tribunal's view, this was a serious abrogation of his professional duty and also reflects a tendency to blame the Patient.
3. In relation to whether Dr Jansz appropriately referred the Patient to specialists, Dr Carr considered that the referral in 2000 [to Dr Mendelson] was done at an appropriate time. However, it was inappropriate for Dr Jansz not to follow up the Patient`s failure to attend this referral, and inappropriate not to re-refer her sooner than 2003. Furthermore, after her consultation with the pain clinic in 2004, Dr Jansz should have taken further action, which could have included re-referring her prior to 2007. When he finally did refer her in 2007, it seems his main reason for doing so was to do with issues relating to gaining a new permit.[274]

1. Dr Jansz did attempt to make referrals of the Patient, largely without success - due to the Patient's failure to comply.
2. The referrals that are relevant for the purposes of this case are those to psychiatrists, pain management specialists and addiction specialists.
3. However, Dr Jansz did not do so with sufficient insistence and robustness in light of the Patient's manifest need for expert pain management and treatment for substance dependence.
4. When the insistence of the Department in 2003 and 2007[275] gave him the external lever to insist that the Patient consult specialists, Dr Jansz was able to orchestrate at least a measure of compliance on the part of the Patient. He could have done so earlier and, between 2003 and 2007, taken a stand himself and signalled to her that he would not be able to continue to prescribe for her at the rates that he was, or at all, unless she cooperated in his referrals. Drs Carr and Freeman both informed the Tribunal that this was Dr Jansz's ethical responsibility.
5. It is apparent that Dr Jansz was aware of the issue of the Patient's drug dependency from the tone of his referral of her to Dr Mendelsohn at the Caulfield Pain Management Clinic as early as 5 July 2000 in which he said:

I am at my wit's end with this lady! ... Her current regime of Proladone 90 mg daily and Morphine injections 120 mg weekly do not come close to controlling her pain. I fear she may have developed a physical and psychological addiction to these medicines. What do you propose?

1. Accordingly, at least by July 2000, Dr Jansz suspected that the Patient was addicted to the Schedule 8 medications he was prescribing. However, aside from an ineffectual referral to Dr Mendelsohn, and then referrals on 6 September 2000 and February 2001 to Dr Chatz, he simply continued to increase the medications upon which he should have had increasing reason to suspect she was dependent. He did not seek any guidance from senior colleagues about how he should conduct himself or from those to whom he had unsuccessfully attempted to refer her. He admits that he was not sufficiently assertive in insisting that the Patient attend pain management or addiction practitioners.[276]
2. Dr Jansz received a report from Dr Arnold of the Caulfield Pain Management Clinic on 5 March 2004.[277] This referral was apparently prompted by a requirement of the Department of Human Services with respect to a permit. Dr Arnold reported that Dr Jansz's intra-muscular treatment of the Patient was "not ideal treatment" and stated that she wanted the Patient:

"to be assessed by the centre's multi-disciplinary team to assist her to develop other pain coping strategies, and then address medication changes."[278]

1. This recommendation was not activated in the sense of the Patient being required by Dr Jansz to receive such inter-disciplinary intervention in order to find ways to address her high levels of morphine usage, other than intra-muscular injections of morphine.
2. Engagement with the Clinic only resumed in 2007. Again, the referral to Dr Arnold at that time appears to have been prompted by a requirement to renew the Patient's medication permit.[279]
3. In her report of 20 June 2007, Dr Arnold stated that the Patient's reason for attending the appointment in June 2007 was:

"to have her medication permit reviewed."

"I have never received confirmation of the exact nature of her diagnosis"...

[and that she was] "never comfortable with the long-term use of injectable morphine for what is a chronic pain condition. I am concerned that there may be features of drug dependence here, which is also driving the continued use of injectable medication for the management of a chronic pain condition."[280]

1. Dr Arnold recommended assessment of the Patient by a doctor from a drug and alcohol service and confirmation from her treating gastroenterologist as to her underlying diagnosis:

"I am reluctant at this point to confirm the ongoing use of injectable morphine and believe that several aspects of her treatment should be reviewed at this point in time."[281]

1. On receipt of this report, Dr Jansz, organised for the Patient to see Dr Monheit whose report of 9 August 2007,[282] evidently did not reach Dr Jansz before the Patient's death. Dr Monheit's report relevantly stated:

[I]t is of concern that the Patient is relying totally on two short acting morphine medications - morphine injections and Ordine mixture ... She is likely to develop increasing tolerance as time goes on (her dose has already had to have been increased from 30 mg injections to 45 mg injections) and her quality of life is not great. In my experience, patients on frequent, injectable opiates will not accept any alternative unless it is forced upon them by their prescriber or the Department of Human Services.

1. The Respondent's Counsel submitted that Dr Jansz:
   • (a) did follow up the referrals which he had made, but was met by resistant behaviour from the patient herself. The patient would -
     • put off appointments;
     • not turn up at appointments;
     • cancel appointments;
     • reschedule appointments providing various reasons why she could not attend.[283]
   • (b) continued to seek referrals of the Patient to a pain management clinic in that further appointments were made subsequent to her failure to attend the appointment with Dr Mendelson by making referrals to Dr Chatz on two occasions in September 2000 and early 2001.[284] Again, he was met by resistive behaviour from the Patient;
   • (c) endeavoured to convince the patient to attend, but was unsuccessful in that regard;[285] and
   • (d) freely conceded in the course of his evidence-in-chief, that whilst he had discussed the patient's failure to attend both Dr Mendelson and Dr Chatz, he had not made a note to that effect in his notes.[286]
2. Dr Jansz accepted that he acted inadequately in following up the referrals, in that he ought to have been more forceful with the patient in requiring her to attend for pain management consultation,[287] and in this regard accepted that his conduct was not satisfactory.
3. Dr Jansz acknowledged that his failure to require the patient to attend a pain management specialist was a significant deficit in the provision of his health care to the patient.[288] However, Respondent's Counsel refuted that Dr Jansz thereby accepted that his failure constituted a "significant abrogation of his professional responsibilities".
4. The Respondent's Counsel submitted that Dr Jansz endeavoured to do his best to convince the Patient that it was important to follow through with Dr Arnold's recommendation that she be assessed by a multi-disciplinary team.[289] However, it is conceded that Dr Jansz again, ought to have been forceful with the patient in relation to her engagement in the program proposed. The recommendation made by Dr Arnold in 2007 that the Patient be referred to a specialist in drug addiction was acted upon by Dr Jansz.
5. In the Tribunal's view the explanations proposed by the Respondent's Counsel fail to recognise the paramount professional duty owed by a medical practitioner to his patient to administer appropriate medication having regard to an informed assessment of the patient's medical condition.

In approximately 2004 or 2005, on a date unknown, Dr Jansz declined to listen to concerns from the Patient's family members regarding the Patient's use of addictive medication in circumstances when it may have been of benefit to Dr Jansz's treatment of the Patient to have heard those concerns.

1. Exhibit 2 contains two entries from Dr Jansz's Progress Notes for Ms ED (who was also his patient) which read as follows:

Monday May 6 2000 20.57.00 Dr Carl Jansz. Prolonged discussion regarding her concern over her mother, the Patient's behaviour with the two children living with her. Concern over their safety when the Patient is under the influence of Proladone and Morphine for her pain.

Monday November 6 2000 12.37.43 Dr Carl Jansz. Prolonged discussion about the Patient's drug problem. Worried that she is stealing money etc...

1. In addition, Ms YD gave evidence that in about 2004 or 2005, when she attended Dr Jansz alone; and on another occasion when she believes she attended with her older sister, Dr Jansz declined to receive information from them about her mother's medical condition. In evidence she told the Tribunal that she tried to bring up with Dr Jansz that she was concerned about her mother's condition and the things she was seeing around the house and her appearance[290] but Dr Jansz declined to discuss matters with her "due to patient confidentiality".[291]
2. In relation to declining to discuss the concerns of the Patient's daughters, Dr Carr acknowledges that there is no clinical record (in Dr Jansz's medical record regarding the Patient) about what conversations did or did not occur. However, when dealing with a patient of the complexity of the Patient, where there were major concerns about her use of high quantities of addictive medications, any contact from concerned relatives should have been taken seriously and they should have been encouraged to air their concerns. Such information may have assisted Dr Jansz to finally take more definitive action regarding the amount of medication he was prescribing. If Dr Jansz did indeed say he was not prepared to hear their concerns, this would have been inappropriate.[292]
3. In oral evidence Dr Carr said:

"The principle would be that of course the doctor cannot impart information to the family members without permission from the patient, but that does not preclude the doctor from hearing information that someone wants to provide. ... That can be extremely helpful. ... My view is that it would have been entirely appropriate for Dr Jansz to hear what the relatives had to say."[293]

1. Dr Jansz denies this particular. His Counsel submitted that the conduct of Dr Jansz in dealing with family members in 2004/2005 was entirely appropriate and in accord with reasonable medical practice. Counsel further submitted that the following matters ought be taken into account by the Tribunal in evaluating this Particular:
   • (a) Dr Jansz had apparently entertained family concerns with respect to the Patient in May and November 2000;[294]
   • (b) the Patient was particularly concerned to ensure that no information was imparted with respect to a medical condition and treatment to third parties;[295]
   • (c) A discussion had been held with family members in respect of the Patient on 14 October 2004 at which time a family meeting was suggested by Dr Jansz, when relevant issues concerning the Patient and her treatment could be discussed amongst the Patient and family members. This course was declined by the family;[296]
   • (d) The approach adopted by Dr Jansz in maintaining patient confidentiality by proposing a meeting involving the Patient and her family so the relevant issues could be discussed to allow the family members to air their concerns was an entirely prudent and appropriate course to undertake;
   • (e) The actions of Dr Jansz in this regard are supported by Dr Carr who suggested that it was a "good strategy and an appropriate clinical manoeuvre".[297] Further, Dr Freeman considered that the approach undertaken by Dr Jansz was ideal and perfectly appropriate.[298]
2. In the Tribunal's view the important principle of doctor-patient confidentiality did not preclude Dr Jansz from receiving expressions of concern from members of the Patient's family. In doing so, he would not have been disclosing anything about his treatment regime or other confidences communicated by the Patient to him.
3. In the circumstances of this case, particularly where both daughters had been living with their mother, they could have communicated valuable and perhaps critical information about their mother's behaviour and appearance. We do not know what Ms ED tried to tell Dr Jansz but according to her statement she made observations of medication and needles lying about the house and her mother and friend injecting each other.
4. Furthermore, given the stated difficulties which Dr Jansz was experiencing with this patient, it would have been helpful for him to ascertain the family circumstances, particularly where family members were endeavouring to disclose their concerns to him.
5. In the Tribunal's view, the Particular as formulated has not been made out, as there is no evidence that family members raised with Dr Jansz concerns specifically about the Patient's use of addictive medication. However, the evidence supports a finding that:

In approximately 2004 or 2005, on a date unknown, Dr Jansz declined to listen to concerns from the Patient's family members regarding the Patient's medical condition in circumstances when it may have been of benefit to Dr Jansz's treatment of the Patient to have heard those concerns.

1. In the circumstances the Tribunal finds that this failure constitutes unprofessional conduct within paragraphs (a) and (b) of the definition and of a serious nature.

Dr .Jansz failed to monitor the Patient's liver functioning with the frequency her circumstances reasonably required, given that the Patient was, during this period:

(i) prescribed and/or administered large quantities of medications, the effect of which could potentially be affected by liver function;

(ii) prescribed and/or administered high doses of paracetamol, a medication which can detrimentally affect the liver if taken in excessive doses; and

(iii) a person whom Dr Jansz knew or ought to have known was overusing and/or abusing medication prescribed and/or administered to her.

1. Dr Jansz's monitoring of the Patient's liver functioning was too limited, given her usage of a number of medications with the potential to adversely affect her liver functioning.
2. In view of the fact that the Patient was being prescribed, amongst other things, high doses of Paracetamol, a medication which can affect the liver, Dr Carr reported that it would have been appropriate to monitor her liver function more frequently. However, the failure of Dr Jansz to do so made no material difference to her management or to the final outcome.[299]
3. Dr Carr also told the Tribunal:

"while I think it would have been entirely appropriate to do those tests more frequently than were done I think what was done was adequate and it would not have materially changed anything to do them more frequently".[300]

1. Dr Jansz has conceded he should have done more liver function tests than he did and ought to have monitored the Patient's liver functioning with a greater degree of frequency than was done during the treatment period.[301]
2. The Respondent's Counsel submitted that in light of Dr Carr's evidence, this Particular has not been substantiated.
3. In the Tribunal's view this Particular is proven on the evidence together with Dr Jansz's concession It is not to the point whether in fact, the results of such tests would have made any difference to her treatment or diagnosis. The relevant point is whether in all the circumstances it was appropriate to maintain regular monitoring of liver function. Dr Carr has confirmed that it would have been appropriate, and Dr Jansz has conceded that he should have performed such monitoring.
4. The Tribunal finds this conduct represents unprofessional conduct but in the circumstances such conduct is not of a serious nature.

Allegation Three - Failed to maintain adequate medical records - medical rationale for drugs and dosage

Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he failed to maintain adequate medical records by failing to document the medical rationale for the medication and/or the dosage and/or the frequency of medication prescribed and/or administered to the Patient.

1. The Tribunal finds that Allegation Three is made out on the evidence and that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a) and (b) of the definition in section 3(1) of the MP Act and constituted unprofessional conduct of a serious nature.
2. There are a number of submissions that have been made by both Counsel which in the Tribunal's view are not pertinent to this Allegation.
3. The Tribunal takes no account of the clinical note which included a reference to the Patient having fibromyalgia as Dr Jansz indicated that this was made in error [302] and the Patient had in fact never had such a diagnosis.
4. The Respondent's Counsel refers to the fact that Dr Jansz did record the specific medication and doses which he prescribed at any point in time. This is not in dispute and again, in the Tribunal's view, does not go to the essence of the Allegation. Counsel relies principally upon the evidence of Dr Freeman, which in the Tribunal's view places too much emphasis upon the Patient being a difficult patient.
5. Furthermore, reference was made to Dr Carr's report where he noted that Dr Jansz`s approach to physical examinations of the Patient was adequate, in the circumstances.[303] Dr Carr further noted that in general, the progress notes that record the episodes of infection and ulceration are brief but probably adequate under the circumstances.[304] Again, these observations are not pertinent to the primary Allegation.
6. However, Dr Carr expressed concerns about the level of documentation regarding matters pertinent to this Allegation:

"Many of the consultations with the Patient had very brief notations saying things like pain, usual characteristics with no recorded examination occurring."[305]

1. Dr Sungaila was more critical when she noted:[306]
   1. The medical notes are repetitive and sparse. There is minimal record of physical examinations of the Patient such as auscultation of her heart and chest and recurrent pathology monitoring such as is necessary in someone who is taking a large amount of medication.
2. In the Tribunal's view, the observations of Dr Sungaila are pertinent to Allegation 3. The deficiencies in Dr Jansz's records to which this Allegation is directed is: the failure to record any treatment planning; the failure to record the medical rationale for the specific medication, dosage and frequency prescribed or reasons for escalating dosages of dependency-inducing medications; and the failure to record the communications he alleged that he had with the Patient and others in the practice in respect of the Patient.
3. The Tribunal agrees with the Board's submissions to the effect that Dr Jansz clinical notes reflect all of these deficiencies.[307]
4. In particular there is an almost total failure to record any explanation for the significant increase in dosages of medication over time.[308] Furthermore, in view of the criticism made by Dr Sungaila and Dr Carr as to the choice of certain medication, there is no explanation as to the medical rationale underlying such choice. Although Dr Jansz gave evidence that he counselled the Patient as to why she should comply with various referrals, there is no detail contained in the notes as to what explanation, warnings or advice was given to her.[309]
5. The Tribunal agrees with the Board's submissions that the essence of the deficiencies in Dr Jansz's records is that the records were short-form and omitted key components which would have left others who took over his patient in difficulty in understanding the basis for the complex mix of medications at such very high dosages.
6. Although when Dr Jansz first started treating the Patient it may have been acceptable for him to rely upon a diagnosis of chronic cholangitis or pancreatitis as the medical rationale for her pain medication, it was not acceptable for Dr Jansz to continue to rely on this rationale as time went on and the Patient failed to respond to the medication prescribed - particularly as specialists had questioned this diagnosis. It was not acceptable for him to have failed to question the diagnosis and undertake appropriate investigations or referrals in an attempt to elucidate the cause of her ongoing pain. It was entirely inadequate, over such a long period of treatment, to instead merely repeatedly refer to the Patient's "chronic pain usual characteristics".

Allegation Four - Prescribed/administered drugs of dependence without requisite permit

Between in or about 1999 and 29 March 2000, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he prescribed and/or administered drugs of dependence, including but not limited to morphine, to the Patient in circumstances where he did not hold a permit for such prescription and/or administration and where he knew or ought to have known that he was required to hold a permit for such prescription and/or administration.

1. The Tribunal finds that Allegation Four is made out on the evidence and that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a), and (b) of the definition in section 3(1) of the MP Act and constituted unprofessional conduct of a serious nature.
2. The Tribunal further finds that the conduct ...falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency... and constitutes professional misconduct for the purposes of paragraph (c) of the definition in section 3(1) of the MP Act.
3. It appears that for many years Dr Jansz operated under the legally incorrect misapprehension that the issuing of permits to prescribe Schedule 8 medications for longer than an eight week period[310] was not a doctor-specific entitlement but was covered by a permit to any doctor in his practice. Permits during the relevant period were clearly stated as issued to a particular medical practitioner. In addition, they stipulated that they were issued to conditions. For instance, the permit commencing on 4 April 2001 was stipulated to be subject to the following conditions:

The permit holder must take all reasonable steps to ensure that he/she does not administer, prescribe or supply the Schedule 8 poison/s

1. in excess of the quantities specified on this permit;

2. for a period other than that specified on the permit."[311]

1. It is important too that the granting of a permit is recognized as only a modest check and balance on the prescribing of opiates by a medical practitioner. It is not an authorization or an indicator of good clinical practice. As stated at the bottom of the 9 December 2003 permit:

Note: ... The permit holder should note that the issue of this permit does not constitute approval of the course of treatment"[312]

1. The first permit obtained by Dr Jansz for the Patient was on 29 March 2000. However, he had been giving injections to the Patient since at least October 1999.
2. The extent of Dr Jansz's prescribing of Schedule 8 drugs can be seen by reference to the amounts recorded on the permits. For instance, in March 2000, the permit allowed 120 mg of morphine injections weekly and 90 mg of oxycodone suppositories daily (ie 630 mg weekly). By April 2005 to April 2006 this had grown to 45 mg of morphine injections daily (ie 315 mg weekly) and 225 mg of oral morphine daily (ie 1575 weekly).
3. Dr Jansz's prescription rates of morphine rose exponentially.
4. Notably, too, there were gaps between when Dr Jansz held permits - for instance, he did not hold a permit between 4 October 2001 and 3 July 2003.[313]
5. Importantly, the Department of Human Services on two occasions expressed concern about the prescribing by Dr Jansz: in 2003 and in 2007.
6. On 3 June 2003, the permit for injectable and suppository morphine was only granted subject to the following:

As discussed per telephone a copy of a recent report from a consultant, affirming that this treatment is appropriate for the management of the patient's condition is required before any future application can proceed.[314]

1. In addition, a similar requirement was made in 2007 which resulted in referrals again to Dr Arnold, and at Dr Arnold's suggestion, to Dr Monheit, and also to Dr Gijsbers.[315]
2. Dr Jansz has conceded that he prescribed opiates for the Patient when he did not hold a permit for her at all and also in excess of what was permitted by permits.[316] He has also admitted that when he did so he did not make contact with the Department to explain his actions or to seek permission for different levels of prescribing. He has simply said that during the relevant years he was not familiar with his legal obligation in this respect.
3. It was in any event Dr Jansz's legal and ethical responsibility properly to acquaint himself with his legal obligations in respect of permits and to adhere to them. Failure to do so was a serious breach of his professional duties.
4. The parties agree that Dr Jansz's failure to comply with his permit obligations constitutes unprofessional conduct of a serious nature. However, Dr Jansz denied that it also constituted professional misconduct.
5. While the permit regime has since changed, Dr Jansz's obligations between 1999 and 2007 were clearly enough set out in legislation and communications from the Department of Human Services, reinforced by advice from the then MPBV.
6. The Board emphasised the importance of registered practitioners acquainting themselves with legislative responsibilities in respect of Schedule 8 drugs. It contends that Dr Jansz's breaches in this regard extended over many years and in multiple respects, both relating to him not holding a permit and him repeatedly prescribing over-permit and taking no steps to communicate with the Department in that regard. The Board contended that most practitioners of good repute and competence would be highly critical in this respect and would find Dr Jansz's conduct to have fallen substantially below what was reasonably to have been expected of him. The Board contends that this aspect of his conduct constitutes professional misconduct. The Tribunal agrees.
7. By way of explanation and giving context to his conduct, Dr Jansz gave evidence that he had a belief that if a member of the practice held a relevant permit, then he could prescribe medication within that permit regime in the course of the practice without holding the permit personally himself.[317]
8. The Respondent's Counsel further relied upon the following evidence:
   • (a) Dr Freeman, confirmed that at the relevant time it was inappropriate to prescribe Schedule 8 medication when the permit was not personally held, but acknowledged that in practice, if the medical practitioner was part of a medical practice in which a permit was held, medical practitioners in the same practice would use the permit, particularly if it was a "one-off";[318]
   • (b) Over the relevant period, it was Dr Orbach who was the primary treating practitioner, although the Patient was also seen frequently by Dr Jansz;
   • (c) Dr Freeman indicated that it may be necessary for the patient to choose which practitioner was to hold the permit, but practically speaking, this did not occur much.[319]
9. The Respondent's Counsel submitted that it is not, in the circumstances appropriate to classify the conduct as professional misconduct, given his motivation was at all relevant times to discharge an obligation which he perceived to treat the Patient and to alleviate a chronic, genuinely based, severe pain. Further, the degree of departure of his conduct from what ought be expected of a reasonable general practitioner does not merit such a finding.
10. In the Tribunal's view the importance of compliance with the statutory regime for permits cannot be overstated. The regime is concerned with monitoring the prescription of potentially very dangerous drugs. The regime also recognises that there will be emergency situations where drugs may be prescribed in advance of obtaining the requisite authority. Dr Jansz's conduct displayed an ignorance or disregard for his obligations. He did not at any stage fall within the emergency category. The permit requirements are designed to prevent precisely the predicament in which Dr Jansz found himself and prevent the inappropriate and excessive prescription of highly addictive drugs.
11. In the Tribunal's view Dr Jansz conduct in this respect amounted to professional misconduct.

Between December 2002 and December 2005_,_ Dr .Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he post-dated prescriptions in respect of the Patient.

Particulars

(i) On 12 December 2002, Dr .Jansz wrote prescriptions for the Patient post-dated to 24 December 2002.

(ii) On 3 June 2004, Dr .Jansz wrote prescriptions for the Patient post-dated to 7 June 2004.

(iii) On 23 December 2005, Dr Jansz wrote prescriptions for the Patient post-dated to 24 December 2005_._

1. Dr Jansz has admitted post-dating prescriptions.[320]
2. The parties agree that Dr Jansz's conduct in post-dating prescriptions constitutes, for the purposes of Allegation 5, unprofessional conduct of a serious nature (within paragraphs (a) and (b) of the definition of "unprofessional conduct" in the MP Act.
3. Accordingly, the Tribunal finds that Allegation Five is made out on the evidence and that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a) and (b) of the definition in section 3(1) of the MP Act and constituted unprofessional conduct of a serious nature.
4. The Board notes that the creation of prescriptions with a false date, while well-motivated, is of its nature deceptive in that it misrepresents the date of prescribing.
5. Dr Carr considered that the post dated prescriptions were issued in a genuine attempt to cover periods of Dr Jansz's absence. Although the manner in which Dr Jansz issued them was not appropriate, Dr Carr was not critical of the underlying intent.[321]
6. The Respondent's Counsel pointed out that Dr Jansz had freely and frankly accepted that he had post-dated prescriptions in relation to the patient, both in his evidence-in-chief[322] and previously by letter to the MPBV dated 16 March 2009 when he gave the following explanation:

"I am now aware of the error made in regard to the preparation of the prescription and that the proper process in regard to a prescription that was not dispenses until a later date, would be to date the prescription on the day it was written and endorse it in the body of the prescription that it was not to be supplied until the appropriate date. I certainly apologise for that error; there was certainly no intention to deceive or mislead any person and the error arose from my misunderstanding."

1. Dr Jansz stated that he intended that his action in post-dating prescriptions was not to deceive or mislead any person. Indeed, his motivation was simply to provide access to medication which he considered that the patient required. In these circumstances Respondent's Counsel contended that it is inappropriate to characterise his conduct as deceptive in its nature.
2. Dr Jansz otherwise accepts that the post-dating of prescriptions was unprofessional conduct of a serious nature. Professional misconduct is not alleged.
3. In the Tribunal's view, notwithstanding Dr Jansz stated intentions, there can be no justification for misrepresenting the correct date of prescriptions in the context of this kind of patient where there were very high dosages of highly addictive medications involved.

Allegation Six - Prescribed/administered inappropriate/excessive drugs of dependence

Between on or about I July 2007 and 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (d) of the definition of 'unprofessional conduct' in section 3(1) of the Health Professions Registration Act 2005 (HPR Act) or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act in that he prescribed and/or administered inappropriate and/or excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient in circumstances.

1. Allegation Six is in similar terms to Allegation One. It relates to prescribing and administering drugs between 1 July 2007 and the Patient's death.
2. The Applicant's submissions in respect of Allegation One are repeated in this context, including those in respect of Particulars (a) - (d) in Allegation One.
3. It is noted that the conduct engaged in by Dr Jansz needs to be viewed in the context of the conduct and the extensive medical file that preceded 1 July 2007. By 1 July 2007 the condition of the Patient was, at least according to Ms YD, very poor and the amounts of medication prescribed (in combination and in respect of opiates and benzodiazepines individually) on any view foreseeably dangerously high.
4. The Tribunal finds that Allegation Six is made out on the evidence and that the conduct engaged in by Dr Jansz constituted professional misconduct as defined in paragraphs (a) and (b) of the definition under section 3(1) of the HPR Act.
5. Allegation Six is pleaded in the alternative, namely unprofessional conduct OR professional misconduct. As the latter is more serious than the former, it is not necessary to also find unprofessional conduct.[323]

Allegation Seven - Medical management of the Patient was inappropriate/inadequate

Between in or about 1 July 2007 and 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act, in that his medical management of the Patient was inappropriate and/or inadequate.

1. Allegation Seven is in similar terms to Allegation Two. It relates to medical management of the Patient between 1 July 2007 and the Patient's death.
2. The Applicant's submissions in respect of Allegation Two are repeated in this context, including those in respect of Particulars (a) - (c).
3. It is noted that the conduct engaged in by Dr Jansz again needs to be viewed in the context of the conduct and the extensive medical file that preceded 1 July 2007. By 1 July 2007 the condition of the Patient was, at least according to Ms YD, very poor and the amounts of medication prescribed (in combination and in respect of opiates and benzodiazepines individually) foreseeably dangerously high. Yet Dr Jansz's medical management continued in the same manner, in spite of the many signs of side-effects that had been manifested. It is conceded that during this period the Patient was referred to Drs Arnold and Monheit, which was appropriate, although such referrals appear to have occurred at the insistence of the Department of Human Services.
4. The Tribunal finds that Allegation Seven is made out on the evidence and that the conduct engaged in by Dr Jansz constituted professional misconduct as defined in section 3(1)(a) and (b) of the HPR Act. Again, as for Allegation Six, a finding of professional misconduct effectively subsumes a finding of unprofessional conduct.

On 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act in that he wrote a prescription for the Patient post-dated to 18 August 2007.

1. Allegation Eight is in similar terms to Allegation Five. The same comments made under Allegation Five have equal application here. This was not an isolated incident.
2. On 16 August 2007 Dr Jansz wrote a prescription that he post-dated to 18 August 2007. Dr Jansz has admitted post-dating prescriptions.[324]
3. The Tribunal finds that Allegation Eight is made out on the evidence and that the conduct engaged in by Dr Jansz constituted unprofessional conduct within the meaning of paragraphs (a) and (b) of the definition in section 3(1) of the HPR Act.

Further Submissions on behalf of the Respondent

1. The Tribunal notes the very extensive written submissions made by the Respondent's Counsel, most of which have already been acknowledged under the specific Allegations.
2. Following is a brief summation of the circumstances identified by Counsel which were cited as sound reasons why Dr Jansz does not pose a threat to the public as a registered medical practitioner; has a very valuable contribution to make to the community; and that specific and general deterrence can be appropriately achieved by ordering a reprimand and appropriate further education and training, particularly relating to the management of difficult and demanding patients and drug dependent and addicted patients.
3. The circumstances relevant to the alleged conduct include the following:
   • (a) At the time of his initial contact with the Patient, he was an inexperienced practitioner who had not received significant training in relation to drug addiction and drug dependent persons;[325]
   • (b) The initial treatment regime for the Patient had been initiated by Dr Orbach whose experience Dr Jansz respected and with whom he discussed the Patient's ongoing treatment;
   • (c) Whilst he was in breach of the statutory permit requirements governing drugs of dependency, his motivation was at all times to endeavour to relieve the Patient's chronic severe pain, which he considered was organically and genuinely based;
   • (d) Dr Jansz felt under a moral obligation to treat the Patient and that if he did not do so, in effect, she would have difficulty in obtaining treatment elsewhere;
   • (e) It was only in hindsight that the Patient exhibited signs of serious side effects from the cocktail of medication prescribed for her.
     • (f) Dr Jansz was well motivated to provide appropriate care for the Patient; and
   • (g) He endeavoured to make referrals to specialists and recommendations for further treatment. However she failed or refused to attend specialist appointments for assessment and other hospital appointments for treatment of conditions such as dehydration and ulceration; and despite counselling, failed to comply with her medication regime.

1. Respondent's Counsel further submitted that there is no relevant risk to the community by Dr Jansz continuing to practice as a registered practitioner in Victoria, for the following reasons:
   • (a) Given his experience with the Patient, shortly after her death, he began to transfer patients in receipt of Schedule 8 medications, to other practitioners such as specialists and general practitioners with specific expertise, in treating such patients. This was done gradually over time;[326]
     • (b) He does not hold any active permits to prescribe Schedule 8 drugs;[327]
   • (c) He only administers morphine to patients who are cancer patients (not requiring a permit);[328]
   • (d) The only patients whom he treats with Benzodiazopines are elderly patients, in low dosages;[329]
   • (e) He conducted an audit in respect of his patients who were in receipt of Schedule 8 drugs, with the assistance of Professor Whelan, an expert in pain management;[330]
   • (f) The audit identified, for the purposes of determining whether the patients presented relevant risks in respect of dependence or tolerance issues:[331]
     • how long patients had been on medication;
     • the dosages they had been on;
     • how many prescriptions they had received in a 12 month period;
2. Where it was perceived that there were such risks, the patients were transferred to other medical practitioners including: Dr Monheit; Dr Stagg; Dr Drake; and Dr Kozminski.[332]
3. Dr Jansz has now identified the regime of action which he would take in respect of treating a new patient seeking morphine, including:[333]
   • formulating a plan;
   • finding out why the patient was on the medication in question;
   • making relevant phone calls to try and contact the previous medical practitioner;
   • making sure that the patient had not been notified to the relevant Department as a drug-dependent person;
   • ensuring that there was no active permit with respect to the patient before he prescribed anything.
4. If a patient seeking morphine requested him to take over his treatment, he would refuse to do so.[334]
5. Dr Jansz has also undertaken further education in relation to opioid use in general practice.[335]
6. In the above circumstances Counsel submitted that there is no likelihood that there will be a repetition of the conduct which has resulted in Dr Jansz being brought before this Tribunal. Accordingly, the community is not at risk in any way by the continuing practice of medicine by Dr Jansz.
7. Dr Jansz is clearly open to pursue further counselling and education, so as to enable him to obtain further skills in dealing with exceptionally difficult patients such as the Patient, so as to enable him to be able to recognise such patients and be more forceful in relation to their treatment.[336]

1. The Respondent's Counsel submitted that there is a clear benefit in allowing Dr Jansz to continue to practice as a registered medical practitioner. The references provided to the Tribunal from fellow practitioners, including specialists who were aware of the matters the subject of the hearing before the Tribunal, identified that Dr Jansz is regarded by fellow general practitioners and consultants to whom he has referred patients, as -
   • a knowledgeable, caring and thoughtful medical practitioner;
   • a practitioner who is loyal and dedicated, with a strong commitment to his patients' welfare;
   • a practitioner with excellent diagnostic skills arising from a sound knowledge base;
   • a practitioner whose referrals were appropriate, with patients well worked up and appropriately investigated;
   • a practitioner whose referrals are always accurate and timely and upon whom consultants have been able to rely for the purposes of following up patients after their discharge from consultant care, or as part of a shared care approach;
   • a practitioner who is caring, attentive and sensitive to patients' issues and their care needs;
   • a practitioner who has a loyal and broad clientele in the district, which clientele have been the beneficiary of excellent services over a prolonged period of time.
2. Accordingly, Counsel submitted to the effect that the community would lose the benefit of a committed, caring and hard working practitioner if Dr Jansz's registration status were affected.
3. The Tribunal notes that written testimonials were provided on behalf of Dr Jansz by eleven professional colleagues including nine specialists to whom he referred patients, one fellow general practitioner who works in the same practice and the principal of the general practice where he works in South Yarra. The comments cited above do appear in these references.

1. Counsel submitted to the effect that the principles of specific and general deterrence should be moderated having regard to the above circumstances and to Dr Jansz's current recognition that:

**- he failed in effect, to "draw a line in the sand" and demand that the Patient adhere to his prescribing regime, and if that was not agreed to, then she would be compelled to seek treatment elsewhere;

- he failed to be reflective in relation to his treatment of the Patient, and being more alive at an earlier point in time to**

• the impact that the medication was having upon her;

• that she was seeking more medication than he was prepared to prescribe for her.

1. The respective submissions made by the parties as to the law relating to determinations confirms that this area of law is largely uncontentious.[337] It is appropriate to set out the statutory provisions and a summary of the relevant case law.
2. Determinations can be imposed on the Respondent by the Tribunal pursuant to section 45A of the MP Act. Determinations can be made pursuant to section 45A(2) in respect of findings of unprofessional conduct of a serious nature, and pursuant to section 45A(3) in respect of findings of unprofessional conduct not of a serious nature.
3. Section 45A(2) of the MP Act provides as follows:

If [the Tribunal] finds that the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature, [the Tribunal ] may make one or more of the following determinations:

1. require the practitioner to undergo counselling;
2. caution the practitioner;

1. require the practitioner to undertake and complete specified further education within a specified period;
2. impose any condition, limitation or restriction on the registration of the practitioner;
3. impose a fine on the practitioner of not more than $2000;
4. suspend the registration of the practitioner for the period specified in the determination;
5. cancel the registration of the practitioner;
6. disqualify the practitioner from applying for registration under section 5 within a specified period if the practitioner's registration is cancelled by the Board...

(1) After it has completed a hearing under this Division in relation to an application in respect of a health practitioner VCAT may make a finding as to whether or not -

(a) the health practitioner has engaged in unprofessional conduct or professional misconduct; or

(b) the health practitioner's ability to practise as a health practitioner is affected; or

(c) the health practitioner's performance has been unsatisfactory; or

(d) the health practitioner is not of good character.

(2) VCAT may find a practitioner has engaged in unprofessional conduct even though the application alleged professional misconduct.

...

(4) VCAT may make one or more of the following determinations with respect to a health practitioner -

(a) require the health practitioner to undergo counselling;

(b) caution the health practitioner;

(c) reprimand the health practitioner;

(d) require the health practitioner to undertake and complete specified further education or training within a specified period;

(e) impose any condition on the registration or endorsement of registration of the health practitioner;

(f) impose a fine on the health practitioner of not more than $50 000 to be paid to the responsible board;

(g) suspend the registration of the health practitioner for the period specified in the determination;

(h) cancel the registration of the health practitioner;

(i) order that the practitioner undertake a specified period of practice under specified supervision;

(j) order that the practitioner do or refrain from doing something in connection with the practice of his or her health profession;

(k) order that the practitioner's practice be conducted for a specified period in a specified way or subject to specified conditions;

(l) order that the practitioner's practice be subject to periodic inspection by a specified person for a specified period;

(m) order that the practitioner report on the health practice of the practitioner to a specified person at specified intervals;

(n) order that the practitioner not employ, engage or recommend a specified person or class of persons;

(o) disqualify the health practitioner from applying for registration under section 4 within a specified period if the health practitioner's registration is cancelled by the Tribunal or by a health practitioner registration authority of another State or Territory of the Commonwealth or of New Zealand.

1. The sole prerogative of the Tribunal and the purpose of the imposition of determinations in disciplinary matters is to protect the public.[338] Determinations consequent upon adverse findings in relation to members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession,[339] in the sense of maintaining its stature and integrity in the eyes of the public.
2. As Doyle CJ expressed it in Craig v Medical Practitioners Board:[340]

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.[341]

1. As Cosgrove J put it in Dickens v Law Society:[342]

There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character and no element of punishment is involved. ... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and applicable departure from the practitioner's own high standards. The Committee's task is to uphold the dignity and standards of the profession. ... The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct.[343]

1. There are two prime objectives to the imposition of consequences for findings of disciplinary impropriety:

"namely, the protection of the public and, secondly, to maintain the professional standards of the profession in the eyes of the public."[344]

1. Determinations should in no sense be punitive[345] and must not be framed in such a way, be constituted in such a way, or be so harsh as in reality to be punitive or retributive: "A distinction is to be drawn between disciplinary action which is corporate and self-respecting, and punishment, which is personal and retributive."[346]
2. The objectives of determinations can be achieved through a variety of mechanisms, including by deterring the person concerned from further inappropriate conduct (specific deterrence),[347] deterrence of other practitioners minded to conduct themselves similarly (general deterrence),[348] and facilitation of rehabilitation[349] on the part of the practitioner.
3. The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination.[350]
4. Personal matters such as shame,[351] personal ordeal,[352] and financial difficulty[353] likely to be occasioned by a determination are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.
5. The degree to which the practitioner has acquired insight into his or her conduct has been held to be of potential relevance to the determination in that it goes to the continuing risk posed by the practitioner.[354] In this regard the opportunity to see and assess the practitioner is important, as is the capacity for a tribunal which consists partly of practitioners of the relevant discipline is important.[355] 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 wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
6. It is in the public interest that a conscientious practitioner should remain in practice, so long as this can be achieved consistently with the maintenance of the standards of their profession.[356] Relevant in this regard is evaluation of work "beyond the usual" which the practitioner has performed for community and their profession as this can assist evaluation of the lapse of professional judgment within a proper context.[357] Also relevant are any opinions as to whether they feel able to trust the person expressed by senior practitioners who are familiar with the attitudes of the person.[358]
7. There are some circumstances in which it is appropriate for regard to be had to the consequences to a patient community if a practitioner is suspended or deregistered.[359] However, the public interest in the practitioner remaining in practice must be weighed against the public interest in protecting patients against any repetition of the conduct.[360] Accordingly, the question of the likelihood of the repetition of the relevant conduct is central to the imposition of any determination to be made by the Tribunal.
8. For professionals, any form of official censure is of consequence. It has been held that "a reprimand should not be considered a 'slap over the wrist'". Marks J in Peeke v Medical Board of Victoria[361] observed that a reprimand, being a serious form of censure and condemnation:

"certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner."[362]

Further Submissions and Determinations Proposed by Applicant

1. The Board's Counsel provided extensive written submissions which the Tribunal has noted. Most of these are reflected in the further findings of the Tribunal below.
2. Following are some further submissions of the Board's Counsel which reflect particularly upon the nature of evidence given by Dr Jansz. Unless otherwise indicated, the Tribunal endorses these submissions.
3. Counsel submitted that taken in the aggregate the conduct on the part of Dr Jansz, apart from occurring in the context of a tragic death, was seriously unprofessional. It comprised many core aspects of clinical practice and was such as to require a clear message about its unacceptability to be given to Dr Jansz and to other practitioners minded to behave similarly.
4. Counsel acknowledged that Dr Jansz only obtained his fellowship of the RACGP in 1999 and that he inherited the Patient[363] as a patient from Dr Orbach who played on ongoing role in the Patient's treatment. However, although he accepted personal responsibility for his treatment of the Patient from the time that he commenced to treat her, he did little if anything to change the trajectory of her pharmacotherapy.
5. At the time when he commenced to treat the Patient, Dr Jansz had little experience in the management of patients with chronic pain.[364] She was and he found her to be "an extremely difficult patient to deal with".[365]
6. Counsel questioned Dr Jansz's explanation for breaching the permit requirements.[366] Dr Jansz told the Tribunal that:

"I did my best to try and convince her that it was very important to follow through...with the plan and to attend the scheduled appointments but I failed to convince her."[367]

1. Counsel suggested that Dr Jansz gave unconvincing explanations as to how he dealt with the Patient's failure or refusal to comply with specialist referrals. Objectively viewed, Dr Jansz's position on the issue suggests that, as Dr Freeman observed, his insight was lacking and may still be deficient.
2. Dr Jansz informed the Tribunal that he discussed with the Patient from time to time whether she was self-injecting:

"and she denied it on each occasion and I didn't have reason to suspect that she was lying to me."[368]

1. Counsel suggested that Dr Jansz demonstrated that he was significantly gullible, as well as having been culpably weak in response to the manipulations perpetrated upon him by a patient whom he should readily have recognized as drug-dependent and of a mind to extract from him additional medications as often as he allowed it.
2. Dr Jansz claimed to the Tribunal that he:

"felt under a moral obligation to treat this lady and I felt a duty of care, and I believed that if I did that I'd be throwing her to the wolves."

1. Counsel suggested that this explanation was disingenuous and a poor excuse for a serious set of abrogations of responsibility to take a firm line with a drug-addicted patient who was manifestly being prescribed excessive medications with a dangerous sedating effect. Alternatively, or in addition, Counsel suggested that the Tribunal might conclude that Dr Jansz manifested grossly inadequate skills over a lengthy period to deal adequately with a patient who may have had a personality disorder but who certainly manifested drug-seeking behaviours in the context of multiple dependencies on prescribed medication. This calls for further education so that Dr Jansz acquires the necessary skills and strategies in respect of this category of patient. The Tribunal agrees with the alternative proposition.
2. Dr Jansz stated that he only identified in hindsight that the Patient exhibited signs of experiencing serious side-effects from the cocktail of sedating medications that he was prescribing for her.[369] Counsel suggested that this was a scarcely tenable assertion by Dr Jansz and demonstrates a disturbing continuing lack of insight.
3. Counsel acknowledged that Dr Jansz has demonstrated the acquisition of some insight on his part by arranging for an audit (albeit very latterly: in September 2010) into patients for whom he held permits and who have been prescribed benzodiazepines and referred them to others or formed case plans for them.[370] When asked by Member Dr Fabris about whether he envisaged not treating such patients as a long-term approach, he said that he would not see such patients:

"until I'm confident that my skills are as such to take on patients of this nature again, I won't and even once I have developed such skills I'd be highly reluctant to take on patients of this nature again."[371]

1. Dr Jansz accepted the utility, at least in principle, of further training and education in this regard.[372]
2. When the Tribunal asked Dr Jansz what, if any educational courses he had undertaken since the Patient's death into "chronic pain or addiction or managing difficult patients or anything else that you might consider relevant to upgrade your skills", his answer was that "so far" he had simply done a short course in 2010 with the Bayside Division of General Practice into opioid use in general practice.[373] The Tribunal agrees that this was a disappointingly minimalist response.
3. Counsel acknowledged that Dr Jansz made important concessions in terms of not having been sufficiently "forceful" in insisting that the Patient attend pain management doctors to whom he had referred her.[374] However, Dr Jansz did not accept that this involved a significant abrogation of his professional responsibilities on the basis that he said his conduct had been genuinely attempting to relieve his patient's pain.[375] Under sustained questioning he conceded that his failure to be more insistent was a significant deficit in his provision of health care to the Patient.[376] The Tribunal notes that Respondent's Counsel refutes that Dr Jansz in fact made such a concession.
4. When asked to tell the Tribunal why he had been insufficiently assertive in this regard, the Tribunal might conclude that he was less than insightful[377] in spite of the tragic death of his patient and the passage of many years since he commenced to treat her. In addition, when asked why he did not ask for assistance from senior practitioners, he had little to offer by way of answer.[378]
5. When asked about a series of falls by the Patient, Dr Jansz was asked:

"So surely you recognized at this stage you had a drug dependent patient?"[379]

Oh there was certainly dependence issues, there, yes."[380]

1. When it was suggested to Dr Jansz that a treatment plan "that only focused upon relieving [the Patient's] pain was problematically clinically primitive and dangerously so", his response was simply:

"It could have been better, I agree with that."[381]

1. Such responses by Dr Jansz suggests that his acquisition of insight needs to be facilitated and reinforced by orders of this Tribunal that are directed toward addressing his clinical deficiencies.[382]
2. In addition, given the thoroughgoing inadequacies in his clinical management of the Patient, the consideration of general deterrence should be a significant factor in the determinations imposed by the Tribunal, as should the imposition of obligations which address his clinical deficiencies.
3. Given the seriousness of Dr Jansz's conduct, its sustained nature, the fact that it comprehended multiple defects in clinical skills and many aspects of his management of the Patient, and his exhibition of limited insight into the deficiencies of the conduct and what led to it, it is contended by the Applicant that a firm response must be taken by the Tribunal in order to give effect to the purposes of imposition of determinations.
4. The imposition of "only" a reprimand (as against a period of suspension), and anything less than the imposition of a period of suspension, risks communicating a problematic message to the profession and the general community about the seriousness of the defects in medical management and prescribing for which Dr Jansz was responsible over a lengthy period and the foreseeable risks arising from these for his patient.
5. It is accepted that Dr Jansz has (latterly) undertaken a number of constructive measures to reduce the risk that he poses in regard to prescription of Schedule 8 medications.
6. However, the extent to which he has sought out suitable self-education in respect of prescription of such medications, management of chronic pain and management of "difficult patients" is very limited.
7. It is not accepted by the Board that Dr Jansz poses "no relevant risk to the community".[383]
8. It is noted that Dr Jansz still seems to have little understanding about the factors that led him to:
   • (a) be prepared to prescribe and administer such high levels of medication to the Patient;
   • (b) be insufficiently aware of, and properly responsive to, the side-effects which the Patient was exhibiting;
     • (c) be inadequately attentive to the risk of the Patient self-injecting opioids;
     • (d) institute a regime of short-acting opioids to treat the Patient's claims of pain;
   • (e) fail to identify at the relevant times the Patient's "drug-seeking behaviour" (in the sense asserted by the Applicant); and
   • (f) fail to be more insistent on her co-operating with measures to reduce her consumption of dependency-inducing drugs and to attend for assistance in this regard upon specialists in pain management and addiction medicine.
9. In short, relevant aspects of his insight into what gave rise to his conduct appear only to be at an early stage of development.
10. The Board accepted for the purposes of its submissions that Dr Jansz did not fully understand his obligations under the permit scheme. However, it was his responsibility to acquaint himself with such obligations and his failure in that regard over an extensive period of time was marked. The Board submits that his explanation for his failure that it was attributable to "good motives" and that it was "to relieve his patient's pain[384] does not excuse his wholesale abrogation of his responsibilities in this respect. The Tribunal agrees that this explanation does not justify Dr Jansz's abrogation of his responsibilities in relation to the permit scheme and his legal obligations as a medical practitioner.
11. Dr Jansz maintained in evidence that his failure to require that unless the Patient complied with his referrals he would not continue to treat her, arose from his feeling a "moral obligation to treat this lady" and not wishing to "throw her to the wolves".[385] The Board submits that this is a manifestly untenable justification for the laissez-faire approach that he took in respect of insisting that the Patient attend pain management or addiction specialists. The Tribunal considers that the failure of Dr Jansz to follow up the referrals he made of the Patient and to make further referrals and to insist that she comply with such referrals is a serious omission in his clinical care of the Patient.
12. Further, it is apparent that the Patient attended Dr Jansz on a troubling number of occasions[386] for falls and other complaints which he acknowledges now he should have identified as being potential consequences of his medication regime. Moreover, having regard to the various matters raised on behalf of the Respondent[387] especially in light of examinations which yielded no organic basis for his patient's symptoms, Dr Jansz's position in respect of his failure to recognise side-effects is at least anomalous.
13. In all the circumstances, the Board's Counsel contended that it is important that the Tribunal's determination enunciate the clear message to Dr Jansz, other practitioners and the general community that flows only from:
    • an interference with Dr Jansz's current registration; and

• the imposition of suitable conditions on Dr Jansz's registration that, before resumption of practice, he complete suitable courses directed toward enhancing his clinical knowledge and skills, and thereby his capacity to practise safely.

1. The Board submitted that the Tribunal should consider:
   • the imposition of a sufficient period of suspension in order to achieve the object of effective deterrence of both Dr Jansz from engaging in comparable conduct and of other practitioners from engaging in such conduct;
     • reprimanding and cautioning Dr Jansz for relevant aspects of his conduct; and
   • requiring, by way of a condition on his registration, that before Dr Jansz resumes practice he complete at his own expense suitable ethical and clinical courses[388] in relation to prescribing of Schedule 4 and Schedule 8 drugs, documentation of clinical interactions, prescribing for those with dependencies, and providing services to difficult patients, including patients with personality disorders.
2. The Board also submitted that the Tribunal consider requiring of Dr Jansz that he receive suitable personal and ethical guidance at his expense from a senior practitioner agreed to between him and the Board.

1. In addition to the findings of the Tribunal set out above under Allegations, the Tribunal makes the following further findings relevant to the gravity of the unprofessional conduct and professional misconduct as the case may be, and the most appropriate determinations.
2. The specialist examinations and investigations performed during 1999 and 2000 noted:
   • Chronic right upper quadrant abdominal pain apparently biliary in origin consistent with a diagnosis of choledolithiasis, complicated by pancreatitis and later by nausea and vomiting;
     • Could not formulate a definitive diagnosis;
     • No specific biliary problem could be identified
     • surgery was not indicated;
   • narcotic analgesia for pain relief already a concern and difficult to reconcile with the laboratory and imaging results;
     • chronic right hip abscess and necrotic ulcer over left hip treated; and
     • no neurological event could be identified.
3. In addition to any clinical examination conducted by Dr Jansz, the above synopsis represents the only specialist or diagnostic assessment upon which Dr Jansz then based his treatment.
4. Notwithstanding the referrals made by Dr Jansz, he in fact did not receive any specialist input between July 2000, when the Patient was last seen by Professor Lansek, and June 2007, when the Patient was seen by Dr Arnold. There is no report from the assessment made in March 2004 which Dr Jansz did not follow up as recommended.
5. The reports of Dr Arnold in June 2007 and Dr Monheit in August 2007 raise the following concerns and highlight the critical need for earlier specialist input:
   • Long term use of injectable morphine for chronic pain;
   • Features of drug dependence;
   • No confirmation of the exact nature of her diagnosis;

• Widespread ulceration of her legs and buttocks and that she is severely disfigured by the scarring; and
  • Possible underlying anxiety and depression.

1. The Patient's elder daughter observed her mother and a friend injecting each other with morphine and found various boxes of medication in her drawers and syringes in her house. She describes a prolonged deterioration in her mother's physical appearance and mental state observing very visible signs, including grogginess and injuries.
2. The Patient's younger daughter observed an obvious deterioration in behaviour and appearance from 2005 until her death.
3. While it is acknowledged that Dr Jansz took over the Patient from his principal Dr Orbach, when the treatment regime was already highly questionable, it was incumbent upon him to exercise his own professional judgement as to the appropriateness and effectiveness of her treatment.
4. The evidence reveals, both in his own clinical notes and the specialist opinions, that the Patient was exhibiting signs of chronic severe drug dependency. It should have been apparent to him from the outset and certainly over time in his provision of treatment to her, that she was becoming increasingly dependent upon a range of medications; that she was presenting with a range of side effects most likely to be drug related; and the clinical basis for the range of medications in such high doses could not be medically justified, particularly in the context of apparently worsening levels of severe pain.
5. In the Tribunal's view there is compelling evidence that Dr Jansz ought to have been aware that:
   • (a) the Patient was seriously dependent and addicted to these medications;

(b) there were physical risks in terms of the ongoing abscesses and cellulitis that she was experiencing;

(c) the Patient was suffering from side effects including drowsiness and disorientation which were resulting in falls which were engendering real risks to her; and

(d) there was a real risk that she could inappropriately self-medicate and that the combination of drugs could lead to an outcome such as respiratory depression and death.

1. The Tribunal accepts, as was acknowledged by expert opinions, that Dr Jansz made some efforts to refer the Patient for specialist opinion and further investigations. However, having made such referrals, when the Patient failed or refused to comply, he simply continued the same treatment regime, with ever increasing doses and frequency of medication. In view of the very long period of time over which this failure of proper medical management occurred, the Tribunal finds that the conduct of Dr Jansz constituted a serious abrogation of his professional duty of care.
2. In reality Dr Jansz abrogated control over the nature and level of medication to his patient, a situation which was further compromised by inadequate monitoring and control over the administration of such medications. It is no excuse to attribute responsibility to the Patient herself. Many of the submissions on behalf of Dr Jansz seek to emphasize that the Patient would simply not follow instructions. She was extremely difficult, demanding and probably manipulating an inexperienced practitioner. However, in making these submissions, Dr Jansz appears to confuse the right of any patient to refuse treatment or indeed investigations and the professional duty of a medical practitioner to deliver appropriate medical care and treatment.
3. The risks attendant upon the prescription of the particular drugs concerned, over a prolonged period should have been obvious to any competent medical practitioner. Dr Jansz not only failed his patient, in not insisting upon compliance with his referrals, but he also failed himself by not recognising his own limitations and inexperience and obtaining relevant specialist input.
4. The Tribunal finds that the relevant acts and omissions of Dr Jansz constitutes unprofessional conduct of a serious nature and where alleged by the Board, also constitutes professional misconduct having regard to the gravity of the misconduct, the period of time over which treatment took place and the high risk to the Patient of complications from severe drug dependency including death.
5. In the Tribunal's view, notwithstanding Dr Jansz's apparent belief that he was acting in the Patient's best interests and his view (which seems misguided) that she would not receive any medical care if he was to refuse to continue treating her, his medical management of the Patient amounted in effect to a very serious neglect of her welfare in the face of what Dr Jansz should have recognised as a grave deterioration in her condition over time. Dr Jansz demonstrated a serious and disturbing lack of knowledge in the appropriate use and likely long-term effects of the range of narcotic medication which he prescribed for the Patient. He also demonstrated a serious inability to seek and/or follow through with obtaining special advice in relation to the continued medical management of this patient and further diagnostic investigations as the underlying cause of pain.
6. The explanations given by Dr Jansz and often reluctant and/or limited admissions and concessions which he made under persistent cross-examination demonstrate a continuing lack of insight into the nature and extent of his misconduct.

1. In view of the serious nature of the conduct in question the Tribunal did consider whether cancellation of Dr Jansz's registration rather than mere suspension was more appropriate.
2. The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he/she must reapply after the period specified. He/she is not guaranteed that he will be so re-registered. He/she must satisfy the Board that registration is appropriate and that he/she fulfils the qualifications for general registration set out in sections 5 and 6 of the HPR Act.
3. Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.
4. There are cases where deregistration is the only option likely to protect the public from a doctor's serious misconduct. For instance, where the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender.[389]
5. In Craig v Medical Board of South Australia, where reprehensible conduct of a psychiatrist occurred many years earlier but had not been not repeated, the Tribunal accepted that there was negligible risk to the public and determined that a suspension of registration was more appropriate.
6. In this case we do not accept that Dr Jansz made a mere error of judgment. His conduct involved a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence. Furthermore, over a lengthy period of time, his conduct fell short of, to a substantial degree, the standard of professional conduct observed by members of the medical profession of good repute or competency.
7. We accept that the question of whether the conduct is likely to be repeated is very significant when considering interference with a doctor's right to practice. In Mullany v Psychologists Registration Board [390] (a case in which a nine month suspension of a psychologist who unsuccessfully attempted to pressure a patient into a sexual relationship was set aside and replaced with a reprimand), the Psychologists Registration Board was criticised by the Supreme Court for giving inadequate weight to this issue:-

"Nowhere in the reasons is any mention made of the question of the likelihood of repetition whether he has learned from his experience of being the subject of a complaint and later an enquiry and whether there was any need at all to protect the public from the professional activities of the appellant."

1. Nevertheless the risk of repetition of the impugned conduct is only one factor and deregistration may still be warranted even where sufficient safeguards can be placed around the offending doctor to prevent him or her being given a similar opportunity to offend again.
2. The determination of the Tribunal in this case must convey a strong message to other medical practitioners that the conduct in question involved a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence; and fell short of, to a substantial degree, the standard of professional conduct observed by members of the medical profession of good repute or competency. In addition it must convey to other patients that they will be protected from such conduct. These objectives are paramount notwithstanding that the risk of repetition of the offending conduct may be minimal.
3. In Dr Jansz's case, we accept the Board's submission that he cannot currently be regarded as being at no risk of similar conduct in future. By his conduct Dr Jansz has demonstrated serious deficiencies in his medical knowledge and personal capacity to manage patients and reflect upon the efficacy of treatment.
4. However, we have concluded that, given his relative youth and inexperience, if he were subject to deregistration for an extended period then his ability to re integrate into general medical practice may be severely undermined. Accordingly we have concluded that the standards of the profession can be maintained and public confidence in the profession protected in this case just as well by a period of suspension, rather than cancellation of his registration to practise, but combined with a comprehensive set of conditions directed at addressing his significant professional and personal deficits.
5. It is recognized that a period of suspension should not be seen as a trivial order and is in itself a determination of a most serious nature to the doctor.
6. We have considered how long we should suspend Dr Jansz's right to practise. We have examined a range of cases. However, the penalty to be imposed cannot be ascertained merely by comparing decided cases. In each case it is the gravity of departure from the standard which must be addressed. Otherwise, the risk is that the standards of the profession will be set by the worst cases.[391]
7. In all the circumstances, we have determined that an appropriate period of suspension is twelve months.
8. In setting the period of suspension, we take into account the fact that Dr Jansz has continued in practise since the date of the notifications to the Board without apparent problems and has made certain changes to the conduct of his practice with a view to minimizing the risk of further misconduct on his part.

1. We have also considered whether or not a reprimand should be given, in addition to a period of suspension.
2. A reprimand is not of itself a trivial sanction:

It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications."[392]

1. In our view, a reprimand will have the salutary effect of underscoring the seriousness of the doctor's misconduct and serve as a warning to other practitioners that his actions and omissions were seriously wrong and fell significantly below professional standards.
2. A reprimand also serves as an acknowledgement to members of the public that the doctor's conduct fell significantly below those standards.

1. A significant component of the determinations to be made seek to address specific identified deficiencies in Dr Jansz's medical practice of both a professional and personal nature. It is incumbent upon the Board to ensure that the conditions imposed during the period of suspension and the conditions of future medical registration be undertaken and completed to the satisfaction of the Board. To that end there will be imposed conditions upon Dr Jansz to provide written reports to the Board and to procure written reports from those practitioners who provide counselling supervision and training.
2. It is proposed to order that Dr Jansz undertake an intensive period of psychotherapy addressing issues of appropriate professional and personal assertiveness; the development of insight; and the ability to reflect on patterns of behaviour, practice and management, especially in a professional context.
3. It is proposed to order that Dr Jansz undertake and complete at his own expense an individualised structured program with Turning Point. The program should be formulated by a Turning Point addiction medicine specialist who has been provided with a copy of these Reasons for Determination and should include observational clinical placement if appropriate. The program should be submitted to and agreed upon by the Board. The learning objectives of the program are to include: recognising and diagnosing drug dependency and drug addiction; assessment of drug dependent patients; management of opioid, benzodiazepine and other drug dependencies; the legal framework (including the permit and notification system) and legal issues involved in prescribing; and management of chronic pain. Within 3 months of completion of the program by Dr Jansz, the addiction medicine specialist is to provide a report to the Board, and a copy to Dr Jansz, describing the learning objectives covered and commenting on the outcome of the program, including any recommendation for further learning to address gaps or refresher sessions. Dr Jansz is to undertake, at his own expense, any such further learning and refresher sessions.
4. It is proposed to order that Dr Jansz undertake, at his own expense, such further courses conducted by Turning Point and/or the Royal Australian College Of General Practitioners or other suitable organisation, as required by the Board, if any, dealing with the matters the subject of the learning objectives referred to above and including if appropriate courses such as 'Making Sense of Experience - Evaluation and Reflective Practice'.
5. It is proposed to order that following the period of suspension, Dr Jansz's medical registration be subject to the following conditions for a minimum period of 12 months or such longer period as may be determined by the Board:

**(a) That Dr Jansz obtain employment with an accredited general practice;

(b) That Dr Jansz be supervised and mentored by an experienced full time senior general practitioner in the same practice, approved by the Board;

(c) That during the first 12 months of practice following the period of suspension, Dr Jansz shall only prescribe drugs under Schedule 8 under the supervision of his supervisor;

(d) That Dr Jansz shall not attend to more than 4 patients per hour;

(e) That Dr Jansz shall report in writing to the Board at intervals no later than 3 months; 6 months and 12 months after recommencing practice detailing his ongoing professional education and development, including his development of insight and his ability to reflect upon his practice of medicine.**

1. The Final Orders are set out at the commencement of these reasons.

Allegations referred to VCAT pursuant to section 59(2)(g) of the HPR Act

1. Between in or about 1999 and 30 June 2007, Dr Carl Radford George Jansz (Dr Jansz) engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of 'unprofessional conduct' in section 3(1) of the Medical Practice Act 1994 (MP Act) in that he prescribed and/or administered inappropriate and/or excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient in circumstances:
   • (a) where there was no therapeutic need for such prescription and/or administration and/or the doses and/or the frequency of drugs of dependence so prescribed; and/or
   • (b) where he knew or ought to have known the Patient was exhibiting drug-seeking behaviour; and/or
   • (c) where he failed to take effective steps to reduce and/or properly manage the Patient's use of those drugs of dependence, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication; and/or
   • (d) where he failed to take effective steps to adequately ensure that drugs of dependence so prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was self-administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication; and/or
   • (e) where the doses of drugs of dependence so prescribed and/or administered to the Patient exceeded the doses that Dr Jansz was permitted to prescribe pursuant to permits held by him and/or the maximum recommended dosage for such medication.

1. Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that his medical management of the Patient was inappropriate and/or inadequate.

(a) Dr .Jansz failed to ensure that his prescribing and/or administration of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient was adequately and effectively coordinated with the prescribing and/or administering of the same or similar medication by other services, such as locum providers.

(b) Dr Jansz failed to take effective steps to reduce and/or properly manage the Patient's use of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication.

(c) Dr Jansz failed to take effective steps to adequately ensure that drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was se1f administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication.

(d) Dr Jansz's prescribing and/or administration of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient exceeded the doses that Dr Jansz was permitted to prescribe pursuant to permits held by him and/or the maximum recommended dosage for such medication.

(e) Dr .Jansz failed to recognise that the Patient may have been experiencing serious side-effects, with resulting symptoms such as falls and accidents, from the high doses of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines he had prescribed and/or administered to her.

(f) Dr .Jansz failed to appropriately or adequately follow up referrals made for the Patient, and/or re-refer the Patient, to pain management clinics when she did not attend those referrals and/or, when she did so attend a referral or referrals, failed to adequately act on recommendations made as a result of that referral or those referrals.

(g) In approximately 2004 or 2005, on a date unknown, Dr Jansz declined to listen to concerns from the Patient's family members regarding the Patient's use of addictive medication in circumstances when it may have been of benefit to Dr Jansz's treatment of the Patient to have heard those concerns.

(h) Dr .Jansz failed to monitor the Patient's liver functioning with the frequency her circumstances reasonably required, given that the Patient was, during this period:

(i) prescribed and/or administered large quantities of medications, the effect of which could potentially be affected by liver function;

(ii) prescribed and/or administered high doses of paracetamol, a medication which can detrimentally affect the liver if taken in excessive doses; and

(iii) a person whom Dr Jansz knew or ought to have known was overusing and/or abusing medication prescribed and/or administered to her.

1. Between in or about 1999 and 30 June 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he failed to maintain adequate medical records by failing to document the medical rationale for the medication and/or the dosage and/or the frequency of medication prescribed and/or administered to the Patient.

1. Between in or about 1999 and 29 March 2000, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he prescribed and/or administered drugs of dependence, including but not limited to morphine, to the Patient in circumstances where he did not hold a permit for such prescription and/or administration and where he knew or ought to have known that he was required to hold a permit for such prescription and/or administration.

1. Between December 2002 and December 2005, Dr .Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he post-dated prescriptions in respect of the Patient.

(a) On 12 December 2002, Dr .Jansz wrote prescriptions for the Patient post-dated to 24 December 2002

(b) On 3 June 2004, Dr .Jansz wrote prescriptions for the Patient post-dated to 7 June 2004.

(c) On 23 December 2005, Dr Jansz wrote prescriptions for the Patient post-dated to 24 December 2005.

1. Between on or about I July 2007 and 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (d) of the definition of 'unprofessional conduct' in section 3(1) of the Health Professions Registration Act 2005 (HPR Act) or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act in that he prescribed and/or administered inappropriate and/or excessive drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient in circumstances:
   • (a) where there was no therapeutic need for such prescription and/or administration and/or the doses and/or the frequency of drugs of dependence so prescribed; and/or
   • (b) where he knew or ought to have known the Patient was exhibiting drug-seeking behaviour; and/or
   • (c) where he failed to take effective steps to reduce and/or properly manage the Patient's use of those drugs of dependence, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication; and/or
   • (d) where he failed to take effective steps to adequately ensure that drugs of dependence so prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was self administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication.

1. Between in or about 1 July 2007 and 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act, in that his medical management of the Patient was inappropriate and/or inadequate.

(a) Dr Jansz failed to ensure that his prescribing and/or administration of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, to the Patient was adequately and effectively coordinated with the prescribing and/or administering of the same or similar medication by other services, such as locum providers.

(b) Dr .Jansz failed to take effective steps to reduce and/or properly manage the Patient's use of drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, in circumstances where it was clear to him, or should have been clear to him, that the Patient was overusing and/or abusing that medication.

(c) Dr Jansz failed to take effective steps to adequately ensure that drugs of dependence, including but not limited to codeine, morphine, oxycodone and benzodiazepines, prescribed to the Patient were appropriately and/or safely administered by her and/or to her, in circumstances where he knew or ought to have known that the Patient was self administering that medication and/or allowing others who were not appropriately trained or otherwise appropriately qualified to administer that medication.

1. On 16 August 2007, Dr Jansz engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act in that he wrote a prescription for the Patient post-dated to 18 August 2007.

Table A records the Schedule 8 permits held by Dr Jansz in relation to the Patient:

Table B records the Schedule 8 permits held by other medical practitioners in relation to the Patient:

Table C records all of the Schedule 8 permits held in relation to the Patient:

[4] Pursuant to section 184 of the Health Professions Registration Act 2005 (Vic).

[5] Established 1 July 2010 pursuant to section 31 of the Health Practitioner Regulation National Law (Victoria) Act 2009_._

[6] Pursuant to section 59(2)(g) of the Health Professions Registration Act 2005 (Vic).

[9] [1938] HCA 34; (1938) 60 CLR 336.

[10] Paragraph 4 of the Respondent Counsel's written submissions.

[11] [2010] VCAT 2040 at paragraph 8.

[12] [2010] VCAT 2126.

[13] [2009] VCAT 419 at paragraph 25.

1. [14] The Act, which commenced on 1 January 2010, is based on the provisions of the Model Uniform Evidence Bill which is based on the Evidence Act 1995 _(_NSW) and Evidence Act 1995 (Cth) with amendments as recommended in Australian Law Reform Commission [ALRC] Report 102.

[15] Clean Ocean Foundation Inc v Environment Protection Authority [2003] VSC 335; (2003) 20 VAR 227 per Balmford J at [27].

[16] Golem v Transport Accident Commission (No 1) [2002] VCAT 319; (2002) 19 VAR 265.

[17] A and B v Director of Family Services [1996] ACTSC 48 at [27].

[18] [1986] FCA 51; (1986) 65 ALR 83 at 97.

[19] [2010] VCAT 1613 at [124]-[129].

[20] [2008] FCAFC 69 (2 May 2008).

[22] The Court of Appeal observed in that case that 'it is well accepted that the test to be applied under section 140(2)(c) is the Briginshaw test.

[24] [2007] FCAFC 132; (2007) 162 FCR 466.

[25] [1992] HCA 66; (1992) 67 ALJR 170.

[26] According to Cross on Evidence Australian Edition on line at [9130] footnote 2 section 140(2) "corresponds with common law principles" citing Briginshaw and other cases.

[27] Per Mason CJ, Brennan Deane and Gaudron JJ at 171.

[29] [2001] SASC 169; (2001) 79 SASR 545.

[30] Supreme Court of Victoria (unreported) 22 December 1997.

[32] Myers v Elman [1940] AC 282 at 288-289.

[33] Q_idwai v Brown_ [1984] 1 NSWLR 100 at 105.

[34] Per Justice Mandie in Campbell v The Dental Board of Victoria [1999] VSC 113 at [23]- [24].

[35] [1999] VSC 113 at [23]- [24].

[36] [2004] VCAT 1044 at [33].

1. [37] [1987] 1 WLR 564 at 569-570.

[38] Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 per Kirby P adopting statements of principle from American authorities.

[39] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 per Gleeson CJ, Meagher and Handley JJ.

1. [40] Unreported, VCAT, 2 December 1998. (1998) 16 VAR 118; Subsequently referred to with approval by Justice Ashley in Domburg v Nurses Board of Victoria [2000] VSC 369 at [59].

[41] [2005] VCAT 1058 at [7].

[42] Kozeniausks v Dental Practice Board of Victoria (2005) VCAT 1058 at para 7 per Morris J.

[43] Parr v Nurses Board of Victoria (1998) 16 VAR 118.

[44] Kozeniausks v Dental Practice Board of Victoria (2005) VCAT 1058 at para 7 per Morris J.

[45] Vissenga v Practitioners Board of Victoria (2004) VCAT 1044 at paras 32 and 33.

[46] Gee v General Medical Council (1987) 1 WLR 564; Felix v General Dental Council (1969) AC 704 at p 721.

1. [47] Domburg v Nurses Board of Victoria (2000) VSC 369 at para 59 per Ashley J; Parr v Nurses Board of Victoria (1998) 16 VAR 118 per Kellam J.

[48] Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 at [33].

[49] [1940] AC 282 at 288-289.

[50] Citing Re a Solicitor; Ex parte Law Society [1912] 1 KB 302.

[51] [1960] AC 704.

[52] [1960] VicRp 96; [1960] VR 617 at 622.

[53] Unreported, Supreme Court of Victoria, 22 December 1997 at p 9.

[54] [1984] 1 NSWLR 100 at 105.

1. [55] Under s27(1)(c) of the Medical Practitioners Act 1938 (NSW) which by that stage had omitted the pejorative adjective "infamous".

[56] [1965] NSWR 30.

[57] (1989) 16 NSWLR 197, particularly at p 200 per Kirby P. Approved by Eames J in McGrath v Medical Practitioners Board, unreported, Supreme Court of Victoria, 1 November 1996.

1. [58] [1999] VSC 113 at [23]- [24].

[59] [1990] 1 Qd R 498 at 507.

[62] Tribunal Book 123-124; The records of the Durrant Clinic where the Patient attended Dr Jansz indicates the dosage rates of drugs that were to be dispensed each few days from McKinnon pharmacy.

[67] Applicant's Counsel: 7, 18 & 22 March 2011; Respondent's Counsel: 13 & 22 March 2011.

[68] Tribunal Book 835; report of 17 May 1999 addressed to Dr Orbach.

[69] Tribunal Book 836; report dated 11 June 1999 addressed to Dr Orbach.

[70] Tribunal Book 839; report dated 22 June 1999 addressed to Dr Orbach.

[71] Tribunal book 840; report dated 6 July 1999 addressed to Prof. Dudley.

[72] Tribunal Book 844; report dated 24 September 1999.

[73] Tribunal Book 845; report dated 30 September 1999.

[76] Tribunal Book 862; report of lumbosacral spine dated 25th July 2000.

[77] Tribunal Book 863; report dated 27 July 2000.

[78] Tribunal Book 875; report dated 2nd February 2001.

[80] Tribunal Book 147-148; report dated 9 August 2007.

[81] Tribunal Book 101-105; Statement dated 3 October 2007.

[83] Tribunal Book 151 dated 19 October 2009.

[92] Tribunal Book 123; including morphine injection 15mgm & 30 mgm; Antenax (Diazepam) tablets 5mgm; promethazine injection 50mgm; phenobarbitone tablets 30mgm; Largactil (chlorpromazine) injection 50mgm.

[94] The Patient did attend Dr Monheit but his report was not seen by Dr Jansz until after her death.

[143] Report dated 5th October 2008, Tribunal Book 142-146; and Report dated 23rd September 2010, Respondent's Tribunal Book 4-6.

[144] Report of Dr Freeman, 5 October 2008, Tribunal Book 142 and 146; Report of Dr Freeman, 23 September 2010: Respondent's Tribunal Book 4; Transcript 141. Dr Carr said that in this regard Dr Freeman may have been correct but observed that if this was so it was Dr Jansz's responsibility to "be very, very cautious about addictive medications because people with that diagnosis tend to be at very high risk of medication misuse and misadventure": Transcript 96-97.

[149] Report of Dr Freeman, 23 September 2010: Respondent's materials, at p 6.

[150] Report of Dr Freeman, 23 September 2010: Respondent's materials, at p 5.

[151] Report of Dr Freeman, 23 September 2010: Respondent's 152 Tribunal Book at p 5.

[153] Report of Dr Freeman, 23 September 2010: Respondent's materials, at p 6.

[154] Report of Dr Freeman, 23 September 2010: Respondent's materials, at 6.

[155] Transcript, at p 167. See also Transcript, at p 206.

[171] Transcript 334, 356, 364 (where he was still unprepared to accept that this was a "significant failing", although by p 365 he made the concession under persistent cross-examination), 367, 375.

[172] Transcript 343, but see p 378 where all that he was prepared to say was "I regret I could've done things better. That's correct."

[173] Transcript 374; 389-392 (in response to questions from the Tribunal).

[178] See eg Transcript 239 in relation to interactions with the Patient in relation to her failure to attend Dr Mendelsohn, and also Dr Chatz (Transcript 240). See also the erroneous references to fibromyalgia: Transcript 270-271, 393 (in relation to questions from the Tribunal). See also the failure to explain in his documentation why he significantly increased the Patient's medication: Transcript 322.

[181] Eg in respect of at least the Benzodiazepines and the use of short-acting opiates.

[182] The trial of MS Contin in August 1999 appears to have been for two days and stopped on the basis of a report that it was 'not working". See Transcript 105.

[199] Refer also to reports of Professor Dudley above.

[204] Transcript 345 under cross-examination.

[207] See consultation 23 November 2003, CB.539; Transcript 381.

[209] As evidenced by her reports of side-effects and her disorientation and falls.

[211] (T.242, T.244, T.248, T.249, T.250, T.261, T.262, T.263, T.264, T.449, T.441, T.448).

[218] Transcript 97, 106, 107, 108, 116, 144, 145.

[222] A point made at p 11 of the Respondent's submissions.

[223] Transcript 372. That proposition was accepted by Dr Jansz.

[226] Transcript 127 (Dr Carr); Transcript 153 (Dr Freeman), "ring them up and say 'Woops'. I made a mistake. There was a reason for the mistake/ I do or I don't need to increase the amount on the permit and those are my plans."

[228] Paragraphs 20-21 of his submissions.

[230] Para 23(f) and (g) of his submissions.

[233] Tribunal Book 216 Report of Dr Carr.

[240] Transcript 84. cf Dr Freeman, at Transcript 155, although she agreed that Phenobarbitone had been superseded for decades by benzodiazepines: Transcript 161.

[247] A proposition advanced to some degree by Dr Freeman: see Transcript 147.

[250] Tribunal Book 436; and at Transcript 245, 246.

[251] 2001 Tribunal Book 460, Transcript 351.

[256] Refer Ms ED paras 106-109 above; and Ms YD paras 112-115 above and Transcript 54-55.

[260] Transcript 74; See too Transcript 80-81 where Dr Carr described this as a "severely compromising situation".

[261] See also oral evidence at Transcript 258, 259, 364.

[262] Transcript 356, Tribunal Book 636.

[273] There was also a referral to Dr Greenbaum.

[276] Transcript 334, 356, 364 (where he was still unprepared to accept that this was a "significant failing"), although by p 365 he made the concession under persistent cross-examination), 367, 375.

[280] Report of Dr Arnold, 20 June 2007, Tribunal Book, at p 1389-1390.

[290] See too Transcript 64. Ms YD accepted that she did not explicitly raise with Dr Jansz her concerns about the amount of medication her mother was taking: Transcript, at p 60. She also agreed that it may have been on this occasion that Dr Jansz offered to convene a family conference in relation to her mother: Transcript, at p 62. As to this, Dr Freeman regarded such a course of action as "perfectly appropriate": see Transcript, at p 151.

[302] See the erroneous references to fibromyalgia: Transcript 270-271, 393 (in relation to questions from the Tribunal).

[307] Paragraph 97 of submissions of Counsel for the Board.

[309] Transcript 239 in relation to interactions with the Patient in relation to her failure to attend Dr Mendelsohn, and also Dr Chatz (Transcript 240).

[310] See Drugs, Poisons and Controlled Substances Act 1981 (Vic), s33; Tribunal Book 226.

[313] Others did: Dr Orbach (7 November 2001 - 10 June 2003) and Dr Abrahams (16 March 2004 - 15 April 2004).

[314] Tribunal Book 917; see also Tribunal Book 1293.

[315] Transcript, at p 291 (Dr Jansz). She did not go to see Dr Gijsbers at Turning Point: Transcript, at p 292.

[323] This matter was also considered in Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 16 March 2009 at Paras 38-40.

[337] Refer Applicant's submissions dated 7 March 2011 para 118-130; and dated 22 March 2011 para 29-40; and Respondent's submissions dated 13 March 2011 para 42-

[338] See eg Psychology Board of Australia v Mair [2010] VSC 628; Chinese Medicine Registration Board v Woo (Occupational and Business Regulation) [2010] VCAT 753 at [46].

[339] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

[340] [2001] SASC 169 at [41] (Williams and Martin JJ agreeing).

[341] Applied by Blow J in Medical Council of Tasmania v Lad (No 2) [2007] TASSC 69 at [11].

[342] Unreported, Supreme Court of Tasmania, unreported 42, 1981 at pp15-16.

[343] See too Martin v Medical Complaints Tribunal [2006] TASSC 73 at [21].

[344] Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97] per Gillard J.

[345] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 November 1997 per Harper J at p 12; Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J at p 12.

[346] Adamson v Pharmacy Board of Tasmania (No 3) [2004] TASSC 88 at [2] per Evans J.

[347] See eg Law Society of New South Wales v Bannister, unreported, NSW Court of Appeal, 27 August 1993 per Sheller JA; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471.

[348] See eg Papps v Medical Board of South Australia [2005] SASC 345 at [54]- [65]; Law Society of New South Wales v Bannister, unreported, NSW Court of Appeal, 27 August 1993 per Sheller JA.; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471; Health Care Complaints Commission (HCCC) v Cox-May (No 1) [2007] NSWPST 6; Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997; Jansz v Medical Practitioners Board of Victoria [2007] VCAT 526 at [14]- [16]; Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 at [128]; Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 at [45]; Von Schrenk v Dental Practice Board of Victoria [2008] VCAT 2302 at [100]; Chinese Medicine Registration Board v Woo (Occupational and Business Regulation) [2010] VCAT 753 at [44].

[349] Kotowicz v Law Society of NSW, unreported NSW Court of Appeal, 7 August 1987. See too Psychology Board of Australia v Mair [2010] VSC 628.

[350] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J at p 13.

[351] Buttsworth v Walton [1991] NSWCA 40 at p 8 per Samuels JA.

[352] Buttsworth v Walton [1991] NSWCA 40 at p 8 per Samuels JA.

[353] Varnavides v Dental Board of Victoria, unreported, Vic Sup Ct, 1 May 1998 per Mandie J.

[354] See eg Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 at [45]; Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 at [8]; Williams v Medical Board of Victoria [2008] VCAT 1784 at [99]; See too Chinese Medicine Registration Board v Antoniades, unreported, VCAT, 20 September 2010 at [45]. Morris v Psychologists Registration Board, unreported, Supreme Court, 19 December 1997 per Harper J.

[355] Buttsworth v Walton [1991] NSWCA 40 at p 8.

[356] Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 414. See too Chinese Medicine Registration Board v Antoniades, unreported, VCAT, 20 September 2010 at [46].

[357] Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 415.

[358] Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 415.

[359] See eg Jansz v Medical Practitioners Board of Victoria [2007] VCAT 526.

[360] Buttsworth v Walton [1991] NSWCA 40; see also MPBV v Stephanopolous (2006) MPBV 12 at p27 para 113.

[361] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p 6.

[362] Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].

[363] He commenced at Medi-7 in Bentleigh in 1998 and at the Durrant Street practice in 2001.

[377] See eg Transcript 335-336, 338-339.

[382] This was the approach at least in part adopted by the Medical Practitioners Board in Re Dr John Gyorki [2004] MPBV 21; Re Dr Paul Green [2005] MPBV 6; Re Dr Peter White [2006] MPBV 6; Re Dr Carl Grace [2009] MPBV 12; Re Dr Stephen Larkins [2010] MPBV 3L, all of which bear some features in common with the current case. These decisions are to be found at http://www.ahpra.gov.au/Notifications-and-Outcomes/Hearing-Decisions/Medical/Medical-Practitioners-Board-of-Victoria/Formal-Hearings.aspx

[383] As asserted at paragraph 47(a), p 31 of his submissions.

[386] See paragraph 28 of the Applicant's primary submissions.

[387] Respondent's submissions at paragraph 22(b) and following.

[388] See http://www.turningpoint.org.au/Education/Graduate-Programs/Subjects.aspx for courses run by Turning Point.

[389] Refer in particular to the findings of the Tribunal in Traill v Medical Practitioners Board (2006) VCAT 1920; and Harper J in Morris v Psychologists Registration Board Supreme Court of Victoria (unreported ) 19 December 1997.

[390] Supreme Court of Victoria (unreported) 22 December 1997 BC9707652 5734 of 1997 per Gillard J at 20.

[391] As noted in Healthcare Complaints Commission v Litchfield, 41NSWLR630 at 638.

[392] Peeke v Medical Board of Victoria (unreported) 19 January 1994.