Medical Board of Australia v Kioussis (No. 2) (Review and Regulation) [2025] VCAT 376

1. Under section 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal finds the respondent engaged in:

(a) Professional misconduct with respect to Allegation 1 as defined by meanings (a) and (c); and

(b) Professional misconduct with respect to Allegation 2 as defined by meaning (a);

1. Under section 196 of the National Law, the Tribunal determines that the respondent:

(a) Is reprimanded - section 196(2)(a); and

(b) Is disqualified for two years from the date of these orders from applying for registration as a registered health practitioner - section 196(4)(a); and

(c) Is prohibited from providing any health service (as defined in the National Law) until, following him applying to the applicant for reregistration, he is reregistered as a medical practitioner - section 196(4)(b)(i).

1. In March 2024, the Medical Board of Australia (the Board), under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law)[1] referred allegations against Dr John Kioussis to VCAT.
2. Allegation 1 was that from 2001 to 2019, Dr Kioussis inappropriately and/or dangerously prescribed Schedule 4 and Schedule 8 medications and/or drugs of dependence outside the Drugs Poisons and Controlled Substances Act 1981 (Vic) (DPSC Act) and Drugs Poisons and Controlled Substances Regulations 2017 (Vic) (DPSC Regulations) to four patients, including by:
   1. prescribing in excessive amounts and/or where prescribing was not clinically indicated;
   2. prescribing drugs of dependence to drug-dependent patients including in combinations that risked interacting;
   3. failing to provide good patient care; and/or
   4. failing to undertake appropriate assessments or investigations.
3. Allegation 2 was that from 2013 to 2019, Dr Kioussis failed to make and/or maintain adequate clinical records in relation to his treatment of and prescribing to the same four patients.
4. By the time the referral came to hearing on 27 February 2025, the Board submitted VCAT should find the allegations proven and that the proven conduct constituted professional misconduct under definitions (a) and (c) in the National Law.
5. The Board sought determinations that Dr Kioussis be:

a) Reprimanded under section 196(2)(a) of the National Law; > > b) Disqualified from applying for reregistration for six years under section 196(4)(a) of the National Law; and > > c) Prohibited from providing any health service until registered as a health practitioner under section 196(4)(b)(i) of the National Law.

6. Despite invitation to do so, Dr Kioussis did not participate in this proceeding.
7. This is the second time that Dr Kioussis has at VCAT been the subject of allegations under the National Law.
8. In 2019, VCAT found four allegations against him proven related to failures in clinical care and found Dr Kioussis had engaged in professional misconduct concerning two allegations and unsatisfactory professional performance concerning two allegations.
9. As recorded in Medical Board of Australia v Dr Kioussis (Review and Regulation) [2019] VCAT 1961 (Kioussis No. 1), VCAT cancelled his registration and reprimanded him. VCAT did not impose a disqualification period on Dr Kioussis seeking re-registration.
10. By 'VCAT listings coincidence', Deputy President Proctor and Dr Warfe, two members of the panel in this case, were two members of the panel in 2019.
11. In discussion at the beginning of the hearing in this case, neither the Board nor the current panel were concerned about this. The Tribunal's view is that the 2019 participation does not create a risk in 2025, that a reasonable bystander might think that the panel in this case might be biased.[2]
12. That said, we view that decision as important context here.

1. The Board made submissions referencing a 1,310 page Tribunal Book and was given leave to provide a short supplementary submission.
2. The Tribunal reserved its decision, now given with these reasons, including the following summary of Kioussis No. 1

1. In Kioussis No. 1, where Dr Kioussis participated at VCAT, the Tribunal found he had engaged in professional misconduct by: [3]

a) From August 2013 to May 2016, ignoring education conditions related to time management, report writing, record keeping and general practice management; and > > b) Between July 2014 to June 2015, twice failing to refer Patient DT in a timely manner to a specialist gynaecologist for diagnosis and treatment in circumstances where appropriate management of patient DT's condition required an urgent referral to a specialist gynaecologist. Patient DT was later diagnosed with cancer. She died in 2016.

2. VCAT also found Dr Kioussis had engaged in unsatisfactory professional performance by between August 2013 and June 2017, failing to establish and maintain adequate systems for ensuring that test results and other clinical correspondence received by him were acted on in a timely manner; and maintain an adequate system for recording clinical notes. [4]

1. Dr Kioussis was reprimanded and his registration was cancelled. The reasons say [from 245]:

Dr Kioussis' failure, over years, to effectively grapple with the severe problems confronting him, with severe problems ongoing, clearly warrants cancellation of his registration as a health practitioner under them National Law.

That Dr Kioussis remain without registration as a health practitioner (his registration already suspended as discussed above) is warranted in the cause of specific deterrence, general deterrence and to maintain the reputation of the medical profession.

Concerning specific deterrence, Dr Kioussis must be deterred from further inappropriate conduct, that being him, when severely challenged engaging in professional misconduct and unsatisfactory professional performance as found in this proceeding.

Concerning general deterrence, this case is a stark example to other practitioners of the consequences of failing to deal with the challenges that may arise over a professional career.

Also, the strongest action must be taken to assure the public that appropriate standards are being maintained within the relevant profession. Dr Kioussis' failures put patients at risk and adversely affected the service he provided to patients.

Being conscious that patient DT's relatives are likely to read these orders and reasons, we are of course deeply concerned as to apparent failures of referral. That said, it is not our role in this case, to make findings about any causation between Kioussis' conduct and her death.

With Dr Kioussis exclusion from medical practice to continue, it is appropriate to cancel rather than suspend his registration.

While Dr Hopwood and Mr Cummins expressed some confidence as to Dr Kioussis' future health, in late December 2019 we cannot be confident that he will be fit to resume practice at the end of a period of suspension. Whether in the future he is to be reregistered will be a matter for the Board, if he seeks reregistration, based on the evidence at that time.

If Dr Kioussis had ultimately sought suspension, with conditions to be satisfied before return to practice, we would have rejected this. It is not necessary here to detail why we would have concluded, as the Board submitted, that it would not be feasible to foresee the future and fashion appropriate conditions.

What is appropriate is to cancel Dr Kioussis' registration, without imposing a minimum time in which he may apply to the Board for registration. In this case, the imposition of a minimum time, is more than is required and would constitute impermissible punishment.

If Dr Kioussis seeks reregistration at some point in the future, the Board will consider his application, equipped with the evidence of that time.

Finally, Dr Kioussis must be reprimanded for his conduct which in our view, constitutes professional misconduct and unsatisfactory professional performance. As often observed, reprimand is a serious form of censure and condemnation, combined with a finding of professional misconduct .

We are particularly concerned that over the long course of events relevant to this case, Dr Kioussis regarded his views on medical practice as superior to that of the Board and medical practitioners who examined his practice, such that he chose not to comply with assistance he was offered, by way of conditions and supervision.

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

1. Dr Kioussis has not sought reregistration.
2. We now turn to the allegations in this case.

Allegation 1 - inappropriate prescribing and/or medical management

1. The Board alleged[5] that from about 2001 to about March 2019, Dr Kioussis engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law in that he:

a) inappropriately and/or dangerously prescribed Schedule 4 and Schedule 8 medications and/or drugs of dependence outside of the DPCS legislative framework to four patients; and/or > > b) did not adequately manage the patients,

including by prescribing in excessive amounts and/or where not clinically indicated, prescribing drugs of dependence to drug-dependent patients including in combinations that risked interacting, failing to provide good patient care and/or failing to undertake appropriate assessments or investigations.

1. Allegations 1 and 2 referenced Dr Kioussis being registered as a medical practitioner since December 1984, at all material times remaining registered, holding general and specialist registration and practising at a medical clinic in Carnegie.

1. The allegation sets out the DPSC legislative framework (as relevant), which we adopt.
2. Under regulation 10 of the DPCS Regulations, a special Schedule 8 permit is required if:

a) a registered medical practitioner considers it necessary to issue a prescription for, supply, authorise the administration of or administer a Schedule 8 poison to a patient of the practitioner; > > b) the Schedule 8 poison is a special Schedule 8 poison; > > c) the patient is not a drug-dependent person; > > d) section 34 of the DPCS Act does not require the practitioner to apply to the Secretary of the Department of Health and Human Services for a Schedule 8 permit; and > > e) the prescription, supply, authorisation or administration is not authorised by sections 34D, 34E or 34F of the DPCS Act.

3. From March 2009, and before the repeal of section 33 of the DPCS Act on 1 July 2018, sections 33(3) and (4) of the DPCS Act said that a registered medical practitioner who has reason to believe that one of his or her patients is a drug-dependent person must give a notification of drug dependence to the Secretary, as soon as practicable, if the practitioner intends to treat or is treating the patient with a Schedule 8 poison or a Schedule 4 poison which is also a drug of dependence.
4. Under section 34(1) of the DPCS Act, a registered medical practitioner who considers it necessary to administer, supply or prescribe a Schedule 8 poison to or for one of his or her patients who is a drug-dependent person must apply to the Secretary for a Schedule 8 permit.
5. Under section 34(2) of the DPCS Act, subject to 34(3), a registered medical practitioner who considers it is necessary to administer, supply or prescribe a Schedule 8 poison for a continuous period greater than eight weeks to or for one of his or her patients who is not a drug-dependent person must apply to the Secretary for a Schedule 8 permit.
6. Section 34(3) says that a registered medical practitioner must apply for a Schedule 8 permit if the practitioner has reason to believe that one of his or her patients who is not a drug-dependent person has been, or is currently being, prescribed a Schedule 8 poison by one or more other practitioners; considers it is necessary to prescribe a Schedule 8 poison to or for that patient and the total period of prescription of a Schedule 8 poison to that patient would be a continuous period greater than eight weeks.
7. Under section 34B of the DPCS Act, a registered medical practitioner must not at any time prescribe Schedule 8 poisons to a person who he or she has reason to believe to be a drug-dependent person unless the practitioner holds a Schedule 8 permit.
8. Under section 34C(1) of the DPCS Act, a registered medical practitioner must not prescribe a Schedule 8 poison to or for a person who is not a drug-dependent person for a continuous period greater than 8 weeks, unless they hold a permit or are otherwise authorised to do so.
9. Under section 34C(2) of the DPCS Act, a registered medical practitioner must not prescribe a Schedule 8 poison to or for a person who is not a drug-dependent person without a Schedule 8 permit or other authority if the total period of the prescription would be a continuous period greater than eight weeks.
10. Alprazolam, hydromorphone, morphine and oxycodone are Schedule 8 poisons as declared by the Poisons Standard and drugs of dependence as identified in Schedule 11 of the DPCS Act.
11. Methylphenidate is a special Schedule 8 poison under the DPCS Regulations.
12. Diazepam and oxazepam are Schedule 4 poisons as declared by the Poisons Standard and drugs of dependence as identified in Schedule 11 of the DPCS Act.
13. Allegation 1 then addresses Dr Kioussis' treatment of Patients DH, AD, EE and GG.
14. As now discussed, VCAT, accepting evidence concerning\ Dr Kioussis' registration as a general practitioner at the relevant times, until VCAT cancelled his registration in December 2019 and the above analysis of the legislative framework, finds each allegation proven.

1. The Tribunal finds the factual basis of Allegation 1, with respect to Patient DH, proven.
2. We primarily relied on:

a) an April 2019 Interim Report by Mr Max Boyarovsky, Senior Compliance Officer, Medicines and Poisons Regulation, Department of Health and Human Services (Victoria) (the Department) concerning the four patients and medical record keeping (record keeping the subject of Allegation 2); [6] and > > b) a 26 March 2021 Independent Opinion by Dr Matthew Y Frei, Addiction Medicine Specialist concerning the four patients and medical record keeping [7]; and > > c) a 14 December 2024 Supplementary Report by Dr Frei concerning the four patients, including medical record keeping concerning them.[8]

3. Dr Frei has held registration as a medical practitioner since 1988 and in 2005 was conferred as a Fellow of the Australasian Chapter of Addiction Medicine, Royal Australasian College of Physicians' (RACP) Adult Medicine Division.
4. His reports referenced pharmacy records, Dr Kioussis' responses to questions put to him by Ahpra (in writing and in person), SafeScript Data, clinical records held by Dr Kioussis and other medical practitioners, Pharmaceutical Benefits Scheme data (PBS Data) and other medical practitioners including correspondence from medical practitioners to Dr Kioussis about treatment of the patients.
5. We note here, concerning all the patients, that at the time when Dr Kioussis was legally represented, through his legal representatives, concerning Allegation 1 (as it was then) and 'scheduled medication' he:[9]

a) accepted the factual matters alleged against him concerning the four patients; > > b) accepted that his medical practice in relation to the prescription of scheduled medications for the patients was deficient; > > c) submitted that he had developed a 'blind spot' concerning the above, which he should not have; > > d) sought to actively remedy his knowledge and practice of the prescription of scheduled medication by private study, further training and attending courses; and > > e) regretted his past deficiencies.

6. We make the following findings concerning Dr Kioussis prescribing to Patient DH.
7. Between about 2004 and about March 2019, Dr Kioussis provided medical treatment to Patient DH.
8. As evidenced by various correspondence by other medical practitioners, Dr Kioussis believed or had reason to believe that Patient DH was a drug-dependent person.
9. He prescribed to Patient DH:[10]

a) Morphine (between 13 April 2012 and 24 January 2019); > > b) 190,200mg of injectable morphine, equivalent to approximately 298mg per day (between about 30 May 2017 and 24 January 2019); > > c) 2,165 vials of 30mg injectable morphine and 480 vials of 50mg injectable morphine (over a year in or around 2018); > > d) Alprazolam (between 8 May 2013 and 21 November 2018); > > e) 350 alprazolam 2mg tablets, 350 alprazolam 2mg tablets, equivalent to approximately 4-6mg per day (over a year) in or around 2013); > > f) 450 alprazolam 2mg tablets (for a year in or around 2016); > > g) 720 alprazolam 1mg tablets, equivalent to approximately 4-6mg per day, (over a year in or around 2018); > > h) Hydromorphone (between 26 September 2012 and 30 May 2017);

1. 1,680 vials of 50mg injectable hydromorphone (Dilaudid 50mg) (over a year in or around 2013);

j) 1,680 vials of 50mg injectable hydromorphone (over a year in or around 2016); > > k) 2,400 vials of 50mg injectable hydromorphone (Dilaudid 50mg), equivalent to approximately six injections per day (between 14 April 2016 and 30 May 2017;

1. Oxycodone (between 4 June 2012 and 17 December 2018);

m) 480 oxycodone 5mg (Endone 5mg) tablets (over a year in or around 2013); and > > n) 1,800 oxycodone tablets (Endone 5mg), equivalent to approximately two oxycodone tablets per day (between 6 September 2016 and 17 December 2018.

10. Dr Kioussis' prescribing of morphine, alprazolam, hydromorphone, and oxycodone as described at 44(b), (c), (e)-(h), (j)-(l) and (n)-(o) was unlawful and/or inappropriate. He did not apply for or hold a permit to prescribe Schedule 8 poisons to Patient DH as required by sections 34(1), 34(2), 34B and/or sections 34C(1) and (2) of the DPCS Act.
11. Dr Kioussis' prescribing of morphine, alprazolam, hydromorphone, and oxycodone as described at 34(b), (c), (e)-(h), (j)-(l) and (n)-(o) above was unlawful and/or inappropriate. He failed to submit the required notification to the Department under sections 33(3) and (4) of the DPCS Act.
12. From 31 August to 15 November 2018, the Department wrote to Dr Kioussis advising him that a permit was required to treat Patient DH with a Schedule 8 poison.
13. Dr Kioussis did not apply for a permit or otherwise respond to the correspondence. He continued to prescribe morphine and alprazolam to Patient DH.
14. His prescribing of morphine (see 44 (b)-(c)) was inappropriate and/or excessive and/or dangerous because:

a) at times, the quantity (dose and frequency) equated to an average of seven vials of morphine per day or a dose of 200-250mg of injected morphine daily; > > b) during the 12 month period at 44(b), was five times the maximum recommended oral morphine equivalent daily dose; > > c) the quantity carried a significant risk of interaction with other sedating drugs, particularly other opioids and benzodiazepines, including alprazolam; and/or > > d) it exposed Patient DH to risks of harm and/or death.

His prescribing of alprazolam (see 44(e)-(h)) was inappropriate and/or excessive and/or dangerous in that:

a) the quantity prescribed - approximately 4-6mg of alprazolam per day was not reasonable; > > b) the combination of alprazolam with opioids is not clinically justified and is associated with risk of toxic overdose; > > c) it exposed Patient DH to risks of harm and/or death; and/or > > d) the doses of alprazolam together with injectable morphine or injectable hydromorphone were not clinically justified.

His prescribing of hydromorphone (see 44(i)-(k)) was inappropriate and/or excessive and/or dangerous in that:

a) during the second half of 2016, the quantity (dose and frequency) equated to the equivalent of 300mg of injection hydromorphone per day; > > b) at times, the dose that Dr Kioussis directed Patient DH to use was up to forty times the maximum recommended oral morphine equivalent daily dose; > > c) the quantity, dose and formulation (vials) prescribed, particularly concurrently with benzodiazepine therapy, was not reasonable; > > d) Dr Kioussis did not seek an opinion from a specialist about the appropriateness of the treatment; > > e) the prescription of hydromorphone was not clinically justified; and/or > > f) it exposed Patient DH to risks of harm and/or death.

His prescribing of oxycodone (see 44(m)-(n)) was inappropriate and/or excessive and/or dangerous in that:

a) when viewed in the context of concurrent prescriptions for injection opioids and alprazolam, was not a reasonable component of the medicines prescribed; and/or > > b) it was not clinically justified.

Dr Kioussis provided inadequate clinical care to Patient DH. When prescribing for and/or treating Patient DH, he did not:

a) conduct adequate assessments and/or examinations; > > b) undertake frequent and clearly documented reviews; > > c) ensure that there was only a single prescriber; > > d) seek or obtain an opinion from a specialist; > > e) undertake systematic risk monitoring; and/or > > f) implement other safeguards, such as limiting dispensing.

We accepted Mr Boyarovsky's opinions (briefly stated in his Interim Report) on inappropriate, excessive and dangerous prescribing. 20. We also accepted Dr Frei's more detailed analysis and opinion (from both reports) that Dr Kioussis' prescribing of:[11]

a) injectable morphine was not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, substantially below the standard reasonably expected of a registered medical practitioner of Dr Kioussis' training or experience and exposed DH to harm; > > b) hydromorphine, was not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, below the standard that would be reasonably expected from Dr Kioussis, and exposed DH to harm; > > c) alprazolam was not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, below the standard reasonably expected from Dr Kioussis and exposed DH to harm; and > > d) oxycodone was not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, below the standard reasonably expected from Dr Kioussis, exposing DH to 'some adverse effects'.

21. The request for Dr Frei's first report asked whether Dr Kioussis' prescribing of the above drugs to DH, without the requisite permit(s) under the DPCS Act and associated Regulations was either below or substantially below the standard reasonably expected of a registered medical practitioner of his level of training or experience.
22. Dr Frei answered:

I would contend that failure to apply for the requisite permits for Schedule 8 drugs specified in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and associated Regulations almost always reflects a practice that is below a reasonable standard for a prescribing practitioner. In this case, where there has been correspondence from the Victorian Department of Health advising of the doctor of this failure in his professional obligation, where the medication regimen is of a particularly high risk nature and where the rigor around the decision making processes to prescribe is not evident in the clinical notes, the gap between practice and standard can in my opinion be considered substantial.

1. The further data available to Dr Frei for his Supplementary Report did not change his opinion.

1. The Tribunal finds the factual basis of Allegation 1, with respect to Patient AD, proven.
2. We primarily rely on the reports from Mr Boyarovsky and Dr Frei, together with the other evidence referred to above, here with respect to this patient.
3. We make the following findings concerning Dr Kioussis prescribing to Patient AD.
4. Between in or around 2000 and in or around March 2019, Dr Kioussis provided medical treatment to Patient AD. He believed or had reason to believe that Patient AD was a drug-dependent person.
5. Between 16 May 2014 and 22 February 2019, another medical practitioner, Dr James Churchman, held a permit to prescribe a Schedule 8 poison to Patient AD.
6. Dr Kioussis prescribed to Patient AD: [12]

a) alprazolam (between 22 May 2002 and 29 March 2019); > > b) 1,000 alprazolam 2mg tablets to Patient AD, an average dose of approximately 5.5mg of alprazolam per day (in 2010); > > c) an average dose of approximately 6mg of alprazolam per day (from about 2016 to 2019); > > d) 1,280mg of alprazolam 2mg tablets, an average dose of approximately 5mg per day (between 8 August 2018 and 29 March 2019); > > e) diazepam (between 11 February 2000 and 23 January 2019); > > f) 200 diazepam 5mg tablets, together with oxazepam (in or around 2001); > > g) 150 diazepam 5mg tablets, together with alprazolam (in or around 2002); > > h) 50 diazepam 5mg tablets, together with alprazolam (in or around February 2007;

1. 50 diazepam 5mg tablets, together with alprazolam (in or around May 2014);

j) 600 diazepam 5mg tablets to Patient AD, an average dose of approximately 3 tablets per day, together with alprazolam (between 7 August 2018 and 23 January 2019); > > k) oxycodone (between about 14 February and 13 March 2019); and

1. 500 oxycodone 5mg tablets (Endone 5mg), an average dose of approximately 25-30mg per day (between about 14 February and 13 March 2019).
2. Dr Kioussis' prescribing of alprazolam (see 64(b)-(d)) and oxycodone (see (l)) to Patient AD was unlawful and/or inappropriate.
3. He did not apply for or hold a permit to prescribe Schedule 8 poisons to Patient AD as required by sections 34(1), 34(2), 34(3), 34B; and/or 34C(1) and (2) of the DPCS Act.
4. On 31 January 2019, the Department wrote to Dr Kioussis advising him that another medical practitioner held a permit to treat Patient AD with a Schedule 8 poison and he was required to apply for a permit.
5. Dr Kioussis did not apply for a permit or otherwise respond to the correspondence. He continued to prescribe alprazolam and started prescribing oxycodone.
6. His prescribing of alprazolam and diazepam (see 64(b)-(d) and (f)-(j)) was inappropriate and/or excessive and/or dangerous because:

a) the quantities prescribed were not clinically justified; > > b) the prescribing of alprazolam was not clinically indicated for patient AD's anxiety; > > c) combining two anxiolytics - alprazolam and diazepam - is contraindicated and exposed Patient AD to risk, including dose related toxicity; > > d) they were prescribed against the background of Patient AD's substance use disorder; > > e) the combined dose of approximately 65mg of diazepam per day, when concurrently prescribed with other benzodiazepines, was inappropriate; and > > f) overall, it exposed Patient AD to risks of harm.

12. Dr Kioussis' prescribing of oxycodone (see 64(l)) was inappropriate and/or excessive and/or dangerous because:

a) the quantity prescribed was excessive and not clinically justified; > > b) it was an unreasonable practice to prescribe oxycodone in combination with benzodiazepines; > > c) Patient AD had a documented history of substance use disorder; and > > d) it exposed Patient AD to risks of harm and/or death.

13. Dr Kioussis provided inadequate clinical care to Patient AD in that, when prescribing for and/or treating, he did not conduct adequate assessments and/or examinations, plan limited dispensing regimes, focus on non-pharmacological therapies and/or seek specialist support.
14. We accepted Mr Boyarovsky's opinions (briefly stated in his Interim Report) on inappropriate, excessive and dangerous prescribing.
15. We also accepted Dr Frei's more detailed analysis and opinion (from both reports) [13] that Dr Kioussis' prescribing of alprazolam, diazepam and Endone were not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, below the standard reasonably expected from Dr Kioussis and exposed Patient AD to harm.
16. The request for Dr Frei's first report asked whether Dr Kioussis' prescribing of the above drugs to AD was either below or substantially below the standard reasonably expected of a registered medical practitioner of his level of training or experience.
17. Dr Frei answered:

Based on the information provided, Dr Kioussis was notified of the requirement that he submit a permit for the prescribed alprazolam and oxycodone. The evidence appears to be that he did not act on this information. As [AD] had some complexities in his background that were clinically significant in relation to treatment with drugs of dependence, it is puzzling and of concern that Dr Kioussis did not document his rationale for prescribing, seek specialist support and understand his professional responsibilities under the Act. The fact that he didn't, and given the permit system was established to minimise morbidity and prevent mortality in Victorians treated with prescription sedatives and opioids, is in my opinion substantially below the expected standard of a general practitioner.

1. The request also asked whether Dr Kioussis' prescribing of the above drugs to AD in circumstances where another practitioner held an opioid replacement therapy permit to treat Patient AD for opioid dependence (from 16 May 2014 to 22 February 2019) under the DPCS Act and Regulations was either below or substantially below the standard reasonably expected of a registered medical practitioner of his level of training or experience.
2. Dr Frei answered:

It is not uncommon for a prescriber to misunderstand what is required prior to prescribing benzodiazepines to someone they believe may be seeing another doctor for treatment of opioid use disorder, with the caveat that this is a decreasing concern since Safescript. In some circumstances prior to the full implementation of Safescript in 2020, this may be considered within acceptable practice where, for example, a small dose of benzodiazepine is prescribed in situations where there is little to suggest a diagnosis of drug dependence, and is discontinued once notification of another prescriber occurs. However, I note that Dr Kioussis was prescribing high dose/high risk benzodiazepine therapy to [AD] and knew he had a history of opioid use disorder. In addition he continued prescribing, based on the information provided, even after being notified of this by Medicines and Poisons Regulation in late January 2019, he continued to prescribe drugs of dependence to [AD] without applying for a permit. In this context, I believe his practice was outside acceptable standards, and would consider it substantially below expected practice.

1. The further data available to Dr Frei for his Supplementary Report did not change his opinion.

1. The Tribunal finds the factual basis of Allegation 1, with respect to Patient EE, proven.
2. We primarily relied on the reports from Mr Boyarovsky and Dr Frei, together with the other evidence referred to above, here with respect to this patient.
3. Between in or around 2013 and in or around March 2019, Dr Kioussis provided medical treatment to Patient EE.
4. Between 18 October 2016 and 16 October 2018, Dr Amit Zutshi, a psychiatrist, held a permit to treat Patient EE with methylphenidate.
5. Between about August 2017 and January 2019, Dr Kioussis prescribed methylphenidate to Patient EE.
6. From August 2017 to July 2018, Dr Kioussis prescribed 6,800 methylphenidate (Ritalin) 10mg tablets, an average of approximately 2 tablets per day, over a year.
7. His prescribing of methylphenidate was unlawful and/or inappropriate. He did not apply for or hold a permit as required by regulation 10 of the DPCS Regulations.
8. On 31 January 2019, the Department wrote to Dr Kioussis advising him that a permit was required to treat Patient EE with a special Schedule 8 poison.
9. Dr Kioussis did not apply for a permit or otherwise respond to the correspondence. He continued to prescribe methylphenidate to Patient EE.
10. His prescribing of methylphenidate, including in circumstances where he failed to hold a permit, was inappropriate and/or dangerous. It exposed Patient EE to risk of harm.
11. Dr Kioussis provided inadequate clinical care to Patient EE in that, when prescribing for and/or treating Patient EE, he did not (amongst other things) conduct adequate assessments and/or examinations, monitor for drug use and/or communicate with Patient EE's psychiatrist.
12. We accepted Mr Boyarovsky's opinions (briefly stated in his Interim Report) that the prescribing was inappropriate.

1. Dr Frei's more detailed analysis and opinion (from both reports)[14] was in the context that given the absence of clinical information in the documents provided to him, including the scant medical records of Dr Kioussis, it was difficult to provide a detailed response.
2. He opined that Dr Kioussis' prescribing of methylphenidate may have been in reasonable quantities.
3. On whether the prescribing was clinically justified, he said:

The management of attention deficit hyperactivity disorder (ADHD) is outside my scope of expertise. From my experience in managing pharmaceutical psychostimulant misuse (usually associated with short acting forms of methylphenidate and dexamphetamine), I understand that adult ADHD is a controversial diagnosis when used as a justification for prescribing these drugs, particularly without documentation of childhood features of the condition. The lack of detail in [EE]'s clinical notes makes it difficult for me to comment on Dr Kioussis' decision to prescribe Ritalin. If Dr Kioussis did use a logical clinical process to arrive at his management for [EE], he failed to record it in the notes.

1. Given Dr Frei's opinion, we do not regard the evidence as establishing that Dr Kioussis' prescribing of methylphenidate was in unreasonable quantities.
2. On whether the prescribing was below the standard expected of Dr Kioussis and/or whether it exposed EE to harm, Dr Frei said:

I note that Dr Kioussis did not apply for a permit at a time when a psychiatrist held a permit for this patient. That he does not appear to have communicated with the psychiatrist or go through the specific permit process for methylphenidate is, in my view, below the standard expected of a general practitioner. The permit system predating Safescript and currently, is meant to provide some safety for patients on high risk drugs. Failing to comply with the permit process exposed [EE] to concurrent prescribing of drugs of dependence by other doctors and risk of harm due to drug interactions and toxicity.

1. The further data available to Dr Frei for his Supplementary Report did not change his opinion.

1. The Tribunal finds the factual basis of Allegation 1, with respect to Patient GG, proven.
2. We primarily relied on the reports from Mr Boyarovsky and Dr Frei, together with the other evidence referred to above, here with respect to this patient.
3. Between in or around 1994 and in or around March 2019, Dr Kioussis provided medical treatment to Patient GG. He believed or had reason to believe that Patient GG was a drug-dependent person.
4. From 19 October 2016, another medical practitioner, Dr John O'Donoghue, held a permit to prescribe a Schedule 8 poison to Patient GG. Dr Kioussis was aware that Patient GG was being treated by Dr O'Donoghue for opioid dependence.
5. Dr Kioussis prescribed to Patient GG:

a) Alprazolam (between 3 May 2002 and 2 December 2013); > > b) 400 alprazolam 2mg tablets, an average dose of approximately 2mg per day (in about 2002); > > c) 1,000 alprazolam 2mg tablets (an average dose of approximately 5.5mg per day), together with diazepam and oxazepam (about 2006); > > d) 1,150 alprazolam 2mg tablets, an average dose of approximately 6.3mg per day, together with diazepam and oxazepam (about 2010); > > e) Alprazolam, recommending he take up to 8mg per day (between about 2010 and December 2013); > > f) Oxazepam (from 7 December 2001 and 10 May 2019); > > g) 25 oxazepam 30mg tablets, an average dose of approximately 2mg per day (about 2006); > > h) 225 oxazepam 30mg tablets, an average dose of approximately 18.5mg per day (about 2010);

1. 300 oxazepam 30mg tablets, an average dose of approximately 24.6mg per day (about 2013);

j) Diazepam (between 19 July 2004 and 18 April 2019); > > k) 150 diazepam 5mg tablets (an average dose of approximately 2mg per day), together with alprazolam and oxazepam. The total equivalent diazepam daily dose from these prescriptions was approximately 60mg. (about 2006);

1. 500 diazepam 5mg tablets (an average dose of approximately 6.8mg per day), together with alprazolam and oxazepam. The total equivalent diazepam daily dose from these prescriptions was approximately 75mg. (about 2010);

m) Alprazolam, oxazepam and diazepam. The total equivalent diazepam daily dose from these prescriptions was approximately 90mg, averaged (about 2012); and > > n) 350 diazepam 5mg tablets, approximately two tablets per day and 200 oxazepam 30mg tablets, approximately one tablet per day (between about August 2018 and March 2019).

6. Dr Kioussis' prescribing of diazepam to Patient GG (see 101(k)-(n)) was unlawful and/or inappropriate in that Dr Kioussis failed to submit the required notification to the Department under sections 33(3) and (4) of the DPCS Act.
7. On 31 January 2019, the Department wrote to Dr Kioussis advising him that another medical practitioner held a permit to prescribe Patient GG with a Schedule 8 poison.
8. Dr Kioussis did not respond and continued to prescribe oxazepam and diazepam to Patient GG.
9. His prescribing of alprazolam, diazepam and oxazepam (see 101(b)-(e), (g)-(i) and (k)-(n) to Patient GG was inappropriate and/or excessive and/or dangerous in that:

a) the recommended daily quantity of alprazolam was not reasonable and/or clinically justified; > > b) the combined equivalent quantity of diazepam per day - approximately 95mg − carried a high risk and was not a reasonable combination or clinically justified; > > c) the combination of alprazolam, diazepam and oxazepam carried a high risk and was unreasonable; and > > d) it exposed Patient GG to risk of harm and/or death.

10. Dr Kioussis provided inadequate clinical care to Patient GG in that, when prescribing for and/or treating Patient GG, he did not conduct adequate assessments and/or examinations, plan limited dispensing regimes; and/or plan for regular specialist review.
11. We accepted Mr Boyarovsky's opinions (briefly stated in his Interim Report) on inappropriate, excessive and dangerous prescribing.
12. We also accepted Dr Frei's more detailed analysis and opinion (from both reports)[15] that Dr Kioussis' prescribing of alprazolam, oxazepam and diazepam were not in reasonable quantities, not in reasonable combinations with concurrent drugs prescribed, not clinically justified, below the standard reasonably expected from Dr Kioussis and exposed Patient GG to harm.
13. The request for Dr Frei's first report asked whether Dr Kioussis' prescribing of the above drugs to GG, without the requisite permit(s) under the DPCS Act and associated Regulations was either below or substantially below the standard reasonably expected of a registered medical practitioner of his level of training or experience.
14. Dr Frei answered:

Of the benzodiazepines prescribed, only alprazolam is subject to requiring a permit from Medicines and Poisons Regulation. This requirement may have been part of the restricted drugs legislation for most but not all of Dr Kioussis' treatment of [GG] with this drug prescribing climate. Prior to this scheduling change, and up to the roll out of Safescript, there was also a system of "notification of drug dependence". Both systems' aim was the reduction of morbidity and mortality related to prescribed benzodiazepine misuse and its complications, and neither appear to have been undertaken by Dr Kioussis. The effect would have been that there was less visibility of [GG's] treatment with high risk drugs, and the possibility of more than one doctor prescribing sedating agents with a consequence of increased risk of toxicity, collapse and death. In fact, based on the documents received for this case, a doctor was authorised as a prescriber of opioid replacement therapy (either methadone or buprenorphine).

Dr Kioussis' lack of compliance with permit requirements occurred while he was prescribing an unusually high dose of benzodiazepines to a high risk patient for a significant period of time, with no evidence of a plan for regular specialist review of [GG]. This failure to fulfil permit responsibilities appears to have continued after he received cautioning correspondence from Medicines and Poisons Regulation. I would consider this quite a serious and substantial departure from the standard one would reasonably expect from Dr Kioussis.

1. The further data available to Dr Frei for his Supplementary Report did not change his opinion.

1. As alleged and submitted, with reference to the evidence in this proceeding, the Tribunal finds as follows.
2. Between about 2013 and March 2019, Dr Kioussis failed to maintain adequate patient records for Patients DH, AD, EE and GG.
3. Amongst other things;

a) there was no system for arranging documents within the patient folders for the patients and documents were randomly dispersed throughout each folder; > > b) the patient folders contained clinical notes and correspondence relating to other patients; > > c) his records in respect of Patient DH were absent for significant portions of care, lacking in detail, difficult to follow, inconsistent in content, detail and layout; and/or lacked a rationale, plan or risk mitigation measures in relation to prescribing Schedule 8 poisons; > > d) his records concerning Patient AD were absent for significant portions of care, lack detail, lack structure, are undated and/or do not contain any clinical justification for prescribing alprazolam and diazepam, or for abruptly initiating prescribing oxycodone; > > e) his records in respect of Patient EE were absent for significant portions of care, lack detail and fail to record a logical clinical process to arrive at his decision to prescribe methylphenidate; and > > f) his records in respect of Patient GG were absent for significant portions of care and/or lack detail; and > > g) he did not make and/or retain copies of clinical records, file notes and/or reports for the patients.

4. Dr Kioussis' record-keeping failures jeopardised Patient DH, AD, EE and GG's continuity of care.
5. We primarily relied on the reports from Mr Boyarovsky and Dr Frei, together with the clinical records themselves.
6. In his Interim Report, Mr Boyarovsky described his visit to Dr Kioussis' practice and what he observed about the medical records:

I examined the manual clinical records maintained by Dr Kioussis and commented that I found it difficult to make much sense of them. When I questioned Dr Kioussis regarding this, he stated that his clinical records make sense to him.

...

Dr Kioussis maintains his manual clinical records in the following manner:

• Each patient file is contained in a folder.
• Each folder contains correspondence, test results, referrals, copies of authority prescriptions and clinical notes recorded for the patient. Although Dr Kioussis indicated there was a system for arranging these documents within patient folders, a system was not immediately apparent when relevant patient folders were examined.
• Clinical notes were observed to be recorded on a combination of the following:
  • Loose pages titled 'Consultation Notes' or 'Progress Notes'
  • Other loose pages of various shapes and sizes.
  • Posted notes attached to other documents.
  • The back of authority prescription duplicates.
• Clinical notes were not observed to be arranged in any particular order and appeared to be randomly dispersed throughout the relevant patient folders.
• Some of the patient files examined were noted to contain clinical notes and correspondence for other patients.
• Although authority prescription duplicates appear to be retained within patient folders, information provided by Dr Kioussis and examination of clinic records suggests that he does not always record details of other prescriptions he issues to his patients.
• Given the standard of clinical records maintained by Dr Kioussis, in some instances it was deemed more reliable and practicable to use pharmacy dispensing records obtained from the SafeScript database for quantitative assessments of prescribing by Dr Kioussis and his colleagues. ...

1. It was not until the Board asked Dr Frei for a supplementary report that it asked him to opine on the medical records.
2. We quote his responses (format of report edited) concerning Patient DH[16] and briefly summarise like responses concerning the other three patients.

Were records inadequate and/or insufficient in detail?

DH's notes commence in September 2015, while the PBS records show prescribing of S8 drugs from at least 2013, so it is not possible to comment on the notes pertaining to treatment from around 2013 when prescribing of Schedule 8 drugs commenced. In my opinion DH's case warrants at least one accessible file note explaining the status of medications and the current plan of treatment. Despite these flaws, the notes do contain some sense of progress in treatment but I do not believe it to be sufficient given the complexity in DH and in particular given she was prescribed such high doses of opioids. From 2016 to end of 2018 the notes are adequate, mainly due to the detailed entry from Dr Gray. The accompanying notes of this period only are adequate in conveying progress and alluding to current problems even though there are no further clear references to future planning. There are few or no notes to comment on outside these times and given there was at least 2 years of prescribing, based on the PBS notes, before recording of clinical progress commences, these are not adequate. Overall, the absence of records for significant portions of care, and the indication that it was not the practitioner of focus that recorded the most pertinent and useful entry on DH, Dr Kioussis' notes are not adequate overall in my opinion.

Were records below or substantially below the standard reasonably expected?

These clinical records are within the standard of what would be reasonably expected for the period 2016-2017. The remainder of the records are below or substantially below what would be expected.

Were records inconsistent with facilitating and coordination and continuity of care?

The notes are not actively supportive of coordination continuity of care despite the fact that other doctors did make some contributions to review of DH. In particular, a significant contribution to the notes was a single entry by Dr Gray who did not regularly review DH, which summarised the care and outlined the concerns with DH. The notes subsequent to this entry did not actively pursue the initiatives that would have helped with coordinating and continuing care, and even in the periods that were strongest for documentation in DH's records, over 2016-2017, it was not until the entry in 2019 from Dr Gray that the multiple issues in DH's management were articulated.

Were adequate records maintained?

While there is a low level of information, and gaps, they are adequate based on what one would expect.

Keeping up to date legible records of findings, investigations, medication?

The challenge with these handwritten clinical notes was not legibility, as they were readable for the most part. However, there was difficulty knowing who to attribute a file entry to, as neither Dr Kioussis or other doctors (based on different handwriting styles) who saw DH did not identify by signing or naming the entry. Even the comprehensive entry from Dr Gray was not clearly signed with her name. Other issues were the absence of name of the patient on pages containing file notes, which I gather were kept in a manila folder.

It was unusual, even a decade or so ago, to not be completely computerised. In practices that resisted this, good written clinical notes should include clear identification of the date, name of the practitioner and name of the patient, as a minimum.

Few investigations were done but Dr Kioussis' notes include some 708 reference to scans. There does not seem to be a system would ensure they were followed up or whether they could be filed as closed.

Medication was recorded in the context of scripts written but the notes would have been vastly better with a simple statement about medications prescribed that was frequently updated rather than relying on scans of Authority prescription carbon.

Ensuring records facilitate continuity of care?

The main barriers to continuity of care are an easy to access, logical and up to date management plan with current medications and treatment goals.

Making records at time of the events

It is unclear if DH's notes are contemporaneous, I could not find evidence of the timing of the notes to comment.

Content of health record

My impression is that this publication is aimed at supporting GPs by defining standards that embody holistic quality care. Looking at Criterion 7 I believe, as mentioned, there were gaps in the consistency of the content, in the follow up of identified issues and in the way information was recorded, and the overall impression was that, at least outside the period of 2016-2018, the notes were inadequate.

1. Concerning the records about Patient AD, Dr Frei reported[17] that the records were:

a) inadequate and insufficient in detail; > > b) substantially below the standard reasonably expected of Dr Kioussis; > > c) inconsistent with facilitating coordination and continuity of care; and > > d) not adequate.

2. Dr Frei reported that it was not evident whether records were kept contemporaneously. Also, the records were lacking in content, such as there was no 'living 'plan, an overarching constant for people other than Dr Kioussis to review a summary of progress in treatment goals.
3. Concerning the records about Patient EE, Dr Frei reported[18] that the records were inadequate and insufficient in detail, below the standard reasonably expected of Dr Kioussis, inconsistent with facilitating coordination and continuity of care, inadequate and not up to date legible records of findings, investigations and medication.
4. It was not possible to understand whether the records were kept contemporaneously.
5. Concerning the records about Patient GG, Dr Frei reported[19] that the records, in the context that there were not notes to the extent that Dr Frei would have expected, were inadequate and insufficient in detail, below the standard reasonably expected of Dr Kioussis, inconsistent with facilitating coordination and continuity of care.
6. It appeared that records were not kept between 2001 and 2018.[20]

Professional misconduct and/or unprofessional conduct?

1. With the alleged conduct proven, the second step is to decide whether the conduct falls within the definitions of 'professional misconduct' and/or 'unprofessional conduct' under the National Law.
2. Section 5 of the National Law of professional misconduct defines professional misconduct as:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. Dr Kioussis' conduct falls within definitions (a) and (c) of the National Law.
2. Concerning meaning (a), the totality of his unprofessional conduct amounts to conduct substantially below the standard reasonably expected of Dr Kioussis as a registered medical practitioner of his level of training and experience.
3. Concerning meaning (c), his conduct occurring in connection with his medical practice was, at the time of the conduct, inconsistent with Dr Kioussis being a fit and proper person to hold registration in the profession.
4. We accept Dr Frei's overall observations as set out in his first report:[21]

I think it is important to acknowledge that there have been changes in the last ten years in relation to Drugs and Poisons regulations in Victoria, with the commencement of Safescript and in the scheduling of alprazolam. Despite this, some ongoing standards are expected in relation to prescribing drugs of dependence. These are particularly pertinent where doses prescribed are high or in an unusually high risk form such as high dose injection opioids, where treatment is outside standard practice eg. where multiple opioids or benzodiazepines are used, or where there is a history of substance use disorder. These clinical scenarios, all of which are encountered in Dr Kioussis' practice based on the information for this opinion, carry a high risk to the patient and doctor, and it is a reasonable expectation that there is cautious approaches to medications prescribed and a fulfillment of mandatory regulatory responsibilities as a minimum.

...

Dr Kioussis' prescribing of drugs of dependence did not include many of the basic but important measures recommended by professional organisations who have released guidelines on prescribing drugs of dependence for conditions such as pain and anxiety disorders, including jurisdictional medical boards and AHPRA, medical defence organisations, the RACGP and other peak bodies. Most emphasise the role relevant legislation, careful assessment that identifies clinical need, specialist support and accurate and comprehensive clinical notes.

In my opinion there were major gaps in most of these accepted standards by Dr Kioussis, which were not addressed despite indirect suggestions of risk from colleagues or specialists managing other conditions, and the more direct correspondence pointing out his non-compliance with Victorian legislation.

These practices constitute a significant departure from accepted standards regarding prescribing in relation to safety, risk and the legislation and regulations in my opinion.

...

The patients described in the documents provided were at considerable risk during Dr Kioussis' treatment, in my opinion. This included risk of medication toxicity given these drugs are commonly associated with fatal and near fatal overdose. Any direct impact on patients would need to be on the basis of the likely effects of long term high dose therapy with drugs of addiction. Dependence with tolerance and withdrawal is expected in patients taking high doses of benzodiazepines, opioids or stimulants for periods exceeding a few weeks, and the most obvious outcome of Dr Kioussis' therapy in most of these cases. Where the mainstay of therapy of anxiety or pain is benzodiazepine or opioid medication, the consensus and evidence supported view is that outcomes are poorer than when patients are treated with non drug therapies or lower risk medications. For example, opioid analgesics are implicated in a syndrome of exquisite sensitivity to pain in some patients: opioid induced hyperalgesia. Similarly, the use of high dose benzodiazepines for anxiolysis may result in central neurological changes that are manifest as tolerance, which worsen recovery from the condition.

Where a permit is not submitted and approved by Victoria's Medicines and Poisons Regulation section in the Department of Health, there is potential for another practitioner to unknowingly prescribe similar sedating drugs with resultant combination use and toxicity. (This is no longer as significant a risk as it was prior to Safescript, given the risk reduction measures in the Safescript system).

There are also public health risks related to high dose prescribing and dispensing of potent opioids in the pattern observed in the clinical notes for this report. These drugs, particularly those that are tightly regulated such as alprazolam, have a significant value on illicit markets. Diverson of opioids is similarly a concern in some patients, and there is an associated risk of overdose where a non tolerant individual takes a high dose of opioid that is procured with or without the cooperation of the person to which it was prescribed.

In summary, Dr Kioussis' departure from accepted standards, such as permits and cautious prescribing which took into account measures such as specialist opinion, limited dispensing and attention to current guidelines, would be expected to impact on a range of individual and community health and risk areas. Compliance with accepted standards, including compliance with permit and Safescript systems allows some protection of patients from drug related morbidity and mortality and improves patient outcomes in anxiety, addiction and persisting non cancer pain states.

1. We also accepted Dr Frei's opinion as to how the proven conduct departed with relevant codes and standards.
2. We have found that, as the Board alleged, Dr Kioussis' conduct was inconsistent with (as set out in Attachment A to these reasons):

a) principles 1.1(a), 1(b), 1(c), 2.4(a) and 3.1(a) of the 1999 Guide; > > b) principles 1(a), 1(b), 2, 3 and 3(d) of the 2006 Guide; > > c) principles 2.1, 2.2, 4.1, 4.2, 4.5 and 8.1 of the 2009 Code of Conduct; > > d) principles 1.4, 2.1, 2.2, 4.1, 4.2, 4.5 and 5.2.1 of the 2010 Code of Conduct; and > > e) principles 1.4, 2.1, 2.2, 4.2, 4.5 and 5.2.1 of the 2014 Code of Conduct. 1.95 > > f) the RACGP Standards, 4th Edition at Standards 1.5.3, 1.6, 1.7 and 5.3; > > g) the RACGP Standards, 5th Edition at Core Standards 2 and 5 and GP Standard 2; > > h) the DPCS Act; and DPCS Regulations.

1. While a different allegation, Dr Kioussis' multiple serious failures in record keeping fall within professional misconduct, definition (a).
2. We have accepted Dr Frei's opinion as to how the proven conduct departed with relevant codes and standards.
3. Also, the clinical records speak for themselves.
4. We find that, as the Board alleged and submitted, Dr Kioussis' conduct was inconsistent with (as set out in attachment A to these reasons):

a) principles 2.1.3, 2.2.3, 8.4.1, 8.4.4 and 8.4.5 of the 2010 Code of Conduct (see attachment); > > b) principles 2.1.3, 2.2.3, 8.4.1, 8.4.4 and 8.4.5 of the 2014 Code of Conduct (see attachment); > > c) the RACGP Standards, 4th Edition at Standard 1.7 and 5.3; > > d) the RACGP Standards, 5th Edition at Core Standard 7.1; and > > e) the principles at 2.4.

5. As the Board submitted, Dr Kioussis' record keeping failures may be considered as a totality, leading to the conclusion that his conduc,t as a whole, constitutes unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of a Dr Kioussis' level of training or experience

1. Once VCAT has made findings in a proceeding such as this, the third step is to make determinations.
2. VCAT's role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of:
   • specific deterrence (to deter the individual from repeating the misconduct);
   • general deterrence (to warn others in the profession against such misconduct); and
   • to uphold the medical profession's reputation.
3. We do not repeat the relevant principles as set out in Kioussis No. 1, which have not changed.
4. The Board submitted Dr Kioussis should be reprimanded, prohibited from seeking reregistration for six years and prohibited from providing any health service (as defined in the National Law) until, following him applying to the applicant for reregistration, he is reregistered as a medical practitioner.
5. We return to Kioussis No. 1 as context here.
6. Dr Kioussis' conduct which was the subject of that case occurred from August 2013 to June 2017. VCAT received the Board's referral in March 2018, leading to reprimand and registration cancellation in December 2019.
7. A brief history relevant to this case, drawn from the Tribunal Book, is:
   • The conduct, as now found, occurred from 2001 to about March 2019 (Allegation 1) and 2013 to March 2019 (Allegation 2);
   • In March 2019, VCAT held the 'Kioussis No. 1 findings hearing';
   • In April 2019, Ahpra received the notification (from the Department ) that gave rise to the investigation related to this proceeding. This attached Mr Boyarovsky's Interim Report, correspondence from Dr Kioussis and pharmacy and clinical records;
   • In May 2019, the Board advised Dr Kioussis that it was considering immediate action, followed by Dr Kioussis undertaking not to practice as a medical practitioner;
   • Following extensive submissions on behalf of Dr Kioussis, which accepted the factual allegations and set out extenuating circumstances and expressed Dr Kioussis' remorse, on 23 May 2019, the Board took immediate action suspending Dr Kioussis' registration as a medical practitioner;
   • In June 2019, VCAT made the 'Kioussis No. 1 findings';
   • In July 2019, the Board gave Dr Kioussis notice of the investigation with respect to the April 2019 notification;
   • In November 2019, VCAT held the 'Kioussis No. 1 determinations hearing' followed by publication of Kioussis No. 1 on 11 December 2019;
   • From that point the investigation was undertaken (including Dr Frei providing his reports in March 2021) until in December 2023, the Board decided to make a referral to VCAT, received by VCAT in March 2024;
   • The Board's investigation, included Dr Frei's December 2024 Supplementary Report, followed by the February 2025 Amended Allegations and the 27 February 2025 VCAT hearing.
8. All, or virtually all, of the conduct which is the subject of this case, occurred before the VCAT findings hearing in Kioussis No. 1 and before Kioussis No. 1 was finally decided in December 2019.

1. Dr Kioussis must in the interests of general deterrence and the medical profession's reputation be reprimanded for his professional misconduct
2. As is often observed, reprimand is a serious form of censure and condemnation, combined with a finding of professional misconduct .[22]

1. We have decided that the objectives of determinations do not, in early 2025, require prohibiting Dr Kioussis, for six years, from applying for reregistration.
2. In our view, a two-year prohibition is appropriate, in the cause of general deterrence, upholding the profession's reputation and community confidence in the regulatory system.
3. In a theoretical scenario, the allegations made here, could have been before VCAT in 2019, had an earlier notification under the National Law been made, meaning no criticism of any person, covering at least the great majority of the then alleged conduct.
4. In this theoretical scenario, perhaps the Board would have, in 2019, with the serious allegations made in this case added to the allegations in Kioussis No. 1, sought a significant prohibition period.
5. Any prohibition if made in December 2019, of up to about four and a half years would be coming to an end now.
6. That said, even after these years passed, not imposing any prohibition period, may create a wrong impression that in this case with professional misconduct found, the Tribunal simply decided that no prohibition period was warranted.
7. With determinations not meant as punishment, the symbolic value of a two-year prohibition outweighs any substantive disadvantage to Dr Kioussis, where substantive disadvantage seems highly unlikely as it appears highly unlikely that he will ever seek reregistration.
8. This is a unique situation. The decided cases which the Board submitted were somewhat analogous,[23] in our view do not assist here.

1. The Board submitted that VCAT should make a prohibition order, under section 196(4)(b)(i) of the National Law prohibiting Dr Kioussis from providing any health service unless the Board reregistered him as a medical practitioner.
2. The National Law provides a broad definition of the term 'health service'.[24]
3. The Board referred us to VCAT's decision, Medical Board of Australia v Kemp [2024] VCAT 34, where the Board submitted that prohibition orders are appropriately made:[25]
   • To prevent the undermining of the effectiveness and reputation of the system for regulation of the profession if a professional was able to provide health services through a 'backdoor', despite the cancellation of registration (or the fact the practitioner is no longer registered). Prohibition orders assist to ensure that the regulation via other determinations is effective;
   • Where the public may require protection from the risk of the practitioner providing a related but unregulated health service when the practitioner is a risk when practising as a medical practitioner or in an allied area;
   • Even if the individual practitioner does not intend to return to practice, where the misconduct is the product of the practitioner prioritising their personal views as to the safe practice of medicine over the standards of the profession; and
   • In cases where the practitioner lacks insight, and whether to impose a prohibition order or not is tied to the Tribunal's assessment of risk and the degree to which the Tribunal has confidence in the judgment and insight of the practitioner.

1. We have determined that a 'health services prohibition order' should be made.
2. With Dr Kioussis not participating in this case, we are unable to be satisfied that there is no risk of him providing some form of health service, putting the community at risk, while he continues not to be registered as a medical practitioner.
3. Also, we accepted that not making a prohibition order in this situation would undermine the effectiveness and reputation of the National Law's regulation system, if Dr Kioussis was able to provide health services through a 'legislative backdoor'.

1. The Guide for Medical Practitioners (in effect between 1 December 1999 and 30 November 2006) (1999 Guide) relevantly provides:

(a) Practice medicine to the best of your ability and within the limits of your expertise.

(b) Continue self-education to improve your standard of medical care.

(c) Evaluate your patient completely and thoroughly.

(a) Obtain the opinion of an appropriate colleague acceptable to your patient if diagnosis or treatment is difficult or obscure, or in response to a reasonable request by your patient.

(a) Strive to improve the standards and quality of medical services in the community.

1. The Guide for Medical Practitioners (in effect between 1 December 2006 and 31 July 2009) (2006 Guide) relevantly provides that patients are entitled to good standards of medical practice, including:

• 2.1 Principle 1(a) - Good clinical care includes:
  • Conducting an adequate assessment of the patient's condition, based on an appropriate history and examination.
  • Providing or arranging investigations or treatment, as appropriate.
  • Taking suitable and prompt action when necessary.
  • Referring the patient to another practitioner when indicated.
• 2.2 Principle 1(b) - In providing care:
  • Recognise and work within the limits of your clinical competence or supervision.
  • Be willing to consult colleagues.
  • Prescribe only the treatment, drugs, or appliances that serve the needs of patients.
• 2.3 Principle 2 - Observe professional and ethical obligations in the practice of medicine, including acting in your patients' best interests.
• 2.4 Principle 3 - Maintain effective relationships with colleagues, including:
  • Striving to ensure that a patient's care is co-ordinated.
  • Ensuring appropriate delegation and referral of care of a patient.
• 2.5 Principle 3(d) - Coordinating a patient's care, including:
  • Be aware of the range of specialist services available to your patients.
  • Actively coordinate a patient's care, or assure yourself that another medical practitioner is undertaking this task.

1. The Good Medical Practice: A Code of Conduct for Doctors in Australia (in effect between 1 August 2009 and 30 June 2010) (2009 Code of Conduct) relevantly provides that good patient care includes:

• 3.1 Principle 2.1 - In clinical practice, the care of your patient is your primary concern. Providing good patient care includes:

(a) Principle 2.1.1 - assessing the patient, considering the history, the patient's views, and an appropriate physical examination.

(b) Principle 2.1.2 - formulating and implementing a suitable management plan (including arranging investigations and providing treatment and advice).

(c) Principle 2.1.3 - facilitating coordination and continuity of care.

(d) Principle 2.1.4 - referring a patient to another practitioner when this is in the patient's best interests.

• 3.2 Principle 2.2 - Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

(a) Principle 2.2.1 - recognising and working within the limits of your competence and scope of practice.

(b) Principle 2.2.2 - ensuring that you have adequate knowledge and skills to provide safe clinical care.

(c) Principle 2.2.4 - considering the balance of benefit and harm in all clinical- management decisions.

(d) Principle 2.2.6 - providing treatment options based on the best available information.

(e) Principle 2.2.9 - consulting and taking advice from colleagues, when appropriate.

• 3.3 Principle 4.1 - Good relationships with medical colleagues, nurses and other health care professionals strengthen the doctor-patient relationship and enhance patient care.
• 3.4 Principle 4.2 - Good patient care is enhanced when there is mutual respect and clear communication between health care professionals, including:

(a) Principle 4.2.1 - Communicating clearly, effectively, respectfully and promptly with other doctors and health care professionals caring for the patient.

• 3.5 Principle 4.5 - Good patient care requires coordination between all treating doctors and involves:

(a) Principle 4.5.1 - communicating all the relevant information in a timely way.

(b) Principle 4.5.2 - facilitating the central coordinating role of the general practitioner.

(c) Principle 4.5.4 - ensure it is clear who has ultimate responsibility for coordinating the care of the patient.

• 3.6 Principle 8.1 - Doctors must display a standard of behaviour that warrants the trust and

respect of the community, including through ethical conduct.

1. The Good Medical Practice: A Code of Conduct for Doctors in Australia (in effect 1 July 2010 - 15 March 2014) (2010 Code of Conduct) relevantly provides that good patient care includes:

• 4.1 Principle 1.4 - Doctors have a duty to make the care of patients their first concern and to practice medicine safely and effectively. They must be ethical and trustworthy.
• 4.2 Principle 2.1: In clinical practice, the care of your patient is your primary concern. Providing good patient care includes:

(a) Principle 2.1.1 - assessing the patient, taking into account the history, the patient's views, and an appropriate physical examination.

(b) Principle 2.1.2 - formulating and implementing a suitable management plan (including arranging investigations and providing treatment and advice).

(c) Principle 2.1.3 - facilitating coordination and continuity of care.

• 4.3 Principle 2.2: Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

(a) Principle 2.2.1 - Recognising and working within the limits of your competence and scope of practice.

(b) Principle 2.2.2 - Ensuring that you have adequate knowledge and skills to provide safe clinical care.

(c) Principle 2.2.3 - maintaining adequate records.

(d) Principle 2.2.4 - Considering the balance of benefit and harm in all clinical- management decisions.

(e) Principle

2.2.6 - providing treatment options based on the best available information.

(f) Principle 2.2.9 - consulting and taking advice from colleagues, when appropriate

• 4.4 Principle 4.1 - Good relationships with medical colleagues, nurses and other health care professionals strengthen the doctor-patient relationship and enhance patient care.
• 4.5 Principle 4.2 - Good patient care is enhanced when there is mutual respect and clear communication between all health care professionals involved in the care of the patient. Good medical practice involves:

(a) Principle 4.2.1 - Communicating clearly, effectively, respectfully and promptly with other doctors and health care professionals caring for the patient.

• 4.6 Principle 4.5 - Good patient care requires coordination between all treating doctors.
• 4.7 Principle 5.2 - It is important to use health care resources wisely. Good medical practice involves:

(a) Principle 5.2.1 - Ensuring that the services you provide are necessary and likely to benefit the patient.

• 4.8 Principle 8.4 - Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:

(a) Principle 8.4.1 - keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management.

(b) Principle 8.4.4 - ensuring that the records are sufficient to facilitate continuity of patient care.

(c) Principle 8.4.5 - making records at the time of the events, or as soon as possible afterwards.

(d) Principle 8.4.6 - recognising patients' right to access information contained in their medical records and facilitating that access.

(e) Principle 8.4.7 - promptly facilitating the transfer of health information when requested by the patient.

1. The Good Medical Practice: A Code of Conduct for Doctors in Australia (in effect 16 March 2014 - 30 September 2020) (2014 Code of Conduct) relevantly provides:

• 5.1 Principle 1.4 -- Doctors have a duty to make the care of patients their first concern and to practice medicine safely and effectively.
• 5.2 Principle 2.1 - Providing good patient care includes:

(a) Principle 2.1.1 - Providing good patient care includes assessing the patient, taking into account the history, the patient's views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects;

(b) Principle 2.1.2 - formulate and implement a suitable management plan (including arranging investigations and providing information, treatment and advice) ;

(c) Principle 2.1.3 - facilitate the coordination and continuity of care;

(d) Principle 2.1.4 - refer the patient to another practitioner when this is in the patient's best interests;

• 5.3 Principle 2.2: - Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

(a) Principle 2.2.1 - recognising and working within the limits of your competence and scope of practice;

(b) Principle 2.2.2 - ensuring that you have adequate knowledge and skills to provide safe clinical care;

(c) Principle 2.2.3 - maintaining adequate records;

(d) Principle 2.2.4 - considering the balance of benefit and harm in all clinical- management decisions;

(e) Principle 2.2.6 - providing treatment options based on the best available information;

(f) Principle 2.2.9 - consulting and taking advice from colleagues, when appropriate;.

• 5.4 Principle 4.2 - Good patient care is enhanced when there is mutual respect and clear communication between all health care professionals involved in the care of the patient. Good medical practice involves:

(a) Principle 4.2.1 - communicating clearly, effectively, respectfully and promptly with other doctors and health care professionals caring for the patient.

Principle 4.2.2 - Acknowledging and respecting the contribution of all health care professionals involved in the care of the patient.

• 5.5 Principle 4.5 - Good patient care requires coordination between all treating doctors. Good medical practice involves:

(a) Principle 4.5.1 - communicating all the relevant information in a timely way.

(b) Principle 4.5.2 - facilitating the central coordinating role of the general practitioner.

(c) Principle 4.5.4 - ensuring that it is clear to the patient, the family and colleagues who has ultimate responsibility for coordinating the care of the patient.

• 5.6 Principle 5.2 - It is important to use healthcare resources wisely. Good medical practice involves:

(a) Principle 5.2.1 -- ensuring that the services you provide are necessary and likely to benefit the patient.

• 5.7 Principle 8.4 - Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:

(a) Principle 8.4.1 - keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management.

(b) Principle 8.4.4 - ensuring that the records are sufficient to facilitate continuity of patient care.

(c) Principle 8.4.5 - making records at the time of the events, or as soon as possible afterwards.

1. The Royal Australian College of General Practitioners, Standards for general practices, 4th Edition (RACGP Standards, 4th Edition) relevantly provides:

• 6.1 Standard 1.5 - Continuity of care is provided for patients.

(a) Criterion 1.5.3 - system for follow up of tests and results.

• 6.2 Standard 1.6 - A range of relevant health and community services are engaged to improve patient care. Specifically:

(a) Criterion 1.6.1 - a range of health, community and disability services are engaged with to plan and facilitate optimal patient care.

• 6.3 Standard 1.7 - health records contain sufficient patient information. Specifically:

(a) Criterion 1.7.1 - individual patient health records contain all the health information held by the practice.

(b) Criterion 1.7.2 - health summaries are incorporated into active patient health records.

(c) Criterion 1.7.3 - records contain sufficient information to allow another member to carry on the management of the patient.

• 6.4 Standard 5.3 - working processes support safety and quality of clinical care. Specifically:

(a) Criterion 5.3.1 - a clinical team prescribes, dispenses, and administers appropriate medicines safely to informed patients.

1. The Royal Australian College of General Practitioners, Standards for general practices, 5th Edition (RACGP Standards, 5th Edition) relevantly provides that:

• 7.1 Core Standard 2 - the rights and needs of patients are respected.
• 7.2 GP Standard Criterion GP2.1B - continuity of care is provided for all patients.
• 7.3 GP Standard Criterion GP2.1C - comprehensive care is provided to patients.
• 7.4 Core Standard 5 - care is relevant to the patient and consistent with best available evidence.
• 7.5 Core Standard 7 - patient health records contain accurate and comprehensive records of all patient interactions. Specifically:

(a) Criterion 7.1A - all patients have a health record containing all health information.

(b) Criterion 7.1C - patient health records include records of consultations and clinical related communications.

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

[2] A paraphrase of the 'bias test' set out by the High Court of Australia in Ebner v the Official Trustee in Bankruptcy [2000] HCA 63.

[3] Concerning allegations 1 and 2 in that case.

[4] Concerning allegations 3 and 4 in that case.

[8] TB 760 - The Supplementary Report was provided after Medicare PBS data from 1 January 2000 to 20 March 2023 for the four patients and additional clinical records from other medical practitioners become available.

[10] See Boyarovsky Report (TB 45-48), Frie Report (TB 725-731) and Frei Supplementary (TB 759-763).

[11] First Report (TB 725-730 and Supplementary Report (TB 759-763).

[12] See Boyarovsky Report (TB 48-51), Frie Report (TB 731-737) and Frei Supplementary (TB 763-767).

[13] First Report (TB 731 to 737) and Supplementary Report (TB 763-767).

[14] First Report (TB 737 to 739) and Supplementary Report (TB 767-768).

[15] First Report (TB 739-743) and Supplementary Report (TB 768-772).

[20] '2001 to 2018' is not a typographical error.

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

[23] Medical Board of Australia v Ong [2024] VCAT 242, Medical Board of Australia v Kemp [2024] VCAT 34 and Medical Board of Australia v Tunbridge [2020] VCAT 34.

[25] Paraphrased from Kemp at [378].