Medical Board of Australia v Mbachilin (Review & Regulation) [2024] VCAT 435

The Tribunal notes that on 19 May 2022, the Tribunal made the following further order:

Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.

1. Dr Godwin Mbachilin ('Dr Mbachilin') engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic) ('the National Law'), in that, on or about 16 March 2018, Dr Mbachilin deceived and otherwise dishonestly induced Dr J and Dr W into signing an SPPA-30 Supervised practice plan and supervisor's agreement form in relation to Dr C.
2. Dr Mbachilin 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:

(a) between 18 December 2018 and 2 April 2019, he breached a condition of his registration requiring him to have level 4 supervision; and

(b) in a response to the Board dated 12 February 2019, he provided false and misleading information by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised.

1. Dr Mbachilin engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, by failing to facilitate the transfer of treatment permits of his patients, when he closed Whitebox Rise Medical Centre in Wodonga in early April 2019.

Pursuant to the Health Practitioner National Law (Victoria) Act 2009 (Vic), the Tribunal orders:

1. Under section 196(2)(a) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), Dr Godwin Mbachilin is reprimanded.
2. Under section 196(2)(e) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), Dr Godwin Mbachilin's registration as a medical practitioner is cancelled.

Mr B Jellis of Counsel instructed by Clayton Utz Lawyers

Mr J Stoller of Counsel instructed by Ms M Ligam, Avant Law, and in person

1. The Medical Board of Australia ('the Board') has referred to the Tribunal allegations about the respondent medical practitioner, Dr Godwin Mbachilin ('Dr Mbachilin' or 'the respondent'), under section 193 of the Health Practitioner National Law (Victoria) Act 2009 (Vic) ('the National Law'). In summary, the allegations are that Dr Mbachilin:
   1. deceived or otherwise dishonestly induced Dr J and Dr W into signing a Supervised practice plan and supervisor's agreement form in relation to Dr C;
   2. between 18 December 2018 and 2 April 2019, breached a condition of his registration requiring him to have level 4 supervision;
   3. in a response to the Board dated 12 February 2019, provided false and misleading information by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised;
   4. failed to facilitate the transfer of treatment permits of his patients, when he closed Whitebox Rise Medical Centre in Wodonga ('Whitebox') in early April 2019.
2. Dr Mbachilin has admitted the conduct alleged. He also admitted the characterisation of the conduct described in [1(a), (b) and (c)] above, as constituting professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law. He did not agree that the conduct described in [1(d)] above, constituted professional misconduct but conceded it did amount to unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.
3. The parties differ on the appropriate determination. The Board seeks the imposition of a reprimand and the cancellation of Dr Mbachilin's registration. The Board does not seek a period of disqualification in relation to Dr Mbachilin applying to be registered. Dr Mbachilin has agreed to the reprimand, but opposes the cancellation of his registration. It was submitted on his behalf that if further action was required in addition to a reprimand, the Tribunal could impose conditions on Dr Mbachilin's registration, for example, in relation to his level of supervision, reporting of supervision, education, mentoring, employment of International Medical Graduates (IMGs) or restraining Dr Mbachilin from owning his own practice.
4. The Tribunal is comfortably satisfied that the conduct described in [1(a) to (d)] above has been proven. The Tribunal is satisfied that the proven conduct described in [1(a)] above, is professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law. The Tribunal is satisfied that the proven conduct described in [1(b) and (c)] above, when considered together, is professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law. The Tribunal is satisfied that the proven conduct described in [1(d)] above, is unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.
5. The Tribunal finds that the appropriate determination is the imposition of a reprimand on Dr Mbachilin and the cancellation of Dr Mbachilin's registration as a medical practitioner.

1. Following a notification regarding Dr Mbachilin from Dr J received by Ahpra on 13 December 2018, the Board decided on 31 January 2019 to commence an investigation of Dr Mbachilin.
2. On 1 April 2019, Ahpra received a notification from a pharmacist regarding Dr Mbachilin.
3. On 4 April 2019, the Board suspended Dr Mbachilin's registration by immediate action.
4. On 23 April 2019, Ahpra received a notification regarding Dr Mbachilin from a patient.
5. On 26 March 2020, the Board decided to refer the matter to this Tribunal.
6. On 13 August 2020, the Board repealed its decision to refer matters to the Tribunal, to enable further investigation into the three notifications.
7. On 27 January 2022, the Board again decided to refer the matter to this Tribunal.
8. On 26 April 2022, the Board made a written referral regarding Dr Mbachilin to the Tribunal and attached a Notice of Allegations.
9. On 6 October 2022, the Board filed an Amended Notice of Allegations.
10. Also on about 6 October 2023, pursuant to directions made by the Tribunal, the parties filed with the Tribunal a joint Tribunal Book, including a copy of the Amended Notice of Allegations.
11. On 17 April 2024, the parties filed with the Tribunal a Statement of Agreed Facts, dated 16 April 2024 ('the SAF') and a Further Amended Notice of Allegations, dated 16 October 2024 ('FANOA'). The allegations and particulars contained in the FANOA are reproduced in Schedule 1 to these reasons.[1]
12. The proceeding came on for hearing before the Tribunal on 19 April 2024.
13. At the commencement of the hearing, the Board sought leave to rely upon the FANOA. Leave was granted by consent. At the hearing, the Board handed up an outline of submissions. A document related to Dr Mbachilin's financial situation was handed up to the Tribunal by Counsel for the respondent.
14. Dr Mbachilin did not give evidence. The parties each relied upon various documents in the Tribunal Book and the SAF. In particular, the Board relied upon witness statements in the Tribunal Book from Dr J, Dr W and Dr C.
15. The following are the Tribunal's reasons for decision.

1. In 1992, Dr Mbachilin obtained a Bachelor of Medicine and a Bachelor of Surgery from the University of Jos, Nigeria. He migrated to Australia in 2008. He was first registered as a medical practitioner on 4 June 2008.
2. In 2013, Dr Mbachilin commenced at a clinic named Elmwood Medical Centre ('Elmwood') under level 3 supervision as an IMG. He worked there until at least the end of December 2018.
3. In around 2017, Dr Mbachilin along with another person purchased Whitebox. He sought to recruit an IMG medical practitioner, Dr C, to work at Whitebox. Dr C required level 1 supervision to practice.
4. Dr Mbachilin provided Dr C with a completed and signed Supervised Practice Plan and Supervisor's Agreement prior to her commencing work at Whitebox. The named supervisors on the form were Dr J and Dr W.
5. Dr J and Dr W were not working at Whitebox when Dr C commenced work in October 2018. Dr Mbachilin told Dr C that another doctor at that clinic would be her interim supervisor until her formal supervisors arrived at the practice.
6. After a period of weeks, Dr C asked Dr Mbachilin when her supervisors would commence. Dr Mbachilin advised that they had changed their minds and would not be coming to Whitebox. Dr Mbachilin was unable to supervise Dr C, as he himself at that time, was still under a condition requiring level 4 supervision.
7. When there was no longer a doctor at the clinic entitled to be her supervisor, either on a permanent or interim basis, Dr C ceased working at Whitebox. Dr C then went to see Dr J about transferring her supervision to another practitioner. Dr J indicated to Dr C that she was not aware of any agreement to be Dr C's supervisor and that she had never agreed to be Dr C's supervisor.
8. On 13 December 2018, Dr J informed Ahpra in writing that she was terminating her agreement to supervise Dr Mbachilin. On 15 December 2018, she told Dr Mbachilin of this termination.
9. From 18 December 2018 to 2 January 2019, Dr Mbachilin continued to practice at Elmwood, in that he wrote prescriptions for pharmacotherapy patients.
10. Dr Mbachilin commenced practice at Whitebox on 2 January 2019. On 12 February 2019, lawyers for Dr Mbachilin wrote to Ahpra to advise that Dr Mbachilin had instructed them that he was not currently practising as a medical practitioner and had ceased practising on 8 February 2019.
11. Dr Mbachilin continued to consult with patients and write prescriptions until 2 April 2019. On 4 April 2019, the Board took immediate action to suspend Dr Mbachilin's registration.
12. From 4 April 2019, there were no registered medical practitioners working at Whitebox.

1. Section 193 of the National Law relevantly provides:

(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason -

(i) the practitioner has behaved in a way that constitutes professional misconduct; or

...

(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal

1. Section 196 of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.
2. Section 5 of the National Law provides that professional misconduct of a registered practitioner includes:

(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. Section 5 of the National Law also provides that unprofessional conduct means:

... professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

(b) a contravention by the practitioner of -

(i) a condition to which the practitioner's registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and

...

(e) Influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patent care; and

...

1. In the circumstances where serious allegations are made against a party including falsifying a document or fraud, the Briginshaw standard applies to the state of satisfaction required in making adverse findings regarding these allegations. In Briginshaw v Briginshaw (1938) CLR 336 at 362, Dixon J discussed the principle as follows:

The seriousness of the 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 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 principle goes to the clarity and quality of the evidence and would require excluding or giving little weight to hearsay evidence, conclusions of fact and opinion without basis, as they are inexact proofs, indefinite testimony and/or indirect inferences. The evidence of the serious allegations against Dr Mbachilin is considered in light of this principle.

1. The full allegations (excluding the now withdrawn Allegation 4 and other superseded text) and particulars are set out at Schedule 1 to these reasons. The three remaining Allegations in the FANOA are summarised as follows (with typographical errors corrected):

(a) Dr Mbachilin on or about 16 March 2018, deceived or otherwise dishonestly induced Dr J and Dr W into signing an SPPA-30 Supervised practice plan and supervisor's agreement form in relation to Dr C ('Allegation 1').

(b) Dr Mbachilin:

1. between 18 December 2018 and 2 April 2019, breached a condition of his registration requiring him to have level 4 supervision; and
2. in a response to the Board dated 12 February 2019, provided false and misleading information by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised.

(c) Dr Mbachilin failed to facilitate the transfer of treatment permits of his patients, when he closed Whitebox in early April 2019 ('Allegation 3').

1. In the SAF, Dr Mbachilin accepted that he engaged in the conduct described in Allegations 1 to 3 in the FANOA and the particulars provided with those allegations. In oral submissions, Dr Mbachilin also accepted the characterisation of the conduct described in Allegations 1 and 2, as constituting professional misconduct within the meaning of paragraphs (a) or (b) and (c) of the definition of professional misconduct in section 5 of the National Law, as proposed by the Board.
2. The parties were in dispute as to whether the accepted conduct in Allegation 3, constituted professional misconduct within the meaning of paragraphs (a) or (b) and (c) of the definition in section 5 of the National Law or constituted unprofessional conduct within the meaning of unprofessional conduct as defined in section 5 of the National Law.
3. The relevant principles for a tribunal to apply in circumstances when there is an agreed statement of facts and findings, as in the present case, are that the Tribunal must be satisfied itself that the findings are appropriate and no agreement between the regulator and the practitioner can supplant that duty.[2] However, any agreement between the parties is a highly relevant matter.[3] Whether a person is legally represented may be an important consideration.[4]
4. In this case, Dr Mbachilin was represented by competent solicitors and Counsel in the preparation of the SAF and at the hearing of this matter.
5. On the basis of the SAF, the documents in the Tribunal Book, and in particular the witness statements of Dr J, Dr W and Dr C, as well as the Supervised practice plan and supervisor's agreement form, the Tribunal is comfortably satisfied that Dr Mbachilin has engaged in the conduct alleged in Allegation 1 of the FANOA and the particulars to that Allegation. That is that Dr Mbachilin deceived and otherwise dishonestly induced Dr J and Dr W to sign the Supervised practice plan and supervisor's agreement form in relation to Dr C.
6. On the basis of the SAF, the documents in the Tribunal Book, and in particular:
   1. the witness statements of Dr J and Dr W;
   2. Dr J's letter dated 13 December 2018;
   3. the Supervised practice plan and supervisor's agreement form for Dr Mbachilin;
   4. the PBS Prescriber Detail Report for Dr Mbachilin;
   5. the Medicare Provider Patient Standard Report for Dr Mbachilin;
   6. the clinical notes for Dr Mbachilin's patients; and
   7. copies of prescriptions written by Dr Mbachilin;

the Tribunal is comfortably satisfied that Dr Mbachilin has engaged in the conduct alleged in Allegation 2 of the FANOA and the particulars to that Allegation. That is, between 18 December 2018 and 2 April 2019, Dr Mbachilin breached a condition of his registration requiring him to have level 4 supervision and, in a written response to the Board, dated 12 February 2019, he provided false and misleading information by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised.

1. On the basis of the SAF, the documents in the Tribunal Book, and in particular the notification to Ahpra from a patient dated 23 April 2019, the Tribunal is comfortably satisfied that Dr Mbachilin has engaged in the conduct alleged in Allegation 3 of the FANOA and the particulars to that Allegation. That is, Dr Mbachilin failed to facilitate the transfer of treatment permits of his patients, when he closed Whitebox.

1. In relation to the characterisation of the conduct, Counsel for the Board submitted that the relevant features of the conduct included:
   1. The purpose of supervision is to provide assurance to the Board and the community that the practice of the practitioner with limited or provisional registration is safe and is not putting the public at risk. Further, the supervision also monitors and supports the IMG and introduces and promotes a culture of continuous learning and professional development;
   2. The conduct described in Allegation 1, was in breach of the Good Medical Practice: A Code of Conduct for Doctor's in Australia (March 2014) ('the Code of Conduct') and the Guidelines: Supervised Practice for International Medical Graduates ('Guidelines: Supervised Practice') relating to IMG supervision;
   3. The conduct described in Allegations 2 and 3 was inconsistent with the Code of Conduct;
   4. The conduct described in Allegations 1 and 2 was dishonest;
   5. The conduct described in Allegation 1, relied on the trust that should exist between practitioners, including between Dr Mbachilin and Dr C regarding the supervision to be provided to Dr C and between Dr Mbachilin and Dr J and Dr W;
   6. The conduct described in Allegation 1, involved exploiting and deceiving a vulnerable person, who arranged her life on faith in the truth of the supervision form;
   7. The conduct described in Allegations 1, 2 and 3, potentially placed patients at risk;
   8. The conduct described in Allegations 1 and 2, deceived the professional regulator;
   9. The conduct is inconsistent with the values of the profession;
   10. The conduct described in Allegation 1, involved drawing other practitioners into Dr Mbachilin's deception;
   11. Although Dr Mbachilin has recently admitted his conduct, he maintained the position on multiple occasions, that the supervisors had agreed to supervise Dr C. This reiterated the false statement and impugned the reputation of the practitioners involved;
   12. The conduct described in Allegation 2, was over an extended period and involved many patients;
   13. The conduct described in Allegation 2, only stopped when action was taken by the Board in February 2019 and April 2019;
   14. The conduct described in Allegation 2, is a serious example of a practitioner not complying with conditions on registration and providing a false and misleading response to the regulator in February 2019;
   15. The conduct is not mitigated by Dr Mbachilin not charging Medicare for consultations with patients from February 2019. Patients' expectations are that doctors will practice legitimately;
   16. The conduct described in Allegation 2 was not inadvertent.
2. Counsel for Dr Mbachilin submitted that the nature and seriousness of the conduct included:
   1. The conduct as serious;
   2. It was not Dr Mbachilin's intention to harm Dr C. He was attempting to find an alternative supervisor, so that Dr C could work at Whitebox. It is accepted that how he went about it was improper. Dr Mbachilin was hoping Dr C would be able to work at Whitebox with supervision for five years;
   3. The conduct described in Allegation 2, occurred between 18 December 2018 and 2 April 2019, a period of three and a bit months;
   4. Between 18 December 2018 and 2 January 2019, Dr Mbachilin was prescribing to pharmacotherapy patients. He was not working at Elmwood in this period, as he did not have a Medicare provider number. However, he was asked by the owner of Elmwood to come back to write pharmacotherapy prescriptions. He did so without charging Medicare, so practised in this period at Elmwood without receiving a personal benefit;
   5. On 2 January 2019, Dr Mbachilin started working at Whitebox. He was practising at large at Whitebox until February 2019. From February 2019, Dr Mbachilin was only practising by prescribing for pharmacotherapy patients and was not charging Medicare;
   6. Dr Mbachilin accepts that he needed a Board approved supervisor and he did not have one;
   7. He admits that his instructions to his solicitor for the letter dated 12 February 2019, were false and misleading, as he was practising at that time even though it was only with pharmacotherapy patients and he was not charging Medicare. It is a mitigating factor, or a non-aggravating factor, that Dr Mbachilin received no benefit from seeing these patients;
   8. Dr Mbachilin's conduct after February 2019, was due to a misguided sense of loyalty as the only prescriber of methadone in the area;
   9. In relation to Allegation 3, Dr Mbachilin accepts that he should have ensured the transfer of the permits. The circumstances at the time were that he had been immediately suspended from practice. It was extremely stressful and a difficult time for him and his family;
   10. It was submitted that the conduct described in Allegation 3, was not professional misconduct but constituted unprofessional conduct.
3. The Tribunal considers all of the proven conduct as serious and the conduct under Allegations 1 and 2, to be particularly serious. The conduct under Allegation 1 includes conduct that was dishonest, betrayed the trust of Dr Mbachilin's colleagues in the Elmwood practice and of a vulnerable IMG, sought to deceive the regulator that supervision was being provided to the IMG, when it was not, and placed the safety of patients at risk by seeking to avoid the requirements of supervision.
4. The conduct under Allegation 2, includes conduct that was dishonest, was over an extended period and related to a large number of patients, sought to deceive the regulator that he was not practising without supervision, when he was doing so and placed the safety of patients at risk by not complying with the requirements of supervision.
5. The conduct under Allegation 3, includes conduct that was a risk to patients and did not comply with the Code of Conduct.
6. In relation to the characterisation of the proven conduct, as described in Allegations 1 and 2, when considered separately, the Tribunal is satisfied that for each allegation:
   1. The conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience to Dr Mbachilin; and
   2. The conduct is inconsistent with the practitioner being a fit and proper person to hold registration as a medical practitioner.
7. The proven conduct described in Allegations 1 and 2, when considered separately, constitutes professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.
8. In relation to the characterisation of the proven conduct, as described in Allegation 3, the Tribunal is satisfied that the conduct was of a lesser standard than that which might reasonably be expected of Dr Mbachilin by the public or his professional peers. The Tribunal is not satisfied that his conduct described in Allegation 3, was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience or inconsistent with the practitioner being a fit and proper person to hold registration as a medical practitioner.
9. The proven conduct described in Allegation 3, therefore constitutes unprofessional conduct within the meaning of unprofessional conduct as defined in section 5 of the National Law.

1. The parties have agreed that Dr Mbachilin should be reprimanded.
2. The parties do not agree whether Dr Mbachilin's registration should cancelled. Dr Mbachilin submitted that if further action is required to meet the purpose of the National Law, the Tribunal should consider placing conditions on Dr Mbachilin's registration.
3. Generally, global penalties should be avoided in disciplinary proceedings, but may be utilised where the charges are 'inextricably interwoven'.
4. In Victorian Legal Services Commissioner v Williams (Legal Practice) [2022] VCAT 806 (15 July 2022) ('Williams'), the Tribunal referred to the earlier decision of Stirling v Legal Services Commissioner [2013] VSCA 374 ('Stirling'), noting that preferring individual penalties:

... allows for a sentence on one count to stand where a conviction for another count is quashed. Secondly, it is easier to assess whether a penalty is manifestly excessive or inadequate when each sentence is clearly pronounced on each count. Thirdly, by sentencing for separate offences, the court makes it clear to the public what the penalty for each offence is, thus assisting in the process of general deterrence. Finally, as in this case, adherence to this rule prevents conduct from one charge being used as an aggravating factor in assessing the penalty for another charge.

1. In Williams at [145], the Tribunal found that a global penalty may be appropriate:

There are some cases ... where the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied.

1. In the present case, the Tribunal finds that the conduct proven is constituted by a course of behaviour to deceive and otherwise dishonestly induced colleagues into signing a Supervised practice plan and supervisor's agreement form in relation to Dr C, breached a condition of Dr Mbachilin's registration requiring him to have level 4 supervision, provided false and misleading information to the Board by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised and failed to facilitate the transfer of treatment permits of his patients, when he closed his clinic. The Tribunal is satisfied that the facts of the case are interwoven to the extent that a global determination should be applied.
2. The principles to be applied by the Tribunal in considering the appropriate determination are summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee (Review & Regulation) [2019] VCAT 311, at [20], as follows:

(a) the purpose of the imposition of determinations is to protect of the public;

(b) determinations are intended maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;

(c) determinations should in no way be punitive;

(d) the objectives of determinations can be achieved by specific deterrence, i.e. the deterrence of the person concerned from further inappropriate conduct, specific deterrence, by general deterrence, i.e. the deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner;

(e) personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;

(f) 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;

(g) the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;

(h) insight can include 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; and

(i) any form of official censure is of consequence. It has been held that a reprimand should not be considered a 'slap over the wrist'.

1. The Tribunal considered the relevant factors as follows.

1. The conduct proven under Allegation 1, is that Dr Mbachilin deceived and otherwise dishonestly induced two colleagues into signing a Supervised practice plan and supervisor's agreement form in relation to supervision of Dr C. The conduct was dishonest and betrayed the trust of Dr J and Dr W, his colleagues in the Elmwood practice. It also betrayed the trust of, and exploited, Dr C, a vulnerable IMG. Dr Mbachilin sought to deceive the regulator that supervision was being provided to Dr C, when it was not. The conduct placed the safety of patients at risk by seeking to avoid the requirements of supervision for Dr C. The proven conduct under Allegation 1 was serious.
2. The conduct proven in Allegation 2, is that Dr Mbachilin breached a condition of his registration requiring him to have level 4 supervision, provided false and misleading information to the Board claiming that he was not currently practising, in circumstances where he continued to practise unsupervised. The conduct was dishonest, was over an extended period and related to a large number of patients. Dr Mbachilin sought to deceive the regulator that he was not practising without supervision. He placed the safety of patients at risk by not complying with the requirements of supervision. The proven conduct under Allegation 2 was serious.
3. The conduct proven in Allegation 3, is that Dr Mbachilin failed to facilitate the transfer of treatment permits of his patients, when he closed his clinic. The conduct was a potential risk to patients, as it meant that patients may not have access to their prescribed medication. The proven conduct did not comply with the Code of Conduct.

1. The Board submitted that general deterrence was needed in this case due to the seriousness of the conduct. It was submitted that Dr Mbachilin engaged in dishonest conduct of multiple kinds and on multiple occasions.
2. Counsel for Dr Mbachilin submitted that the conduct was serious but the period of suspension served by Dr Mbachilin was sufficient. Five years was an extraordinary long time to wait for the matter to be resolved under the National Law. It was submitted that a five year period of disqualification would usually be for the very worse cases.
3. The Tribunal finds there is a need for general deterrence to be part of the determination consideration to deter other practitioners from engaging in such serious improper conduct. General deterrence is needed in circumstances where there was inherent dishonesty in the misconduct, the conduct was over an extended period and there was a deliberate misuse of the position of a medical practitioner to betray the trust of others.

1. In deciding the need for specific deterrence in making the appropriate determination, issues such as insight and remorse are relevant.
2. Counsel for the Board, in summary, made the following submissions on issues relevant to specific deterrence:
   1. Cancellation is required for the purpose of specific deterrence in this case. The seriousness of the conduct including multiple kinds of dishonesty on multiple occasions is relevant;
   2. The long period of suspension, waiting for these proceedings to conclude, has been taken into account by the Board not seeking a period of disqualification. If not for the long period of suspension, the Board would have sought a period of disqualification.
3. Counsel for Dr Mbachilin, in summary, made the following submissions on issues relevant to specific deterrence:
   1. Specific deterrence should not weigh heavily on the consideration for the determination. The five year suspension already served by Dr Mbachilin was enough to deter anyone from engaging in such conduct;
   2. The suspension has been life altering for Dr Mbachilin. The suspension and its consequences have been significant extra punishment outside of the purposes of the National Law;
   3. The prospect of five years of uncertainty as to his professional future is enough for the purpose of specific deterrence;
   4. Reference was made to Kazanoglu v Pharmacy Board of Australia [2012] VSCA 295 at [127], to support the proposition that a lengthy delay between immediate action to suspend a practitioner and a referral to VCAT was unfair on the practitioner. The delay hanging over the practitioner for so long was punishment. Reference was also made to Stirling and the effects of delay in commencing proceedings in this Tribunal;
   5. Dr Mbachilin's history includes that he has 25 years' experience as a doctor. He migrated to Australia in 2008 and was first registered in Australia on 12 June 2008. He worked at Elmwood from 2013, starting with level 3 supervision, until December 2018, at which time he was under level 4 supervision. In 2019, he commenced practice at Whitebox. Dr Mbachilin practised for at least five years in an area of need. He lives in the same area. Dr Mbachilin's plan was to continue to serve that community, start a business and get the financial rewards for his hard work. Due to his misconduct, the practice at Whitebox is no longer operating. This has had a significant financial impact on him;
   6. Documentation from a debt consultancy was provided to the Tribunal. This documentation confirmed that Dr Mbachilin has a very large personal debt. A very substantial proportion of that debt arises from the collapse of the Whitebox clinic. The debts include amounts owed under a personal guarantee for rent and loss of rent of the Whitebox premises and amounts apparently for operating and/or capital expenses of the clinic;
   7. Dr Mbachilin has not received five years of income as a medical practitioner. This has been a significant impost on him. He has also lost momentum towards his fellowship with the College of GPs;
   8. When Dr Mbachilin comes to register again as a medical practitioner, he will need to confront issues with the recency of practice requirements;
   9. Dr Mbachilin is currently receiving Centrelink benefits. He has not worked for the last five years. His wife works as a registered nurse;
   10. Dr Mbachilin has suffered a loss of integrity. He is ashamed of himself. Dr Mbachilin accepts that his conduct was unethical and he only has himself to blame. His family have been significantly impacted;
   11. Since the proven conduct occurred, Dr Mbachilin has been diagnosed with depression and has been prescribed anti-depressant medication. No medical evidence was provided to the Tribunal to support this submission;
   12. It was submitted that it was not correct that Dr Mbachilin had been maintaining his lies until two days before the hearing. The allegation was initially put that Dr Mbachilin had forged the other doctors' signatures on the Supervised practice plan and supervisor's agreement. That was denied and the forgery allegation remained part of the Board's case until the proposal to amend the Allegations two days before the hearing. The changes in the FANOA include, that the particulars specifying that Dr J and Dr W did not sign the document were deleted;
   13. The matters referred to in [48] above.
4. In reply, the Board submitted as follows:
   1. The Tribunal has not heard from Dr Mbachilin himself on the issues of insight, remorse and rehabilitation. Sometimes additional comfort can be obtained from hearing from a practitioner's own mouth. This can bear on the relevance of specific deterrence in a particular case;
   2. The impression from the respondent's submissions was that Dr Mbachilin had been candid regarding the allegations and not mislead the regulator in the course of the investigation. This is not correct and Dr Mbachilin's obfuscation continued in his submissions this morning;
   3. The suggestion that the Reflective Report by Dr Mbachilin dated 10 March 2020 ('the Reflective Report')[5] was a candid acknowledgment of wrongdoing is not correct. The Reflective Report specifically denied that the Supervised practice plan and supervisor's agreement contained forged signatures but it did not acknowledge that neither of the two doctors who signed the agreement, had agreed or understood that they were signing a supervision agreement for Dr C;
   4. The Board took the Tribunal to various documents which it said evidenced Dr Mbachilin not making candid responses to the allegation that there was no agreement or knowledge by the two doctors of the supervision agreement being in relation to Dr C.[6] This included a document in which Dr Mbachilin states that Dr J was wrong in her denial of the supervision of Dr C being discussed with her.[7] The statement by Dr Mbachilin in the Reflective Report that he should have arranged a meeting between Dr C and Dr J,[8] failed to acknowledge that Dr J had never agreed to supervise Dr C and had not changed her mind. It was only in the last two days that Dr Mbachilin has admitted that Dr J never agreed to supervise Dr C and that he knew that was the case;
   5. It was submitted that the failure to accept the truth of the allegations and to continue to obfuscate in submissions, was relevant to the level of insight displayed by Dr Mbachilin regarding the proven conduct.
5. Dr Mbachilin did not give evidence to the Tribunal at the hearing. The Tribunal was therefore unable to hear firsthand from Dr Mbachilin regarding matters relevant to specific deterrence and for that evidence to be tested under cross examination by the Board. The Tribunal is therefore at a disadvantage when considering the arguments put forward on behalf of Dr Mbachilin as to his remorse, insight and rehabilitation.
6. Dr Mbachilin's conduct included dishonesty over an extended period, including when confronted with allegations. The Tribunal is satisfied that it was only two days before the hearing that Dr Mbachilin acknowledged that Dr J and Dr W had not, at any time, agreed to supervise Dr C and had signed the Supervised practice plan and supervisor's agreement without knowing that this document related to Dr C.
7. There was a lack of current evidence for and on behalf of Dr Mbachilin regarding his insight into and remorse for the serious proven conduct and his rehabilitation. The documentary evidence prior to the SAF, while expressing some remorse, did not disclose the full nature of Dr Mbachilin's conduct, as now admitted and proven.
8. In those circumstances, the Tribunal is not satisfied on the evidence before it that Dr Mbachilin has fully developed genuine insight and remorse for his conduct and has undertaken significant efforts at rehabilitation.
9. It was submitted that Dr Mbachilin has now been diagnosed with depression. There was no medical evidence provided to support this submission.
10. The Tribunal is satisfied that the long period of suspension from practice and the consequences of the suspension are likely to have had a deterrent effect on Dr Mbachilin. However, the Tribunal is unable to reach as firm a conclusion as to the nature and extent of the deterrence due to a lack of evidence from Dr Mbachilin or others on his behalf, regarding his insight, remorse and likely future conduct.
11. Counsel for Dr Mbachilin, in submissions, made much of the period of Dr Mbachilin's suspension and the delay in the finalisation of this matter. The Tribunal accepts that a period of unreasonable delay can visit unfairness on a practitioner and is relevant to the consideration of the appropriate determination. A period of delay can allow the opportunity for the practitioner to reflect on the conduct, exhibit remorse and undertake rehabilitation. The period of delay in itself does not mean that a practitioner has necessarily reflected on their conduct, exhibited remorse or undertaken rehabilitation.
12. In the present case, Dr Mbachilin has not presented evidence to show how this period has been constructively used for these purposes. The Tribunal is not satisfied that the period since the proven conduct means that specific deterrence no longer has a role to play.
13. The Tribunal needs to consider the circumstances of the case, including issues of insight, remorse and rehabilitation, at the time of the hearing to decide whether specific deterrence is a relevant factor and to what extent. The period since the proven conduct is relevant but not determinative.
14. On the evidence before the Tribunal, it finds that specific deterrence has a role to play in the determination, due to the nature of the conduct and the risk of relapsing and re-offending where there is limited evidence as to insight, remorse and rehabilitation. It is important for Dr Mbachilin to very clearly understand that such serious conduct has consequences in the area of professional regulation.
15. The Tribunal considers that there is a need to continue to protect the public from Dr Mbachilin, in circumstances where he continued to deny the full extent of his conduct for many years and only very recently came to fully acknowledge the proven conduct.

Evidence of character and past disciplinary history

1. The Tribunal was not referred to any previous disciplinary proceedings against Dr Mbachilin in the Tribunal and no references were produced.

1. In the SAF filed two days before the hearing, Dr Mbachilin formally accepted the Allegations and particulars in the FANOA, as correct. Although, Dr Mbachilin was late in coming to full admissions of his conduct, he should receive some credit for doing so.

1. Each party in general accepted that caution should be exercised in drawing conclusions as to determinations in previous cases, as each case must be decided on its own merits and the appropriate determination to protect the public is likely to be different in each case.
2. Counsel for Dr Mbachilin particularly relied upon the case of Health Complaints Commission v Mikhail [2021] NSWCATOD ('Mikhail'), as having similar factual circumstances to the present case and being of assistance in deciding the appropriate determination. It was submitted that in Mikhail, the practitioner practised knowingly without supervision for two periods totalling 17 months. The practitioner was under Category C supervision in New South Wales, which is similar to Level 4 in Victoria. The period of unsupervised practice was longer in Mikhail than in the present case. Both cases had multiple instances of wrongdoing. In Mikhail the practitioner provided false and misleading information orally and in an affidavit and prescribed to her family and herself. The practitioner had previous findings against her regarding practising at the appropriate standard.
3. It was submitted on behalf of Dr Mbachilin that a similar outcome of nine months suspension, as was applied in Mikhail, would have been appropriate in this matter, if it was dealt with in 2020.
4. The Tribunal is satisfied that there are substantial differences between the circumstances in Mikhail and the present case. Firstly, in the present case, Dr Mbachilin drew other practitioners into his conduct by deceiving them into signing the Supervised practice plan and supervisor's agreement. Perhaps more importantly, in Mikhail the practitioner gave evidence and was cross-examined about factors relating to determination. From the practitioner's evidence, the Tribunal in that case was able to form some positive views as to the practitioner's level of insight and likely conduct on returning to registration.[9] The Tribunal in Mikhail also relied upon references provided in support of the practitioner. The Tribunal was able to take these positive matters into account in reaching a determination for the practitioner in Mikhail. The Tribunal in the present matter did not have sufficient similar material before it to form such positive views about Dr Mbachilin.
5. Counsel for Dr Mbachilin provided several other previous decisions for the assistance of the Tribunal in reaching the appropriate determination. These decisions included, Medical Board of Australia v Chu (Review and Regulation) [2024] VCAT 89 ('Chu'), in relation to which it was submitted the practitioner was found to have been deliberately dishonest for financial gain, amongst other allegations. The practitioner had been criminally charged. The Tribunal in that case imposed a six month suspension of the practitioner's registration. The Tribunal notes that in that case, there was sufficient evidence regarding remorse, insight and rehabilitation to reduce the need for specific deterrence.[10]
6. In relation to the matter of Medical Board of Australia v Putha [2014] QCAT 159 ('Putha'), it was submitted that the practitioner was found to have obtained registration by fraud and was effectively back in practice in two years. The Tribunal also notes that in Putha, the practitioner was immediately remorseful and cooperative with the Board when the allegations were made.[11] The conduct was to exaggerate her experience in overseas medical clinics. The Tribunal notes that the practitioner had her registration cancelled and a period of disqualification applied.
7. Counsel for Dr Mbachilin also relied upon the decision in Medical Board of Australia v Kyaw [2016] QCAT 34 ('Kyaw'), where the conduct was that the practitioner provided false information to the Board for limited registration and later a fraudulent certificate of good standing from Myanmar. In that case, the practitioner was suspended for a period of 10 months while the investigation took place and the Tribunal then took no further action. The Tribunal notes that in Kyaw, it was found that the practitioner would have been granted the same registration without the conduct and that the parties jointly submitted that the determination be limited to a reprimand.[12] The decision in Kyaw noted the remorse of the practitioner and his good standing.[13]
8. Reliance was also placed upon the decision in Medical Board of Australia v Adams (Review and Regulation) (Corrected) [2017] VCAT 796 ('Adams'), where a practitioner was found to have forged forms and was suspended for a period of six months. The practitioner had caused 37 patient consent forms to be signed by a person other than that patient in respect of surgical operations, procedures or medical treatment. The Tribunal notes that in that case the Tribunal was satisfied that the practitioner had shown some remorse and would not commit the offence again. There was little need for specific deterrence.[14]

1. It was submitted that Dr Mbachilin has since the proven conduct, been diagnosed with depression and prescribed anti-depressant medication. No medical evidence was produced in support of this submission.
2. As discussed above, the delay in disciplinary proceedings being commenced and finalised has been recognised as a matter to be taken into account in determining an appropriate penalty. A delay may be a mitigating factor and is considered in the light of the rehabilitation of the person in the period and the fairness of such a delay on the person.[15] The Tribunal considers that it should take into account that Dr Mbachilin had disciplinary matters hanging over him for a period of about five years.

1. The Tribunal has taken into account the above matters. In the Tribunal's consideration of the appropriate determination in this case, significant factors include the need for the protection of the public through general deterrence and specific deterrence and the related need to protect the public from the risk of future contraventions by Dr Mbachilin.
2. The Tribunal is satisfied that a reprimand is appropriate to denounce the serious conduct of Dr Mbachilin in this case. It is well understood that a reprimand is not a trivial determination. For a professional person it has the potential for serious adverse implications.[16] If tells the public, clients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.
3. Dr Mbachilin proposed that no further action was required for the purpose of the National Law. However, if further action was required that, such action should be in the form of conditions on Dr Mbachilin's registration. The Tribunal finds that a reprimand alone, even taking into account the suspension of five years, is inadequate, particularly for the protection of the public from Dr Mbachilin.
4. The Board has proposed that Dr Mbachilin's registration be cancelled but no period of disqualification from applying to be registered should be imposed. Cancellation of registration of a practitioner is a very serious consequence. It was submitted on behalf of Dr Mbachilin, that such action is imposed only for the most serious types of conduct.
5. The Tribunal rejects this submission. The seriousness of the conduct is one factor to be taken into account. As outlined above, issues of the protection of the public through general deterrence and specific deterrence and the related need to protect the public from the risk of future contraventions by that practitioner are relevant. The seriousness of the conduct does interact with these factors.
6. In the present case, the Tribunal considers that cancellation of Dr Mbachilin's registration is the appropriate outcome, due in particular to the need for specific deterrence of Dr Mbachilin in the particular circumstances of this case, and the protection of the public where Dr Mbachilin has denied his conduct for a number of years and only fully admitted the proven conduct very recently before the hearing of this matter. The matters of insight, remorse and rehabilitation were central to our consideration of the appropriate determination. As discussed above due to limited evidence on these matters, the Tribunal was unable to draw positive views of Dr Mbachilin's insight and remorse and that the public would be safe with Dr Mbachilin's returning to practice.
7. The Tribunal accepts that no disqualification period on Dr Mbachilin applying for registration should be imposed. He will therefore be able to apply to the Board to be registered. The Board will consider the range of relevant matters when deciding any application.

1. The Tribunal has therefore decided that the appropriate determination in this matter is to reprimand Dr Mbachilin and to cancel Dr Mbachilin's registration as a practitioner.

The allegations in respect of Dr Godwin Mbachilin (Dr Mbachilin) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Medical Board of Australia (Board) pursuant to section 193(1)(a)(i) of the Health Practitioner Regulation National Law (National Law) are:

Dr Mbachilin engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law, and/or engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that, on or about 16 March 2018, Dr Mbachilin:

(b) deceived or otherwise dishonesty induced Dr J and Dr W into signing;

an SPPA-30 "Supervised practice plan and supervisor's agreement" form in relation to Dr Jacqueline Chua.

1. At all material times, Dr Mbachilin held registration as a medical practitioner under the National Law.

1. At all material times, Dr Mbachilin was a part-owner of Whitebox Rise Medical Centre in Wodonga (Whitebox Rise).

1. On 19 January 2017, Dr Mbachilin offered Dr C, an international medical graduate, a position as a consultant at Whitebox Rise. Dr C accepted the position on or about 24 January 2017.

1. At all material times, Dr C's registration as a medical practitioner required her to be directly supervised (level 1 supervision) in accordance with the Guidelines: Supervised Practice for International Medical Graduates (Guidelines: Supervised Practice). Level 1

1. required a supervisor to be physically present at the workplace at all times when Dr C was providing clinical care;
2. required Dr C to consult her supervisor about the management of all patients at the time of the consultation and before the patient leaves the practice; and
3. did not permit supervision via telephone or other telecommunications.

1. On 16 March 2018, Dr Mbachilin provided Dr C with pages from an SPPA-30 "Supervised practice plan and supervisor's agreement" form (supervision agreement) which:

1. ;
2. ;
3. in section H, was purportedly signed by Dr J as Dr C's proposed principal supervisor and dated 16 March 2018;
4. in section H, was purportedly signed by Dr W as Dr C's first proposed co-supervisor and dated 16 March 2018; and
5. in section I, was purportedly signed by Dr J as Dr C's proposed principal supervisor and dated 16 March 2018.; and

g. did not have Dr C's name completed in sections H or I.

a. did not agree to be a principal supervisor for Dr C;

1. did not understand herself to be signing, the supervision agreement; and

1. did not understand herself to be signing, the supervision agreement; and

1. ;
2. deceived or otherwise dishonestly induced Dr J and Dr W into signing the supervision form;
3. .

1. In reliance on the supervision agreement, Dr C commenced practising.

1. By engaging in the above conduct, Dr Mbachilin breached, or acted inconsistently with, the following sections of Good Medical Practice: A Code of Conduct for Doctor's in Australia (March 2014) (Code of Conduct):

1.4 Professional values and qualities of doctors: Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy.

4.4.7 Teamwork: When working in a team, good medical practice involves supporting students and practitioners receiving supervision within the team.

10.2.2 Teaching and supervising: Good medical practice involves making sure that any doctor or medical student for whose supervision you are responsible receives adequate oversight and feedback.

1. By engaging in the above conduct, Dr Mbachilin breached, or acted inconsistently with, the following sections of the Guidelines: Supervised Practice:

3.1: The supervision arrangements that have been approved by the Board must be in place at all times when the IMG [International Medical Graduate] is practising. An IMG must not practise if the approved supervision arrangements cannot be met.

Dr Mbachilin engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law, and/or engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that:

(a) between 18 December 2018 and 2 April 2019, he breached a condition of his registration requiring him to have level 4 supervision; and

(b) in a response to the Board dated 12 February 2019, he provided false or misleading information by claiming that he was not currently practising, in circumstances where he continued to practise unsupervised.

1. At all material times, Dr Mbachilin held limited registration as a medical practitioner under the National Law and was required to practice subject to level 4 supervision in accordance with the Guidelines: Supervised Practice. Level 4 supervision required a supervisor to:

1. be available for consultation if Dr Mbachilin required assistance; and

c. periodically conduct a review of Dr Mbachilin's practice.

1. Dr J signed an SPPA-30 "Supervised practice plan and supervisor's agreement" form, by which she agreed to be Dr Mbachilin's principal supervisor.

1. on or about 13 December, informed AHPRA that she had terminated her supervision agreement with Dr Mbachilin; and
2. on or about 15 December 2018, informed Dr Mbachilin that she had no intention to supervise him.

1. On or about 2 January 2019, Dr Mbachilin commenced practising at Whitebox Rise.

1. During the period 13 December 2018 to 2 April 2019, Dr Mbachilin continued practising without a supervisor approved by the Board, including:
   1. providing medical services and conducting consultations between 31 December 2018 and 20 February 2019 on at least 900 occasions;
   2. prescribing medications to patients between 18 December 2018 and 2 April 2019:

1. including prescribing Schedule 8 poisons, including oxycodone on at least 40 occasions and morphine on at least 20 occasions.
2. in particular, undertaking regular attendances with 11 patients between 31 December 2018 and 23 March 2019, as set out in Schedule A.

F. By letter dated 12 February 2019, Dr Mbachilin's legal representatives informed AHPRA, and the Board, that they had been instructed that Dr Mbachilin:

a. was not currently practising as a medical practitioner; and

1. had ceased practising on Friday 8 February 2019 after being advised that it was a condition of his registration that he be supervised by a Board-approved supervisor.

G. Dr Mbachilin's response was false and misleading in that he:

a. had not ceased practising on Friday 8 February 2019; and

1. By engaging in the above conduct, Dr Mbachilin breached, or acted inconsistently with, the following section of the Code of Conduct:

1.4 Professional values and qualities of doctors: Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy.

1. By engaging in the above conduct, Dr Mbachilin breached, or acted inconsistently with, the following sections of the Guidelines: Supervised Practice:

3.1: The supervision arrangements that have been approved by the Board must be in place at all times when the IMG [International Medical Graduate] is practising. An IMG must not practise if the approved supervision arrangements cannot be met.

3.3: All IMGs will have a principal supervisor.

Dr Mbachilin engaged in professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law, and/or engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, by failing to facilitate the transfer of treatment permits of his patients, when he closed Whitebox Rise in early April 2019.

1. At all material times, Dr Mbachilin held registration as a medical practitioner under the National Law.

1. On or about 2 January 2019, Dr Mbachilin commenced practising at Whitebox Rise.

1. On 4 April 2019, the Victorian Immediate Action Committee of the Board determined to suspend Dr Mbachilin's registration.

1. From 4 April 2019, there were no registered medical practitioners working at Whitebox Rise.

E. Shortly thereafter, Dr Mbachilin closed Whitebox Rise.

1. Dr Mbachilin held treatment permits to prescribe certain Schedule 8 medications to patients at Whitebox Rise, which he did not, or take any steps to, transfer to another practitioner.

1. By engaging in the above conduct, Dr Mbachilin breached, or acted inconsistently with, the following sections of the Code of Conduct:

2.1.4: Providing good care - Introduction: Providing good patient care including referring a patient to another practitioner when this is in the patient's best interests.

When closing or relocating your practice, good medical practice involves:

3.15.2: Facilitating arrangements for the continuing medical care of all your current patients, including the transfer or appropriate management of all patient records.

[1] The Tribunal has decided to anonymise the names of the witnesses in these reasons and the attached text of the FANOA.

[2] See Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498 [24]-[25]; Commonwealth v Director Fair Work Building Industry Inspectorate [2015] HCA 46 (2015) 258 CLR 482 [46]-[58].

[3] Medical Board of Australia v McGrath [2014] VCAT 641 [19]-[21]; Medical Board of Australia v Powell [2013] VCAT 999.

[4] Medical Board of Australia v Powell [2013] VCAT 999.

[6] For example, 1214, 1217, 1221, 1224, 1238, 1244, 1248.

[16] Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, 19 January 1993 at p6.