1. Pursuant to section 77(4)(b) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is cautioned to ensure that, from the date of the Tribunal's order onwards, the statutory declarations that he provides to the Medical Board of Australia pursuant to the determinations made by the Medical Practitioners Board of Victoria on 3 May 2007 expressly state that he has 'not facilitated the administration of intravenous herbal infusions, genome therapies, and other therapies brought into the country by patients, unless the therapies have been specifically approved by the TGA (not as part of the Special Access Scheme)'.
2. Pursuant to section 77(4)(c) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is reprimanded.
3. Pursuant to section 77(4)(d) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is required to complete the Royal Australian College of General Practitioners' Critical Thinking and Research Module within three months of the date of the Tribunal's order, at his own expense; and:
   1. Within 14 days of completion of the Critical Thinking and Research Module, Dr Piesse is to provide a statutory declaration to the Australian Health Practitioner Regulation Agency (AHPRA) confirming that he has successfully completed the Critical Thinking and Research Module.
   2. If the Critical Thinking and Research Module for any reason becomes unavailable or is no longer provided, Dr Piesse is to notify the AHPRA upon becoming aware of such unavailability. The Victorian State Manager of the AHPRA shall nominate an alternative course of study, which is to be completed by Dr Piesse within three months of Dr Piesse receiving notice from the AHPRA of the alternative course of study.

Mr A. Clements of counsel instructed by Minter Ellison

2 On or about 3 May 2007, the then Medical Practitioners Board of Victoria ("the Board")[1] made a number of determinations pursuant to s.38D of the Medical Practice Act 1994 concerning Dr Piesse's professional conduct, including determinations that he:

'Undertake further education within six months to improve his analytical and appraisal skills in relation to scientific studies and data appraisal'; and 'to improve computing skills by accessing training in Medical Director'; and that he

'is required to provide a statutory declaration every three months to confirm that he has not facilitated the administration of intravenous herbal infusions, genome therapies and other therapies brought into the country by patients, unless the therapies have been specifically approved by the TGA (not as part of the Special Access Scheme)'.

1. On 18 December 2008, the Board determined, pursuant to s.59(2) of the Health Professions Registration Act 2005 ("the HPR Act") to refer the matter of Dr Piesse's professional conduct to a Professional Standards Panel ("PSP") hearing.
2. At the commencement of the PSP hearing on 5 March 2009, Dr Piesse exercised his right pursuant to s.70 of the HPR Act to request that the matter be referred to VCAT for a Tribunal hearing. As a consequence of this request, the PSP abandoned the Panel hearing and the Board referred the matter to the Tribunal for hearing.

5 At the commencement of the hearing before us, counsel for the Board submitted that I should rule that the Tribunal did not have jurisdiction to conduct a review of the Board's determinations. Dr Piesse's representative[2] agreed that the Tribunal had no review jurisdiction in relation to the Board's determinations and agreed that the ambit of the hearing was to be confined to the allegations set out in Appendix A to the letter dated 8 December 2009 from the Board's solicitor to the Tribunal. However Dr Piesse's representative invited us to note that Dr Piesse had remained dissatisfied with the determinations, and with the assessment process which led to the making of the determinations. I ruled that the Tribunal was to consider only the allegations set out in Appendix A to the letter referred to above.

1. Another preliminary matter, which was raised for the first time on the second day of the hearing by Mr Piesse's representative, concerned whether the hearing should be in two stages, as she envisaged. Counsel for the Board submitted that he had prepared for the case on the basis that all matters would be dealt with. He noted that the Tribunal Book had already been marked Exhibit A and contained the first witness statement of Dr Piesse in which Dr Piesse adverted to prior dealings with the Board in 2001 and 2004 in unrelated matters. He indicated that he would be submitting on behalf of the Board that these matters should carry no weight in the Tribunal's deliberations in this case. He also noted that Dr Piesse's representative had already put into evidence a number of character references upon which she proposed to rely.
2. Dr Piesse's representative raised other reasons (largely to do with Dr Piesse's health and his need to attend to other pressing financial matters) as to why the hearing should be split, but I considered for a number of reasons that the hearing should proceed to consider all relevant matters. Firstly, the material concerning Dr Piesse's character, and his earlier dealings with the Board had already been put in evidence by Dr Piesse. More importantly, the Board proposed to submit that the earlier matters should bear no weight in this proceeding. Finally, the age of this matter (going back to determinations made in May 2007), together with the health difficulties experienced by Dr Piesse since that time, militated in favour of an expeditious hearing which would produce a timely resolution of this proceeding.

1. Counsel for the Board indicated that at the hearing before us the applicant was pursuing only allegation 1(a) (i) and (iii), and allegation 1(c) of the allegations set out in Appendix A referred to above. The allegations are in the following terms:

1. On or after 1 July 2007, Dr Piesse engaged in unprofessional conduct as defined in paragraph (a) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct as defined in paragraph (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act, in that Dr Piesse did not comply and/or did not adequately comply with the Board's determinations made on or about 3 May 2007 by:

1. failing to adequately undertake and complete specified further education and/or failing to do so within the time frame(s) required by the Board;

The Board's determinations made on or about 3 May 2007 provide, in part:

'Pursuant to section 38D(1)(f) of the MP Act, Dr Piesse undertake further education within six months:

(i) to improve Dr Piesse's analytical and appraisal skills in relation to scientific studies and data appraisal;

(iii) to improve computing skills by accessing training in Medical Director'

1. failing to provide statutory declarations to the Board and/or failing to do so within the time frame(s) required by the Board.

The Board's determinations made on or about 3 May 2007 provide, in part:

'Dr Piesse is required to provide a statutory declaration every three months to confirm that he has not facilitated the administration of intravenous herbal infusions, genome therapies, and other therapies brought into the country by patients, unless the therapies have been specifically approved by the TGA (not as part of the Special Access Scheme)'.

1. The material relied on by the parties was contained in a two-volume Tribunal Book ("TB").
2. Ms Geyer, a legal advisor employed by the Australian Health Practitioners Regulation Agency ("AHPRA") was formerly employed as a solicitor by the Medical Practitioners Board of Victoria between February 2007 and 30 June 2010. She adopted the witness statement of Janet Atkinson, a former solicitor of that Board who did not transition across to AHPRA on 1 July 2010. The purpose of Ms Atkinson's statement was to put into evidence relevant documents on the Victorian Board's file. Md Geyer was briefly cross-examined.
3. Dr Piesse gave evidence and was cross-examined. There were no other witnesses.

1. The Tribunal hearing was conducted in accordance with ss76 and 77 of the HPR Act. Pursuant to s.77(1)(a) of the HPR Act, after the Tribunal has completed the hearing and determined whether the allegations are made out, it may make a finding as to whether or not Dr Piesse has engaged in unprofessional conduct or professional misconduct.

1. At the hearing, it was submitted on behalf of the applicant that Dr Piesse had undertaken no relevant education within the relevant six month period, although it accepted that he attended some Allori seminars much later, in August and November 2009, which could be regarded as overdue and partial compliance with the determination. In addition, it was submitted, the Tribunal should find that Dr Piesse knew, at all relevant times, that he was required to complete, and failed to complete, the "Critical Thinking and Research" module ("the module") that was offered by the RACGP in 2007.
2. There is no dispute about a number of matters concerning the module. For example, the module was referred to by the Board in its letter to Dr Piesse dated 8 May 2007 in which it informed him of the determinations. The module was also referred to by Dr Katsoris in her email to Dr Piesse sent on or around 22 May 2007 (although Dr Piesse said in evidence[3] that he did not see it at the time, and only searched for it much later, in October 2008). The module was available in May 2007[4]. It was referred to by Dr Piesse in his letter to the Board dated 12 September 2007. It appears that the module was not available in late 2008 and was not available in mid-2009 but that it, or a revised version of it, became available later in 2009. Dr Piesse purchased the module in December 2009.
3. In a letter to the Board on 30 October 2008, Dr Piesse wrote that because the module was no longer available, he had no leads to follow "to find a suitable training programme that would fill the Board's requirements". When Dr Piesse learned in December 2009 that the revised module was available, he purchased it.
4. In his witness statement dated 26 April 2011,[5] Dr Piesse described what he had been doing in the past ten years by way of self-education, including attending training seminars and conferences. Dr Piesse complained of the Board's failure to provide reasons for its determination in this regard. He said that on his "own initiative", he sought further training or seminars, and stated that the "first available opportunities" came in 2 seminars conducted by Allori on 20 August and November 2009. He stated that it was never made clear to him by the Board that he was required to complete the module. He referred to the fact that the module involved an estimated 48 hours of work. He noted that he had suffered ill-health before and after the Board's determinations, including "localised prostate cancer diagnosed August 2007 (also stress related); 2 cycling injuries in 2008 - a fractured pelvis in April 2008, and a fractured wrist in early October 2008".
5. Dr Piesse stated that he purchased the module in December 2009, commenced work on it but was unable to continue working on it throughout 2010 because of his health problems, the demands for preparing for VCAT hearings in January and November 2010, February and April 2011. However, he indicated that he was willing to complete the module, although he estimated it would take him 60 rather than 48 hours. He stated that he had other pressing matters to attend to including his personal superannuation and 4 years of tax returns, as well as preparation of a lecture for a conference in August 2011.
6. At the hearing, Dr Piesse said in cross-examination that the two Allori programmes he attended in 2009 comprised a total of six hours of discussion concerning guidelines for the prevention of stroke and hypertension. He said he had also attended GP Continuing Education sessions: a one-hour session in 2008, one day in 2010 and one hour in 2010. He said that he purchased the module in December 2009 because it was all he could find and he thought he should do it. He said he had completed about 20 hours of work required by the module since December 2009.
7. Dr Piesse agreed that since May 2007 he had spent hundreds of hours working as a general practitioner. He agreed that he had attended conferences and continuing education sessions in 2008 and 2010 but said that he could not allocate time in 2010 to complete the module because of his need to rest. He conceded that he knew he was supposed to do education of the kind provided by the module. However, he said that after this hearing his priorities would be to do his superannuation, his tax returns, rest, and then possibly complete the module at a rate of 4 hours per week. He insisted that his failure to comply with the Board's determination in this regard "does not impact on the quality of my work as a doctor", and agreed that one reason he had not complied with it was because he felt the determination was wrong.
8. We note that none of the documents in Attachment 1 to his statement refer to education undertaken between 8 May and 8 November 2007 in compliance with the Board's determination.
9. It was submitted on Dr Piesse's behalf that for a number of reasons the completion of the module was not mandatory. Firstly, it was not specifically referred to in the Board's determination. Secondly, even the email from Dr Katsoris (which Dr Piesse said he did not see at the time) identified the module as "possibly useful" but left it to Dr Piesse to "liaise directly with the College if you think it might be of use to you and if you have not already sourced another course". Thirdly, a letter to Dr Piesse from the Board dated 17 July 2008 asked Dr Piesse to confirm the specific education he was going to undertake. Fourthly, a letter to Dr Piesse from the Board dated 29 September 2008 asked Dr Piesse what inquiries he had made regarding the availability of the module "or any other course to improve your analytical and appraisal skills in relation to scientific studies and data appraisal", and to advise the outcome of his inquiries. Finally, it was submitted that once Dr Piesse missed the module offered in 2007, and no module became available until at least August 2009, it was unreasonable to expect that he undertake the module until late 2009.
10. It was also submitted on Dr Piesse's behalf that for a number of reasons his evidence that he did not see the email from Dr Katsoris in May 2007 should be accepted, as this evidence was consistent with the language of his correspondence to the Board on 9 September 2007, 3 September and 10 October 2008. In September 2007 he referred to the module and said that he would be pleased to add it to his continuing education programme. In September 2008, he noted that he wanted the Board's assistance in identifying suitable programs and what was needed to meet the requirements of the determination. In October 2008 he wrote that he had no recollection of seeing the email from Dr Katsoris containing the Table of Contents of the module, although a search through his email in-box revealed that it had indeed been received.
11. It was submitted in the alternative that Dr Piesse had undertaken other education, albeit informal education, in the relevant six months after the determination which should be found to constitute compliance with the determination. Further, it was submitted that there was further education undertaken by him after the relevant six month period which now satisfies the determination. In this regard, his representative referred to ongoing "research, analysis and appraisal" of the scientific literature on herbal infusions and genome therapies, as well as updating a lecture on cardiomyopathy (for use in an upcoming conference) as part of a research assignment under the module.
12. We turn to deal with each of the submissions made on his behalf in this regard in turn.
13. Firstly, it was submitted that Dr Piesse had read a number of articles concerning a "2005 Miller Meta Analysis of Vitamin E supplements" (an article which was referred to in the assessor's report concerning Dr Piesse's practice and pre-dates the making of the determinations) and mentioned this meta-analysis in his letter to the Board on 12 September 2007.[6]
14. We note that the letter dated 12 September 2007 contains the following paragraph:

1. improving my analytical and appraisal skills in relation to scientific studies and data appraisal.

Given that I consider that I have above-average skills in this respect - please correct me if the Board has reason to believe otherwise - I have not yet undertaken further education in this area of knowledge. However, when time and energy permits, and a suitable source of training becomes available, I would be only too pleased to partake such a training programme. Should the RACGP module entitled "Critical Thinking and Research" be suitable and available, I would be pleased to add it to my Continuing Medical Education programme - the more so as there is ground-breaking research in general practice that I wish to complete before I retire.

The Miller meta-analysis (Ann Intern Med 2005: 142:37-46) which casts doubt on the safety of Vitamin E, has been widely criticised as having been selective in including studies that would have reflected adversely against Vitamin E, whilst excluding a large body of data that supported the potential or actual value of the vitamin in helping to reduce morbidity. In short, it is seen as a tailor-made report designed to engender adverse publicity concerning an extra-ordinary safe nutrient supplement - an example of shonky science used by the opponents of safe complementary medicine options. In my opinion for the Board's advisors to have quoted that study does not reflect well on their analytical and appraisal skills in relation to scientific studies and data appraisal. I would be happy to provide the Board with critiques of the Miller study 2005 on request.

1. On any view we consider the admission above to be that as at 12 September 2007, Dr Piesse had not complied with the requirement to undertake further education. The remainder of the discussion constitutes issue being taken with the basis upon which the appraisal of Dr Piesse's practice was conducted. That is irrelevant to the matters before us.
2. The next submission was that Dr Piesse wrote to the Board on 3 September 2008 and attached copies of articles relating to the use of bio-identical hormones and other documents. It was submitted that the attached articles showed that Dr Piesse had "undertaken research and analytic thinking in relation to these scientific studies". We consider that this submission is completely misguided for the following reasons.
3. Firstly, we note that in paragraph 1 of the letter dated 3 September 2008, Dr Piesse stated:

As stated in my response of 12/9/07 to Dr Katsoris, I am happy to undertake any training program to this end should a suitable course or program be available. Dr Katsoris was going to assist in advising of suitable programs. I am not sure if she was unable to find any such training program, or if her own intervening health problems prevented this happening. I am unaware of what may be available in Melbourne or online that would satisfy the Board's determination. So I would appreciate the Board's assistance and advice re just what it would like me to do to meet the requirements of this determination. I would also appreciate the Board explain its reasons for this determination.

1. This indicates, in our view, that Dr Piesse had not yet undertaken any relevant education in compliance with the determination.
2. Secondly, the only reference to the attached documents on bio-identical hormones is contained in paragraph 2 of his letter. That paragraph relates to a different determination of the Board, not the subject of an allegation before us, concerning the provision of additional information to patients when prescribing bio-identical hormones.
3. Having regard to all the evidence before us, we are not satisfied that Dr Piesse undertook any relevant further education within six months of the Board's determination. We find that allegation 1(a)(i) is made out.

1. In his letter to the Board dated 12 September 2007, Dr Piesse stated:[7]

I have received advice and assistance to this end from my colleagues at Camberwell to this end. However the biggest contributions to upgrading my computer skills wrt [sic]. Medical Director has come from daily use - learning on the job, and from improving my health, particularly in relation to reducing my level of mental fatigue and improving my mental sharpness. In this respect, I consider that my computer skills have improved markedly since the time of the Performance Practice Review. If however, the Board wishes, I can and will seek further tuition from the Inner Eastern Division of General Practice, to further advance my skills with Medical Director should MD continue to be used at YourHealth Camberwell after the future new ownership is resolved in the near future by the administrator.

1. In his second witness statement, Dr Piesse stated[8] that he had undertaken training in Medical Director by:
   • receiving advice from a person sent to the practice in his early months of his practice in Camberwell by the Inner Eastern Division of General practice;
   • seeking ongoing advice from practice managers and colleagues at that practice and at his other practice in East Doncaster;
   • obtaining a training module from the North-East Division of General Practice in October 2008;
   • attending a training session in Medical Director at a Continuing Education seminar in November 2008;
   • making inquiries about auto-formatting shortcuts at the Medical Director stand at a Continuing Education seminar in November 2010.
2. He also stated that his typing skills had improved and he used the software adequately for his Camberwell practice, as his other practice locations (where he worked three days per week) are not computerised. Dr Piesse stated that he considered that he had fully complied with the direction.
3. At the hearing, Dr Piesse agreed that he had not undertaking any training in Medical Director in the six months after the determination. He said that on one occasion the person described in the first bullet point above in fact came out to his practice to help with the software. He could not recall if this was before or after the determinations the subject of this hearing. He agreed that he had no formal training in the use of the software between 3 May 2007 and November 2008, but said he was struggling with this health. He agreed that the training module in Medical Director which he obtained in October 2008 was available in November 2007 at the Continuing Education seminar but that he went to another conference at the time which he thought would be more valuable to his clinical practice. He agreed that the letter of 12 September 2007 suggested that he did not do the training because he felt his skills had improved and further training was unnecessary.
4. It was submitted on behalf of the Board that this allegation is made out because Dr Piesse did not undertake any training in Medical Director until he attended a training session at GPCE in November 2008.
5. It was submitted on behalf of Dr Piesse that the word "training" should not be limited to a formal training course but could include self-improvement on the job by Dr Piesse through use of Medical Director. On this basis, it was submitted that Dr Piesse had complied with the determination.
6. We consider that even if the word "training" were to be interpreted as including on the job self-improvement through practice and consultation with colleagues, there is no evidence of any such training occurring within six months of the determination. Accordingly, we find that this allegation is proven.

1. One of the determinations made by the Board on or about 3 May 2007 was that Dr Piesse alter the way in which he practises medicine by "ceasing the practice of facilitating the administration of intravenous herbal infusions, genome therapies, and other therapies brought into the country by patients, unless the therapies have been specially approved by the TGA (not as part of the Special Access Scheme)."[9]
2. That determination is not the subject of the hearing before us.
3. However, the third determination made by the Board on or about 3 May 2007, was that:

Dr Piesse is required to provide a statutory declaration every three months to confirm that he has not facilitated the administration of intravenous herbal infusions, genome therapies, and other therapies brought into the country by patients, unless the therapies have been specifically approved by the TGA (not as part of the Special Access Scheme).

1. Allegation 1(c) concerns the failure of Dr Piesse to provide the relevant statutory declarations.
2. In a letter to the Board dated 30 October 2008,[10] Dr Piesse, stated:

I hereby inform the Board that I have ceased to administer intravenous herbal infusions, genome therapies, in particular those intravenous therapies brought back from China by patients wishing to continue having them.

Concerning my non-provision of statutory declarations, I will (against legal advice), provide the Board within 2 weeks a statutory declaration stating that I have ceased administering intravenous herbal infusions unregistered with the TGA. This undertaking is given reluctantly, knowing that it may not be in the best interests of some of my patients, but necessitated by my need to minimise stress in order to survive my own prostrate cancer.

I have agonised long and hard concerning this determination, knowing that:

1. It takes away the right of my patients and patients of other doctors to access treatments of their choice, rightly guaranteed under Federal Law; and

2. It contradicts my Hippocratic duty to best serve the needs of my patient as I see fit.

3. It forces me to place my own survival ahead of theirs.

1. The balance of the letter contained reasons why Dr Piesse considered the determination regarding the ban on intravenous herbal and other infusions was wrong.
2. In his first witness statement, Dr Piesse did not advert to the determination requiring the filing of statutory declarations, but at p26 of his statement[11] he noted that the Board had not provided him with its reasons for that determination. He stated:

On 30 October 2008 the Respondent advised the Applicant that he had ceased to administer IV herbal infusions and genome therapies brought into the country by patients wishing to continue having them.

1. In his second witness statement, Dr Piesse again challenged the correctness of the determination regarding the ban on intravenous herbal and other infusions. He stated[12] that he ceased the administration of such treatments "from the date of the determination, apart from the period May-August 2007" as set out in his statutory declaration dated 21 January 2010, "for specific patients who had commenced these treatments prior to the determination. In these cases, I deemed it not in the best interests of one or two patients to prematurely abandon treatments that appeared to them and myself to be beneficial".
2. In the final section of his witness statement[13], Dr Piesse stated:

I acknowledge that I did not initially provide statutory declarations whilst attempting, in vain, to obtain the Board's reasons for its determination in restricting my capacity to administer essential medications to my patients, and in being contrary to the TGA. The reason for the delay in initially providing the statutory declarations was that I was very disturbed by the restriction and implications of this determination in denying safe, beneficial treatment for my patients.

Despite not receiving reasons for determination iv) I have complied with the requirement to provide statutory declarations since 2008 - apart from mid 2010, when I missed providing the mid-year statutory declaration (given my health problems which included the vitreous detachment and haemorrhage to my right eye noted above).

1. Dr Piesse noted that he had advised the Board on several occasions that he had complied with the determination: in his letter to the Board dated 30 October 2008; in his statutory declarations dated 28 November 2008 and 24 March 2011.
2. Five statutory declarations are attached to Dr Piesse's first witness statement.[14] It was common ground at the hearing that each of these statutory declarations is not in the form required by the third determination referred to at paragraph 38 above, in that the words "and other therapies" are missing. The statutory declarations are dated 10 November 2008, 28 November 2008, 3 March 2009, 2 July 2009 and 21 January 2010.
3. The last of these statutory declarations[15] indicated that Dr Piesse continued to administer intravenous treatments the subject of the Board's determination until mid-August 2007 "as I felt it was not in the best interests of the patients concerned to have these safe and beneficial treatments arbitrarily terminated prior to completion". He stated that he had "delayed" issuing the required statutory declarations for three reasons: he disagreed with the determination; he believed the determination conflicted with his duties to his patients under the Hippocratic Oath; and he had been seeking reasons for the determination from the Board.
4. At the hearing, Dr Piesse said in examination in chief that he assumed that the requirement to provide statutory declarations had the effect of excluding him from the Special Access Scheme in relation to critically ill patients. He said he was confused about the content of the statutory declaration.
5. In cross-examination, he agreed that he did not in fact provide statutory declarations to the Board for 17 months and that in his correspondence with the Board during that time seeking reasons for the determination, he did not say he was unclear as to the meaning of the determination requiring the provision of statutory declarations. He said that he deliberately omitted the words "and other therapies" from the statutory declaration, because the words were "unclear", even though, in fact, he stopped administering any imported drugs one month after the Board's determinations. He agreed that he could have provided statutory declarations to this effect. He agreed that he had only recently realised that he did not understand the determination, and agreed that he had been reluctant to comply with the determination until he was overtaken by ill-health. He said that he only had respect for determinations of the Board which were in the public interest.
6. It is clear from Dr Piesse's admission that he did not lodge the required statutory declarations until November 2008. We therefore find that allegation 1(c) is made out.

55 It was submitted[16] on behalf of Dr Piesse that there ought be no finding of unprofessional conduct on the basis that Dr Piesse has performed professionally in his practice, sought to act in the best interest of his patients, and is held in high standing by his peers and patients.

1. Specifically, it was submitted that any failure to complete the module did not constitute unprofessional conduct for a number of reasons: completion of the module was not mandatory; Dr Piesse did other relevant education since late 2007 by way of literature searches; he had problems with his legal representation; he suffered ill-health partly as a result of the determinations which he felt were the product of an unfair process. In addition, our attention was drawn to the health problems which have prevented Dr Piesse to this day from completing the module. Finally, it was submitted that he should be given six months within which to complete the module.
2. It was submitted that Dr Piesse had achieved proficiency in Medical Director since May 2007 and "no adverse finding should be made".
3. It was submitted that there was no unprofessional conduct in relation to the failure to complete the statutory declarations because the failure to comply was "due to valid professional reasons and do not demonstrate a lesser standard. It would have been easier for Dr Piesse to comply but he was distraught for valid professional reasons as part of a professional dilemma exacerbated by not being able to obtain reasons for this determination".
4. In relation to his professional standing, Dr Piesse relied on a number of references. Professor Avni Sali, a founding director of the National Institute of Integrative Medicine, wrote that Dr Piesse is "one of Australia's most caring and knowledgeable doctors". Stephen Penman and Dr Hromek from the Australasian College of Nutritional and Environmental Medicine ("ACNEM"), wrote that Dr Piesse is an Honorary Life Member of ACNEM due to his extraordinary contribution to the college. Three patients wrote that they found Dr Piesse to be a very caring and attentive doctor. Reverend Issa wrote that he found Dr Piesse to be "professional, knowledgeable and very caring with his patients". Peter Olney, Christian Minister, wrote that Dr Piesse is a "conscientious and caring medical practitioner who is keen to improve people's health, with a strong component which includes preventive health".
5. Finally, it was submitted that in spite of the concerns raised by the Board, Dr Piesse is a man of integrity whose relationship with his patients is sound, even though it is clear that he had a problem relating to his professional registration board.
6. Five days after the completion of the hearing before us, Ms Fristacky sought leave (on the basis that she had been ill at the time of the hearing) in writing to make additional submissions by way of reply to two aspects of Mr Clement's submissions: his comments about the role of the Board in ensuring public safety and the terms of the proposed determinations. Over the objection of the Board, I granted leave for this purpose only and directed that further written submissions of no greater than five pages were to be submitted by 4 pm on 9 May 2010. The submissions filed by Ms Fristacky take issue with the reasonableness or otherwise of the determinations themselves. To this extent, having regard to my ruling (to which Ms Fristacky acceded) at the commencement of the hearing as to the jurisdiction of the Tribunal in this case, those submissions are irrelevant.

1. Paragraph (a) of the definition of unprofessional conduct in s.3 of the HPR Act ("the Act") states as follows:

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

63 When considering whether or not Dr Piesse has engaged in unprofessional conduct or professional misconduct, the Tribunal is to consider the whole of the conduct the subject of the allegations found proven.[17]

1. To constitute unprofessional conduct, the conduct must be more than an error of judgment.[18]
2. It is always a serious matter to conclude that a health practitioner has engaged in unprofessional conduct.[19]

1. We have found that each of the allegations the subject of the hearing before us is made out. We consider it appropriate, in accordance with the authorities, to assess Dr Piesse's conduct as a whole.
2. We consider for the following reasons that Dr Piesse's conduct constitutes unprofessional conduct within the terms of paragraph (a) of the definition of unprofessional conduct set out in paragraph 57 above.
3. Firstly, his conduct involved non-compliance with determinations imposed upon him by his professional registration authority. The determinations themselves were directed to improving his professional performance and, in relation to the provision of statutory declarations, to enable verification of compliance with an important determination concerning an alteration in the way Dr Piesse practised medicine. In this respect, the determination concerning the provision of statutory declarations was clearly directed towards the function of the Board in maintaining standards and protecting the public. Importantly, not only did Dr Piesse fail to comply with the determinations initially, his non-compliance persisted for a very substantial period of time. This is particularly the case in relation to the requirement to submit statutory declarations, which Dr Piesse agreed he deliberately failed to submit until November 2008 and which he continued thereafter to submit with the deliberate omission of the words "and other therapies". In relation to the determination concerning further education, to the extent that Dr Piesse recognised (whether in 2007 or later) that the Module should be completed, he has still failed to complete it.
4. Secondly, we consider that Dr Piesse's conduct erodes the authority of the Board and diminishes the ability of medical registration authorities to carry out their functions, which are to effectively regulate the professional performance and conduct of medical practitioners, and to protect the public.
5. We note our grave concern at Dr Piesse's failure to comply at all for 17 months with the requirements concerning the provision of statutory declarations, and our concern that since that time he has submitted declarations the form of which he deliberately altered, omitting the words "and other therapies". On any view, these words are designed to act as a catch-all provision ("herbal infusions, genome therapies, and other therapies") in the determination.
6. Dr Piesse was required to complete the statutory declarations fully, so as to enable the Board to satisfy itself that he was acting in accordance with its determinations. The compliance with the Board's determinations is the vehicle through which the Board discharges its functions of regulating the conduct of medical practitioners and protecting the public. It is not to the point that Dr Piesse was in fact complying with the substance of the determination, that is, not administering or facilitating the administration of any herbal infusion, genome therapies or other therapies. He was required to swear that this was so in his statutory declarations. He did not provide statutory declarations to this effect, and as at the date of the hearing, was still not providing statutory declarations to this effect. His failure to do so undermines the Board's ability to monitor his conduct and thereby to discharge its function of maintaining standards and protecting the public.
7. We consider that the public and his peers would expect Dr Piesse to comply with determinations made by the Board. We find that his conduct in failing to comply with the Board's determinations is conduct of a lesser standard than would be expected by the public and his peers.

APPROPRIATE DETERMINATIONS UNDER S.77(4) OF THE ACT

1. It was submitted on behalf of Dr Piesse that if any determinations were to be made, a reprimand would suffice and a caution was not necessary. Dr Piesse also indicated that he would be prepared to complete the remaining hours of the module over the next six months.
2. The Board filed proposed determinations. These include a reprimand, a caution in relation to the provision of statutory declarations in future which include the words "and other therapies", and a requirement that Dr Piesse complete the module within three months of the Tribunal's order. Counsel for the Board did not press for any determination specifying further education in Medical Director.

75 The function of a determination is not punitive. Rather, the primary objectives of the determination should be the protection of the public and the maintenance of the professional standards of the profession in the eyes of the public.[20] The risk of repetition of the unprofessional conduct is an important factor to consider.[21] Another important factor will be the degree to which a practitioner has insight into his unprofessional conduct.[22]

1. A reprimand is not a trivial penalty for a professional person.[23]

77 An aspect of the maintenance of professional standards involves the imposition of a determination that will deter both the particular practitioner and others from like conduct.[24]

1. We consider that Dr Piesse has demonstrated only limited insight into his conduct. He continued to quarrel with the basis of the determinations and used his dissatisfaction with the determinations as a reason for non-compliance. We consider that this conduct was unacceptable. He was required to comply with the determinations of the Board and failed to do so. He has still not complied with the requirement to provide statutory declarations using the appropriate form of words (that is, including the words "and other therapies"). Before us, Dr Piesse relied on the purchase of the Module in December 2009 and his partial completion of it as evidence of compliance with the determination of the Board concerning further education. In his evidence, however, he made it clear that completion of the Module was not high on his list of priorities compared with finalising his outstanding taxation returns and superannuation issues, resting, attending other conferences and working as a medical practitioner.
2. We consider it necessary that Dr Piesse complete the Module in a time frame which is consistent with a recognition of the obligation to comply with the Board's requirements as a matter of priority. There is no reason why, if he is fit enough to work as a medical practitioner, that he should not, with all reasonable expedition, complete the requirements so as to demonstrate very belated compliance with determinations of the Board made in May 2007. In all the circumstances, we consider that an appropriate time frame is three months. We also consider it essential that Dr Piesse provide statutory declarations containing the text required by the Board's determination.
3. We consider it appropriate in the circumstances of this case, to reprimand Dr Piesse in relation to his unprofessional conduct in failing to comply with the Board's determinations.
4. In addition, because of his failure after November 2008 to provide statutory declarations in the form required by the Board's determination of 3 May 2007, we consider it appropriate to caution him in the manner suggested by the Board and set out below.
5. The Board did not seek any specific determination regarding further education in Medical Director, and for this reason we consider it unnecessary to make any determination in this regard.

1. We make the following determinations:
   1. Pursuant to section 77(4)(b) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is cautioned to ensure that, from the date of the Tribunal's order onwards, the statutory declarations that he provides to the Medical Board of Australia pursuant to the determinations made by the Medical Practitioners Board of Victoria on 3 May 2007 expressly state that he has 'not facilitated the administration of intravenous herbal infusions, genome therapies, and other therapies brought into the country by patients, unless the therapies have been specifically approved by the TGA (not as part of the Special Access Scheme)'.
   2. Pursuant to section 77(4)(c) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is reprimanded.
   3. Pursuant to section 77(4)(d) of the Health Professions Registration Act 2005 (Vic), Dr Piesse is required to complete the Royal Australian College of General Practitioners' Critical Thinking and Research Module within three months of the date of the Tribunal's order, at his own expense; and:
      1. Within 14 days of completion of the Critical Thinking and Research Module, Dr Piesse is to provide a statutory declaration to the Australian Health Practitioner Regulation Agency (AHPRA) confirming that he has successfully completed the Critical Thinking and Research Module.
      2. If the Critical Thinking and Research Module for any reason becomes unavailable or is no longer provided, Dr Piesse is to notify the AHPRA upon becoming aware of such unavailability. The Victorian State Manager of the AHPRA shall nominate an alternative course of study, which is to be completed by Dr Piesse within three months of Dr Piesse receiving notice from the AHPRA of the alternative course of study.

[1] On 1 July 2010, the Victorian Board was replaced by the Medical Board of Australia: See s.31 of the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] On 29 November 2010, Ms J. Fristacky was given leave by the Tribunal, as it was then constituted, to represent Dr Piesse as a non-lawyer advocate.

[3] In his first witness statement dated 9 February 2010, at Tribunal Book [TB] page 291, Dr Piesse denied receiving the email from Dr Katsoris or its attachments. In his second witness statement dated 26 April 2011, at TB 468, he stated that he had no recollection of receiving that email. In his letter to the Board dated 10 October 2008, at TB 184, Dr Piesse indicated that he had no recollection of receiving that email from her.

[4] See the email from Moni Lobascher of the RACGP to Dr Katsoris of 22 May 2007.

[9] See Appendix B to the letter dated 8 December 2009 from Minter Ellison to the Tribunal.

[16] The oral submissions were based on extensive written submissions handed up at the hearing.

[17] See Omarjee v Medical Board of Victoria, Hayne J Supreme Court of Victoria, 7 December 1992 [unreported].

[18] Pillai v Messiter (1989) 16 NSWLR at 200, per Kirby J.

[19] Campbell v Dental Board of Victoria [1999] VSC 113.

[20] See Ha v Pharmacy Board of Victoria [2002] VSC 322 at [91] and [97].

[22] See Morris v Psychologists Registration Board, Supreme Court of Victoria, Harper J, 19 December 1997, unreported.

[23] See Peeke v The Medical Board of Victoria (VCS, Marks J, No. 10170 of 1993, unreported, at p.6).

[24] See Morris v Psychologists Registration Board op. cit; Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 at [60] and [61].