1. Dr Soffer is reprimanded under section 196(2)(a) of the National Law.
2. Dr Soffer's registration is suspended under section 196(2)(d) of the National Law for a period of three months commencing at 4:00pm on 23 April 2021 and concluding at 4:00pm on 22 July 2021.
3. Upon resumption of practice, Dr Soffer's registration be made subject to conditions under section 196(2)(b) of the National Law in relation to mentoring and auditing, as set out at Annexure A.

1. During the period 2017 to 2019, Dr Soffer admits that he gave poor medical care to his patient when he unsafely prescribed Duromine to her. Not only was his treatment inappropriate but his note taking was almost non-existent.
2. Things went from bad to worse when Dr Soffer followed up the poor medical care of his patient with unethical behaviour.
3. The Health Practitioner Regulation National Law Act 2009 ("the National Law) sets out a national registration and accreditation scheme for health practitioners and has as a key objective the protection of the public. It aims to ensure that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
4. Under section 193 of the National Law, a National Board must refer a matter about a registered health practitioner to this Tribunal if the National Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct. Accordingly, on 7 February 2020, the Medical Board of Australia ("the Board") referred Dr Soffer's conduct to this Tribunal.
5. Whilst section 3A of the National Law emphasises that when administering the National Law the health and safety of the public is paramount, the aim of the National Law is never punitive. Action taken in relation to a health practitioner is taken to ensure health services are provided safely and are of an appropriate quality.
   1. The Tribunal on a referral must therefore consider all the circumstances surrounding the allegations and if proven, the likelihood of repetition of the proven conduct.
   2. It is in this respect relevant that the serious unethical conduct occurred during what can only be described as a tumultuous time in Dr Soffer's personal life. Significant health and unforeseen and extremely stressful other issues befell several of Dr Soffer's closest family members during this period. It is noteworthy that Dr Soffer had otherwise practised for 43 years prior to these matters without incident.
   3. We accept that the unusual and unforeseen personal matters sit behind and contextualise his conduct. We were assisted in this regard by the reports of Dr George Levy dated 18 August 2019 and 29 May 2020; Dr Anthony Schneeweiss dated 1 September 2019 and Dr Simon Rose dated 26 May 2020.
   4. We were also assisted by reading Dr Soffer's reflective submission dated 31 July 2020. We accept his insight and remorse as demonstrated in that submission. We also accept that Dr Soffer has undertaken considerable further professional development and education since engaging in the conduct.
   5. At the hearing, we were greatly assisted by the parties who placed before us an Agreed Statement of Facts, Findings and Determinations and made joint submissions.
   6. We turn then to an examination of the facts. In doing so, we adopt the following Agreed Statement of Facts carefully constructed by the parties.

• 1.1 Dr Soffer was first registered as medical practitioner on 23 December 1974.
• 1.2 At all material times, Dr Soffer:

(a) held general registration and specialist registration in general practice;

(b) was employed at the St Kilda Superclinic in Victoria; and

(c) was required to practice in accordance with the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code).

• 2.1 Between 3 January 2017 and 31 October 2018, Dr Soffer prescribed Duromine to a patient (Patient) on 9 nine occasions, including:

(a) 3 January 2017: 40mg of Duromine to be taken daily;

(b) 28 March 2017: 40mg of Duromine to be taken daily with a repeat prescription;

(c) 4 July 2017: 40mg of Duromine to be taken daily with a repeat prescription;

(d) 5 December 2017: 40mg of Duromine to be taken daily;

(e) 5 February 2018: 40mg of Duromine to be taken daily;

(f) 4 April 2018: two prescriptions of 40mg of Duromine to be taken daily, one is with a repeat prescription;

(g) 25 July 2018: 40mg of Duromine to be taken daily with a repeat prescription;

(h) 12 September 2018: 40mg of Duromine to be taken daily with a repeat prescription; and

(i) 31 October 2018: 40mg of Phentermine (Duromine) to be taken daily with a repeat prescription.

• 2.2 Duromine is a medication used as a short term (e.g. three month) adjunct to dietary management of obesity, under medical supervision.
• 2.3 Dr Soffer prescribed Duromine to the Patient in circumstances where:

(b) Dr Soffer did not obtain a medical history or undertake an adequate or appropriate examination or review of the Patient when prescribing Duromine to the Patient, or have regard to relevant factors such as weight, BMI, blood pressure, cardio vascular disease, psychiatric disorders or substance abuse;

(c) Dr Soffer prescribed Duromine to the Patient in circumstances where the Patient had been referred by him to psychology services for an anxiety disorder, which is known contraindication for treatment with Duromine;

(d) Dr Soffer's initial prescription of Duromine to the patient was a 40mg dose, being more than double the recommended starting dose of 15mg; and

(e) on 4 April 2018, Dr Soffer prescribed 90 tablets of Duromine by providing two scripts of 40mg, with one of those scripts including a repeat. This level of prescribing was unsafe.

• 2.4 Dr Soffer prescribed Duromine to the Patient over an extended period from 3 January 2017 to 31 October 2018 and in circumstances where:

(a) he did not undertake ongoing monitoring and review of patient's weight, blood pressure, or psychiatric condition; and

(b) he continued to prescribe Duromine without review or reduction in dosage.

• 2.5 Dr Soffer's prescribing of Duromine to the Patient was inappropriate, without clinical indication, and unsafe.

• 3.1 Dr Soffer consulted with the Patient on at least 10 occasions between 3 January 2017 and 5 February 2019.
• 3.2 Dr Soffer prescribed Duromine to the Patient on the dates, and in the circumstances, described in paragraph 2.1.
• 3.3 On 5 February 2018, a prescription was printed for the Patient but there is no record of a consultation with the Patient on that day.
• 3.4 Dr Soffer consulted with the Patient on the following occasions without recording any clinical notes:

• 3.5 On the following dates, Dr Soffer had consultations with the Patient and made the following clinical notes:

(a) 3 January 2017 - "Wants psychology referral because of anxiety. Lost a baby recently. Takes occ Duromine for fluid retention";

(b) 28 March 2017 - "Took herbs for anxiety and now well. Went to skin clinic and was quoted $500 to remove small angioma. Requests new script. Cryotherapy to lesions on thigh";

(c) 4 July 2017 - "Travelling to Greece and Italy. Requests new scripts";

(d) 5 December 2017 - "[Patient] attends the clinic this morning to obtain scripts and test referrals";

(e) 4 April 2018 - "Requests new prescription. Does not abuse medications"; and

(f) 31 October 2018 - "Been getting a lot of bloating and constipation. Concerned about food allergies".

• 3.6 The records maintained by Dr Soffer in respect of the Patient were inadequate in that they failed to record:

(a) the Patient's medical history, including height, weight and blood pressure;

(c) the development, implementation and review of a management plan the Patient; and

(d) any clinical justification for prescribing Duromine.

1. Provision of false and misleading information to the Board

• 4.1 On 15 January 2019, AHPRA wrote to Dr Soffer, advising that a notification had been made about him in relation to his prescribing Duromine to the Patient. Dr Soffer was invited to provide a written response to the notification by 5 February 2019.
• 4.2 On 5 February 2019, Dr Soffer provided a submission to AHPRA that:

(a) enclosed clinical notes purportedly made contemporaneously with the Patient's attendance at the clinic on 12 September 2018 and 31 October 2018;

(d) stated "I believe that the medication prescribed on 12 September 2018 was clinically indicated"; and

(e) stated "I have never had a complaint about my prescribing before."

• 4.3 The consultation notes provided by Dr Soffer on 5 February 2019 were inconsistent with the clinical records for the Patient as held by St Kilda Superclinic and were not made on the date they bear.
• 4.4 On 18 February 2019, AHPRA wrote to Dr Soffer, inviting him to provide an explanation for the discrepancy.
• 4.5 On 15 March 2019, Dr Soffer's legal representative wrote to AHPRA and acknowledged:

(a) Dr Soffer's letter on 5 February 2019 contained false and misleading information;

(b) the clinical notes attached to that letter relating to attendances by the Patient on 12 September 2018 and 31 October 2018 were not records made contemporaneously at the time of consultations;

(c) notifications had previously been made about Dr Soffer;

(d) Dr Soffer was unable to provide justification for his prescribing in relation to the Patient as his notes were brief and inadequate;

(e) Dr Soffer's note taking in regards to the Patient was inadequate;

(f) Dr Soffer's prescription of Duromine to the Patient was not clinically indicated; and

(g) Dr Soffer's behaviour constituted significant unprofessional conduct.

1. The carefully prepared Agreed Statement of Facts comprehensively reflects the factual background of this matter.
2. We are comfortably satisfied to the standard set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that Dr Soffer engaged in the conduct alleged in the amended notice of allegations. We are so satisfied based on the material filed by the Board and the admissions made by Dr Soffer in relation to his conduct as articulated in the agreed statement.
3. The materials clearly demonstrate that Dr Soffer's poor medical care of his patient constituted by his inappropriate treatment and prescribing was then exacerbated by his unethical behaviour when dealing with the Board.

1. Dr Soffer unsafely prescribed Duromine to his patient on nine separate occasions over a 22 month period. This was not a one-off error of judgement. He had multiple opportunities to correct the situation and failed to do so.
2. His prescribing was inappropriate, without clinical indication and contraindicated. He well knew that his role as a medical practitioner was to meet the clinical needs of his patients. It was not to bow to pressure or to give his patients whatever they demanded even if contraindicated. A medical practitioner must always make decisions in their patient's best interests and to explain to the patient why they are doing so. All medical practitioners must be consistent in this approach.

1. It is alarming that in a concurrent breach of his professional obligations, Dr Soffer repeatedly failed to make adequate records. The grave danger in poor record keeping was readily demonstrated in this case - Dr Soffer now has no actual recollection of the consultations.

1. Things went from bad to worse when, on 5 February 2019, Dr Soffer provided a submission to AHPRA containing false and misleading information. It beggars belief that he was prepared to provide the regulator with notes purporting to have been made contemporaneously with his patient's attendance at the clinic when they demonstrably were not.
2. His attempt to re-write the consultation and prescribing history demonstrate a deficiency of the characteristics required of a health practitioner.
3. We turn then to a consideration of the appropriate findings to be made by us under section 196(1) of the National Law.
4. The parties jointly contended that we should find as follows:

Dr Soffer admits that the facts set out in Part A establish each of the 3 allegations particularised in the Amended Notice of Allegations and the parties jointly invite the Tribunal to make the following findings in relation to those allegations as amended:

1. In respect of allegation 1, that Dr Soffer engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.
2. In respect of allegation 2, Dr Soffer engaged in professional misconduct within the meaning of [paragraph (b)] of the definition of professional misconduct in section 5 of the National Law.
3. In respect of allegation 3, Dr Soffer 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.

1. We agree with the joint submissions that Dr Soffer's conduct amounts to professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law which reads as follows:

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 ...

1. There is no doubt that Dr Soffer's prescribing was inappropriate, without clinical indication and unsafe.
2. We read the helpful independent opinion of Dr Chris Clohesy dated 27 February 2019. We accept his opinion that Dr Soffer's prescribing was a significant departure from the standards expected of a registered health practitioner of an equivalent level of training or experience.
3. We accept his observations that Duromine is a drug approved by the Therapeutic Goods Administration for the short term (three month) treatment of obesity and that Dr Soffer's patient was not obese. We also accept that Dr Soffer did not obtain a medical history or undertake an adequate or appropriate examination or review of the patient when prescribing Duromine. He did not have regard to relevant factors such as weight, BMI, blood pressure, cardiovascular disease, psychiatric disorders and/or substance abuse.
4. It is concerning that Dr Soffer prescribed Duromine in circumstances where he had referred his patient to psychology services for an anxiety disorder. Anxiety disorders are a known contraindication for treatment with Duromine.
5. Dr Soffer prescribed in levels which exceeded the recommended starting dose and prescribed over a 22 month period which was well over the recommended short term usage of three months.
6. Dr Soffer's conduct was inconsistent with the provisions of the Code of Conduct approved by the Board for the purposes of section 41 of the National Law - the Good Medical Practice: A Code of Conduct for Doctors in Australia ("the Code").
7. The Code requires that all doctors:
   • assess patients taking into account the history (Code, section 2.1.1);
   • formulate and implement a suitable management plan (Code, section 2.1.2);
   • ensure that their practice meets the standards that would be reasonably expected by the public and their peers (Code, section 7.2.3); and
   • have adequate knowledge and skills to provide safe clinical care (Code, section 2.2.2).
8. The conduct took place over a significant period of time. This was not a one-off failure to meet the appropriate standards.

1. We agree with the parties' joint submissions that Dr Soffer's conduct amounts to professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct in section 5 of the National Law which reads as follows:

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 ...

1. In Medical Board of Australia v Koniuszko [2016] VCAT 492 at [54], the Tribunal noted that:

the obligation to make and maintain clear and accurate medical records is well-known and its purpose is self-evident - medical records show the examination conducted and assessment made by the treating practitioner and set out any planned treatment. Medical records are also important because they may need to be relied on by other practitioners taking up the care of the patient.

1. We find and Dr Soffer accepts that his failure to record clinical notes, and the inadequacy of his notes when he did record them, fell well below the standard expected of a medical practitioner with many decades' experience.
2. We reiterate that good patient care always requires the maintenance of adequate records. Dr Soffer continually failed in his professional obligations in this respect.

Allegation 3 - False and misleading information

1. We agree with the joint submissions that Dr Soffer's conduct amounts to professional misconduct within the meaning of paragraph (a) - see above - and (c) of the definition of professional misconduct in section 5 of the National Law which reads as follows:

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. On 5 February 2019, Dr Soffer provided the regulator with clinical notes purportedly made contemporaneously during consultations with the patient. Those clinical notes were deliberately false. This conduct reflects extremely badly on Dr Soffer's character.
2. We adopt the following observations of the Board in its written submissions that:

The Board is charged with regulating the medical profession to ensure the protection of the public and can only do so properly where practitioners provide frank and honest information in response to matters concerning performance and conduct. Deliberately attempting to mislead the Board undermines the Board's ability to achieve its purposes. The Respondent's conduct did not demonstrate the necessary honesty, moral integrity and rectitude of character consistent with registration as a medical practitioner. It was conduct liable to reduce community confidence in the medical profession and therefore inconsistent with the Respondent being a fit and proper person to hold registration.

1. The Code requires medical practitioners to cooperate with any legitimate inquiry into the treatment of a patient. Dr Soffer did not do so. His conduct in this respect fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
2. We are comfortably satisfied that Dr Soffer engaged in professional misconduct under paragraph (c) of the definition of professional misconduct in section 5 of the National Law in respect of the false and misleading information.

1. We turn then to a consideration of the appropriate determinations. Once again, the parties placed before us a joint position in relation to the proposed determinations which reads as follows:

The parties jointly invite the Tribunal to make the following determinations under section 196(2) of the National Law:

1. Dr Soffer is reprimanded under section 196(2)(a) of the National Law;
2. Dr Soffer's registration is suspended under section 196(2)(d) of the National Law for a period of three months; and
3. Upon resumption of practice, Dr Soffer's registration be made subject to conditions under section 196(2)(b) of the National Law in relation to mentoring and auditing, as set out at Annexure A.
4. Dr Soffer's conduct was serious. It was not isolated conduct. It was conduct that continued over a lengthy period and climaxed with dishonest conduct.
5. We are nevertheless satisfied that Dr Soffer has put the period since his conduct to good use. We accept that he has reflected on the constellation of factors that led to the conduct. We accept that he has now demonstrated remorse and insight into his conduct. We accept his personal circumstances at the time are a matter for us to properly take into account in relation to his unethical conduct.
6. It is in this context that we agree with the joint submissions of the parties that Dr Soffer's conduct warrants the following determinations:

(a) Reprimand under section 196(2)(a) of the National Law

1. High professional standards need to be reinforced. Dr Soffer's conduct must be denounced.

1. We also agree with the joint submissions that Dr Soffer's conduct warrants a suspension of his registration for a period of three months under section 196(2)(d) of the National Law.
2. A suspension is never intended to be oppressive or punitive. We agree with the submissions made on behalf of Dr Soffer that Dr Soffer is presently a fit and proper person to practice and ought to be permitted to return to practice once his period of suspension is served. We accept that Dr Soffer poses a very low risk of any future misconduct. It is therefore a modest suspension which takes into account the time that has elapsed since he engaged in the conduct and the efforts made by Dr Soffer to ensure the conduct will not be repeated.
3. A period of suspension is nevertheless necessary. It reflects the objective seriousness of the conduct. It reminds both Dr Soffer and the profession generally that this type of conduct is unacceptable. Other practitioners must be deterred from engaging in similar conduct.
4. We accept that a three month suspension is both necessary and appropriate to protect the public and maintain public confidence in the profession. A period of suspension reinforces that practitioners must maintain high professional standards if they wish to retain their registration. It serves to denounce transgressions. High standards are expected within the profession.
5. We record that, but for the highly unusual personal circumstances of Dr Soffer at the time he engaged in the false and misleading conduct together with the remorse and insight he has shown and admissions he subsequently made, the period of suspension would have been a longer one.
6. We are mindful that Dr Soffer has a vulnerable cohort of patients. It is a most unfortunate consequence of Dr Soffer's conduct that they will, for a brief period, not be able to access Dr Soffer's services.
7. If there were any other option properly available to us, we would have taken it. The seriousness of Dr Soffer's conduct however allows for no lesser consequence than the suspension of his registration.
8. In the circumstances of this case, we indicated at the hearing that we would accommodate a ready handover of Dr Soffer's patients during his period of suspension. The period of suspension will therefore commence at 4:00pm on 23 April 2021 and conclude at 4:00pm on 22 July 2021.

1. Finally, we agree with the parties' joint submissions that Dr Soffer's conduct warrants ongoing screening in the form of conditions placed on his registration under section 196(2)(b) of the National Law in relation to mentoring and auditing (as set out in Annexure A of the agreed statement).
2. In circumstances where Dr Soffer has demonstrated shortcomings in relation to both the prescribing of drugs and the maintenance of adequate records, we agree with the submissions of the parties that the conditions are appropriate to properly ensure that Dr Soffer's future practice is in accordance with the expected standards. The conditions will operate to reassure the public that Dr Soffer is being appropriately supported and monitored. They will ensure that any insight and knowledge subsequently gained by Dr Soffer is now applied in practice. We agree with the submissions of the parties that the conditions are measured and sensible.
3. We accept that Dr Soffer has already addressed the short fallings in his record keeping. A further two audits over a six month period will serve as verification that those corrections are cemented in his practice.
4. We agree that the six month review period is appropriate in all the circumstances of this case.
5. We will make the following findings and determinations.

1. In respect of allegation 1, Dr Soffer engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.
2. In respect of allegation 2, Dr Soffer engaged in professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct in section 5 of the National Law.
3. In respect of allegation 3, Dr Soffer 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.

1. Dr Soffer is reprimanded under section 196(2)(a) of the National Law.
2. Dr Soffer's registration is suspended under section 196(2)(d) of the National Law for a period of three months commencing at 4:00pm on 23 April 2021 and concluding at 4:00pm on 22 July 2021.
3. Upon resumption of practice, Dr Soffer's registration be made subject to conditions under section 196(2)(b) of the National Law in relation to mentoring and auditing, as set out at Annexure A.

1. The Practitioner must submit to an audit of their practice (the audit), including any supporting records, within 3 months of the notice of the imposition of these conditions and thereafter on a 3 monthly basis, by permitting an auditor (the auditor) approved by the Medical Board of Australia (the Board) to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on appropriate prescribing of drugs, in particular Duromine and maintaining adequate records and must include, at a minimum, a random selection of 20 patient clinical records (including prescribing records).
2. Within 28 days of the notice of the imposition of these conditions, the Practitioner must provide to AHPRA:

1. nomination, on the approved form (HPN12), of an auditor(s) to be approved by AHPRA or the Board 2. acknowledgement, on the approved form (HPN12), that AHPRA will seek reports from the approved auditor at the conclusion of each audit, and

1. acknowledgement, on the approved form (HPNA12), from the nominated auditor.

1. Acknowledgement that reports by the auditor will be provided to the mentor approved for the purposes of condition 5.
2. Within 14 days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the area of concerns for the Board will be addressed. The audit(s) will take the form determined by the auditor.
3. In the event an approved auditor is no longer willing or able to provide the audit required, the Practitioner must notify AHPRA within fourteen days of becoming aware of this and provide a new nomination of a proposed auditor(s) to AHPRA or the Board in the same terms as the previous nomination of auditor(s).

1. The Practitioner must be mentored by another registered health practitioner in relation to

1. appropriate prescribing practices 2. record keeping, and

1. the findings of audits completed in accordance with clause 1.

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. The mentoring must comprise a minimum of 6 sessions with each session being of 2 hours duration occurring over a 6 month period.
2. Within 28 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by AHPRA or the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3. Within 14 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:

1. every 3 months; 2. at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;

1. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance, and

1. when otherwise requested by AHPRA or the Board.
2. In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
3. Within 28 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.
4. Within 21 days' notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
   1. within seven days of the commencement of practice at each subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.
5. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

13. The review period for conditions 1 to 12 is 6 months.