Medical Board of Australia v Xie (Review and Regulation) [2019] VCAT 1924

Between 2 October 2012 and 20 November 2014, Dr Xie engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009 in that his prescribing of testosterone to a patient was clinically inappropriate and excessive.

1. Under section 196 (2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 Dr Xie is reprimanded.

On 21 February 2019 the Tribunal made the following orders under section 17 of the Open Courts Act (Vic) 2013 that:

1. The disclosure by publication or otherwise of any report of the whole or any part of this proceeding, or of any information derived from this proceeding, which identifies or has the effect of identifying the patient, witnesses or notifies is prohibited.
2. This order applies throughout Australia on the basis that the Tribunal's reasons for decision for final orders are published on Austlii and that website may be accessed throughout Australia. The privacy of people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3. This order operates until the death of all of the patient, witnesses and notifiers.

1. Dr Wei Xiong (Steven) Xie (Dr Xie) was, at all relevant times, a registered medical practitioner. These proceedings, brought under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), consider the professional consequences for Dr Xie having prescribed clinically inappropriate and excessive amounts of testosterone to a patient between 2 October 2012 and 20 November 2014 (the Relevant Period).
2. Primoteston and Sustanon are brand names of the drug testosterone, which is a Schedule 4 poison and an anabolic steroid. As a Schedule 4 poison, testosterone is classified as a drug of dependence.[1] It is typically administered by a medical practitioner by way of injection, initially once every two to three weeks, and later every three to four weeks.[2]
3. Routine monitoring during December 2014 identified that Dr Xie appeared to have prescribed significant quantities of Primoteston for the patient. Dr Xie's rate of prescribing equated to an approximate rate of two injections per week, which is four to six times the normal therapeutic dose range for this medication.[3]
4. Dr Xie was prosecuted in the Magistrates Court for offences relating to breaches of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (Act) and the Drugs Poisons and Controlled Substances Regulations 2006 (Regulations) in the prescription of a drug of dependence. He pleaded guilty to two charges. Without conviction, Dr Xie was fined $6000 and ordered to pay costs of $7500.
5. On 18 February 2019, the Medical Board of Australia (Board) referred one allegation relating to Dr Xie's conduct to this Tribunal. It did so as it was required to do under s 193(1)(a)(i) of the National Law, once it reasonably believed Dr Xie had engaged in conduct that constituted professional misconduct.
6. When the matter came before this Tribunal for hearing the parties had prepared an agreed statement of facts and also agreed on proposed findings and the determination to be made under the National Law. Dr Xie admitted the allegation made by the Board and agreed the conduct should be characterised as professional misconduct. We had no difficulty accepting the conduct should be characterised as professional misconduct and made those findings at the hearing. We have set out in full below the basis for that finding.
7. The parties also jointly submitted that, given the conduct occurred the best part of 5 years ago, and having regard to the further education since undertaken by Dr Xie and the changes made to his practise, conditions which might otherwise have been imposed on Dr Xie's registration, were no longer necessary. The parties agreed that the appropriate penalty was Dr Xie should be reprimanded.
8. Towards the end of the hearing, we expressed concern as to whether the proposed reprimand was an adequate sanction given the circumstances surrounding the prescribing of testosterone and the seriousness of the conduct. We reserved our decision to further consider the appropriate determination. Subsequently, having regard to all the evidence, it was our view that although Dr Xie had undertaken further education since the conduct in question to address his lack of knowledge with respect to the prescribing of anabolic steroids, the responses given by him, both during the investigation and in his evidence before us, demonstrated inadequacies in the conduct of his practise and included serious breaches of the Board's Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct). In this regard, the further learnings undertaken by Dr Xie up until that point in time, had not focused on this important area. Mindful that of primary importance in the imposition of any sanction for disciplinary offences is the protection of the public and the maintenance of professional standards in the eyes of the public, we considered further development in this area was required in order to address these concerns.
9. Given these matters were not fully canvassed during the hearing, the parties were given an opportunity to consider and, if they so wished, further address us on these concerns. The parties agreed to do so by way of further written submissions. In summary, the Board acknowledged the value in the Tribunal suggesting broader education in relation to the Board's Code of Conduct and put forward suggested conditions which might be imposed on Dr Xie's registration requiring him to complete further relevant education. Dr Xie also 'acknowledged the sense'[4] in the Board's position regarding broader education relating to the Code of Conduct. In October 2019, Dr Xie, in fact, undertook relevant further education, the details of which are set out in our reasons below.
10. Suffice to say that, as a result of the learnings undertaken by Dr Xie both before the hearing and since, we are comfortably satisfied that the risk in the future of Dr Xie prescribing a Schedule 4 drug, without carrying out the necessary reviews, is low and that Dr Xie has made relevant changes to his practice to ensure patient care. Had it not been for the further learnings undertaken by Dr Xie, we would have ordered conditions be placed on his registration. However, for reasons explained more fully below, we are now comfortably satisfied that a reprimand is an appropriate sanction for the conduct the subject of these proceedings.

1. The following is taken from the parties agreed statement of facts:

1.1 [Dr Xie] was first provisionally[5] registered as a medical practitioner on 16 January 2006.

1.2 The [Board] was established and replaced the previous State and Territory boards (or participating jurisdictions and co-regulatory jurisdictions) on 1 July 2010. Accordingly, Dr Xie has been subject to the [National Law] since that time, including over the period in which the conduct alleged in the Notice of Allegations occurred, being on dates occurring between October 2012 and November 2014.

2. Notification in respect of Dr Xie's professional conduct

2.1 On 13 October 2016, the Australian Health Practitioner Regulation Agency received a notification from Mr Chris Falcke, Manager, Health Practitioner Compliance Monitoring, Drugs and Poisons Regulation, Department of Health and Human Services (DHHS). The notification contained information about Dr Xie's alleged contraventions of the Drugs Poisons and Controlled Substances Regulations 2006 (Regulations).

2.2 The notification followed an investigation carried out by DHHS, which concluded that Dr Xie appeared to have:

(a) between 2 October 2012 and 20 November 2014, prescribed 222 testosterone 250 mg/ml ampoules for [the patient] equating to approximately two ampoules per week; and

(b) the recommended maximum testosterone dosage for androgen deficiency listed within the Australian Medicines Handbook Online was 1 testosterone 250 mg/mL ampoule every 2 to 3 weeks.

2.3 On 20 October 2016, the Board decided, pursuant to section 160 (1) (a) of the National Law, to commence an investigation into Dr Xie's conduct.

(a) Dr Xie provided to DHHS written responses on 27 January 2015 and 17 May 2016 in which he stated that:

(i) he did not know testosterone, an anabolic steroid, was a drug of dependence;

(ii) he did not know that a test to confirm androgen deficiency should be conducted before treating androgen deficiency;

(iii) he thought the treatment was appropriate because his colleagues had previously prescribed testosterone;

(iv) he had checked whether his colleagues at Burwood Health Care had previously prescribed testosterone to the Patient but did not check the clinical notes recorded by his colleagues to inform himself of the circumstances under which they prescribed this medication. Had he reviewed the Patient's clinical notes, he would likely have become aware of the requirement for pathology testing, and may also have been alerted to the facts that [the Patient] appeared to be seeking the same medication from more than one doctor at around the same time;

(v) he felt pushed to commence prescribing testosterone and did not adequately inform himself of [the Patient's ] condition and medication before treating [the Patient];

(vi) he had multiple opportunities to identify [the Patient] as drug seeking or drug diverting;

(vii) 'with the benefit of hindsight and having undertaken this further education it is now clear to me that [the Patient] was drug seeking and likely diverting the drugs for personal gain'; and

(viii) 'It is clear that because of lack of knowledge and experience I have breached s 8(1) of the Drugs Poisons and Controlled Substances Regulations 2006. I accept that ignorance and lack of knowledge is not a defence.'

(b) On 16 June 2015, Mr Max Boyarovsky (Mr Boyarovsky), Drugs and Poisons Officer, DHHS visited Dr Xie at his place of practice, Box Hill Centro Clinic. Mr Boyarovsky noted that:

1. 'Dr Xie appeared attentive and engaged during the presentation. The medical practitioner asked a number of questions and took multiple notes';
2. 'Dr Xie also advised that;
   • he has accessed multiple handouts available on the DPR website in order to educate himself on his legislative responsibilities under DPCS legislation.
   • he has recently reviewed product information regarding Primoteston and professional journals in relation to anabolic steroid use in anti-ageing.'

(c) On 4 July 2016, Dr George Zaharias (Dr Zaharias), Education Enhancement Program Director, EV GP Training wrote to Dr Xie's legal representative. Dr Zaharias stated that in June 2016 Dr Xie attended three educational programs at the EV GP Training offices in Hawthorn, Victoria entitled 'Drugs of dependence', 'Drug seeking patients and demanding patients' and 'Off labelling prescribing, medical record keeping, review'. These three sessions totalled nine hours of education. During these sessions, Dr Xie told Dr Zaharias the details of his conduct leading to the DHHS investigation, his desire to avoid breaching any regulations, and his desire to avoid being manipulated by patients. Dr Zaharias reviewed a number of Dr Xie's medical records and noted that in his view:

(i) Dr Xie had a 'very good understanding of all of these regulations' pertaining to drugs of dependence;

(ii) 'Dr Xie is very mindful of his responsibilities as well as compliant'; and

(iii) 'Dr Xie engaged readily in all of the discussion.'

2.5 On 9 December 2016, AHPRA, on behalf of the Board, received notice from Dr Xie of criminal charges having been laid against him.

2.6 On 6 April 2017, in the Ringwood Magistrates Court, Dr Xie pleaded to, and was found guilty of, two charges under regulation 8(1)(c) of the Drugs Poisons and Controlled Substances Regulations 2006, namely:

(a) at Burwood between 2 October 2012 to 2 September 2013, on eight occasions, he prescribed testosterone, a drug of dependence, for one of his patients, in circumstances where he had not taken all reasonable steps to ensure that a therapeutic need existed for that drug; and

(b) at Box Hill between 10 November 2013 to 20 November 2014, on eight occasions he prescribed testosterone, a drug of dependence, for one of his patients, in circumstances where he had not taken all reasonable steps to ensure a therapeutic need existed for that drug.

2.7 On 6 April 2017, Dr Xie (through his solicitors) notified AHPRA of the outcome of the hearing.

3.1 On 8 November 2018, the Board, having formed a reasonable belief that Dr Xie had behaved in a way that constitutes professional misconduct in respect of the above notification, determined to refer the matter to the Tribunal pursuant to section 193 (1)(a)(i) of the National Law.

3.2 The allegation contained in the current Notice of Allegations is as follows:

(a) professional misconduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in the section 5 of the National Law;

in that, between on or about 2 October 2012 and on or about 20 November 2014, his prescribing of testosterone (Primoteston) to [the patient] was clinically inappropriate and/or excessive.

(i) at all relevant times, Dr Xie was a medical practitioner registered by the Board and working as a general practitioner at Burwood Health Care (until around mid-September 2013) and Box Hill Centro Clinic;

(ii) at all relevant times, [the patient] was a patient of Dr Xie;

(iii) during the relevant time, Dr Xie prescribed 222 testosterone 250 mg/ml ampoules to [the patient](at an approximate rate of two 250 mg injections per week) which is 4 to 6 times the normal therapeutic dose range for this medication;

(iv) on 6 April 2017, in the Ringwood Magistrates Court, Dr Xie pleaded to, and was found guilty of, two charges under regulation 8(1)(c) of the Drugs, Poisons and Controlled Substances Regulations 2006, namely;

• (A) at Burwood between 2 October 2012 to 2 September 2013, on eight occasions he prescribed testosterone, a drug of dependence, for one of his patients, in circumstances where he had not taken all reasonable steps to ensure that a therapeutic need existed for that drug; and

• (B) at Box Hill between 10 November 2013 to 20 November 2014, on eight occasions he prescribed testosterone, a drug of dependence, for one of his patients, in circumstances where he had not taken all reasonable steps to ensure a therapeutic need existed for that drug;

(v) at all relevant times, the Board's Good Medical Practice: A Code of Conduct for Doctors in Australia, (versions effective 1 July 2010 to 16 March 2014 and from 17 March 2014) (Code of Conduct) provided, amongst other things, that good medical practice involves:

• (A) 2.1.1: assessing the patient, taking into account the history, the patient's views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects;
• (B) 2.1.2: formulating and implementing a suitable management plan (including arranging investigations and providing treatment and advice);
• (C) 2.2.2: ensuring that you have adequate knowledge and skills to provide safe clinical care;
• (D) 2.2.6: providing treatment options based on the best available information;
• (E) 2.2.10: making responsible and effective use of the resources available to you (in particular, 5.2.1: ensuring that the services you provide are necessary and likely to benefit the patient); and

(vi) Dr Xie's conduct was in breach of the Code of Conduct.

4.1 Dr Xie admits that he engaged in the conduct particularised in the Notice of Allegations, set out in paragraph 3.2 above.

4.2 Dr Xie admits that the conduct set out in Allegation 1 constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law.

1. At the hearing on 21 August 2019, both parties relied upon the Tribunal Book containing documents setting out the factual basis surrounding Dr Xie's conduct. Additional documents, including extracts of medical journals, were tendered by the Board. In addition to tendering character references and the material referred to and considered by Dr Xie since the offending, Dr Xie gave sworn evidence.
2. Dr Xie is 56 years old. He is married with one adult daughter. His wife is also a registered general practitioner.
3. Dr Xie said he obtained the equivalent of a Bachelor of Medicine in China in 1985 where he then practised for approximately three years. Dr Xie immigrated to Australia in 1988. Between 1988 and 2007 he undertook a course in Information Technology and worked as an analyst.
4. Dr Xie obtained provisional registration as a general practitioner in Australia in 2006. After undertaking relevant training and clinical placements, he obtained a fellowship with the Royal Australian College of General Practitioners in February 2012.
5. Dr Xie said he commenced work at Burwood Health Care shortly after he obtained his fellowship in early 2012. He commenced at Box Hill Centro Clinic in December 2012, initially on a part-time basis, until September 2013 when he was employed on a full-time basis. Accordingly, for a short period of time he worked at both the Burwood Health Care and Box Hill Centro Clinic.
6. The conduct the subject of the allegation commenced on 2 October 2012. Dr Xie described himself at this time as being 'not very experienced', saying he had only been practising for 8 months without supervision. He said he had no prior experience in prescribing testosterone or treating androgen therapy and that he has not since prescribed testosterone.
7. Dr Xie was taken to his letter dated 17 May 2016 (2016 letter) to the investigating officer from DPR. Much of Dr Xie's evidence reflected the statements made by him in the 2016 letter. Those statements explain the circumstances surrounding the issuing of prescriptions to the patient and are set out in the agreed statement of facts in paragraph 2.4 above. Dr Xie was also referred to a table in the 2016 letter which he had prepared, and which summarised details of the prescriptions written by Dr Xie for the patient. When asked by his counsel why the scripts at Burwood Health Care permitted three repeats, Dr Xie said it was because the computer system used at that clinic at the time auto populated the number of repeats. When asked why the scripts issued from Box Hill Centro Clinic allowed five repeats, Dr Xie said it ran on a different computer system in which the auto population number was five repeats. Dr Xie acknowledged that it was the role of a general practitioner to make judgements concerning the number of repeat prescriptions permitted and that his practice now is to check with the medical reference guide, Monthly Index of Medical Specialties (MIMS), for proper dosages and to also refer to the patient's past prescription record.
8. In terms of his efforts to self-improve, Dr Xie confirmed that he had undertaken the training referred to in the 2016 letter and set out under in the agreed facts stated above. He confirmed that he has now read the guidelines from the DPR website regarding prescribing requirements and scams used by drug seeking patients. A copy of the material obtained and read by Dr Xie since receiving the intervention letter from DPR in December 2104 was tended during the hearing. He said he had also read the MIMS prescribing information on Primoteston as well as several articles on androgen deficiency. He confirmed as stated in the 2016 letter 'I now have a clear understanding of my responsibilities with respect to prescribing drugs of dependence.'
9. Dr Xie was also taken to a letter dated 18 June 2019 which he had written to the Board's solicitors and which was described as a 'Reflective Practice Report'. In it he summarised the education he had completed to date, reflected on his practice management and listed changes which he has implemented in his practice.[6] In it he states:

At the time of treating [the patient] I did not suspect him to be drug seeking or drug dependent, mainly because he always presented as honest, easy-going, open and engaging. [The patient] had advised me that he only came to me for prescriptions because I was his regular GP. On reflection I have identified that I was deceived by [the patient] and was naïve to his drug seeking tactics. I now realise that I should have further investigated [the patient's] need for testosterone, rather than relying on the information he told me and assuming that appropriate investigations had been undertaken previously by other doctors at the practice.

1. Dr Xie states one of the changes implemented in his practice is use of SafeScript software. He says the software allows him to review a patient's prescription history and assists in the early identification of patients developing signs of dependence. Dr Xie says the software allows him to check the prescription history on their medical file and review the intervals and amounts of prescriptions to ensure the prescription is not being prescribed too frequently. He also said that if he is 'slightly unfamiliar' with the medication before prescribing, he would now review the MIMS prescribing information. He said that if a patient was requesting a drug of dependence in circumstances where he did not feel comfortable prescribing the medication, he would refer their care to another suitably qualified practitioner. Dr Xie said he now takes time to write detailed progress notes at each consultation and that his notes are probably three times longer than notes prior to this notification.
2. Dr Xie said he 'openly acknowledged his lack of knowledge has led to the prescribing errors' and that he had been proactive in addressing this deficiency and had used the opportunity to improve his prescribing practices. He confirmed in his evidence that if he was confronted with a pushy patient in the future that he would consult his colleagues.
3. Dr Xie said that the court proceedings had had a significant effect on him and that he did not ever wish to make a mistake again. He said he had learnt a lot through the process by undertaking education and training. He said that the court proceedings were completed in April 2017 and that it was not until February 2019, that is two years later, that he became aware he was the subject of these disciplinary proceedings. He said he was devastated to find out the matters had been raised again.
4. Several character references from Dr Xie's colleagues at Box Hill Centro Clinic were tended on his behalf. They described Dr Xie as a hardworking, polite and caring doctor. All expressed surprise at the conduct the subject of this allegation and described it as being 'out of character'.

1. As we have referred to above, since the hearing, Dr Xie has undertaken further education and training with Dr Tamara Nation. Further to that training, Dr Xie provided the Tribunal with an additional reflective practice report dated 31 October 2019 which included details of the session. In addition, we were provided with a copy of an education report prepared by Dr Nation regarding the further education successfully completed by Dr Xie. That report noted the further education undertaken had a particular focus on:

1. assessing the patient, taking into account the history, the patient's views, and an appropriate physical examination; 2. formulating and implementing a suitable management plan (including arranging investigations and providing treatment and advice);

1. ensuring adequate knowledge and skills to provide safe clinical care;

1. providing treatment options based on the best available information; and 2. making responsible and effective use of the resources available to ensure that the services provided are necessary and likely to benefit the patient.
2. The further reflective practice report completed by Dr Xie was extensive. He stated he had found the education and reading to be very valuable and particularly constructive with respect to his current practice, noting this further session had built on and touched on the previous sessions completed in 2015 and 2016. In particular, Dr Xie noted the recent session had focused on:

1. the importance of Dr Xie ensuring he had adequate knowledge and skills to provide safe clinical care by recognising and working within the limits of his competence and scope of practice; 2. the significance of maintaining adequate records and why it was important to record Dr Xie's assessment of the patient, their relevant history, their views and notes of any physical examination; and

1. the necessity to balance the benefits and harm in all clinical management decisions and the importance of effective communication with patients.
2. We note also that Dr Xie had the opportunity during the learning session to demonstrate the way he now takes a patient's history, undertake an examination and decide on appropriate clinical management.

1. The National Law defines 'professional misconduct'[7] in the context of a registered health practitioner as follows:

1. 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 2. 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

1. 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.
2. We have made findings on the balance of probabilities, comfortably satisfied they were open on the evidence taking into account the seriousness of the allegation and the consequences of findings such as these.
3. As a question of fact, we were satisfied on the material before us and on the admissions made by Dr Xie that he engaged in the conduct described in the allegation and during the times specified.
4. Dr Xie also admitted that the conduct described in the allegation constituted professional misconduct within the meaning of that term in the National Law.
5. Even if Dr Xie had not made that admission we are amply persuaded that Dr Xie's conduct described above constituted professional misconduct within paragraph (a) of the definition of that term because the conduct was clearly substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. In this regard we agree with the submissions made on behalf of the Board[8] this was so given:

1. Dr Xie provided treatment to the patient on 16 occasions during the relevant period and prescribed Primoteston 250mg/ml to the patient on each of these occasions. During each consultation Dr Xie had the opportunity to consider the patient's prescribing history and/or whether the rate at which he prescribed to the patient was appropriate, however, in contravention of his professional responsibilities to appropriately assess then patient, he failed to do so; 2. The conduct was not an isolated incident, occurring on 16 instances;

1. Dr Xie failed to exercise independent clinical judgement with respect to prescribing testosterone to the patient and therefore breached his professional obligations to, amongst other things, provide treatment options to the patient based on the best available information;

1. Dr Xie contravened his professional responsibility to implement a suitable management plan for the patient; 2. Dr Xie failed to identify and/or consider whether Primoteston was an anabolic steroid/drug of dependence in circumstances where it is, and he therefore breached his professional obligation to ensure he had adequate knowledge and skills to provide safe clinical care; 3. Dr Xie failed to identify the patient as drug seeking and/or potentially drug diverting; 4. Dr Xie prescribed Primoteston in circumstances where he felt "pushed" into doing so; 5. Dr Xie's conduct illustrates a failure to recognise and/or understand his professional obligations as set out in the Code of Conduct; and 6. Dr Xie's conduct contravened the Drugs Poisons and Controlled Substances Regulations 2006 and was a criminal offence.
2. It therefore remains for this Tribunal to determine an appropriate sanction for Dr Xie in respect of the conduct.

1. Section 196 (2) of the National Law provides that we may decide to do one or more of the following:

1. Caution or reprimand Dr Xie; 2. Impose conditions on his registration;

1. Require him to pay a fine of not more than $3000;

1. Suspend his registration; or 2. Cancel his registration.
2. As stated above, the parties jointly submitted that the appropriate determination in this matter is that Dr Xie be reprimanded pursuant to section 196(2)(a) of the National Law.
3. We were referred by the Board to the decision of the High Court in Commonwealth v Director Fair Work Building Industry Inspectorate.[9] The Board submitted in that case the High Court confirmed that:
   1. There is an important public policy benefit in receiving, and, if appropriate, accepting agreed penalty submissions: and
      1. Upon persuasion of the accuracy of the parties' agreement as to facts and consequences, and that the penalty the parties propose is an appropriate one, it is a highly desirable practice for the Court to accept the parties' proposal.
4. The Board noted that this submission had previously been accepted by the Tribunal and submitted that 'the Tribunal has found that departure from an agreed position ought not take place without clear or exceptional reason.' In this regard the Board referred to the decision of the then President Ross where His Honour said that the Tribunal should not depart from an agreed sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances.[10]
5. Nevertheless, the Board's submissions also acknowledged that, 'It is the duty of the Tribunal to determine the facts and the level of conduct alleged and the appropriate sanctions to be imposed in respect of that conduct. No agreement between a regulator and the professional person under review can supplant that duty.[11]
6. The question we must decide therefore is, whether a reprimand is an appropriate sanction having regard to the facts and circumstances of this case.
7. The principles which guide in the making of determinations in disciplinary proceedings are well established.
8. The purpose of the imposition of determinations in disciplinary matters is to maintain proper ethical and professional standards, and act as a deterrent to other practitioners, so as to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public and the profession. Determinations are not punitive. That said, determinations may involve a degree of punishment for the purpose of specific deterrence (to deter the individual from repeating the misconduct) or general deterrence (to warn others in the profession against such misconduct). In this regard, the Board recognised the various aspects involved when considering the protection of the public. In its written submissions,[12] omitting footnotes, it stated;
   1. 'Although determinations are not punitive in their purpose, the objectives of general and specific deterrence will sometimes depend on them having a punitive effect'; and
   2. 'The purposes of general deterrence and preservation of the reputation of the medical profession contain a strong element of the need for protection of the public. Regulatory boards have an important role in maintaining public confidence in health professions.'
9. The Board also set out in its submissions some of the principles relating to the making of determinations, referencing the Tribunal's decision in Medical Board of Australia v Jansz[13] and Medical Practitioners Board of Victoria v Naik.[14] We agree with and adopt what was said in those decisions. In addition, we note the Tribunal, in the recent case of Medical Board of Australia v Holten,[15] usefully summarised the range of factors the Tribunal considers in making its determination. Those factors include, the nature and seriousness of the conduct and the risk of harm if it were engaged in by others, the need or otherwise for specific deterrence, the degree of insight that the practitioner has into his or her offending conduct, the degree of remorse, evidence of character and contribution to the community, any history of offending, evidence of rehabilitation, the need for general deterrence and whether there has been any delay between the start of the investigation until the completion of the Tribunal hearing.
10. We note also determinations in other cases of similar and analogous conduct will provide useful guidance and that consistency and proportionality are important.[16] However, what is necessary in any particular case to meet the objectives of determinations will depend on all the facts and circumstances.[17]

1. In its written submissions, the Board submitted a reprimand was appropriate because:

1. Dr Xie's conduct involved multiple contraventions of the Code of Conduct, which is an important means by which medical practitioners' behaviour is assessed; 2. Dr Xie failed to exercise independent clinical judgement on multiple occasions;

1. Dr Xie's conduct had the potential to have an adverse impact on patient GB's health, noting that adverse effects have been reported in the context of testosterone and/or anabolic androgenic steroid abuse. In this regard, the Board provided us with extracts from the Australian Medicines Handbook, as well as product information relating to testosterone medications (Sustanon and Primoteston) which reported adverse effects of testosterone abuse and/or anabolic abuse included, but was not limited to, 1. cardiovascular effects; cardiac arrest, ventricular arrhythmia, hypertension; 2. neuroendocrine effects - infertility; 3. neuropsychiatric effects - aggressiveness, major depression upon withdrawal, mood fluctuations; 4. renal and hepatic effects - oedema, liver injury, jaundice; 5. other effects - acne, oily skin, impotence

1. Dr Xie's conduct has the capacity to undermine the regard in which the profession is held by members of the public and is conduct that cannot be engaged in by members of the profession, such that there is a need for general deterrence.
2. The Board, submitted, however, that:

1. Dr Xie's conduct was isolated towards one patient; 2. Dr Xie has since: 1. engaged in education with respect to Primoteston; 2. attended mentoring with Dr George Zaharias; and 3. made major changes to his practice so as to avoid engaging in similar conduct in the future.

1. Dr Xie has been cooperative with the Board and the DHHS from the commencement of the investigation and all times; and

1. the delay in bringing this matter before the Tribunal was not due to any fault of Dr Xie. The Board said part of the delay was related to the criminal proceedings which were finalised on 6 April 2017 and that the passage of time since then was partly caused by a change in a number of investigators at the Board, which contributed to a break in the investigation.
2. Mr Cash, on behalf of Dr Xie, commended the Board's submissions as being reasonable and sensible. He said that a reprimand was appropriate and that whilst it might otherwise be thought to be 'benign', the effluxion of time had allowed Dr Xie to undertake relevant education, learn from his experiences and make relevant changes to his practice so that conditions which might have been imposed on his registration relating to auditing or supervision, were no longer necessary. Mr Cash said Dr Xie's evidence ought to provide us with confidence that he would not engage in such conduct again going forward.
3. In terms of comparable cases, we were referred by Mr Cash to Medical Board of Australia v Saykao[18] (Saykao). In that matter the practitioner had on 10 separate occasions during a period from 23 July 2007 to 7 September 2007 provided prescriptions for a patient to obtain 48 Sustanon 250mg/ml 1 ml injections, as well as other steroids. At no time had the doctor conducted any tests to ascertain the patient's testosterone levels or kept any appropriate clinical notes, nor had he taken any or sufficient steps to ascertain that the patient had a therapeutic need for the medications being prescribed. The prescribed dosage in that case was also excessive and well outside the clinical guidelines. In that case the practitioner had been contacted by two pharmacists, each expressing concern regarding the filling of all the prescriptions so quickly and each time the practitioner had told them to fill the scripts. Subsequently each of the pharmacists contacted DHHS about their concerns regarding the doctors prescribing to the patient.
4. In Saykao, the practitioner was cautioned and reprimanded by the Tribunal, with conditions placed on his registration requiring him to undertake and complete, at his own expense, further education in relation to dealing with difficult patients and in prescribing practices. A condition was also placed on his registration requiring him to undertake a period of supervision by an experienced full-time senior general practitioner with experience in integrative medicine approved by the Board as well as a further condition requiring the practitioner to report in writing to the Board at regular intervals detailing his ongoing professional education and development as a result of the required period of supervision.
5. Mr Cash, by reference to the remarks of Justice Marks in Peeke and the Medical Board of Victoria,[19] said a reprimand should not be considered merely as a 'slap over the wrist'. He said the sanction was within the acceptable range due largely to the education undertaken by Dr Xie and the changes he has made to his practice.

1. Given the level of training that was required to be undertaken by Dr Xie in order to obtain his Fellowship of the Royal Australian College of General Practitioners, his evidence concerning his lack of knowledge of anabolic steroids was somewhat surprising. In this regard we note he admitted in his evidence that he ought to have known testosterone was a drug of dependence and listed as a Schedule 4 drug.
2. We accept Dr Xie has now undertaken extensive further training to address his lack of knowledge with respect to the prescribing of anabolic steroids. We accept Dr Xie's evidence that he has now undertaken a number of courses of study so as to ensure he is now fully aware of the restrictions relating to the prescription of testosterone and more generally drugs of dependence. In particular we accept he has:
   1. Reviewed the guidelines from the DPR website; and
   2. Undertaken training in the area of drugs of dependence with Dr George Zaharias consisting of 9 hours covering topics regulations relevant to prescribing Primoteston, risks of off label prescribing, how to identify difficult patients.
3. However, notwithstanding we accept Dr Xie's explanation that he had no or inadequate knowledge of anabolic steroids being drugs of dependence, and had no previous training in relation to them, Dr Xie's subsequent conduct in proceeding to prescribe the medication in the way that he did, raised serious concerns. In short, we did not consider Dr Xie's excessive and clinically inappropriate prescribing of testosterone to be adequately explained as being due to a lack of knowledge of the drug testosterone.
4. What the Code of Conduct sets out in terms of what standards can be expected of doctors by the community is neither surprising nor new. It is readily accepted that exercising good patient care includes:

1. 'assessing the patient, taking into account the history, the patient's views and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects; 2. ensuring that the doctor has adequate knowledge and skills to provide safe clinical care; and

1. providing treatment options based on the best available information'.

These fundamental standards are central and key to a doctor exercising good patient care. A failure to adhere to any of these standards can have serious adverse health consequences for the patient.

1. Dr Xie's evidence as to how he came to prescribe testosterone to the patient over the two-year period demonstrated serious breaches of these most fundamental standards on each of the 16 occasions he consulted with the patient. These breaches were noted by the Board in its submissions and are set out in paragraph 32 above. It was for these reasons it was our view that further education primarily focussed on the Code of Conduct was required to be undertaken by Dr Xie, given the significance of the Code of Conduct in a general practitioner's practice.
2. We have carefully reviewed the content of the further education recently undertaken by Dr Xie with Dr Nation on 20 October 2019 which specifically addressed issues regarding the Code of Conduct. In particular we have reviewed Dr Xie's extensive reflective practice report dated 31 October 2019. In that report Dr Xie acknowledged the importance of recognising and working within the limits of his competence and scope of practice in order to appreciate the impact on patient care that could arise from a lack of knowledge and a failure to turn his mind to his lack of knowledge. In relation to the circumstances surrounding the conduct the subject of the allegation before us, Dr Xie acknowledged, amongst other things, that he had not recognised a pattern of increasing frequency of the patient's attendances and escalation of doses and that good medical practice required him to step back and independently assess the patient, not erroneously rely on what he was being told by the patient. Dr Xie also noted the quality of his record keeping now compared to five years ago had increased significantly.
3. Having regard to the further education and training now undertaken by Dr Xie, and the changes made to his practice, including putting measures in place to ensure he will not commit the offence again, satisfies us that we do not need to place further restrictions on his registration concerning the prescribing of drugs of dependence. We are satisfied that the training completed by him not only addresses our earlier concerns with his lack of knowledge or understanding of the principles encapsulated in the Code of Conduct, but also consolidated his earlier learnings surrounding prescribing of drugs of dependence.
4. We are now satisfied that the risk of Dr Xie reoffending and prescribing a Schedule 4 drug without carrying out the necessary reviews is low. In this regard, specific deterrence is not a significant factor in determining the appropriate determination in this proceeding.

1. It is well understood that a reprimand is not a trivial determination. A sanction of this form does not trivialise a lapse in professional standards.[20] For a professional person it has the potential for serious adverse implications.[21] It tells the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.
2. We consider that a reprimand sufficiently addresses the need for general deterrence and meets the requirements of an appropriate determination in that it protects the community and the integrity of the profession. In our view the order to reprimand will flag to others that the behaviour is to be condemned.
3. In addition to the extensive further learnings undertaken by Dr Xie and discussed above, in forming this view;

1. we accept there was no suggestion of wholesale prescribing of testosterone to multiple patients, and that this was an isolated case involving one patient: 2. we accept that the criminal proceedings and these current proceedings have caused stress. We have given weight to the fact he has pleaded guilty and has agreed to the characterisation of his conduct as being professional misconduct;

1. we accept Dr Xie has shown remorse. We accept he has now demonstrated insight into his conduct and recognises that he made mistakes;

1. we have taken into account the delay in having this matter resolved. We accept Dr Xie has, during this time, taken positive steps to educate himself. Had he not undertaken such further education during this time, we would have placed conditions on his registration requiring him to do so; 2. we note there have been no previous transgressions and no further transgressions of his professional obligations; we also accept Dr Xie's evidence that he has not, since the offending, prescribed Primoteston to any patient; 3. we had regard to the character references from people who know Dr Xie both professionally and personally; and 4. we were mindful of consistency between the Tribunal's decisions and noted the determination imposed by the Tribunal in Saykao was also a reprimand with conditions imposed on the practitioner's registration. As stated above, we are satisfied the extensive education undertaken by Dr Xie over the last 5 years since the conduct in question, together with the more recent learnings completed, is such that there is no need for conditions to be imposed on Dr Xie's registration in this instance. Further, we noted that whilst the prescribing in Saykao was over a shorter period of time, it continued notwithstanding the practitioner had been contacted by two pharmacists who raised concerns with the level of prescribing. This is to be contrasted with the present conduct where Dr Xie ceased prescribing as soon as he was notified of the patient's drug seeking conduct by DHHS. For completeness, we note also the Tribunal's decision in Medical Board of Australia v Hanna,[22] a related case in that it concerned another general practitioner who had also prescribed excessive amounts of testosterone to the same patient that had consulted with Dr Xie. In that case the Tribunal agreed with the parties' joint proposal that the practitioner should be reprimanded and that conditions should be imposed on his registration requiring that he undergo education and submit to a one-off audit of his practice.

[1] Drugs Poisons and Controlled Substances Act 1981 (Vic), section 4 and Schedule 11, Part 3, Column 1.

[2] Australian Register of Therapeutic Goods Product Information for Primoteston.

[3] Australian Medicines Handbook (online) - Testosterone.

[4] Respondent's Submissions dated 1 November 2019, paragraph 1.4.

[5] Whilst the Agreed Statement of Facts omitted the reference to 'provisionally', Counsel for the Board amended the applicant's written submissions to reflect the fact Dr Wei was provisionally registered on 16 January 2006. This was confirmed in evidence from Dr Wie.

[7] Section 5 of the National Law.

[8] Applicant's written submissions, para [30] to [34].

[9] [2015] HCA 46; (2015) 326 ALR 476.

[10] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16].

[11] Medical Board v McGrath [2014] VCAT 641.

[12] Applicant's submissions, para [38].

[13] [2011] VCAT 1026 at [358] - [373].

[14] [2009] VCAT 755 at [60] - [61].

[15] Medical Board of Australia v Holten [2019] VCAT 837.

[16] Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86.

[17] Medical Board of Australia v Proctor (Review and Regulation) [2018] VCAT 576.

[18] Medical Board of Australia v Saykao (Occupational and Business Regulation) [2011] VCAT 1338.

[19] Unreported - 19 January 1993 at page 6.

[20] Peeke v Medical Board of Victoria, 19 January 1993 at page 6.

[21] Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation List) [2009] VCAT 419.

[22] (Review and Regulation) [2019] VCAT 1596