On 1 February 2006, I had a consultation with my patient, Ms AB. During the consultation, Ms AB asked me if I would suggest a doctor that would treat some scars on her arms. I suggested Richard (the respondent) because I considered that he was competent in cosmetic medicine.

After I suggested Richard, Ms AB informed me that, during a consultation she had with Richard for a full sexual health check, he had paid for her to have sex with him. Ms AB said that Richard had offered her $50.00 for a 'head job' and she had given him a 'head job'. Ms AB told me that at first she was flattered, but then she felt awful.

I informed Ms AB that the matter was serious and should be reported to the Medical Practitioners Board of Victoria (Board). However, Ms AB was concerned that it was her word against Richard's word. Ms AB told me that she did not want me to tell anyone, and she did not want to take the matter further.

The next day, on 2 February 2006, I checked Ms AB's medical records and I noticed that there was (sic) notes made in Richard's handwriting, dated 30 March 2004, that included a full STD check. I confirmed with the reception staff at Ripponlea Medical Centre that the records were Richard's records. ....

I discussed the matter with my medical defence in approximately February 2006. I recall I spoke to John Maher from Medical Indemnity Protection Society Limited (MIPS) who advised me in words to the effect of, 'If there is no patient prepared to be named, then there is no case and nothing to report'.

In approximately February 2006, I also discussed the matter with the senior doctor at the Ripponlea Medical Centre, Dr Anastasios Tasiopoulos (Dr Tasiopoulos).

Dr Tasiopoulos organised a meeting with Richard. I believe that the meeting occurred on or around late February 2006, but I cannot be sure. The meeting occurred at a restaurant called 'Blue Tongue Café' in Ormond Road, Elwood.

In the meeting, Richard was very frank. He admitted to Dr Tasiopoulos and me that he had oral sex with Ms AB during a consultation, which had included a full STD check, in exchange for $50.00.

Richard said that he was not the instigator of the oral sex. Richard asked me and Dr Tasiopoulos not to take the matter further. He offered to work under strict supervision, including only performing gynaecological examinations in the presence of a chaperone. However, nothing was agreed upon at the meeting.

The meeting lasted for approximately an hour. I did not take any notes of the meeting.

I cannot recall exactly when but, at some stage, I spoke to Ms AB again, and she said that she had my consent to make a Notification to the Board.

Soon after Ms AB gave me consent to notify the Board, I told Richard that I intended to report the matter to the Board, and that Ms AB consented to the Notification.

I wrote a Notification to the Board and I told Richard that I was intending to send the Notification. Richard told me that if I reported the matter to the Board, then suicide may be an option for him. Richard said words to the effect of, 'This is not meant to be emotional blackmail, but this is how I feel'. After further discussion, Richard agreed to seek psychiatric assistance should the Notification go ahead.

At around the same time that I spoke with Richard about the Notification, in early 2006, I spoke to Ms AB again and she requested not to have the matter reported. Ms AB frequently changed her mind about whether the Board should be notified of the matter.

I did not send the Notification in early 2006, primarily because Ms AB had withdrawn her consent.

1. On 31 March 2008, Dr PQ eventually notified the applicant of the events of 30 March 2004. That notification was received by the applicant on 10 April 2008.

1. Following the 2001 hearing by the MPBV, at the time the respondent recommenced to practice, a special condition was placed upon his registration on 23 December 2003. The condition provided :

Dr Young will not have any sexual or personal relationship with a current or former patient.

1. It necessarily follows as a result of the events of 30 March 2004, that the respondent breached the above condition on his registration.

1. As previously stated, patient AB was normally seen by Dr PQ. However, on 19 September 2006, while Dr PQ was not present at the clinic, AB was seen by the respondent. For some considerable time before 19 September 2006, Dr PQ held a permit to prescribe Methadone to AB to assist her with the effects of her heroin addiction.
2. On 19 September 2006, AB allegedly told the respondent that she had recently been an inpatient at The Alfred Hospital and had a chest complaint and a sore back. In the notes made by the respondent on 19 September 2006, it is stated :
   1. Recent inpatient Alfred Hospital with pneumonia - 3 days of fever, green sputum, decreased energy, examination of chest clear, treatment Augmentin
   2. Request MS contin 60mg as per (AB) see previous notes.
3. On 21 September 2006, a pharmacist from Bains Pharmacy telephoned the respondent and queried whether Ms contin was appropriate because AB was on Methadone. The respondent, as soon as he heard that AB was on Methadone, told the pharmacist under no circumstances should AB be given the MS contin.
4. It is noted that the notes used at the clinic in 2006 were somewhat confusing. Prescriptions were noted on the computer but other matters were in handwritten notes and extremely difficult to read. The respondent said that he did not check the notes for prescriptions of Methadone because AB only mentioned the problems with her back when he was typing the prescription for Augmentin. He said once he had opened the computer program to type the prescription for Augmentin, the description of the other scripts that had been handed out to AB had disappeared from the computer. He admitted that he could have gone back and done a search, but he did not. He said he believed that Dr PQ had been prescribing MS contin because AB was so specific as to the amount that she required. The respondent agrees that he should have known that Dr PQ had the methadone permit and that AB was drug dependent, however, he is adamant that he did not know at the time.
5. A Dr Carr, who is a medical practitioner, made two reports which were tendered into evidence. Those reports make it abundantly clear that for a patient on methadone, to use MS contin would be extremely dangerous as methadone itself is an opiate. In particular, he stated in his first report of 3 June 2009 :

.... However, it is my understanding that when dealing with a known drug dependent person, no Schedule 8 drugs may be prescribed without a permit. It is also my understanding that Schedule 8 drugs should not be prescribed to a patient for whom a permit is held by another practitioner.

It should have been abundantly clear to Dr Young that patient AB was both drug dependent and that a permit existed with another doctor. It is therefore my opinion that it was not appropriate for Dr Young to prescribe MS contin at this consultation. ...

It is my opinion that the prescription of MS contin to this patient on this occasion comprises (sic) management that fell below the standard expected of a competent medical practitioner.

1. In Dr Carr's second report dated 13 June 2009, he states :

I would also note that there are many treatment options available for back pain which do not require an opiate prescription. To choose a relatively high dose of long acting opiate, as a first-line treatment would not generally be considered appropriate.

1. The respondent has twice been the subject of disciplinary hearings before the Medical Practitioners Board of Victoria. On both occasions determinations were made against the respondent. The decisions relating to those hearings were handed to us by Mr Clements counsel for the applicant. Those decisions are not being used as tendency evidence but are being used as prior misconduct of the respondent.
2. The first of the determinations was made on 31 July 2001 (the first hearing) and the second determination was made on 21 December 2006 (the second hearing).
3. In his opening, Mr Clements at p 18 ff of the transcript describes the finding of the Medical Board in relation to the first hearing. He there states :

On 31 July 2001 a panel of the Medical Practitioners Board of Victoria that had conducted a formal hearing in Dr Young's conduct found that Dr Young had engaged in unprofessional conduct of a serious nature by engaging in sexual relationships with two female patients. Those sexual relationships had taken place in 1999.

1. It should be noted that the two female patients referred to by Mr Clements were in fact sex workers.
2. The Panel in relation to the first hearing also made findings against the respondent in relation to breach of an undertaking. Mr Clements describes that finding on p 19 of the transcript -

... the panel in the 2001 case also found that Dr Young had breached an undertaking that he had given to the Board that he would not consult female patients unless a registered nurse chaperone was present. The Panel found that Dr Young had engaged in unprofessional conduct of a serious nature, including professional misconduct, and it determined that Dr Young's registration be suspended for 15 months. And Tribunal members you may have seen that one of the allegations in this case, it is the second allegation, is that Dr Young by his conduct on 30 March 2004 breached a condition of his registration that he not have any sexual or personal relationship with a current or former patient. That condition had its genesis in the 2001 case.

1. It should also be noted that the events relating to the sexual misconduct referred to in the first hearing (2001) occurred in 1999. The second hearing decision was given on 21 December 2006. At p 19 of the transcript, Mr Clements refers to the findings that were made in relation to the second hearing. He states -

Moving to the second case on 21 December 2006 a panel of the Medical Practitioners Board of Victoria, that had conducted a formal hearing in respect of the professional conduct of Dr Young, made a finding that Dr Young had engaged in unprofessional conduct of a serious nature, and that hearing concerned inappropriate comments that were made by Dr Young whilst he conducted a pap smear in respect of a patient. In addition to the inappropriate comments it was also alleged that Dr Young's internal examination of the patient was not medically required. The Panel found the allegations were proven, Dr Young was reprimanded, cautioned, required to undergo counselling regarding appropriate communication skills between doctors and patients, and required to undertake further education with respect to pap smears.

1. At the first hearing, evidence was given by two psychiatrists - Dr Horgan who had treated the respondent and Professor Ball who had examined the respondent and wrote a report. In its decision relating to the first hearing, the Board summarised Mr Horgan's evidence. At paragraph 81, it is stated -

He believed that boundary violations that occurred were quite inappropriate and having unprotected sexual intercourse was an expression of Dr Young's risk-taking personality. He does not have a formal psychiatric illness but he became involved in two sub-cultures of society simultaneously, the conservative successful professional one where high standards of performance and behaviour were expected and an opposite one where immediate gratification and exhibitionism were hailed as virtues. .....

Dr Horgan was of the opinion that Dr Young's offering of justification including the contributions of the women concerned, is something that anybody would do. He believed that what is necessary is that he should be seen for a significant period of time to help him refrain from the approaches he had taken to interactions between himself and patients. ....

Dr Young had become blasé about rules and he should, if allowed to practise, be under supervision, have ongoing psycho-analysis, and he should continue to see him (Dr Horgan), for 5 years.

1. The panel also summarised Professor Ball's evidence -

... He stated that supervision and treatment should continue, not for a psychiatric or behavioural problem but because Dr Young's major problem was a narcissistic personality, which needed affection, attention-seeking, including sexualised attentions, such as had occurred in a nightclub scene, which Professor Ball said he should cease. He should seek more normal patterns of social behaviour and maturational development with treatment, which should include psychotherapy.

1. In the Board's determination, it found that Dr Young had engaged in unprofessional conduct of a serious nature and suspended Dr Young's registration for a period of 15 months and put conditions on the respondent's re-registration which, inter alia, stated :

Dr Young remain under the care of a psychiatrist of his choice and approved by the Board. Dr Young is responsible for ensuring that his treating psychiatrist provides the Board with six monthly reports and when required.

1. It is noted that in the hearing before us, the respondent stated that he persuaded Dr Horgan that he did not have any further problems and Dr Horgan then notified the Board that the respondent did not need any treatment. The respondent told us that he clearly did need further treatment.
2. In respect of a breach of the undertaking, the panel found at p 216 -

In respect to the signed undertaking, it was the opinion of the Panel that Dr Young had engaged in unprofessional conduct within the meaning of s 3(a), (b) and (c) of the Act in that he had consulted with female patients on several occasions without there being a chaperone present, thus breaching that undertaking. The Panel noted that the first offence occurred within 6 days of signing the undertaking, that arrangements entered into by Dr Young were insufficiently organised to ensure that a chaperone would always be present or available and that he undertook to perform sessions at short notice for a colleague when he knew or should have known, that to obtain a chaperone for this would have been virtually impossible. The Panel accepted the medical opinion offered in evidence that this action was part of his personality problem, which included a reduced regard for observance of rules and regulations.

Accordingly, the Panel finds that Dr Young's breach of the undertaking was unprofessional conduct of a serious nature in accordance with s 50(1)(a) of the Act for the reasons set out above in relation to the other allegation.

1. In relation to the second hearing on 21 December 2006, at paragraph 33 of its decision, the panel made the following finding :

However the Panel does not agree that his [Dr Young] conduct constitutes professional misconduct or infamous conduct in a professional respect. This case was not presented as a sexual misconduct case and the Panel makes no such finding. The question of whether conduct moves from a lesser standard to misconduct and infamous conduct is one of degree and the Panel considers that the level of professional misconduct and infamous conduct are not reached in these circumstances.

1. By the panel's determination, in relation to the second hearing, Dr Young was both reprimanded and cautioned. He was also ordered to undergo counselling on appropriate communication skills between doctor and patient. Dr Young was also ordered to undergo further education comprising of sessions with senior practitioners nominated by the CEO or her nominee to be completed by 28 September 2007.

1. The time when the matters concerning the allegations arose (2004 and 2006), the HPRA was not in operation. It came into operation on 1 July 2007. Consequently, the Tribunal must sit as a panel in accordance with the provisions of the HPRA. However, the substantive part of the allegations against Dr Young must be dealt with pursuant to the Medical Practice Act 1994 (MPA) because Dr Young's alleged conduct occurred prior to 1 July 2007. That is, it occurred on 30 March 2004 and on 19 September 2006. Section 45A of the MPA states the findings that we are able to make and in sub-section (2) states the determinations which we are able to make. That section relevantly reads as follows :

45A Finding and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the panel may find that -

(a) the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

(c) the practitioner has not engaged in unprofessional conduct.

(2) If the panel finds that the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations -

(a) require the practitioner to undergo counselling;

(d) require the practitioner to undertake and complete specified further education within a specified period;

(e) impose any condition, limitation or restriction on the registration of the practitioner;

(f) impose a fine on the practitioner of not more than $2000;

(g) suspend the registration of the practitioner for the period specified in the determination;

(i) disqualify the practitioner from applying for registration under section 5 within a specified period if the practitioner's registration is cancelled by the Board or by a medical registration authority of another State or Territory of the Commonwealth or New Zealand.

(3) If the panel finds under sub-section (1)(b) that the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, the panel may make any determination which a panel at an informal hearing is able to make upon such a finding.

(4) The panel must not impose a fine if the conduct which is the subject of the finding has resulted in a fine being imposed by another tribunal or court of law.

(5) If the panel has made a determination under sub-section (2)(a) or (d) and the practitioner has not complied with the determination within the time specified in the determination, the Board may suspend the practitioner's registration until the determination is complied with.

1. It must be noted that in the event that we find Dr Young engaged in unprofessional conduct which is not of a serious nature, we would be left with the option of ordering him to undergo counselling, cautioning or reprimanding him in relation to that part of the allegation.

2. "Unprofessional conduct" is defined in section (3) of the MPA as follows:

"unprofessional conduct" means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(d) infamous conduct in a professional respect; ...

CONDUCT IN ALLEGATION 1 WHICH ALLEGEDLY OCCURRED ON 30 MARCH 2004

1. It will be remembered that Mr Cash, counsel for the respondent, conceded the facts which substantiate allegation 1. He has also conceded on his client's behalf that such conduct falls within the definition of "unprofessional conduct" in s 3(a), (b) and (c) of the MPA.
2. Mr Clements, while not urging upon us that we should find the respondent has committed infamous conduct in relation to allegation 1, stated that such a finding is open. In the decision of Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 at paragraph 18, "infamous conduct" was described as :

A finding of 'infamous conduct in a professional respect' is that which would be reasonably regarded by one's right-thinking competent colleagues as reprehensible, shameful, dishonourable or disgraceful: Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953. It is reserved for the worst cases of unprofessional conduct. The words 'infamous and disgraceful' have been held to denote conduct deserving of the strongest reprobation: Felix v General Dental Council [1960] AC 719 at 720.

1. Mr Clements said the facts upon which we could find the respondent has committed infamous conduct in a professional respect are :
   • (i) that the sexual act between the respondent and AB took place in the consulting room;
   • (ii) that Dr Young paid AB for the sexual act; and
   • (iii) that Dr Young has been previously disciplined for sexual conduct with a patient or patients;

(see the first decision referred to in paragraphs 23 to 31 inclusive herein).

1. However, Mr Clements fairly said that because Dr Young has previously had sex with AB at a brothel would count against infamous conduct being found.
2. Mr Cash has stated that the conduct itself must be infamous looked at separately from other conduct ie conduct which occurred in 1999.
3. We agree with the submission of Mr Cash that in categorizing the conduct alleged against the respondent, we must look only at the conduct itself. It does not alter the nature of the conduct the fact that a number of years before other misconduct was alleged and found against Dr Young. Therefore, we will not consider findings which have been made against the respondent in past proceedings, for the purpose of categorizing the conduct in this proceeding.
4. Mr Cash submitted that the conduct referred to in allegation 1 is not infamous conduct because it does not come within the worst cases of unprofessional conduct. He stated :
   • conduct here was not illegal
   • the conduct here was not without acquiescence. That is, it was consensual.
   • conduct was not predatory
   • it was not a course of conduct but it was isolated; and
   • finally the applicant, through its counsel, has not urged that we should find infamous conduct.
5. Taking into account the submissions from both Mr Clements and Mr Cash which we have outlined above, we have come to the conclusion that the conduct referred to in allegation 1 herein is not infamous conduct within the meaning of the definition of "unprofessional conduct" in paragraph (d).
6. In our view, Dr Young's conduct towards AB was not "the worst case of unprofessional conduct". After making the request for a sexual service with AB, he did not in any way coax her further. There was no illegality in relation to this conduct. It was conduct with acquiescence and as both counsel said it is important that the respondent had had sexual relations with AB at a brothel prior to this time.
7. Therefore, for all the above reasons, we find that the conduct referred to in allegation 1 is not infamous conduct, but is, as has been conceded, unprofessional conduct within with the meaning of s 3(a), (b) and (c) of the definition of "unprofessional conduct" in the MPA.
8. Because of the concession made by Mr Cash, that allegation 1 falls within the conduct described in s 45A(1)(a), (b) and (c), it necessarily follows that the respondent's conduct was unprofessional conduct of a serious nature and professional misconduct within the meaning of s 3(c) of "unprofessional conduct".

SECOND ALLEGATION OCCURRING ON 19 SEPTEMBER 2006 RELATING TO THE PRESCRIBING OF MS CONTIN TO AB

1. The dispute in relation to the second allegation (see paragraphs 15-20 inclusive herein) is whether the respondent knew that AB was drug dependent or that another doctor at the clinic held the methadone permit. The applicant stated that the respondent knew of these matters while the respondent denied such knowledge. However, the respondent admits that he should have known both that AB was drug dependent (and currently on methadone) or that another doctor at the clinic held a methadone permit for AB. Mr Clements stated that we should find that the respondent had the knowledge alleged in allegation 2 because :

(i) There are a number of references to methadone and other drugs of dependence in the handwritten and computer records. Those references include methadone on the very page that Dr Young made notations in relation to the consultation on 19 June 2006 ie those notes appear under the date of 3 June 2006. That entry in the notes not only refers to methadone but diazepam (valium).

(ii) Dr Young himself had obtained a history of drug taking. Mr Clements emphasized that he submitted that it was no answer for Dr Young to say it was two years ago and he had forgotten. He said because of the events admitted in allegation 1, he would have remembered the patient AB.

(iii) The whole account by Dr Young of the consultation in 2006 is implausible. There is no reference in the notes to AB having back pain. Further, MS contin 60mg would only be prescribed to a person who had very severe pain.

As a result, Mr Clements submitted that we should not accept Dr Young's denial that he did not know the relevant facts relating to AB when he prescribed MS contin.

1. In order for us to find that Dr Young knew of the relevant facts at the time he prescribed the MS contin, it necessarily follows that we would not accept the evidence of Dr Young as being truthful.
2. Throughout the entirety of Dr Young's evidence, the only point on which his credit was challenged was in relation to his knowledge on 19 September 2006. Apart from that point, his credibility was not challenged at all.
3. Dr Young appeared to us to be a witness of truth. He admitted the very serious matters referred to in allegation 1, and he also admitted that he ought to have known relevant facts when he wrote the prescription in 2006.
4. Further, when Dr Young was asked about the matters referred to in allegation 1, by other doctors at the clinic, including PQ, in 2006 at the Blue Tongue Café, he readily admitted the same. Dr PQ stated that she was surprised that he made such admissions.
5. Further, we accept that because Dr Young was busy writing the prescription for Augmentin Forte, he was somewhat distracted when AB asked him for the prescription relating to MS contin. He readily admitted that he should have been far more careful.
6. Given these circumstances, we conclude that Dr Young is a witness of truth and as such we accept his denial that he did not know of the circumstances alleged when he wrote the prescription for MS contin on 19 September 2006. However, he readily admits that he ought to have known.
7. Mr Cash, on behalf of his client, readily admits that in relation to allegation 2, his client's conduct comes within paragraphs 3(a) and (b) of the definition of "unprofessional conduct" in the MPA. However, there is a dispute between the parties as to whether such conduct amounts to "professional misconduct".
8. The common law definition of "professional misconduct" has been discussed in numerous cases (see Campbell v Dental Board of Victoria (1999) VSC 113). The common law definition of "professional misconduct" has now made its way into the HPRA in s 3. Even though this proceeding must be decided on the substantive law as it existed prior to 1 July 2007, nonetheless the definition of "professional conduct" in the HPRA being the common law definition, is a useful reference. That definition states as follows :

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession; (underlining supplied)

1. Dealing first with paragraph (a) of that definition, it is clear that in relation to allegation 2, it cannot be said that in writing the prescription for MS contin, Dr Young committed "substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence".

So far as we have been informed, this was a one off incident insofar as Dr Young was concerned.

1. In relation to paragraph (b) of the definition of "professional misconduct", we agree that the conduct of Dr Young falls within those words.
2. In relation to paragraph (c), we do not find that Dr Young's conduct in writing the prescription without knowledge would justify a finding that "the practitioner is not of good character or otherwise not a fit and proper person to engage in the practice of the health profession".
3. As all the factors in paragraphs (a), (b) and (c) of the definition must be satisfied, as we have found that the factors in paragraph (b) are not satisfied, it necessarily follows that in writing the prescription on 19 September 2006, Dr Young did not commit "professional misconduct".
4. The next question that must be decided is whether the conduct of Dr Young in writing the prescription for MS contin, was unprofessional conduct of a serious nature or unprofessional conduct not of a serious nature within the meaning of s 45A(1)(a) or (b) of the MPA. Whether conduct is of a serious nature or otherwise was referred to by Kellam J in Re Parr v Nurses Board of Victoria (1998) 16 VAR 118 at 123. His Honour there stated :

In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend upon the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.

1. While the action of Dr Young in writing the prescription fortunately did not have serious consequences because the pharmacist telephoned Dr Young and he adamantly told the pharmacist not to dispense the MS contin, however, if the prescription had been dispensed, it could have had very serious effects on the health of AB and could conceivably have caused her death because MS contin and methadone are contra indicated against each other. We refer to what Dr Carr has said which has been referred to previously in this decision. It cannot be said that risking the life of a patient by a doctor is "trivial". Therefore, we are of the opinion that the respondent's conduct in writing the prescription for AB as he did is sufficient to amount to unprofessional conduct of a serious nature within the wording of s 45A(1)(a) of the MPA.

1. The principles to be applied in making a determination in relation to the respondent's conduct are to be found in s 45A(2) of the MPA. Those principles include reprimand, suspension and cancellation. In the case of cancellation, pursuant to s 45A(2)(i) , we are able to determine a period for which the respondent should not apply for re-registration.
2. It is noted that Mr Clements urged upon us to cancel the respondent's registration and forbid him from reapplying for a period of 6-12 months.
3. On the other hand, Mr Cash said that we should suspend the respondent's registration from the time that registration was suspended by the Board (15 May 2008) to the present time.
4. The principles to be applied in making a determination are clearly set out in a decision of the Tribunal in Medical Practitioners Board of Victoria v Naik [2009] VCAT 755. At paragraphs 60 and 61, it is stated -

As has been observed before, the following principles are relevant to our considerations of what determinations should be made :

• The function of a determination is protective, not punitive (see Healthcare Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630). There are two objectives in making a determination. They are the protection of the public and the maintenance of the professional standards of the profession in the eyes of the public.
• The public interest in the practitioner's continuing to practice must be weighed against the public interest in protecting clients from any repetition of the conduct exhibited (see Buttsworth v Walton (unreported NSW Court of Appeal 19 December 1991 at p 15 per Samuels JA).
• The exhibition of insight can be relevant.
• An aspect of the maintenance of professional standards involves an imposition of a determination that will deter both the particular practitioner and others from like conduct (see eg Craig v Medical Practitioners Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997; Skinner v Beaumont (1974) 2 NSWLR 106 at 109 per Hutley JA and Buttsworth v Walton (Court of Appeal of NSW, 19 December 1991 at 15); Health Care Complaints Commission (HCCC) v Cox-May (No 1) [2007] NSWPST 6; Morris v Psychologists Registration Board Supreme Court of Victoria (unreported) 19 December 1997; Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [14]- [16]; Wilks v Medical Practitioners Board of [2007] VCAT 2439 at [128]).

As this Tribunal has observed before, the principles to be taken into account when considering what determination is appropriate are succinctly put in a decision of this Tribunal in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526. The same principles apply in this case. Quoting from that decision -

Paragraph 1(a) of the Act provides that the main purpose of the Medical Practice Act is:-

"(a) To protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners."

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Honey. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards.

This principle is referred to in cases such as Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997 and Morris v Psychologists Registration Board Supreme Court of Victoria (unreported ) 19 December 1997.

Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. The difference between suspension and cancellation of registration was referred to in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at paragraphs 42-44 -

The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration set out in section 7 of the Medical Practice Act.

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

1. As we have previously mentioned, prior to and subsequent to the 2001 decision the respondent was examined and treated by a number of psychiatrists. Those psychiatrists included Dr Horgan, Professor Ball and Dr Grant. As we have previously noted, at a time subsequent to the first hearing, Dr Horgan was of the opinion that the applicant no longer needed psychiatric treatment and, as a consequence, with the permission of the respondent, such treatment was ceased.
2. The respondent gave evidence that in 1999 and prior to and subsequent to the first hearing, the respondent did not believe he was unwell and that there was nothing wrong with him. As a result, he stated that he did not believe that there was a need for him to have psychiatric treatment. The respondent also agreed that while he did not believe he was unwell, up until 2008, he conceded that he did have a risk-taking personality and was narcissistic, however, since receiving treatment from a forensic psycho-analyst psychologist Ms Nathan and treatment from Dr Anasson and more recently Professor Burrows, he no longer has these traits and he now realises that he had a problem but that he no longer has that problem.
3. Professor Burrows in substance agreed with what the respondent said and he stated while the respondent may still have the traits of a risk-taking personality and being a narcissist, but those matters are now under control. He firmly believed that if the respondent was ever tempted to return to his wrongful behaviour in the future, he would immediately seek professional help and the problem would be brought under control prior to any return to the conduct that occurred in both 1999 and 2004.
4. Professor Burrows also agrees with the respondent that his conduct in 2004 was quite illogical in the sense that he could have waited until AB had left the surgery and then go straight to a brothel and receive the same gratification. Further, the applicant stated that prior to his treatment by Ms Nathan, Dr Anasson and Professor Burrows, he believed he was omniscient but he now realises his errors and that trait is also kept under control. This was agreed to by Professor Burrows.
5. Both the respondent and Professor Burrows believed that the respondent's wrongful conduct had its genesis in the past. At p 167 of the transcript line 42 in a question from the chairman as to what disorder the respondent was suffering, he stated :

Body dysmorphic disorder, which led to an obsession with being Caucasian, and part of that is I've actually had plastic surgery to my face as soon as I graduated medical school to make myself look less Asian".

1. The respondent has had three persons treating him for his psychological problems since 2008, viz Ms Nathan, Dr George Anasson (psychiatrist) and Professor Burrows.
2. Ms Nathan has been the respondent's main treater in the sense she has treated him for approximately 2 years with sessions of 3 times per week. Ms Nathan did not present a report nor did she give evidence before the hearing. The respondent explained that when he sought help from Ms Nathan, she would only agree to help him on the basis that she would not be required to write a report or become involved in board or tribunal proceedings. On this basis, Ms Nathan did not give a report nor did she give evidence to us. Mr Cash said that he considered having Ms Nathan subpoenaed to the Tribunal, but in the light of the fact that she only agreed to treat the respondent on the basis that she would not have to present a report nor would she have to give evidence, and the fact that she was still treating the respondent, it was decided that it was not appropriate to subpoena her to give evidence at the hearing.
3. Dr Anasson wrote two reports which were tendered to the Tribunal but he was not called to give evidence. He was requested to treat the respondent by Ms Nathan on the basis that she believed he needed medication and not being a registered practitioner, she was not in a position to prescribe that medication.
4. In his first report of 5 May 2009, Dr Anasson stated :

In my review of Dr Young most recently, he reports some ongoing anxiety and periods of panic. He has been trialled multiple pharmacotherapy agents to assist in this anxiety but has displayed marked sensitivity to all these agents. He has continued to use the medication Seroquel (Questiapine) in the evening to better assist with sleep and for the provision of some assistance with anxiety during the course of the day. Furthermore, he describes a pro-active and determined approach to his therapy with Pamela Nathan. His level of adherence and attendance for this treatment is impressive, and relates to his clear desire to better understand and control his behaviour which has led him to breach conditions of his medical registration in the past.

1. In a further report dated 24 August 2009, Dr Anasson notes -

... While some medical treatments can be conceptualised as brief or medium term treatments, psychotherapy in Dr Young's case is a process of some years duration. Although he has been engaged in this process for some time, in my view he is only just beginning to enter a more productive and solidifying period of treatment.

1. As we have previously noted, the respondent is currently being treated by Professor Burrows as well as Ms Nathan. Professor Burrows is an eminent and well respected psychiatrist, not only in Australia but world-wide. A summary of his curriculum vitae was handed to the Tribunal and it was extremely impressive. At the time of the hearing, the respondent had had nine consultations with Professor Burrows commencing on 18 February 2010. In his report dated 17 March 2010, Professor Burrows notes -

I formed the opinion that he (the respondent) has gained a great deal from his psychological and psychiatric treatment and that he is now much more stable and more insightful and has learned a great deal. I formed the opinion that he did not suffer from Anxiety and Depression. ...

The offences that have occurred have been with sex industry workers only. He now appreciates that, that will never happen again and in the past has never happened with non sex workers. As he wishes to, if possible, be involved in more cosmetic medicine which would involve seeing women. He is aware that in the past he was under suspicion of being a rapist of which, he clearly was not. .....

I formed the opinion that the general public now has nothing to fear from him. I believe his prognosis is very good in view of the treatment he has received and I formed the opinion that he is now fit to practice as a medical practitioner. He has also agreed if necessary to continue therapy with whoever the Board felt could be of benefit to him. Of course, the cynical approach may be to believe that he may be only trying to satisfy but I am of the opinion that this is honesty having spent a significant time with him and do not have any hesitation in recommending that he return as a Medical Practitioner.

1. In his oral evidence, Professor Burrows stated that the respondent started therapy with Ms Nathan and has continued treatment by Dr Anasson and then himself because he wanted to and he realised he had a psychiatric problem. He did not realise this problem prior to 2008. He was 95% to 99% certain that the respondent's psychiatric condition would not relapse.
2. Professor Burrows said that part of the reason why the respondent's previous treatment with Dr Horgan and others was not successful is that a full history was not taken. He did not blame Dr Horgan for this but rather the respondent, that is, Dr Horgan did not take a full history because the respondent did not give him a full history. He further said that the respondent's narcissistic traits had been controlled but not disappeared and that the respondent had matured. During his psychotherapy with Ms Nathan, Professor Burrows stated that the respondent had matured and the "boy had turned into a man".
3. Professor Burrows also stated that the respondent previously had a very low self esteem which drove his conduct. However, he further stated that the respondent's risk taking personality had been brought under control.
4. Professor Burrows further suggested that he should continue seeing the respondent once per month for an indefinite period. When question what he meant by an indefinite period, he said probably 4 to 5 years.
5. Further, Professor Burrows stated that Dr Young now had good insight into both his previous wrongful conduct and into the level of professionalism that is required of a medical practitioner. Further, he stated the respondent has true understanding of his behaviour. He thus again concluded that it was highly unlikely (95% to 99% with certainty) that the respondent would have a relapse.
6. In our view, the psychiatric evidence presented to us during the hearing was less than satisfactory. While we understand that it would have been difficult to call Ms Nathan, nonetheless not hearing from her after the respondent has probably seen her approximately 300 times, there was a considerable hole in the evidence.
7. While Dr Anasson's reports were tendered, he did not appear at the Tribunal. Even though his treatment was basically an adjunct (that is, prescribing medicine) to Ms Nathan's treatment, it was nonetheless somewhat surprising that he did not appear.
8. As a result, the only psychiatric evidence that was put before us, other than the reports, came from the respondent himself and Professor Burrows.
9. In our view, this is an unsatisfactory situation. The problem may have been able to be cured by the applicant arranging an independent psychiatric examination of the respondent.
10. Even though Professor Burrows is an eminent and well respected authority in his field, it is difficult to accept that he would be 95% to 99% certain the respondent would not relapse. We note that in the previous hearings, the Board assumed that the respondent had learned his lesson. By suspending the respondent for 15 months dating back to his suspension prior to the hearing, the respondent was given the benefit of the doubt.
11. It was conceded by Professor Burrows that this is an extremely happy time in the respondent's life. His noodle business is going reasonably well, and he is content with his current fiancée and his life is reasonably back in order. However, it may be a different situation if his personal life was to take a turn for the worse and he again became unhappy such as was his situation in 1999. While Professor Burrows said he is confident that if the respondent's personal life took a turn for the worse, the respondent would be able to handle the situation and seek further treatment, we have considerable doubt about that view.
12. It is also important to realise that in spite of the conditions on the respondent's registration being made more stringent in December 2003, including the respondent agreeing to a condition that : "Dr Young will not have any sexual or personal relationship with current or former patients", he in fact broke that condition knowing the same to exist in 2004. Even though the respondent might have "changed" since that time, his actions tend to show that he did not have respect for the Board's authority.
13. In relation to allegation 1, the applicant is urging cancellation and the respondent suggested suspension of registration. The difference between cancellation and suspension were dealt with by the Tribunal in Honey v Medical Practitioners Board supra at paragraph 67.
14. When we are considering whether the respondent's registration should be cancelled or suspended, we must have regard to both the protection of the public and maintenance of professional standards. As far as the public safety is concerned, we believe that the respondent is still a risk for repetition of his previous conduct. While we have regard to the fact that Professor Burrows said that he was 95% to 99% certain there would not be a relapse, we feel that that statement is somewhat extravagant. Particularly, in light of the fact that social factors in the respondent's life are good at the moment but if things do change, the respondent may relapse into his previous conduct. Professor Burrows denied this but, in our view, it is very difficult to determine.
15. Further, when considering the issue of maintenance of the reputation of the medical profession, it is important that a clear message be sent to the profession, that sexual relationships with patients is not tolerated. This is especially so in this instance where the respondent had sexual relations with two patients and in relation to that offence, the respondent was suspended (in the decision from the first hearing) for 15 months going back to the date of his original suspension by the Board soon after it became cognizant of those sexual acts. If we were merely to suspend the respondent as has been suggested by Mr Cash, in our view, that would be sending the completely wrong message to other members of the medical profession and would reduce the confidence that the public has in that profession.
16. It is important that the public have confidence that the medical profession will act in a proper and ethical way. If Dr Young was merely to be suspended as suggested by Mr Cash, in our view, the public confidence in the profession would be severely damaged. To put it another way, the reputation of the medical profession would be lowered. We agree with Mr Clements' statement at p 264 of the transcript when he states :

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

1. Mr Cash submitted :
   • Suspension would be sufficient for general deterrent.
   • No need to impose greater period of suspension because protection of the public does not warrant it.
   • Dr Young's registration should not be cancelled because errant members of the profession should be encouraged to seek rehabilitation.
   • There is something unseemly about cancelling a practitioner's registration in circumstances where he is a different person now and where events relate to a period six years ago.
   • It is in the interests of the public to seek rehabilitation of errant medical practitioners particularly one with ability like the respondent who could be of benefit to the community in that field.
   • Dr Young now possesses insight that he did not previously possess which is shown by Professor Burrows' evidence.
2. Further, there were a number of character witnesses called and reports tendered from other character witnesses.
3. At p 290 of the transcript, Mr Cash correctly summarised the nature of their evidence :

They told us how it was that he's approaching his treatment very seriously, and how he's very very different to how he used to be.

1. In coming to the conclusion that the respondent's registration should be cancelled, we have taken account of the following matters :
   • We hold the view that that it is important to protect the reputation of the medical profession and deter other medical practitioners from engaging in such conduct. In a case like the present where the respondent is a repeat offender, in our view, anything less than cancellation would be sending a wrong message both to the profession and to the members of the public. That would have the effect of other members of the profession not being properly deterred from such conduct and the public losing confidence in the profession.
   • On the present state of the evidence, we are not satisfied that the risk of the respondent re-offending is as low as that put by Professor Burrows. In our view, it is not possible to be satisfied to the point of which Professor Burrows stated he is satisfied. We make this finding with the knowledge that Professor Burrows is an eminent and highly respected member of the psychiatric profession.
   • We also feel that the position has been made more difficult by not hearing from both Ms Nathan and Dr Anasson. While we understand why Ms Nathan did not attend to give evidence, we have not been provided with a similar explanation in relation to Dr Anasson. Mr Cash said that in his view, Dr Anasson would not have been able to take the matter further because his job was one of prescribing medication. We do not agree that this was Dr Anasson's sole job, he would have been obliged to examine the respondent and thus he could have formed a view. Thus, we draw an inference that Dr Anasson's evidence would not have assisted the respondent.
   • We are mindful that Dr Young did re-offend in spite of the chance he was given by the Board in 2001.
   • We agree with Mr Clements' submissions that it is surprising that Professor Burrows can be so certain after only nine sessions of treatment.
2. Having made the above findings and deciding to cancel the respondent's registration, we agree with Mr Clements that such disqualification from reapplying should be of a relatively short period before Dr Young can reapply for registration. That is, that there be a break of approximately 6-12 months before he can apply for re-registration. In making this submission, Mr Clements took into account that the respondent has not worked as a medical practitioner since 15 May 2008 because of his suspension by the Board.
3. We have thus decided pursuant to s 45A(2)(h) that in respect of the first allegation, the registration of the respondent be cancelled and pursuant to s 45A(2)(i) that he be disqualified from applying for re-registration until 1 July 2011.
4. We also believe that in relation to the first allegation, that it is proper the respondent be reprimanded.
5. In relation to the second allegation, we have already stated that we do not accept that the respondent knew that he was not meant to be prescribing the MS contin to AB on 19 September 2006 but he ought to have known that he should not be prescribing such medication.
6. In our view, it is appropriate that the respondent be reprimanded in relation to such conduct. We do not think it is necessary for the respondent to undertake any further course of learning at this stage as he has done several courses in this subject already.
7. To allow the second allegation to go without penalty or a substantial penalty in our view would clearly send a wrong message to both the public and the profession. That is why we have decided that reprimand is the proper determination.

1. As previously noted that the respondent's registration was suspended by the Board on 15 May 2008, in light of the orders which we intend to make, it is appropriate that that suspension be removed pursuant to s 74 of the HPRA.