1. VCAT finds:
   • (a) Between 10 and 20 May 2011, the Respondent, Dr Zebic, engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in section 3(1) of the Health Professions Registration Act 2005 (Vic) (the HPR Act). She breached conditions on her registration as a medical practitioner concerning her undergoing urinalysis and hair sampling related to drug use, as detailed in the following reasons; and
   • (b) On each of 10 August, 4 September and 5 October 2011, Dr Zebic behaved in a way which constitutes professional misconduct as defined in paragraph (a) of 5 of the Health Practitioner Regulation National Law Act 2009 (Vic) (the National Law). Over those dates she wrote four prescriptions for medicines while her registration as a medical practitioner was suspended, as detailed in the following reasons.

1. VCAT makes the following determinations under s 196 of the National Law:
   • (a) Dr Zebic is reprimanded.
   • (b) The following conditions are imposed on the registration of Dr Zebic as a medical practitioner. She is to:
     • (i) have a detailed Case Management, Aftercare and Monitoring Program Agreement (CAMP Agreement) with the Victorian Doctors Health Program (VDHP), as approved by the Board;
     • (ii) provide a copy of the CAMP Agreement and any subsequent amendments of the CAMP Agreement to the Board;
     • (iii) authorise the VDHP to inform the Board of any breach of the CAMP Agreement;
     • (iv) authorise the VDHP and the Board to communicate regarding Dr Zebic's ability to practise and her adherence to the CAMP Agreement;
     • (v) work only in a group practice, or equivalent, approved by the Board;
     • (vi) provide the senior partner of the approved group practice, or equivalent, with a copy of these orders and reasons and the conditions;
     • (vii) practise only under supervision provided by a supervisor nominated by the senior partner of the approved group practice, or equivalent, and approved by the Board, who is to be provided with a copy of these orders and reasons and the conditions, and who is to provide the Board with a report every three months (or more frequently if the Board requires it) indicating whether or not Dr Zebic has practised satisfactorily throughout the period of the report;
     • (viii) authorise the senior partner of the approved group practice, or equivalent, and supervisor and the Board to communicate about Dr Zebic's work performance;
     • (ix) work a maximum of 20 clinical hours per week, with maximum hours to be reviewed three months after return to practice and any increase to be based on a satisfactory work report from her supervisor;
     • (x) not work after hours or at weekends;
     • (xi) obtain approval of the Board prior to changing the nature or place of Dr Zebic's practice;
     • (xii) have hair analysis tests for drug use every three months and random urinalysis at times determined by the Board, according to the Board's protocols;
     • (xiii) have appointments with her treating psychiatrist, at a frequency determined by her treating psychiatrist, and a general practitioner, approved by the Board, at a frequency determined by the approved general practitioner, each of whom are authorised by Dr Zebic to communicate with the Board regarding Dr Zebic's health condition and treatment; and
     • (xiv) attend for examination by an independent medical practitioner appointed by the Board as and when required by the Board.
   • (c) The review period in respect of the above conditions is to be 12 months from the date of these orders.
   • (d) Any expenses related to these conditions are to be borne by Dr Zebic.

Remark

For avoidance of doubt, the Tribunal records it intends that the above decision revokes the suspension of Dr Zebic's registration as a medical practitioner such that, subject to any other preconditions, she may practise as a medical practitioner subject to the above conditions.

1. In August 2014, the Medical Board of Australia (the Board) referred the allegations against Dr Kathy Zebic to VCAT under the Health Professions Registration Act 2005 (Vic) (HPR Act) and the Health Practitioner Regulation National Law (the National Law).[1]
2. The allegations related to her:
   • (a) In May 2010, breaching conditions on her registration as a medical practitioner concerning urinalysis and hair analysis in the context of alleged drug use by Dr Zebic in 2009; and
   • (b) Between August and October 2011, four times writing prescriptions when her registration to practise was suspended.
3. The reasons for the referral to VCAT not being made before August 2014 will become apparent below.
4. When it came to final hearing in February 2015, the parties had produced an agreed statement of facts and relevant documents. Dr Zebic agreed her conduct in May 2010 and between August and October 2011 was as alleged. The parties submitted VCAT should permit Dr Zebic to resume practice, subject to stringent conditions.
5. We have found her conduct, as alleged in 2010 and 2011, constituted professional misconduct, reprimanded Dr Zebic, set aside the suspension of her registration and decided she is to be registered, subject to stringent conditions.
6. As discussed below, a central consideration in our decision were submissions on behalf of the Board that the conditions are sufficient to enable the Board to discharge its statutory duties as a regulator, such that the public is protected.

1. The following findings of facts are based on an agreed statement from the Board and Dr Zebic, supplemented by the documentary evidence which is not in dispute and oral submissions made to us.
2. The current suspension, on 3 June 2010, of Dr Zebic's registration as medical practitioner (see below), followed previous suspensions in relation to her drug use in:
   • (a) May 1999 (following self-notification);
   • (b) February 2000 (following self-notification); and
   • (c) August 2004 (failure to comply with urine screening protocol).
3. On 21 July 2009, Dr Zebic was found face down on the computer keyboard at her desk in her consulting room while at work.
4. It appears Dr Zebic had been alone in the consulting room for approximately 30 minutes before being found. After being roused, she was initially disoriented and incoherent. She had left sided facial weakness.
5. By letter dated 9 March 2010, Professor Bruce Singh, Psychiatrist, reported to the Medical Practitioners Board of Victoria (the MPBV) concerning Dr Zebic. He discussed her complex history including suffering an eating disorder during adolescence and early adulthood (completely resolved), a psychotic episode in 1994, being diagnosed with schizophrenia (she did not comply with treatment), no recurrence of psychosis, narcotic abuse from 1998 for a number of years (Professor Singh was unable to reach a view on whether this had ceased), a diagnosis of borderline personality disorder in 2000 (with which Professor Singh agreed) and mild to moderate sleep apnoea.
6. He doubted that she had any great insight into her "profound psychiatric problems", nor the effect that had on her ability to practise medicine. In his view, the critical question with respect to her registration was whether she continued to abuse drugs. While he had suspicions, he did not have sufficient information to come to a firm conclusion on that.
7. On 22 April 2010, a Health Panel of the then Medical Practitioners Board of Victoria (the MPBV) found it was likely Dr Zebic's use of narcotics caused the incident and found her ability to practise was affected because of her physical or mental health. The Panel imposed conditions on Dr Zebic's registration. She was to attend a psychiatrist and general practitioner who could report to the Panel, not possess or administer various drugs, work in an approved group practice (not after hours or on weekends), with the practice reporting to a health committee and to attend for urinalysis and hair analysis.
8. While we note some much later medical professional opinion that her collapse and subsequent behaviour was likely explained by illness, we do not make findings as to the cause.
9. Concerning the registration conditions that she attend for hair analysis every three months and random urinalysis according to a MPBV protocol, on 7 May 2010, Dr Zebic signed the MPBV protocol for random urinalysis.

Facts directly relevant to the allegations in the proceeding under the HPR Act

1. That same day, Dr Zebic missed her first screening. Her work supervisor provided a statement that, to the best of his knowledge, she had been too busy to attend.
2. On each of 10 and 14 May 2010, Dr Zebic both forged the signature of a practice nurse on a referral slip used for urinalysis and failed to follow the MPBV's protocol for random urinalysis, by not having her samples taken under direct supervision.
3. On 20 May 2010, when requested to attend for hair analysis, Dr Zebic was unable to provide hair for analysis because she had shaved her head.

1. By email dated 19 May 2010, the doctor in charge of the medical practice where Dr Zebic was working reported to the Board concerns about, among other matters, Dr Zebic's inadequate or missing practice notes and "at least 50 reports or results not looked at or actioned", some going back to October 2009.
2. On 3 June 2010, as a result of Dr Zebic's above apparent breaches of conditions on her registration, the MPBV suspended her registration having found her ability to practise was, or may have been, affected and that she had, or may have, engaged in unprofessional conduct or professional misconduct. Her registration remained and remains suspended until the Board registers her in accord with our determinations in this proceeding.
3. On 1 July 2010, the National Law came into effect and the Australian Health Practitioner Regulation Agency (AHPRA) and the Board replaced the MPBV.
4. By letter, dated 18 November 2010, AHPRA notified Dr Zebic that her apparent failure to abide by conditions on her registration was under investigation.
5. Dr Zebic responded by letter, dated 12 April 2011, and other undated letters, explaining that, among other things, she had "paranoid persecutory delusion of the psychotic kind possibly dampened by medication prescribed by my colleague with acute flare post removal of medication". She acknowledged substituting urine tests. Dr Zebic stated that her inability to provide a hair sample arose from her psychosis.
6. On 8 June 2011, Dr Zebic emailed AHPRA saying, among other things, that her problem was "high functioning autism spectrum disorder".

Facts directly relevant to the allegations in the proceeding under the National Law

1. In 2011, Dr Zebic practised as a medical practitioner whilst not registered. She wrote four prescriptions being one dated 10 August 2011 (Serepax and Tramal), two dated 4 September 2011 (one for Duromine and one for Serepax and Tramal) and one dated 5 October 2011 (Serepax and Tramal).

1. On 30 January 2012, Dr Zebic responded to AHPRA's request for a formal response to the allegation that she had practised as a medical practitioner while suspended (writing the prescriptions). She claimed, among other things, that the prescriptions were not written for patient usage or as a false representation of herself as a registered medical practitioner. She said that she had written on prescription paper all of the things that she had been accused of self-administering. She said the she wrote no names or dates and many had no signature and that she discarded the prescription pads after writing in them. She said that was all that she could remember.
2. In February 2012, Dr Zebic requested that her suspension be lifted. She stated, among other things, that her behaviour, "was appalling and attributable to the neuropsych manifestations of untreated porphyria".
3. In March 2012, the Board refused her request.
4. Dr Zebic then submitted a medical report, dated 23 April 2012, by her treating psychiatrist, Dr Byron Rigby, who had treated her since July 2010. He could find no reason (from a health point of view) why Dr Zebic should not be re-registered, with perhaps a period under supervision.
5. In June 2012, Dr Zebic applied for renewal of her registration and the removal of the suspension (a necessary pre-condition for registration). She said, among other things:
   • (a) A new diagnosis of porphyria had been made of her condition, which she believed to be the primary diagnosis for all of her "previous presentations which have been attributed to other conditions"; and
   • (b) The event which led to the conditions being imposed in April 2010 was not substance related but, she believed, could have been a porphyriac vasomediated left insular ischaemia/seizure.
6. On 27 June 2012, the Board received a letter from Dr Gayle Ross, Dermatologist. Dr Ross said on 31 May 2012, she, Dr Amanda Nicoll, Gastroenterologist, and Dr George Varigos, Dermatologist, saw Dr Zebic in their multidisciplinary porphyria clinic at Royal Melbourne Hospital. They considered her history and investigations fitted with a diagnosis of hereditary coproporphyria (HCP). Dr Ross also wrote they did not believe that Dr Zebic was a drug seeker or opiate-dependant.
7. On 28 June 2012, the Board received a letter from Dr Sophie Adams, Consultant Psychiatrist, Royal Melbourne Hospital. She said when she last saw Dr Zebic, about two months earlier, Dr Zebic showed no evidence of ongoing psychiatric symptoms.
8. On 28 June 2012, the Board decided to refuse to revoke the suspension of Dr Zebic's registration. However, it decided to refer the matters regarding her conduct to VCAT.
9. However, when making those decisions, the Board did not have Dr Ross' or Dr Adams' letters. Therefore, on 30 August 2012, it reconsidered the matter. It remained concerned about Dr Zebic's ability to practise medicine safely and competently because of:
   • (a) Her conduct;
   • (b) The long period of time in which she had engaged in the conduct;
   • (c) The lack of a definitive diagnosis of porphyria; and
   • (d) The lack of information about the possible effects of the illness.
10. The Board sought guidance to determine whether Dr Zebic had an impairment and whether any such impairment affected her ability to practise medicine safely.
11. In an undated report, Associate Professor Peter Stewart, a joint director of a pathology service, opined Dr Zebic did not suffer porphyria. Biomedical and genetic findings did not support a diagnosis of hereditary coproporphyria (or plumboporphyria, acute intermittent porphyria or variegate porphyria).
12. In August 2013, the Board decided the referral to VCAT should proceed and it was made.
13. By letter dated 9 September 2013, Professor Edward D. Janus, Consultant Physician, who had seen Dr Zebic several times from at least 2011, noted Associate Professor Stewart's opinion. He discussed her symptoms, saying while it was now clear she did not suffer porphyria (he had previously accepted that diagnosis), the appropriate diagnosis was clearly something else, but unknown. In his opinion, she had been quite well over the last year and a half, after about two years when she was unwell, including when she lost consciousness at work. He wrote of his discussion with her about her finding alternative employment, such as medical writing, which, if successful, could assist her in seeking reinstatement of her registration as a medical practitioner.
14. By letter dated 18 November 2013, Dr Rigby, psychiatrist, who had treated Dr Zebic for over three years, opined her health and wellbeing had improved over the past year and she was fit to practise medicine, saying in part:

Dr Zebic's health and well-being have improved considerably over the past year. In my opinion, she is fit to practise medicine. To my knowledge the only impediment to this is that her re-instatement is contingent upon a VCAT Hearing of an application by [AHPRA] to be held in the near future.

Dr Zebic is an academically inclined professional, and I am aware that she has continued to engage in continuing medical education of a substantial nature, owing as much to her natural interest as to the necessity of remaining up-to-date from the point of view of her registration.

1. By letter dated 21 January 2014, Dr Rigby updated his earlier letter. He briefly discussed Dr Zebic's complex medical history, saying Dr Zebic is an unusual person who at times appeared to be unwell and who engaged in some episodes of injudicious behaviour. He regarded her as well adjusted and fit to be registered to practise medicine. While he did not think she required psychiatric treatment, she appeared to find consultations helpful.
2. By letter dated 27 February 2014, Dr Kym Jenkins, Medical Director of the Victorian Doctors Health Program (VDHP) confirmed that if Dr Zebic was considered fit to return to practice, and should the VDHP continue to work under its current model, it would consider her for its case management program. She would have a case manager appointed by the VDHP, who would take a "pivotal role" in liaising with her treating practitioners and her workplace monitor. She noted Dr Zebic had advised while genetic testing was negative for porphyria, adopting a lifestyle that avoids triggers for the condition enabled her to maintain good physical and mental health.
3. Dr Jenkins also summarised Dr Zebic first presenting to VDHP in 2003, when a 34 year old general practitioner, by then having experienced significant problems with drug abuse, including 'section 8 drugs', her 2004 suspension, 2005 return to work and a couple of years case management. In 2008, there were concerns about Dr Zebic appearing drug affected. While a case management response was tried, her adherence to the program was inconsistent. VDHP questioned its value. When Dr Zebic advised VDHP of her 2010 collapse on her keyboard, Dr Jenkins no longer supported a CAMP agreement being in place. In late 2010, Dr Zebic undertook a residential detox program. She continued limited contact with VDHP. While a new case management was drawn up in 2012, it was to manage porphyria.
4. By report dated 6 March 2014, Professor Trevor Kilpatrick, Neurologist, among other things, concluded the diagnosis of Dr Zebic's condition was uncertain, although the possibility of an underlying porphyria could not be excluded. Professor Kilpatrick also opined Dr Zebic's current extended period of stability suggested that it would not be unreasonable to consider Dr Zebic's gradated return to work, under appropriate supervision.
5. At the Board's request, on 11 April 2014, Dr Zebic again saw Professor Singh, psychiatrist. He said in part:

She has over more recent years had a range of weird and bizarre medical symptoms for with no organic cause which has been found leading to a suspicion on my part that they may be manifestation of a somatoform disorder. ...

My diagnosis based on all the evidence remains the same. This woman has a cluster B personality disorder with antisocial, borderline and narcissistic features who in addition has had various behavioural disorders which those with this condition are prone to develop i.e. psychosis, eating disorder, drug abuse, depression and anxiety.

... Dr Zebic did not demonstrate any great insight into the major psychiatric problems she has had. In fact if possible her insight is less now because she now understands how all her symptoms have come about - namely the porphyria like condition of unknown name or aetiology. In addition she believes that by treating this condition by avoiding triggers [like alcohol, insomnia, anaesthesia, overseas travel, over-exertion, medical and emotional stress] she is much better which medical attendants also attest to.

1. Professor Singh said Dr Zebic's avoidance of urine and hair sampling was best explained by her personality disorder because of paranoia that the Board was out to get her.
2. In his view, while a personality disorder is not in itself a contraindication to be able to practise medicine, of more concern was the risk of drug misuse or other manifestations of the personality disorder which might emerge when she was confronted with the challenges of medical practice. He was not confident if she was allowed to practise, even subject to strict supervision and regular urine and hair tests, she would not again try to find a way around the requirements.
3. However, Professor Singh did not regard himself as in a position to disagree with the view expressed by Dr Rigby, her treating psychiatrist, that from a health point of view, there were no impediments to Dr Zebic's re-registration.
4. He concluded that, if Dr Zebic were to be re-registered, strict conditions should be imposed. His suggestions are incorporated into the conditions imposed by the orders in this proceeding.

1. In our view, the appropriate findings are clear-cut.
2. Dr Zebic avoided urine and hair testing when the HPR Act was in force. Under s 77 of that Act, we find she engaged in professional misconduct. Her conduct violated and fell short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency.
3. Medical practitioners have the opportunity to abuse prescription drugs if they choose. If their use is detected, drug screening is a critical tool to make it feasible to allow their return to medical practice, while protecting the public. Avoiding the surveillance afforded by that screening is a most serious failing in conduct.
4. Dr Zebic wrote prescriptions while her registration was suspended, when the National Law was in force. Under s 196(1) of the National Law, we find she engaged in professional misconduct. Her conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. It is completely unacceptable for a suspended practitioner to write prescriptions.

1. Section 77(4) of the HPR Act and s 196(2) of the National Law provide VCAT's powers to make a range of determinations, including caution, reprimand, suspension, requiring further education, imposing conditions on registration, requiring supervision, imposing a fine and cancelling registration.
2. Turning to how the determination powers should be exercised, in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at para 14 VCAT said:

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 ... 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. As the parties submitted was appropriate, we reprimand Dr Zebic for the conduct relevant to our findings in this proceeding.
2. We note Marks J's comments in Peeke v Medical Board of Victoria[2] that a reprimand, being a serious form of censure and condemnation, "certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner." [3]

1. Both parties submitted the correct and preferable decision was to permit Dr Zebic to once again be a registered medical practitioner, with that registration subject to strict conditions.
2. Mr Murray, for the Board, submitted that was appropriate, given Dr Zebic's treating medical practitioners viewed her health as having sufficiently improved to the point where registration, subject to conditions, was appropriate. Professor Singh's reservations were noted, as was his observation that her treating practitioners were in a better position to judge her health than he was. The Board concluded the strict conditions, to which Dr Zebic agreed, would protect the public. Implicit in the submission was that Dr Zebic's performance would be closely monitored and if she breached any condition, swift action would follow.
3. Mr Harris, for Dr Zebic, submitted the conduct which gave rise to this proceeding occurred over two short periods; May 2010 and September and October 2011. No misconduct was alleged since that time, her treating medical practitioners supported her re-registration and she had cooperated with the Board in formulating conditions for her re-registration. He submitted that, after over four years since the most recent misconduct, refusing her the opportunity for conditional registration would unreasonably perhaps amount to cancellation of her registration. He also submitted the Board's support for conditional re-registration was a very significant factor supporting registration.
4. As we discussed with Mr Murray and Mr Harris during oral submissions at the hearing, we had our doubts.
5. We were and are concerned about:
   • (a) The long-standing, if intermittent, pattern of the MPBV and then the Board having to take action concerning Dr Zebic;
   • (b) The risk that Dr Zebic may repeat her rapid failure, when conditionally registered in 2010, to abide by drug testing conditions. We noted Professor Singh's doubt as to the degree of her insight into the reasons for her behaviour and that he would not be surprised if she again breached conditions;
   • (c) Dr Zebic stating in a witness statement in this proceeding saying she "does not necessarily believe I need supervision", while accepting such, including via registration conditions;
   • (d) Her chequered history of compliance with the previous CAMP agreement; and
   • (e) The doubts raised by the 2010 email from her workplace about deficiencies in her medical practice. This is in the context of the realistic limits on colleagues in a busy medical practice being able to supervise Dr Zebic if she adopted evasive practises. The same can be said about the finite resources of the Board to implement and pro-actively supervise conditions.
6. However, in the context of the years that have passed since the last professional misconduct, the substantial group of medical practitioners supportive of Dr Zebic's conditional return to practice and the Board's submission that the conditions can and will be implemented such that Dr Zebic may safely return to practice and the benefit if she succeeds, we have decided she should be conditionally registered.
7. Our determination is made independent of the parties' submissions and is made in the context that one of the Board's functions under s 35(1)(j) of the National Law is to oversee the management of registered medical practitioners, including monitoring conditions imposed on the registration.
8. We have accepted the Board's submission that the conditions can and will be implemented such that the public is protected. We are aware the Board is not guaranteeing that outcome. We take the Board to be saying negative consequences of the risk that Dr Zebic poses can be addressed through implementation of the conditions.
9. We have departed from the proposed conditions:
   • (a) Concerning conditions 2(b)(vi) and 2(b)(vii), we added that, as well as providing the conditions to the senior partner and supervisor in a group practice, these orders and reasons must also be provided. Those people must have all the relevant information;
   • (b) Concerning condition 2(b)(ix), on the number of clinical hours Dr Zebic may initially work. Initially, the Board proposed 20 hours and Dr Zebic 30 hours. By the hearing they both proposed 25 hours. Given Dr Zebic's poor compliance history, in the context of over-tiredness said to be a trigger for ill-health, we view the more conservative 20 hours as an appropriate starting point. We note "clinical hours" means contact hours between her and patients. To those clinical hours, the associated essential other work of a medical practitioner must be added;
   • (c) We have inserted condition 2(b)(x), that Dr Zebic not work after hours or at weekends. The parties did not propose this. It was a condition imposed by the Health Panel in 2010. Professor Singh recommended it in his 2014 report. Given the circumstances, we regard it as prudent; and
   • (d) Concerning condition 2(b)(xiv), the parties proposed Dr Zebic was to attend an independent medical practitioner when the Board "reasonably required". To avoid any debate on what is "reasonable" we deleted "reasonably". The Board is to decide the frequency of attendances.
10. Section 196(3) of the National Law requires us to decide a review period for the conditions. We accepted the parties' submissions that 12 months from the date of our decision is appropriate. Assuming all goes well, at the review date ongoing conditions will be a decision for the Board.
11. We note our decision is one step toward Dr Zebic resuming practice. We understand the steps include Dr Zebic approaching the College of General Practitioners about the recency of her qualifications, in terms of continuing professional education. She must also find an employer willing to implement the relevant conditions, of whom the Board approves as appropriate.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6.

[3] As quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].