The Tribunal finds that the practitioner has engaged in unprofessional conduct of a serious nature with respect to the matters referred to it by the respondent Board by letter dated 9 February 2010, cancels the respondent's registration as a medical practitioner and disqualifies her from applying for registration for a further period of two years.

Mr S.P. Donaghue of Counsel instructed by Minter Ellison

Mr M.D. Wilson of Counsel instructed by John W. Ball & Sons

1. Dr Kaur completed her medical qualifications in India in 1961 where she worked until 1975.
2. She migrated to Australia and spent some time rearing her family. In 1981 she was registered as a medical practitioner in Victoria. Since 1988 she has worked in solo general practice in Melbourne. She has special interests in mental health and drug and alcohol medicine.
3. Dr Kaur's practice is conducted from 31 Hudson Circuit, Meadow Heights which is one of Melbourne's northern suburbs. She works five and a half days a week, about eight hours per day and sees approximately 125 patients in a typical week.
4. This proceeding concerns the doctor's management and prescribing for a patient whom we will refer to as 'Ms X'.
5. Ms X was born in 1957, she is married and has two adult children. Dr Kaur treated Ms X's mother and came to know Ms X herself socially as a result of paying house calls on the mother.
6. Ms X has suffered from significant gynaecological problems including an ectopic pregnancy. As a result of her second pregnancy she suffered a pulmonary embolism which has resulted in her being placed on a Warfarin program to maintain blood thinness and avoid further thrombosies.
7. Ms X became a patient at Dr Kaur's surgery paying her first visit on 18 May 1996. She made frequent visits thereafter, receiving numerous doses of injected Valium as treatment for migraine headaches. According to Dr Kaur, Ms X presented in a highly distressed and nauseous state on these occasions. Commencing on 23 August 1996 she presented at the surgery complaining of a backache. She continued receiving Valium by injection though from this date onwards whilst there were occasional presentations for migraine headaches the predominant presentation and occasion for the administration of the Valium injections was backache and sciatica. This led Dr Kaur to refer Ms X to orthopaedic surgeon, Mr Gul Keng, who saw her on 3 September 1996. Mr Keng commissioned a CT scan of Ms X's lumbo sacral spine. A report on this investigation from John Fawkner Hospital on 5 September 1996 reported with respect to L5/S1:

A small amount of degenerative gas demonstrated within the disc. A mild broad based posterior disc bulge is demonstrated and this is associated with a small posterior right para-central disc protrusion which indents the right half of the anterior aspect of the spinal theca and abuts against the right S1 nerve root as it exits the spinal theca. The nerve root does not appear enlarged nor does it appear displaced.

The central canal is of satisfactory calibre as is the lateral recess in exit canals. The facet joints are unremarkable.

A very mild broad-based posterior disc bulge is noted without any significant posterior component. There is no evidence of stenosis nor a facet joint arthropathy.

1. The scan was otherwise unremarkable. The radiologist concluded:

A small right para-central L5/S1 disc protrusion abutting against the right S1 nerve root.

1. Mr Keng reported to Dr Kaur in a letter dated 19 September 1996. Mr Keng found tenderness in the lumbo sacral area with:

Mobility of the back ... restricted and flexion ... restricted to half the normal range and extension ... painful and lateral bendings ... restricted.

1. It is unclear whether Mr Keng had the CT scan available to him when he wrote his letter of report because the letter states that he has advised Ms X to have a CT scan:

And she is to have this and I have also advised her that she should wear a corset and have the necessary treatment and I will see her and assess her condition.

Presumably the letter was dictated shortly after Mr Keng saw Ms X.

1. It appears that there are no further consultations or assessments by Mr Keng. Mr Keng seems to have made no recommendations with respect to pain relief.
2. The doctor (Dr Kaur) then began administering Pethidine injections for relief for backache. At times Panadeine Forte was prescribed. It appears that Ms X was not only consulting Dr Kaur but was also attending another practitioner in the area, a Dr N.A. Ahad who carried on practice at the Ford Gate Clinic in Barry Road, Campbellfield. Dr Ahad wrote a letter on 13 March 1997 to the Chronic Pain Management Clinic, Essendon and District Memorial Hospital which became for a time a part of the Royal Melbourne Hospital. He noted that Ms X had a 'long history of back pain' and was 'diagnosed to have a lumbar disc bulge with no compression of nerve root'. Records from the pain clinic dated 3 July 1997 note that 'GP still giving Panadeine Forte', though it is unclear which general practitioner is being referred to. The result is said to be 'no relief'. At Ms X's request Dr Kaur was substituted as her general practitioner of record. On 9 October 1997 the note from the Pain Clinic note 'good response to Anitriptyline, poor response to NS Contin, NSaids and epidural'. The author of the report, Dr Sherry concluded:

I do not recommend any further medication trials at this stage. Focus should be on pain management and increasing function.

1. The report recommended assessment by an occupational therapist and a psychologist with a view to involvement in a chronic pain program and there is a suggestion to 'continue individual phsyio'. In another report to Dr Kaur, the clinic recommended that acute exacerbations of pain could be treated with oral Morphine mixture. They recommended 'no Pethidine injections to be given', observing 'patient does not wish these either'. Regrettably treatment at the pain clinic was not successful. Dr Sherry, a consultant physician in rehabilitation medicine wrote to Dr Kaur on 14 May 1998 complaining that Ms X had failed to attend another pain management clinic appointment on that day. Dr Sherry continued:

We have expected her at several appointments now which she has failed to attend. She was assessed by our chronic pain program team in November of last year and it was recommended that she have some individual occupational therapy input in the workshop followed by physiotherapy treatment. She had attended the workshop very poorly and although had shown some increased awareness of her posture, and was doing some changes at home, it was difficult to improve her endurance because of her poor attendance. She did not attend for her physiotherapy assessment and it was suggested that she come in for a medical review to determine what her ongoing goals were and to perhaps suggest an inpatient stay.

1. Dr Sherry said 'I am now formally discharging her'.
2. Meanwhile Dr Kaur continued administering Pethidine injections to Ms X.
3. On 27 October 1998 Ms X attended Dr Kaur's surgery reporting that she had been involved in a motor vehicle accident on 22 October. Whilst the exact situation is unclear it seems that for some months thereafter the cost of treating Ms X's back trouble was borne by the Transport Accident Commission.
4. Dr Kaur conceded that she realised as at the date of the pain management clinic's letter of 14 May 1998 that Ms X was drug dependent.
5. In 1996 Dr Kaur prescribed six Pethidine injections, five in 1997, six in 1998 with no less than 17 in 1999 despite the warning from the pain management clinic.
6. Commencing July 2000 Dr Kaur converted her record keeping to computer using a software program known as 'Medical Director'. On 14 February she began administering Morphine injections for pain relief. The entry on 'Medical Director' that day diagnoses 'pain-back-lumbo-sacral'. There is a record of an injection of Morphine Sulphate and thereafter frequent such injections are recorded as having been made. Medical Director records as at 16 March 2001 a diagnosis of ovarian cancer. This is not referred to in any of the progress notes. Dr Kaur says that Ms X told her that she had received this diagnosis from the Royal Women's Hospital. The Royal Women's Hospital had told Ms X, according to Dr Kaur, that having regard to the complications arising from the embolism which she had suffered, the hospital was unable to offer her any further treatment for the ovarian cancer. Accordingly, management at least of the pain deriving from that ovarian cancer devolved upon Dr Kaur.
7. On 11 December 2001 Ms X underwent a hysterectomy which also entailed removal of the right ovary and tube. A report from the Royal Women's Hospital where the surgery was carried out showed 'benign leiomyonata and focal ademomyosis'. There was no record of any finding of malignancy. Dr Kaur only obtained the report on this surgery from the Royal Women's Hospital at the end of September 2008, nevertheless she was aware in 2001 that the surgery had been carried out. Dr Kaur's records appear to indicate that she received contemporaneous reports, for instance, in late 2002 as to follow-up attendances by Ms X at the Royal Women's Hospital Urogynaecology Clinic arising out of continuing bladder problem. This led to further surgery by way of a laparotomy with retro-pubic urethrolysis in early 2003. In a letter typed 3 November 2004, Dr Quang Ling, General Physician at Northern Consultants Physician Group provided a discharge summary to Dr Kaur. The letter recited a lengthy history of ailments deriving first from the pulmonary embolism during pregnancy, referred to a Deep Vein Thrombosis in the right leg in 2000, and to asthma and chronic back pain. Referring to her asthma Dr Ling referred to 'occasional rhonchi'. He made no mention of any cancer.
8. In contrast when Dr Kaur referred Ms X to the Northern Hospital, by letter dated 27 July 2005 'for an opinion and management for SOB [shortness of breath] and chest pain' the past history recorded refers not only to asthma, anxiety and depression, pulmonary embolism and back ache but also to 'ovarian ca'. The latter was recorded as being diagnosed on 16 March 2001.
9. A care plan prepared by Dr Kaur for Ms X dated 3 November 2004 identified Ms X's principal diagnosis as 'back pain - lumbar, DVT, PE asthma, anxiety/depression chronic pain'. That is, no mention was made of ovarian cancer. In a care plan prepared the following year on 8 November 2005 there is reference to ovarian cancer and amongst the goals established by the plan were 'ref to gynaecologist to monitor progress of o cancer'. The care provider nominated was 'RWH', that is the Royal Women's Hospital. No referral to a gynaecologist at the Royal Women's appears to have been made.
10. The picture that emerges of Ms X's life from 2001 to 2005 is of a depressing round of gynaecological and pulmonary problems with the ever present rigours of regular blood test and Warfarin medication with all the disadvantages that this entails. According to our count no less than 286 prescriptions for injectable Morphine were given over this period. Ms X was extensively treated for depression apparently flowing not only from her physical ailments but from domestic violence and her son's being imprisoned. In July 2004 she was prescribed Reductil capsules as a weight loss treatment.
11. During this time Dr Kaur had persisted with weekly prescriptions of five 30mg ampules of injectable Morphine. Initially these Morphine injections were administered by the doctor, later the ampules were simply dispensed at the pharmacy across the road from the doctor's surgery with arrangements for intra-muscular injection of the Morphine to be made by Ms X. Dr Kaur referred to a number of possible arrangements which she might have made including injection by the nurse at the pathology lab which carried out the regular blood tests for the Warfarin program, use of a locum service etc. For the purposes of this proceeding it remains uncertain exactly who injected the Morphine and in what manner. During the same period there were also occasional prescriptions for Valium injections.
12. More significantly it appears Ms X was fraudulently altering the scripts issued to her by adding numerals immediately to the left of the '5' which preceded the reference to ampules, and also writing the required amount beside the numerals. The result then was that in some cases instead of the five ampules prescribed by the doctor, 25 ampules were dispensed, in other cases 45 and on one occasion even 75. Again, it remains a matter of speculation as to exactly what became of these additional morphine doses. Ms X may have injected them all into her own arm or obtained the services of someone else to inject them. She may have sold them onto the illicit drug market or passed them on to a drug dependant member of her own family.
13. Another practice of Dr Kaur's was to pre-date prescriptions for Ms X if she was to be away for any length of time.
14. Ms X's fraudulent alterations to the script became known in December 2006. In that month the issue was made known to the Victoria Police and the Drugs and Poisons Regulation Group within the Department of Human Services and ultimately to the Medical Practitioners Board. Ms X ceased to be Dr Kaur's patient.
15. Criminal proceedings were taken against Ms X and two of the pharmacists involved. There were also disciplinary proceedings affecting a number of pharmacists.
16. As a result of these matters Dr Kaur's prescription practices and management of Ms X's health came to the attention of the Medical Practitioners Board. On 9 October 2008 a panel established in accordance with Section 63(2)(a) of the Health Professions Registration Act 2005 determined to refer certain matters relative to Dr Kaur's practice to this Tribunal for hearing. It did so as a result of a finding that the doctor has engaged in unprofessional conduct or may have engaged in unprofessional conduct.

1. The Health Professions Registration Act 2005 provides for registration of practitioners in the health professions, including the profession of medicine and for disciplinary proceedings relative to health professionals including medical practitioners. The registration function for medical practitioners is vested in the Medical Practitioners Board of Victoria established under Part 6 of the Medical Practice Act 1994. The Act provides for investigation by the responsible board, in this case the Medical Practitioners Board of Victoria of allegations against a medical practitioner of unprofessional conduct. Following investigation by an investigator appointed by the Board, the Board may refer the matter to a professional standards panel (Section 61(1)). Such a panel is empowered, amongst other things, to refer a matter for hearing to this Tribunal if the panel is of the opinion that the practitioner has engaged or may have engaged in unprofessional conduct (Section 63(2)).
2. The matters relative to Dr Kaur's conduct in question here took place before the commencement of the Health Professions Registration Act 2005. By virtue of the transitional provision of that Act, Section 169, the matter is to be dealt with under the 2005 Act but the determination or outcome of a hearing_:_

Must be one that would have been available as a finding or decision in an investigation, enquiry, hearing or other proceeding by [the Medical Practitioners Board of Victoria] under the repealed provision.

that is, the Medical Practice Act 1994. The findings as to unprofessional conduct which could be made under that Act are to be found in the definition of unprofessional conduct in Section 3 which states, inter alia:

"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

(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being;

1. In its final amended form the allegations referred by the Board to this Tribunal were as follows:
   1. Allegations referred to VCAT by the Medical Practitioners Board of Victoria pursuant to section 63(2)(a) of the HPR Act

1.1 From in or around February 2001 until in or around December 2006, Dr Kaur engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) and/or (d) of the definition of "unprofessional conduct" in section 3(1) of the MP Act in that she prescribed a drug of dependence, morphine, to her patient, Ms X in circumstances where the prescribing was excessive and/or not properly managed.

(a) she prescribed approximately 30mgs of morphine to Ms X per day; and/or

(b) morphine was prescribed to Ms X over a long period of time from around February 2001 until December 2006.

Dr Kaur's prescribing was not properly managed because:

(a) morphine is not an accepted long-term treatment for chronic pain management; and/or

(b) by no later than May 1998, Dr Kaur was aware and/or ought to have known that Ms X had an addiction and/or dependence on diazepam and/or pethidine; and/or

(c) Dr Kaur's practice of predating scripts was inappropriate; and/or

(d) she made inadequate attempts to address Ms X's dependence on morphine and/or diazepam and/or pethidine and/or refer her to a pain management specialist and/or seek a second opinion in relation to her treatment.

1.2 From in or around 1996 until in or around February 2001, Dr Kaur engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of "unprofessional conduct" in section 3(1) of the MP act in that her management of her patient's, Ms X's chronic pain was inadequate.

Dr Kaur's management OF Ms X's chronic pain was inadequate because:

(a) she prescribed injectable valium commencing from May 1996, and pethidine commencing from September 1996, neither of which are accepted treatments for the chronic pain;

(b) despite the fact that she was aware, by no later than May 1998, that Ms X had an addiction and/or dependence of diazepam and/or pethidine, Dr Kaur made inadequate attempts to address Ms X's dependence on those drugs;

(c) Dr Kaur did not take appropriate action in respect of a recommendation from the Pain Management Clinic at the Essendon & District Memorial Hospital on 28 June 1997 to change Ms X's treatment to a long acting narcotic instead of an injectable form.

1.3 From in or around May 1998, Dr Kaur engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of "unprofessional conduct" in section 3(1) of the MP Act in that she failed to notify the relevant authority the Drugs & Poisons Unit of the Department of Human Services, that she had reason to suspect that her patient, Ms X, was a drug dependent person.

Dr Kaur was aware by no later than May 1998 that Ms X was dependent upon pethidine and/or diazepam, which are drugs of dependence listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

1. The Board quite properly has not sought to make Dr Kaur responsible in any way for the fraudulent alteration to the drug scripts which occurred here. To put it another way, the Board seeks to hold Dr Kaur responsible only for what she actually prescribed rather than for what was ultimately dispensed.

1. Dr Kaur was represented by Mr Wilson of Counsel. At the outset he made extensive concessions on behalf of his client. He admitted each of the particulars alleged by the Board. As to the period from February 2001 to December 2006 comprised in Allegation 1.1 he conceded that these matters constituted unprofessional conduct of a serious nature in accordance with paragraphs (a) and (b) of the definition. He denied on behalf of the doctor, unprofessional conduct as referred to in paragraphs (c) and (e) of the definition. Mr Wilson for the purposes of the second paragraph (b) in the particulars to Clause 1.1 conceded that his client should have known that Ms X had an addiction and/or dependence on Diazepam and/or Pethidine but denied that she was aware of that.
2. As to the period 1996 to February 2001 as comprised in paragraph 1.2 of the Board's allegation, Mr Wilson conceded that these matters established unprofessional conduct of a serious nature within the meaning of paragraphs (a) and (b) of the definition.
3. As to the matters alleged in Allegation 1.3 Mr Wilson admitted that Dr Kaur had engaged in unprofessional conduct of a serious nature in that respect within the definitions of paragraphs (a) and (b) but not paragraph (c). He conceded that she should have known of Ms X's status as a drug dependant person but did not concede that she actually knew.
4. Having made the concessions recorded above, Mr Wilson drew our attention to statements made to an investigator, Mr Falcke of the Department of Human Services by the various pharmacists involved. Each of those statements he said indicated how convincing Ms X was in her presentation to the various pharmacists. These statements stressed that her appearance at the time of dispensation appeared consistent with her reported diagnosis of ovarian cancer.
5. Mr Wilson stressed that his client had made frank and difficult admissions and had gone into the witness box to explain her situation and indeed Dr Kaur appeared to concede now that Ms X does not and did not suffer from ovarian cancer. Mr Wilson referred to the various documents in Dr Kaur's records which recorded the diagnosis of ovarian cancer. Mr Wilson noted Dr Kaur's evidence that she believed that this diagnosis had in fact been made. He submitted that the doctor's evidence on this point should be accepted. He drew attention to the fact that Ms X herself was not called as a witness by the Board.
6. Mr Wilson said that Dr Kaur was placed in a difficult position when the pain management clinic discharged Ms X to her care in 1998. By this time it was established that Ms X had a poor response to MS Contin which is an oral form of Morphine which is more long lasting than the injectable form. It is a form which according to the pain management clinic would have been more appropriate for chronic pain than injected Morphine.
7. Mr Wilson said no finding should be made against Dr Kaur of professional misconduct. He referred to a decision of Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 where the New South Wales Court of Appeal was dealing with the similar phrase 'misconduct in a professional respect'. Kirby P (as he then was) said:

The words used in a statutory test ('misconduct in a professional respect) plainly go beyond that negligence which would found a claim against a medical practitioner for damages: ... on the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient ... departures from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she is ignorant could amount to such professional misconduct ... if the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

(1989) 16 NSWLR 197, 200

1. Later on the same page His Honour referred to the American publication Corpus Juris Secundun Volume 58 page 818 (a work published in 1948) which stated that misconduct in law implied 'an act done wilfully with a wrong intention'. According to Mr Wilson no finding of wilful indifference to Ms X's welfare should be made against his client. Finally Mr Wilson referred to a series of personal tragedies which had afflicted Dr Kaur and affected her emotionally and professionally. These incidents which began on 30 December 2003 entailed the death of her husband, the death of her father from cancer and a serious injury to her daughter.
2. As to paragraph (e) of the definition of unprofessional conduct Mr Wilson submitted that the amount of prescribing in question here did not approach the level of overservicing which in other Board determinations have been found appropriate to make good a finding of this type.

1. In our view the concessions made by Mr Wilson were all appropriately made in the circumstances.
2. The concessions that at particular points Dr Kaur ought to have known the drug dependency of Ms X, namely in May 1998 drew a distinction which the doctor did not ultimately maintain in her evidence. Under cross-examination she conceded in light of the correspondence from the pain management clinic at the Essendon and District Memorial Hospital that she knew that as at May 1998 Ms X was drug dependent. We deal first with the allegations in Clause 1.1 of the Board's referral.
3. The respondent relied upon an expert report from Dr Darrer, an experienced general practitioner and one involved in the training and accreditation of general practitioners including service as a Board member and former chair of the Victorian Vocational Training Accreditation Sub-Committee of the Royal Australian College of General Practitioners. Dr Darrer stated with respect to the first of the allegations against Dr Kaur:

By any criteria clearly Ms X was suffering from chronic pain. I do not believe there is any literature, or any chronic pain management specialist in Australia, that supports the use of any injectable Morphine for management of chronic pain - and certainly not in the extremely large quantities prescribed to Ms X. In fact there is plenty of literature that advises against its use in chronic pain, as opposed to acute pain.

It is my opinion that the vast majority of general practitioners would perceive the situation with Ms X to be extremely complex and fraught with peril and as such I believe they would insist on either specialist oversight or at the very least a specialist second opinion before prescribing these quantities. I could find no evidence of such opinion being sought and adhered to.

I have not ever come across this level of prescribing injectable Morphine either by a general practitioner or by a specialist.

I believe that Dr Kaur's prescribing of injectable Morphine to Ms X was both excessive and improperly managed and would not be supported by any chronic pain specialist in Australia.

1. Dr Darrer drew attention to a note in the medical records which refers to a conversation with Tina of 'DDU'. Dr Darrer considered that the reference was a mistaken reference to 'DPU', the Drugs and Poisons Unit of the then Department of Human Services. According to the note 'Tina' suggested prescription of Kapanol rather than the injectable Morphine. Dr Darrer continued:

It appears a single prescription of Kapanol 20mg twice a day was prescribed following that conversation. There is no further mention in the clinical notes about long acting oral form of narcotic - either Kapanol or any other form. There is no notification as to why no further Kapanol was prescribed.

1. Dr Darrer was critical of the failure of Dr Kaur to refer Ms X to some inter-disciplinary team for instance for substance abuse. He also referred to Section 33 of the Drugs, Poisons and Controlled Substances Act 1981 which obliges a medical practitioner who has reason to believe that one of his or her patients is drug dependent to give a notification. No such notification was ever given.
2. These strictures by Dr Darrer were effectively unchallenged. In light of the concession made on behalf of Dr Kaur we find that her conduct as described in paragraph 1.1 of the referral exhibits conduct which is of a lesser standard than the public might reasonably expect of a practitioner and that it is also of a lesser standard than might be expected of a practitioner by his or her peers.
3. In our view the conduct can also be regarded as 'professional misconduct' within the meaning of paragraph (c) of the definition. We accept as did Mr Donaghue who appeared on behalf of the Board, the correctness of the statement by Kirby P in Pillai's case that there must be something in the nature of a deliberate departure from accepted standards.
4. In our view there has been such a departure in the present case.
5. It is tempting to conclude in light of the narrative we have given that the alleged diagnosis of ovarian cancer to Dr Kaur's knowledge was bogus from the outset. The existence of such a diagnosis provided a cover in accordance with the Drugs Poisons and Controlled Substances Act 1981 for the prescription of injectable Morphine to Ms X. That the diagnosis was bogus and known to be bogus is supported by:

(a) the failure to record it in Dr Kaur's progress notes;

(b) Dr Kaur's failure to make any enquiry whatsoever of the Royal Women's Hospital after so serious a diagnosis was given;

(c) her failure to carry out any of the most obvious examinations which might be called for in the circumstances such as abdominal examinations to measure the growth of any malignant masses;

(d) the implausibility of Dr Kaur's accepting a narrative in which the Royal Women's Hospital had made what Dr Kaur correctly described as a 'final' diagnosis of ovarian cancer, simply discharging the patient to her local general practitioner without even a written discharge summary;

(e) the implausibility of a patient with a disease that has so poor a prognosis surviving for over five years without apparently having any treatment;

(f) the implausibility of the Royal Women's Hospital removing one ovary and finding no malignancy in it yet leaving the other (which on the supposition that ovarian cancer was present must be the seat of the malignancy) undisturbed;

(g) the implausibility that if as Dr Kaur says, she believed secondary cancer had spread to the bones of Ms X's pelvis and low back she would have been able to survive for years after the event.

(h) the incongruity of someone suffering so serious a cancer as ovarian years after initial diagnosis being given treatment to promote weight loss by Dr Kaur.

1. More generally Ms X's survival for some five years after the alleged diagnosis indicated either that the diagnosis was incorrect from the start or that the condition was in remission. In neither case would it have been appropriate to continue with injectable Morphine by way of pain relief assuming that this was an appropriate treatment in the event that a terminal diagnosis had been made. We refrain from making this finding however. Such a case was not squarely put to Dr Kaur in cross-examination and it would be a very serious finding indeed to make.
2. We proceed therefore upon the footing that whilst Dr Kaur at some initial stage believed that Ms X was suffering from ovarian cancer, the logic of the considerations referred to above would have made it obvious to her, at least by the end of 2001 that the diagnosis was not correct.
3. In accordance with the opinions advanced by Dr Darrer it was improper and contrary to all accepted principle to prescribe liquid Morphine for chronic pain simpliciter. Since upon our findings Dr Kaur at a relatively early stage became aware that the diagnosis was bogus, her departure from these standards was a conscious one and so is properly to be characterised as professional misconduct. The formulation in Pillai's case refers, as we read it, to conscious departure from accepted standards or indifference to those standards, not indifference to the welfare of the patient. This departure was made in circumstances where years previously the pain management clinic had warned against the continued use of Pethidine injections. That warning must apply a fortiori to injectable Morphine. Similarly there was a like warning in 2003 from 'Tina' at the Drugs and Poisons Unit which again was disregarded.
4. Having regard to the concessions which were made and the finding which we have reached as to professional misconduct, it seems unnecessary for us to consider whether the unprofessional misconduct falls within paragraph (e) of the definition. On one view the emphasis in this paragraph is upon the abuse of the health system and funding mechanisms such as the National Health Scheme rather than upon the welfare of the patient. This was a matter which was not gone into in submissions. In the circumstances we find it unnecessary to make any finding as to paragraph (e) of the definition. We do note however, that Ms X consulted Dr Kaur very frequently over many years. On average, she was seen every four to five days but on a number of occasions was seen twice in the one day.
5. We now turn to the matters alleged in paragraph 1.2 of the Board's referral relative to the period from 1996 to 2001. The criticisms here focus upon the prescription of injectable Valium and Pethidine. Dr Darrer said:

I would think it extremely unusual that any doctor will advise these addictive medications as appropriate management of recurrent or persistent painful conditions. I am unaware of any textbooks or journals that would support this management therefore I think the more reasonable assumption is that Dr Kaur was responding to requests for these medications from Ms X.

1. We have already referred to the concession made in cross-examination by Dr Kaur that at least by the time she received the letter from the pain management clinic in May 1998 she was aware that Ms X was drug dependent. Valium is addictive, Pethidine is addictive and is also a narcotic.
2. The focus in Ms X's management should have been on finding pain relief strategies which avoided the constant use of analgesics much less narcotics such as Pethidine. Despite a statement to the contrary by Dr Kaur before the panel, examination of material produced on subpoena from the pain clinic itself demonstrated that the referral to the pain clinic was made by Dr Ahad who appears to have been treating Ms X concurrently and not by Dr Kaur. Far from referring her patient to the pain management clinic and supporting the regime there, she subverted what it was trying to do by continuing to supply Pethidine despite a direct request from the clinic that this not be done.
3. Drug treatment for someone who was as Ms X was, suffering from chronic pain and depression is problematic. This is one of the reasons why pain management clinics try to avoid narcotic injections.
4. Again, in light of the clear warning given by the pain management clinic to Dr Kaur as to further Pethidine injections and her failure to heed it, we regard the departure from proper standards as being deliberate and hence as constituting professional misconduct.
5. Finally we turn to the matters alleged in paragraph 1.3 of the Board's referral. First we note in light of concessions under cross-examination that by 1998 Dr Kaur knew that Ms X was drug dependent. The obligation to make the notification is to be found in the Drugs Poisons and Controlled Substances Act 1981. Again, since this was a matter of actual knowledge we can only regard the doctor's departure from proper standards here as deliberate. Again, we find that this constitutes professional misconduct.

1. As previously noted by virtue of the transitional provisions of the 2005 Act the dispositions which we may make of this matter are those set out in the Medical Practice Act 1994, the relevant provision being Section 45A(2):

(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 of New Zealand.

1. In this instance Mr Wilson on behalf of Dr Kaur proffered the suggestion that in accordance with paragraph (e) of the relevant sub-section the doctor's registration be subject to a limitation upon her prescription, use or possession of the drugs set out in Schedule 8 of the Drugs Poisons and Controlled Substances Act 1981. These are basically narcotic drugs. He otherwise suggested it would be appropriate to caution and reprimand Dr Kaur.
2. In contrast, Mr Donaghue on behalf of the Board submitted it would be appropriate to cancel Dr Kaur's registration and disqualify her from applying for registration for some two years. In support of his contentions Mr Donaghue took us to a number of panel and Tribunal determinations where sanctions by way of disqualification and suspension predominated including Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784; Medical Practitioners Board of Victoria v Naik [2009] VCAT 755; Re Paul Green [2005] MPBV 6; Re Vasily Lebedev [2009] MPBV 3; Re Robert Molnor [2009] MPBV 4. As to the distinction between suspension and cancellation he submitted it was necessary before choosing the former in preference to the latter to consider the fitness of the practitioner to resume practice at some stage in the future. He referred to the judgment of Andrews J in Mellifont v The Queensland Law Society Incorporated [1981] QdR 17, 31.
3. In contrast Mr Wilson took us to a series of panel determinations where reprimands and cautions predominated including Re Dr John Joseph Gyorki [2004] MPBV 21; Re Dr Christopher Michael Dots [2005] MPBV 14; Re Dr Peter John White [2006] MPBV 6; Dr Helen Kouzmin [2006] MPBV 11; Re Dr Peter Thomas Tisdall [2007] MPBV 5; Re Dr Marie Claire Pauline Crilley [2009] MPBV 2; Dr Sotirios Giokas [2009] MPBV 5 and Re Dr Carl Edward Gross [2009] MPBV 12.
4. We do not propose a detailed survey of the facts of these various authorities or an attempt to compare and contrast them. It is essential to a disciplinary system conducted according to the rule of law that dispositions display a measure of consistency with one another. They must not vary according to the personal traits of Tribunal or panel members much less the whims of the day. Nevertheless each disciplinary matter turns upon its own particular facts. None of the matters urged upon us as providing guidance on disposition exactly corresponds with the facts that are before us in this proceeding. This is unsurprising. Nor are any of them in our view so close that it would be appropriate to start with the disposition in that matter and apply some standard adjustment to cater for the present. One could look to one determination, that of Dr Naik (as Mr Wilson urged us to do) and say that there were many more patients involved than the single patient involved here. One could look at other matters in which Mr Wilson noted cancellation or suspension was imposed where direct warnings had been given to the practitioners relative to their unprofessional conduct. This latter point does not really appear to be a valid distinction in Dr Kaur's case because she received direct warnings from the pain management clinic (Dr Sherry) and also from 'Tina' of the Drugs and Poisons Unit and in both cases failed to heed those warnings, persisting with inappropriate practice for years.
5. There is one other consideration which must weigh most heavily. Dr Kaur has come to the attention of the disciplinary authority on three previous occasions. The first involved a complaint made by a patient as long ago as 1982 where it alleged that Dr Kaur carried out an inadequate and perfunctory examination of a five year old child and was discourteous to the child's mother who was the complainant. This led to the then Board's administration of a severe reprimand by letter dated 15 July 1983. Medical Practitioners Board panel. In this case [2003] MPBV 17 the panel made findings of unprofessional conduct but did not characterise it as being of a serious nature. The doctor was required to undergo counselling by a general practitioner approved by the Deputy Chief Executive Officer of the Board. Dr Kaur was:

Cautioned to take proper care in the assessment and management of chronic headache and to ensure that she addresses not only the issue of short-term relief of such conditions but also long-term prevention.

1. This decision was given on 2 September 2003 and the doctor was cautioned against repetitively prescribing Panadeine Forte. The gravaman of the criticism of Dr Kaur was that she treated the symptoms and did not attempt to treat the underlying condition. This determination of the Board was a 'wake up call' which had she headed it would have led to her radically modifying the management which she was applying to Ms X. Instead the same pattern persisted without any apparent change for a further three years.
2. We are conscious of the various personal tragedies which afflicted Dr Kaur in the years 2003 to 2005. We believe nevertheless that the effect of those tragedies is of limited significance in assessing her conduct with respect to Ms X. She has been faulted in the years 2003 to 2005 not for a collapse in standard of care or for setting out on some new and inappropriate path of treatment. Rather the criticism of her is simply that long established patterns of inappropriate practice and treatment were persisted in throughout that period. Hence it is difficult to see that the personal tragedies either explain or mitigate her conduct.
3. Dr Kaur exhibited little insight into the deficiencies of her practice and her competence. The development of insight entails an understanding of the following issues:

(b) an acceptance that the conduct was seriously wrong;

(c) an appreciation of why the practitioner engaged in that conduct;

(e) a willingness to take measures to identify risk factors and to avoid similar behaviour. (See Williams v Medical Practitioners Board of Victoria 90BR) 2008 VCAT.

1. We do not believe that Dr Kaur has attained any level of sophistication in an analysis of her conduct and would hold grave fears that without substantial intervention and direct supervision she would place further patients at risk.
2. Our role is not penal but protective of the public interest in the competence and integrity in the practice of medicine. The flaws in Dr Kaur's practice exposed in this proceeding and the earlier one in 2003 are more deep seated than can properly be dealt with by a reprimand or caution. This was tried without avail in 2003. A suspension or cancellation is therefore required. In accordance with the principles in Mellifont's case we cannot be satisfied that Dr Kaur would necessarily be fit to resume practice at the conclusion of any period of suspension. Accordingly the appropriate course is cancellation.
3. We conclude that the appropriate disposition is the one advocated by the Board, namely that the doctor's registration should be cancelled and that she be disqualified from seeking new registration for a period of two years.
4. At the expiration of the two year period it will be for the Board or whatever body is at that stage in charge of registering medical practitioners to consider what restrictions if any are appropriate upon any new registration.