Having made the findings set out below, the Tribunal determines pursuant to 45A(2)(h) and (i) of the Medical Practice Act 1994 and s 77(4)(h) and (o) of the Health Professions Registration Act 2005 respectively, to cancel Dr Naik's registration and to disqualify him from applying for registration before 29 April 2014, which is a period of 5 years from the date of this decision and reasons.

• unprofessional conduct within the meaning of paragraphs (a), (b) and (c) of s 3 of the Medical Practice Act 1994 (Vic), constituting unprofessional conduct of a serious nature within the meaning of s 45A(1)(a) of that Act, to the extent that the allegations the subject of this hearing occurred before 1 July 2007.
• unprofessional conduct within the meaning of paragraphs (a) and (b) of s 3 of the Health Professions Registration Act 2005 (Vic), to the extent that the allegations the subject of this hearing occurred after 1 July 2007; and
• professional misconduct within the meaning of paragraphs (a) and (b) of s 3 of the Health Professions Registration Act 2005 (Vic) to the extent that the allegations the subject of this hearing occurred on or after 1 July 2007.

Mr S Cash instructed by Perry Maddocks Trollope Lawyers

1. This proceeding concerns a medical practitioner, Dr Soo Hua Naik. Dr Naik is 61 years old. He was born and educated in Malaysia. He graduated in 1971 from the Royal College of Surgeons and Physicians in Ireland. Thereafter he worked in Ireland and Malaysia. In mid 1990 he settled in Australia.
2. Throughout the 1990s, he worked at numerous bulk billing clinics around metropolitan Melbourne. Between 1998 and 2002, he worked at the Foundation Healthcare Clinic in Preston. From 2002 to 2005 he worked at the Jackson Court Clinic in Doncaster. He resumed at the Preston clinic in 2005 and concluded working there in February 2007.
3. Dr Naik came to the attention of the Drugs and Poisons Unit (DPU) of the Department of Human Services in the 1990s. On two occasions during the 1990s, Mr Chris Falcke of the DPU visited Dr Naik.
4. Mr Falcke is a pharmacist employed by the Department as a Drugs and Poisons Officer, and is authorised under Part II Division 13 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act), to carry out the functions of an authorised officer. His duties include inspecting premises of persons authorised to obtain and possess "scheduled" poisons, to verify and promote compliance with the provisions of the Act and the Drugs, Poisons and Controlled Substances Regulations. He also examines dispensing records at pharmacies and assesses those records with reference to the Department's records which contain details of permit applications and notifications relating to specific patients.
5. These duties are carried out in the context of constraints on the prescribing of certain drugs, in the following context :
   • The Drugs Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) attempt to minimise the problems associated with the use and abuse of drugs of dependence by prohibiting medical practitioners from prescribing Schedule 8 drugs for a drug-dependent person unless they hold a permit in relation to the patient.
   • In addition, medical practitioners who have been approved by the Department of Human Services can obtain permits to prescribe drugs such as methadone and buprenorphine to treat patients who are opioid dependent.
   • The permit system enables the treatment of drug-dependent patients to be co-ordinated by a single practitioner. Without the system patients can obtain concurrent treatment (doctor shop) to their clinical detriment.
   • The Act also attempts to minimise the risks associated with concurrent prescribing of drugs of dependence that are not Schedule 8 drugs (eg benzodiazepines, Schedule 11 drugs) by requiring practitioners to notify the Department when they have reason to believe that a patient is a drug-dependent person (s 33).
   • Regulation 8 of the 2006 Regulations and Regulation 7 of its predecessor (the Drugs, Poisons and Controlled Substances Regulations 1995 (Vic)) provide that before prescribing a drug of dependence (which includes benzodiazepines) a practitioner must take all reasonable steps to ascertain the identity of the patient and ensure that a therapeutic need exists for the drug.
6. Mr Falcke's second visit in the 1990s was prompted by Dr Naik's prescription of benzodiazepines for known and suspected drug-dependent persons.
7. Between February 1998 and August 2006, Mr Falcke wrote to Dr Naik on 21 occasions in relation to his prescribing behaviour, notifying him of his obligations under the DPCS Act and Regulations. Relevant documentation and acknowledgements that Dr Naik understood his legislative responsibilities were forwarded to him and returned by him. He was advised on a number of occasions that he was required by legislation to give written notice to the DPU if he had reason to believe that a patient was a drug-dependent person.
8. By early 2007, a pharmacist at the Preston Central Pharmacy claims that he was telephoning Dr Naik at least once or twice a day regarding concerns he had about Dr Naik's prescribing, although Dr Naik disputes this. Dr Naik says the pharmacist telephoned him on a few occasions regarding his prescribing. In April 2007, pharmacists at that pharmacy reported to the DPU their concerns about Dr Naik's prescription of benzodiazepines for suspected drug-dependent persons.
9. On 2 April 2007 Mr Falcke wrote to Dr Naik advising him that he appeared to have prescribed Unisom capsules for a number of drug-dependent patients and explaining to him that :

In recent years, there has been a problem involving the misuse of 'gel capsule' preparation (especially temazepam capsules) whereby IV-drug users have been injecting the contents of the capsules, with varying untoward effects. Since the discontinuation of temazepam capsules, Unisom has become the preparation of choice for many of these patients.

1. He was referred, amongst other things, to a previous bulletin issued by the Medical Practitioners Board which warned of the misuse of Unisom capsules.
2. These matters prompted a significant investigation of Dr Naik's prescription patterns between May 2006 and May 2007 in relation to scripts filled at the Preston Central Pharmacy and the Spiro Koutsis Pharmacy at Thornbury. This investigation revealed that Dr Naik had been prescribing benzodiazepines (especially Diazepam (Valium) and Alprazolam (Xanax)) for patients for whom other doctors held current pharmacotherapy permits.
3. The investigation resulted in Mr Falcke writing to Dr Naik on 29 May 2007 advising him not to prescribe drugs of dependence or Unisom capsules for 89 patients for whom permits to prescribe Schedule 8 drugs were being held by other medical practitioners, without first consulting the permit holder. On 31 May 2007 Dr Naik telephoned Mr Falcke to confirm he had received Mr Falcke's letter.
4. However, thereafter on 26 occasions, Dr Naik breached his obligations and prescribed benzodiazepines to 13 patients without consulting the relevant permit holder. A number of those patients were among the 89 patients Dr Naik had had specifically drawn to his attention and in respect of whom Dr Naik had been asked to mark his records accordingly.
5. On 19 July 2007, the DPU sent a notification about these matters to the Medical Practitioners Board of Victoria. The Board decided to investigate the matter.
6. On 20 August 2007, the Board invited Dr Naik to make submissions about why he should not be suspended from practice under s 40(1)(a) and/or s 40(1)(c) of the Health Professions Act 2005 (Vic) (HPR Act) pending completion of the investigation and/or hearing.
7. On 22 August 2007, the Board asked Dr Naik to respond to the following issues that had been identified as the focus of its investigation, summarised for Dr Naik as follows :
   1. That you prescribed drugs of dependence ... to numerous persons that were known or suspected to be drug dependent persons.
   2. That prior to June 2007 you failed to notify the DPU that you had a reason to believe numerous patients were drug dependent persons, as required by section 33(1) of the Drugs, Poisons and Controlled Substances Act 1981.
   3. That you prescribed drugs of dependence to numerous patients for whom permits to prescribe schedule 8 drugs were currently held by other medical practitioners without communicating with the permit holder.
   4. That you persisted in inappropriate prescribing practices despite being warned and advised by the DPU on many occasions in relation to your prescribing from 1998 onwards.
   5. That when you were advised by pharmacists of their concerns in relation to your prescribing drugs of dependence and Unisom Sleepgels to persons suspected of drug dependence, you directed your patients to have their prescriptions filled elsewhere.
8. On 14 September 2007, having heard from Dr Naik and having received submissions on his behalf, Dr Naik entered into the following agreement with the Board :
   • Not to prescribe Schedule 8 drugs, benzodiazepines, Unisom, Sleepgels or Tramadol.
   • To provide a statutory declaration to the Board, addressed to the Compliance Co-ordinator by the 4th day of each calendar month declaring that he had complied with the terms of the agreement at all times throughout the preceding month.
   • To authorize the Board to obtain from Medicare Australia and the Drugs and Poisons Unit of the Department all information regarding his prescribing practices necessary to enable the Board to monitor his compliance with the agreement.
   • Confirming his intention to undertake an appropriate course conducted by Turning Point Drug and Alcohol Centre and to complete the training he commenced through the Royal Australian College of General Practitioners in 2004, providing to the Board confirmation of these programs; and
   • Acknowledging that the agreement remained in force until the investigation and any hearing into his professional conduct or until released by the Board.
9. On 2 November 2007, John W Ball & sons replied to the Board on behalf of Dr Naik in relation to the concerns raised with him in August 2007 by the Board, in the following terms :

1. He agreed that he prescribed drugs of dependence and Unisom to numerous persons but maintained he did not know or suspect that they were drug-dependent. 2. Thus he did not know he had an obligation to notify the DPU of the drug-dependent status of the patients. However, once informed in June 2007 he identified he had drug-dependent patients and understood his obligations.

1. In relation to the majority of the patients to whom he was prescribing medications, he was unaware they were seeing other practitioners who held permits to prescribe Schedule 8 drugs.

1. He acknowledged he had had contact with Mr Falcke prior to 29 August 2007 but stated that he 'did not appreciate the significance and consequences of the earlier communications and therefore did not modify his prescribing practices as the DPU might have expected as a result of those communications'. 2. He denied directing patients to have their prescriptions not filled at certain pharmacies or to have them filled elsewhere.
2. On 11 January 2008, the DPU informed the Board that Dr Naik had issued three prescriptions contrary to the agreement he had entered into with the Board.
3. Dr Naik had provided two statutory declarations to the Board, in accordance with the agreement he had made on 14 September 2007 falsely attesting to his compliance with the undertaking of 14 September 2007 in respect of three patients during two calendar months. Ultimately, in January 2009, Dr Naik pleaded guilty to two charges of perjury and was fined a total of $5000.00 without conviction.
4. On 7 February 2008, the Board determined to refer matters relating to Dr Naik to this Tribunal.
5. On 8 February 2008 and again on 19 February 2008, the Board wrote to those representing Dr Naik providing him with the opportunity to make submissions as to why he should not be suspended from practice.
6. On 28 February 2008, after hearing from those representing Dr Naik and from Dr Naik, the Board determined pursuant to s 40(1)(c) of the (HPR Act) to suspend his registration effective as of the next day, which suspension remains in place until the outcome of this proceeding.

1. Two matters were referred to this Tribunal. The first was referred pursuant to s 59(2)(g) of the HPR Act and the second pursuant to s 46 of that Act.
2. The first referral was made on 18 December 2008. It contained 20 allegations of the following nature :
   • Allegations 1-17 relating to management of 17 patients and the prescribing of benzodiazepines without proper cause.
   • Allegation 18 relating to failure to comply with an instruction of 29 May 2007 from the DPU that he not prescribe benzodiazepines to named patients without first consulting with the patients' permit holders
   • Allegation 19 relating to placing his personal interests ahead of those of his patients by directing them not to attend the Preston Central Pharmacy
   • Allegation 20 relating to breaching an agreement entered into on 14 September 2007 with the Medical Practitioners Board by continuing provision of prescription of benzodiazepines to three patients.
3. The second referral was made on 23 February 2009. The allegation (allegation 21) concerned a finding of guilt at the Heidelberg Magistrates' Court of two charges of perjury.

1. The hearing before the Tribunal proceeded on the basis of an agreed statement of facts and agreed findings to be made by the Tribunal.
2. The Board relied on witness statements prepared by Mr Chris Falcke and an expert report from Dr Edward Tsui, general practitioner, in relation to the professional conduct of Dr Naik. It also relied on statements from pharmacists and one of the patients whose records were involved.
3. Dr Tsui's report was prepared following his examination of the files of 17 patients, for whom Dr Naik had prescribed drugs of dependence. He expressed his opinion as to the appropriateness of Dr Naik's management of those patients; whether Dr Naik's prescribing of drugs of dependence to these patients was excessive, unnecessary or not reasonably required; whether there was a therapeutic need with respect to the prescribing; whether Dr Naik ought to have known that any of the patients were drug dependent and should have notified in accordance with the Act; whether the clinical notes were adequate and overall whether Dr Naik has acted inappropriately and, if so, how his conduct departed from the standard reasonably expected of a medical practitioner by his peers. Dr Tsui also expressed his opinion in relation to the allegations concerning prescribing after 31 May 2007 and directing patients not to attend a particular pharmacy.
4. Neither Mr Falcke's statement nor Dr Tsui's report were challenged. The Board tendered in evidence the material contained in "Tribunal Books" prepared for the hearing (3 volumes) including the computer medical records of the patients involved; further material concerning previous issues Dr Naik had had with the Medical Practitioners Board, a Board Bulletin from September 2004, and the full original medical records of thirteen patients of the Preston Central Clinic.
5. Dr Naik tendered in evidence letters of support from neighbours and a former work colleague, together with a letter from a psychologist, Steven Marchese, headed "psychological summary - Dr Naik".
6. The Tribunal was satisfied that the agreed findings should be made and proceeded to make such findings.
7. Dr Freckelton, counsel for the Board, then made submissions as to the determinations the Tribunal should make.
8. Mr Cash, counsel for Dr Naik, submitted that he would only be making submissions as to determination and that he did not propose to call Dr Naik to give evidence.
9. The Tribunal at that point indicated that ordinarily it would expect a person in Dr Naik's position to give an account of themselves, but made no direction that Dr Naik should do so. As it turned out, Dr Naik chose to give evidence. He was cross-examined by Dr Freckelton.
10. Following cross-examination, Dr Freckelton made further submissions about what determinations we should make. Mr Cash made submissions for Dr Naik.

1. Our findings made in the course of the hearing were as follows :
2. (i) The conduct engaged in by Dr Naik in respect of allegations 1-17 constitutes :
   • Unprofessional conduct within the meaning of paragraphs (a), (b), (c) and (e) of s 3 of the Medical Practice Act 1994 (Vic), to the extent that it occurred before 1 July 2007.
   • Unprofessional conduct within the meaning of paragraphs (a), (b) and (d) of s 3 of the HPR Act to the extent that it occurred after 1 July 2007; and
   • Professional misconduct within the meaning of paragraphs (a) and (b) of s 3 of the HPR Act to the extent to which it occurred after 1 July 2007.
3. The common features of the 17 patient records that Dr Tsui had examined in great detail and which were summarised in the agreed statement of facts were the excessive prescribing of drugs of dependence in the context of a lack of any demonstrated or recorded therapeutic need to prescribe such drugs of dependence and an absence of any planning for longer term management.
4. We accepted Dr Tsui's evidence that Dr Naik ought to have known or suspected that these patients were drug dependent, based on the frequency of scripts provided, or frequency of visits or continued use of drugs in the absence of a therapeutic indication, or where the patient was already on a methadone programme.
5. Mr Falcke set out in his evidence that the DPCS Act contains procedures aimed at attempting to minimise the problems associated with the use and abuse of drugs of dependence by prohibiting medical practitioners from prescribing Schedule 8 poisons for drug-dependent persons. To prescribe for such persons, the medical practitioner must hold a permit in relation to that patient. We accepted his evidence. He says :
   • The permit system enables the treatment of drug-dependent persons to be co-ordinated by one medical practitioner. Without it there is no way of preventing a patient from obtaining concurrent treatment elsewhere.
   • The Act also attempts to minimise the risks associated with the concurrent prescribing of drugs of dependence that are not Schedule 8 poisons (eg benzodiazepines) by requiring medical practitioners to notify the Department when they have reason to believe a patient is a drug-dependent person (section 33 of the Act).
   • Also, regulation 8 of the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) (which commenced on 23 May 2006) and regulation 7 of its predecessor, the Drugs, Poisons and Controlled Substances Regulations 1995 (Vic) (collectively Regulations), provide that before prescribing a drug of dependence, which includes benzodiazepines, a medical practitioner must take all reasonable steps to ascertain the identity of the patient and ensure that a therapeutic need exists.
6. We were satisfied that Dr Naik's conduct fell well below the standard one might reasonably expect from a medical practitioner by his or her peers. The conduct was characterised by inadequate medical management; prescription was excessive, unnecessary and not reasonably required. It occurred without therapeutic need; took place in circumstances where the patients were drug dependent which was either recognised by Dr Naik or should have been recognised by him and was attended by inadequate clinical notes.
7. We were satisfied such conduct was, depending on whether it occurred before or after 1 July 2007, unprofessional conduct of a serious nature or professional misconduct respectively.
8. What makes the conduct, which can be described generally as prescribing without proper cause, of such a serious nature is that it deliberately frustrates the aims and purpose of the constraints on Schedule 8 prescribing set out above. Dr Naik was treating particularly vulnerable persons, prescribing a variety of benzodiazepines; drugs that are dependency forming with a variety of side effects. He failed to properly treat patients that needed to be carefully managed.
9. (ii) The conduct engaged in by Dr Naik in respect of allegation 18 constitutes :
   • Unprofessional conduct within the meaning of paragraphs (a), (b) and (c) of s 3 of the Medical Practice Act 1994 (Vic), to the extent that it occurred before 1 July 2007.
   • Unprofessional conduct within the meaning of paragraphs (a) and (b) of s 3 of the HPR Act to the extent that it occurred after 1 July 2007; and
   • Professional misconduct within the meaning of paragraphs (a) and (b) of s 3 of the HPR Act to the extent to which it occurred after 1 July 2007.
10. The DPU wrote to Dr Naik on 29 May 2007 instructing him not to prescribe benzodiazepines to 89 named patients, in respect of whom other doctors held permits, without first consulting with those patients' permit holders. Following a call from Dr Naik confirming receipt of that correspondence, he went on to breach his obligations on a number of occasions and prescribed without consulting the relevant permit holder.
11. We accepted Dr Tsui's evidence that this was not appropriate conduct in addition to the prescribing taking place. It occurred where Dr Naik had failed to demonstrate that the drug was for the medical treatment of the person and had failed to take all reasonable steps to ensure a therapeutic need for the drug existed.
12. We were satisfied that Dr Naik's acknowledgement of the DPU letter implied an understanding of his obligations. Insofar as he knew or should have known, particularly in the circumstances that he was on notice not to prescribe, that another medical practitioner had a permit to prescribe them a drug of addition, he should have consulted that permit holder and he did not. He should have done so to reduce the risk of harm to the patient in circumstances where the whole aim of the permit system is to prevent multiple prescribers supplying drugs of dependence to the same patient. Not to have done these things subverts the permit system and is respectively, unprofessional conduct of a serious nature and professional misconduct.
13. (iii) The conduct engaged in by Dr Naik in respect of allegation 19 constitutes :
    • Unprofessional conduct within the meaning of paragraphs (a), (b) and (c) of s 3 of the Medical Practice Act 1994 (Vic), to the extent that it occurred before 1 July 2007.
    • Unprofessional conduct within the meaning of paragraph (a) of s 3 of the HPR Act to the extent that it occurred after 1 July 2007; and
    • Professional misconduct within the meaning of paragraph (b) of s 3 of the HPR Act to the extent to which it occurred after 1 July 2007.
14. On a series of occasions, Dr Naik directed patients not to have their prescriptions filled at the Preston Central Pharmacy. The witness statement of Mr M.R., one of the patients, confirms this and in fact Dr Naik agreed he did this. It will be recalled that pharmacists at that pharmacy had contacted Dr Naik to raise their concern at his prescribing. To have directed patients elsewhere in those circumstances suggests that Dr Naik was prescribing to support a patient's drug dependence. Directing patients away from a particular pharmacy, a pharmacy that had voiced its concern about his prescribing, indicates both a knowledge of the impropriety of his prescribing and a desire to hide that impropriety. It is highly inappropriate and unprofessional conduct and is respectively unprofessional conduct of a serious nature and professional misconduct.
15. (iv) The conduct engaged in by Dr Naik in respect of allegation 20 constitutes :
    • Unprofessional conduct within the meaning of paragraphs (a) and (k)of s 3 of the HPR Act; and
    • Professional misconduct within the meaning of paragraph (b) of s 3 of the HPR Act.
16. On 14 September 2007, Dr Naik had entered into an agreement with the Board, amongst other things, not to prescribe benzodiazepines until investigation and hearing was completed. He breached this agreement on three occasions.
17. We are satisfied this amounts to professional misconduct. To breach an agreement with one's professional registration board, indicates a preparedness to continue to misbehave despite the promise he had made that allowed him to continue in practice. It is conduct that falls well short of the standard that would be reasonably expected of a medical practitioner by his peers.
18. (v) The conduct engaged in by Dr Naik in respect of allegation 21 constitutes:
    • Unprofessional conduct within the meaning of paragraphs (h) and (i)of s 3 of the HPR Act; and
    • Professional misconduct within the meaning of paragraphs (b) and (c) of s 3 of the HPR Act.
19. Dr Naik provided two statutory declarations to the Board as part of his September 2007 agreement with the Board. He falsely attested to his compliance with his undertaking. He pleaded guilty to two charges of perjury and was fined a total of $5000.00 without conviction.
20. We are satisfied this amounts to professional misconduct. Falsely declaring to the Board compliance with an undertaking, lying on his oath demonstrates a disregard for the authority of the DPU and the Board, and is conduct that falls well short of the standard that would be reasonably expected of a medical practitioner by his peers.
21. Further, with respect to all the allegations, we make it clear that we found that insofar as Dr Naik's conduct engaged in, was prior to 1 July 2007, it constituted unprofessional conduct of a serious nature within the meaning of s 45A(1)(a) of the Medical Practice Act 1994 (Vic).

1. Some of the conduct, the subject of the allegations, occurred before 1 July 2007 and the introduction of the HPR Act. The determinations that we can make with respect to any such conduct of a serious nature, as we found in this case, are set out in s 45A of the Medical Practice Act 1994. The determinations include cancellation of registration and disqualification from applying for registration within a specified period (see s 45A(2)(h) and (i)).
2. Those determinations are mirrored in the HPR Act, in s 77(4)(h) and (o), for allegations about conduct occurring after 1 July 2007.
3. 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]).
4. 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. Relevant to our considerations about what determinations should be made, Dr Naik gave evidence and was cross-examined. He also relied on an undated "psychological summary" tendered in evidence, prepared by Mr Steven Marchese, whom Dr Naik had recently attended for counselling. In addition two letters of support - one from a friend and another from a neighbour, were tendered together with a letter from Dr Pulteney Malcolm, a colleague with whom Dr Naik worked 10 years ago.
2. Even allowing that Dr Naik may have been nervous, and that he only decided at the last minute to give evidence, he did not impress as a witness. He confirmed he had no illness or disability and was not taking any medication. He struggled many times to locate specifically numbered pages in material before him, such as to raise a concern in our minds that he had difficulty following instruction. He was slow to comprehend questions and was tentative. He repeatedly had difficulty answering questions put. Even though he was educated in the English language (English not being his first language), he repeatedly did not seem to grasp the meaning of questions asked. Whilst the way they were put may not have been as straightforward as it might have been, questions were not so difficult that an educated person could not easily have understood them. Dr Naik gave us the impression that his overall cognitive and communication skills were, for whatever reason, not what one would normally expect of a medical practitioner, and it certainly troubled us, as being possibly suggestive of some cognitive impairment.
3. It emerged in cross-examination that although Dr Naik had agreed to the statement of facts and the findings to be made with respect to his conduct, he had done so for practical reasons. Mr Cash took great pains to explain that Dr Naik had agreed because of the cost and for reasons of practicality.
4. Dr Naik did not accept that he had been guilty of inadequate management of his patients but for the purposes of this proceeding did not dispute it. Dr Naik accepted that on occasions he "got fooled", but despite all the correspondence he had received from the DPU did not accept he had a problem. He agreed that he should have kept better notes and that he should have considered alternate therapies to pharmaceuticals.
5. A number of the patient records were put to him and he was asked to explain why he had prescribed as he had. He explained it was because the patients had been agitated or anxious. He recalled that; it was not necessarily noted. He explained he would have had access to any earlier written notes for the patients, by which we understood that there may have been a reference in those notes to conditions that would indicate such prescription was appropriate.
6. During the hearing, the full written patient records were obtained from the clinic, not just Dr Naik's notes with respect to them. Further matters were then put to Dr Naik. Notes on those files, available at the time Dr Naik was prescribing, made by other practitioners refer, for example, to a patient having been on a methadone programme, with a notation that he is not to be given any drugs of dependence, and later to have "no more panadeine forte". Dr Naik responded that he would not have known that this patient was drug-dependent. We found this difficult to accept when his notes recorded the patient wanted "valium" and that he provided repeat prescriptions for "stressing out" - "not coping, anger manager etc" more frequently than was actually needed, had the patient been compliant with instructions written on the prescription.
7. When first put to him, he did not accept that his prescribing was excessive, unnecessary and not reasonably required, or that the concurrent prescribing of both diazepam and alprazolam was well below a reasonable standard of treatment. He then did "an about face" agreeing that his prescribing was excessive. He said he should have slowly decreased the amount of medication; it was folly not to have done it, and he said that he had engaged in bad practice and could give no reason for having done so. He explained that his lack of note taking, apart from noting what was prescribed, was because he was too lazy.
8. A number of other full histories were put to Dr Naik. He could offer no reason why he had obviously prescribed excessively, when he knew, or clearly ought to have known, the patient was drug-dependent. Indeed, in one instance, he had prescribed, almost a week about, alternately 50 antenax 5 mg and then 50 serapax 30 mg to the patient, some on private prescription. He admitted this was prescribing to a drug-dependent patient. He could not show he had reported him to the DPU as he claimed, nor was there any notation of such in his clinical notes. He admitted he was pandering to the patient's drug seeking behaviour by prescribing the drugs the patient was addicted to. He denied there was any benefit to him to do so, even though he was giving only one prescription per consultation.
9. He regarded his false declarations to the Board as a "white lie". He claimed he was prescribing the medication for epilepsy. The records for one have no such diagnosis. For the second, the diagnosis is noted on 14 November 2007, simply as "epilepsy definite" without more, in the context of a history of benzodiazepine prescription for over 8 years at that time. For the third, there is a note made on 14 May 2007 "epilepsy grand mal definite age 25".
10. We accept that he is ashamed for what he has done and we understand the impact these matters have had on him. He has not worked, nor sought any work since he was suspended. Those considerations however, have to be weighed against the public interest in protecting the public and future patients from any repetition of this conduct.
11. Mr Cash in his submissions emphasized that we should be reluctant to order cancellation of Dr Naik's registration without considering the alternatives. These are disciplinary proceedings, he reminded us, in which we should be mindful that our role is not punitive but to protect the public. Mr Cash submitted that these proceedings should now have sufficiently educated Dr Naik about his responsibilities, particularly as he had never previously been cross-examined. He reminded us that Dr Naik had already served a lengthy suspension and that it was not unreasonable to expect that he has reformed having had a year to reflect on his behaviour.
12. Dr Freckelton, who before Dr Naik had given evidence, had submitted his registration should be cancelled and he be precluded from applying for registration again for three to five years, withdrew that submission in light of Dr Naik's evidence. He submitted Dr Naik's registration should be cancelled and that he should never be allowed to practise again.
13. Having considered the evidence before us and the submissions put to us, there are a number of reasons why we reject Mr Cash's submission that an appropriate determination should be a suspension.
14. We are not satisfied that Dr Naik has anything but the most rudimentary insight into the seriousness of the totality of his conduct. Particularly so where he has a history of previous formal hearings and complaints about his conduct being referred to the Board.
15. As set out in the agreed statement of facts, in 2002 a formal hearing panel of the Board found that Dr Naik had engaged in unprofessional conduct of a serious nature and had reprimanded him for his carelessness and disregard for two of his patients. The findings concerned patients at different clinics and had common features such as findings of failing to take an adequate history; failing to perform a physical/abdominal examination; failing to take adequate steps to properly diagnose the condition; failing to demonstrate adequate therapeutic skills when he had not taken an adequate history, had not examined the patients and where the patients respectively gave him specific information, failed to refer or monitor, failed to construct adequate clinical notes and failed to provide a reasonable time for the consultation.
16. In each of the respective cases, Dr Naik was also found to have altered his clinical notes and/or drafted a new set in relation to the consultation.
17. In addition to the reprimand, he was required to undertake further education and his registration was subject to completing a particular supervised practice program. It turns out that Dr Naik only completed this programme in January 2007 having been prompted to do so by the Board. He explained he had had difficulty finding the supervision required and did not agree he was uncooperative and would not concede it was because he had not paid the fees.
18. In addition to the 2002 hearing, he has been the subject of two informal hearings. Whilst one was not so relevant in that it involved the failure to attend a motor accident in the vicinity of his clinic, the other hearing in January 2003, was about his failure to communicate with his patient, failure to provide appropriate information and advice, failure to assess the patient's state of health or discuss appropriate future management and his apparent lack of knowledge about advice that should have been given. Again, he was reprimanded and ordered to undertake specific training.
19. We agree with Dr Freckelton that Dr Naik, even though the subject of previous adverse findings, has not resolved his shortcomings.
20. His repeated conduct, continuing to fall short of the standards expected of a medical practitioner in the management of his patients, raised great concern in our minds.
21. Having been reprimanded previously about his sub-standard treatment of patients, having apparently undertaken the education required, he had treated and continued to treat very vulnerable drug-dependent patients, in ways that were counter-therapeutic and potentially harmful to those patients, whom he knew or should have suspected were drug-dependent, having been warned on numerous occasions about his conduct and specifically warned with respect to named patients.
22. To have behaved in that way in those circumstances indicates to us that Dr Naik has no insight into how poor his standard of practice in so many ways has been. Given that he had had previous reprimands, numerous reminders and warnings about his conduct, claimed when he had entered into his agreement with the Board that he had then clearly understood his obligations, yet went on to prescribe medication he had agreed not to prescribe as a condition of continuing his practice, then lied to the Board about it and could provide no excuse for his conduct, reinforces our view that he lacks insight and is fixed in his ways.
23. We are not confident there will be no repetition, given the number of earlier reprimands that have had little effect, the warnings he received with respect to his prescribing, his disregard of specific warnings and even his continued prescribing in the face of specific undertakings to the Board, culminating in his lies to the Board.
24. The letter from the psychologist was of little assistance. He has apparently consulted him recently because of these allegations and the impact on him of his inability to practice. We accept that the situation he finds himself in would be distressing for anyone. The only explanation he has given to the psychologist for his conduct is that "he was purely driven by his patients (sic) needs and that there was no other motivator".
25. We found his lack of insight and his failure to learn from his previous encounters with his regulatory Board, to be a most serious problem. With his history of four earlier inquiries over an extended period of years, the number of clearly drug-dependent patients involved here, the point has been reached where, in our view, Dr Naik presents a serious risk to his patients were he allowed to continue to practise.
26. Whilst Dr Freckelton urged us to cancel his registration and disqualify him from applying for registration for life, that is an extremely severe penalty.
27. We determine to cancel his registration and disqualify him from applying for registration before 29 April 2014, which is a period of five years from the date of this determination.