1. Unless ordered otherwise a person must not publish or broadcast or cause to be published or broadcast any material or information arising from this proceeding that identifies, or could reasonably lead to the identification of the notifier or the patients of the practitioner
2. Having made the findings set out here the Tribunal determines that
   • Dr Jack Stiglitz is reprimanded for his professional misconduct;
   • He is cautioned;
   • The future conduct of his practice is subject to the supervisory regime set out in paragraph 54 of these reasons;
   • The supervisory regime is to be. instigated as soon as possible but in any event no later than 60 days from the date of this order.

1. Dr Stiglitz graduated in 1971 and since 1973 has practised as a general practitioner. His practice is basically one of family medicine and he has always been in the southern suburban area. He is currently practising at Medical One, a practice located at 61-63 Brighton Road, Elwood.
2. He comes before this Tribunal in relation to his management of, and prescribing for four patients. Those patients will be referred to as 'BK', 'MT', 'DG' and 'MB'; the treatment the subject of this application occurred in 2005, 2006, 2007 and 2008.

1. This application straddles two legislative regimes. The Medical Practice Act 1994 ('the MP Act') was the regime in place until 30 June 2007 and from 1 July 2007 onwards the governing legislation is to be found in the Health Professions Registration Act 2005 ('the HPR Act').
2. The application comes by way of referral pursuant to section 59(2)(g) of the HPR Act which provides:

(2) After an investigation is completed under this Division, and the investigator has made a report to the board the responsible board may:

(g) in the case of a health practitioner, refer the matter to VCAT for a Tribunal hearing.

1. In this matter, section 169 of the HPR Act is relevant. It provides:

(1) In the case of activities of a person which occurred before the commencement of section 163 and in respect of which -

(a) no investigation, inquiry or hearing has been commenced under the repealed provision; or

(b) no proceeding has been taken under the repealed provision-

this Act applies to the extent that there was power in relation to those activities to conduct an investigation, inquiry or hearing or to take a proceeding under the repealed provision.

(2) Any determination or outcome of a hearing into those activities must be one that would have been available as a finding or decision in an investigation, inquiry, hearing or other proceeding [the Medical Practitioners Board of Victoria] under the repealed provision.

1. The 'repealed provision' refers to the Medical Practice Act 1994 and the findings as to professional conduct that could be made under that Act are to be found in the definition of 'unprofessional conduct' in section 3 of that Act. The section relevantly provides:

"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 medial 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;

(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 the HPR Act the definition of 'unprofessional conduct' mirrors the above except that item (c) relating to professional misconduct is deleted.
2. In its stead a new definition of 'professional misconduct' appears in section 3 which relevantly provides that:

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

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

1. The other legislation that is relevant to this matter is the Drugs, Poisons and Controlled Substances Act 1981. The permit system under this Act is intended to enable treatment with Schedule 8 poisons to be coordinated and monitored with a view to preventing concurrent prescribing by multiple practitioners and to reduce the possibility of deliberate misuse or drug dependence.
2. In broad terms a registered medical practitioner is required to hold a permit prior to prescribing Schedule 8 poisons for a drug dependent person; he or she is required to hold a permit to prescribe sufficient quantities of a Schedule 8 poison to provide treatment for a period greater than eight weeks to a non-drug dependent person and, once a permit is granted, he or she must not prescribe a Schedule 8 poison for a continuous period other than that specified in the permit.
3. Schedule 8 poisons are, by their very nature, addictive and they include drugs such as amphetamines, barbiturates, cocaine, methadone, morphine, oxycodone and pethidine.

1. Dr Stiglitz first came to the attention of authorities in October 2006 following notifications from a pharmacy relating to the prescribing of Oxycontin to a particular patient. An investigation ensued wherein the relevant department conducted enquiries of pharmacies in the doctor's area and collected a number of prescriptions for Schedule 8 poisons written by him. That investigation revealed that the doctor had been prescribing in a manner contrary to the Drugs, Poisons and Controlled Substances Act 1981 and subsequently he was prosecuted in respect of prescriptions for four of his patients.
2. On 20 June 2008 he pleaded guilty to six charges at the Melbourne Magistrates' Court, namely:

(a) Prescribing a schedule 8 poison to BK, a drug-dependent person, without a permit;

(b) Prescribing schedule 8 poisons to MT (x 2), DG and MB for continuous periods in excess of eight weeks spanning a number of months;

(c) Prescribing schedule 8 poisons to MB outside the terms of his permit.

1. Earlier, on 18 January 2008, Dr Stiglitz gave certain undertakings to the Medical Practitioners Board about the prescription of schedule 8 poisons and the provision of regular statutory declarations. He has adhered to those undertakings ever since.

1. There are seven sets of allegations the subject of this referral. There is no need for us to set out the various particulars of those allegations as Dr Stiglitz has made a raft of admissions which obviate that necessity for such a course. The allegations are as follows:
   1. That Dr Stiglitz engaged in unprofessional conduct as defined in paragraph (h)(iii) of the definition of "unprofessional conduct" in section 3(1) of the HPR Act in that, on 20 June 2008, at the Melbourne Magistrates' court, he was found guilty, without conviction, of 6 summary offences pursuant to the Drugs, Poisons and Controlled Substances Act 1981;
   2. That he engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of "unprofessional conduct" in section 3 of the MP Act in that, from on or around 3 February 2006 until on or around 16 December 2006 he prescribed schedule 8 drugs to various patients (namely BK, MT, DG and MB) without having a permit to do so, in circumstances where he was required to have a permit under the Drugs, Poisons and Controlled Substances Act 1981.
   3. From 15 October 2005 until on or around 11 December 2006, he engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of "unprofessional conduct" in section 3(1) of the MP Act in that he failed to exercise the care and skill of a competent general practitioner and/or failed to appropriately manage his treatment of his patient BK.
   4. From in or around 2 June 2006 until on or around 12 August 2006 and from on or around 16 August 2006 until on or around 16 December 2006 he 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 he failed to exercise the care and skill of a competent general practitioner and/or failed to appropriately manage his treatment of his patient MT.
   5. From on or around 2005 until in or around April 2007 he engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of "unprofessional conduct" in section 3(1) of the _MP Ac_t in that he failed to exercise the care and skill of a competent general practitioner and/or failed to appropriately manage his treatment of his patient DG.
   6. From on or around 15 March 2006 until on or around 26 September 2006 and from or around 10 January 2007 until on or around 18 June 2007 he engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of "unprofessional conduct" in section 3(1) of the MP Act in that he failed to exercise the care and skill of a competent general practitioner and/or failed to appropriately manage his treatment of his patient MB.
   7. He engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of "unprofessional conduct" in section 3(1) of the MP Act in that, from in or around 2005 until on or around 18 June 2007 he failed to make appropriate clinical notes of consultations with his patients BK, MP, DG and MB.
2. Certain particulars of allegations are no longer pursued by the Board and those particulars relate, again in broad terms, to handwritten confirmations on prescriptions and the preparation of certain medical plans.

1. Subject to the excisions referred to above, Dr Stiglitz has made admissions as follows:
   1. Allegation 1 - admits that he engaged in the conduct set out in the allegation and admits the particulars of the allegation. He admits he engaged in unprofessional conduct as defined in paragraph (h)(iii) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act.
   2. Allegation 2 - admits the conduct and all particulars. He admits that he engaged in unprofessional conduct as defined in paragraphs (a) and (e) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
   3. Allegation 3 - admits the conduct and, subject to the excision of particular (e), admits all the particulars. He admits he engaged in unprofessional conduct as defined in paragraphs (a), (b) and (e) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
   4. Allegation 4 - admits the conduct and, subject to the excision of particular (d), admits all the particulars. He admits that he engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
   5. Allegation 5 - admits the conduct and subject to the excision of particulars (b) and (c)(vi) he admits all the other particulars except (a). He admits that he engaged in unprofessional conduct as defined in paragraphs (a), (b) and (e) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
   6. Allegation 6 - admits the conduct and subject to the excision of particular (h) he admits all the other particulars. He admits he engaged in unprofessional conduct as defined in paragraphs (a), (b) and (e) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
   7. Allegation 7 - he admits he engaged in the conduct set out in the allegation. He admits that he engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act and that the unprofessional conduct was of a serious nature.
2. Dr Stiglitz does not admit that any of the admitted conduct amounts to professional misconduct. Professional misconduct being 'unprofessional conduct' under section 3(1)(c) of the MP Act is alleged in each of the allegations numbered 2 to 7.

1. The Tribunal heard from a number of witnesses. Dr Stiglitz gave evidence and was subjected to rigorous cross-examination in relation to all the allegations and particulars. He presented as an honest witness who was seriously mortified by his fall from grace and at a loss to explain his actions save to say that he was distracted and naïve. There is no doubt that he recognises the seriousness of his actions and has taken steps to rectify his lack of specific knowledge, to improve his sporadic and uninformative note-taking, and to ensure that in his future dealings with patients of the type involved in this matter, he will be less gullible and more willing to consult with others and more understanding of the pitfalls involved in the treatment of drug-dependent patients.
2. The Tribunal heard from a number of character witnesses, all of whom attested to their faith in Dr Stiglitz and all of whom pointed to his care and concern in the practice of his profession. Evidence was also given by Dr Peter Stratman, the managing director of Medical One Group; he told the Tribunal that Dr Stiglitz was highly regarded by his patients and his colleagues, that he performed mentoring roles for other practitioners, that he worked some 32 hours per week in the practice and in addition did numerous home visits and nursing home visits. He estimated that out-of-surgery visits constituted some 40% of the doctor's total working hours which were, from his knowledge, inordinately high compared with others.
3. The Tribunal heard expert evidence from two practitioners, Dr Robert Murdoch and Dr Nick Carr. Both doctors are well qualified to give their opinions and Dr Carr has a particular interest in rational prescribing and the management of drug-seeking behaviour. Each practitioner was appropriately briefed and provided with all relevant information. Their evidence is particularly pertinent having regard to the distinctions between unprofessional conduct and professional misconduct.
4. Dr Murdoch dealt first with the management of the patient BK. She had presented initially in a distressed state suffering severe dental pain. It was his opinion her management was inappropriate for a number of reasons. Dr Stiglitz knew BK had been a heroin addict, he knew she was under the care of Dr Kozminsky (a practitioner specialising in addiction problems) and in those circumstances he should not have prescribed oxycodone slow release tablets from 15 October 2005 until 11 December 2006 without a permit. Earlier notations in the clinical history of BK indicated there was a 'strong habit of heroin addiction' and in these circumstances, the prescribing doctor might have denied her appropriate treatment for her drug dependency. He further opined that BK's dental pain and migraine should have been managed with medications other than narcotic analgesics.
5. He then dealt with the management of the patient MT. She had presented with a variety of problems including severe pain arising from chronic idiopathic pancreatitis. She was a woman in her late 50's or early 60's and in addition to her pancreatitis she had problems from a pulmonary embolism requiring Warfarin, chronic renal failure and pulmonary oedema. Once again this was a matter of prescribing morphine sulphate ampoules to a patient who was drug dependent. He noted that the clinical notes included a letter dated 1 October 2006 from Dr Michael Duncan (copy provided to Dr Stiglitz) voicing concerns about the patient's chronic opioid use, the need to rotate and wean the drugs and noting that the patient was under the direction of Dr Monheit, another addiction practitioner. He considered that in circumstances where the drug was continually prescribed, the patient was denied appropriate treatment for her opioid use.
6. In the management of DG, Dr Murdoch was similarly critical. DG had been a patient for many years; the first recorded entry seems to have been in 2001 and she presented during the succeeding years with fibrositis, oesophageal spasm and sciatica. It is clear she was drug dependent. She was treated by another practitioner in relation to the oesophageal spasm although it is clear from subsequent evidence given to the Tribunal by that practitioner that there was no co-management arrangement. Dr Stiglitz over the years had prescribed oxycontin, pethidine and morphine sulphate and no permits were in place; it was Dr Murdoch's strong opinion that the treatment of this patient with narcotic analgesics was inappropriate, that the expression of concern by other practitioners had gone unheeded and that there was no clinical indication for the use of narcotic analgesia for fibrositis or the spasm. The latter view was expressed notwithstanding the contrary view of other practitioners. It was his opinion that acute sciatica might warrant the use of such drugs but they are inappropriate for chronic pain of the type experienced by DG.
7. MB had been a patient of the practice since at least 1980. Once again this is a case where Schedule 8 poisons (morphine and flunitrazepam) were prescribed in circumstances where the doctor knew or should have known that MB was drug dependent; he prescribed outside the terms of the permit he did hold and he continued to prescribe after the expiration of a permit. He commented that:

... the notes are so devoid of appropriate content such as a proper record of symptoms, clinical signs and diagnostic conclusions that I cannot really determine the true necessity or appropriate doses required to manage [MB's] ailments.

... impression that there was no real clinical indication to prescribe flunitrazepan and morphine sulphate slow release capsules to MB in the quantities provided or at all.

1. In relation to all four of the patients, Dr Murdoch expressed the view that Dr Stiglitz had departed widely from the standard that might reasonably be expected by his peers. Broadly speaking this is so for the following reasons:
   1. Dr Stiglitz should have applied for permits to prescribe and thus avoided the possibility of denying his patients appropriate treatment for their opioid use or their drug dependency.
   2. In some cases there was no clinical indication for the drugs prescribed.
   3. He ought to have recognised his patients were drug dependent.
   4. He should have maintained appropriate clinical records that included symptoms, signs, diagnostic conclusions and treatment plans.
   5. His pattern of prescribing may have denied his patients appropriate treatment and, more particularly, exacerbated his or her drug dependency.
2. Dr Nick Carr gave similar evidence. He dealt first with BK. He said it was clear from the patient notes that BK was a known opiate addict and that a permit existed with another doctor. He noted that the first occasion Dr Stiglitz prescribed for BK his notation was 'has toothache wants oxycodone' and three days later recorded 'lost her script'. He was particularly disturbed that notwithstanding notification on 6 January 2006 that a permit existed with Dr Kozminsky, prescribing continued and that seemingly Dr Kozminsky was not notified of the patient's repeat attendances on Dr Stiglitz.
3. In the case of MT, Dr Carr considered that for someone with such complex illnesses (that might well have necessitated regular morphine injections), a clear management plan should have been developed and recorded in the notes. This plan should have indicated what her reasonable opiate requirements were, what the indications were and who would administer them. More particularly specialist assistance should have been sought.
4. He considered the treatment of DG and set out the following history:

The records provided to me show that Dr Stiglitz saw DG between 2001 and 2007. Between 2001 and 2003 she had various treatments, which included some painkillers. By 2004 she began to receive opiates and in 2005 she started also receiving benzodiazepines. The particular accusation is that between 21 February 2006 and 1 December 2006, Dr Stiglitz prescribed morphine and OxyContin on 45 occasions ... and that he never applied for a permit.

1. He considered it entirely inappropriate that over a period of years Dr Stiglitz had prescribed very high doses of opiates and benzodiazepines without anything meaningful written in the notes to indicate why they were necessary and without any kind of documented management plan.
2. MB was seen by Dr Stiglitz between 2001 and 2007. Dr Carr, having studied the notes and other information, concluded that Dr Stiglitz' prescribing was excessive, unnecessary and not required for MB's appropriate medical care. By way of explanation he highlighted a five-week period between 16 May 2005 and 22 June 2005 when DG was seen on three occasions and prescribed a total of:

It was his view that even if Dr Stiglitz had not recognised DG as a typical drug dependent person early on (after all she was an older lady with entirely acceptable social presentation) by mid-2005 he should have realised her condition and notified DHS.

1. Dr Carr told the Tribunal that, in relation to each of the four patients, the clinical notes were manifestly inadequate. It was his considered opinion that Dr Sitglitz's conduct fell well below the standard that might reasonably be expected of a competent medical practitioner. He came to this conclusion in part based on the paucity of clinical notes and in part on conclusions drawn in answer to the question posed that the prescribing of drugs of dependence to the four patients was excessive, unnecessary and not reasonably required for each patient's wellbeing. Following is a summary of the conclusions he reach in answer to that question:

BK - Dr Stiglitz prescribed OxyContin on many occasions despite the fact that it was recorded that BK was a heroin addict, that another doctor had a permit, and without any recorded clinical information to indicate what the medical need for the medication was. It seems clear to me that this prescribing was unnecessary and not reasonably required for the patient's appropriate medical care.

MT - Because of the unusual nature of MT's condition, and again because of the absence of detail about this condition, there is a possibility that she needed morphine injections. Except in the context of palliative care, it is extremely unusual for any patient to require long-term treatment with opiate injections and I strongly suspect that in MT's case this was both excessive and not necessary for her appropriate medical care. However it is impossible to make a definitive statement to this effect.

DG - It is hard to accept that DG's condition really required long-term treatment with high doses of benzodiazepines and opiates. The note written on 28/5/2006 expressing doubt about her need for these medications reflects my strong impression that Dr Stiglitz's prescribing was excessive, unnecessary and not reasonably required for her appropriate medical care.

MB - There is an early entry in MB's notes that he was on methadone which should immediately have alerted Dr Stiglitz. Despite this he prescribed benzodiazepines and subsequently also opiates over a very long period and in large quantities with no meaningful information recorded to explain why he thought these were necessary. He also continued prescribing even after himself recording the need to reduce. It is my opinion that this prescribing was excessive, unnecessary and not required for MB's appropriate medical care.

1. In submitting that Dr Stiglitz' conduct amounted to professional misconduct, Ms Hinchey drew our attention to a number of cases considering that term. She submitted that this Tribunal had regularly acted on the basis that the term 'professional misconduct' is to be understood in accordance with the judicial interpretation as found in Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, a case before the NSW Court of Appeal. At p.200 Kirby P had this to say:

The words used in the 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 was ignorant could amount to such professional misconduct. But 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 a 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.

1. A similar version of the test was enunciated by Mandie J in Campbell v The Dental Board of Victoria [1999] VSC 113. At paragraphs 23 and 24, following the formulation of the Queensland Full Court in Adamson v Queensland Law Society Inc [1990] 1 Qld R 298 at 507, his Honour repeated the principle that:

... the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed and approved by members of the profession of good repute and competency.

1. Ms Hinchey also referred us to the following useful passage in Re: Lawrence Hayden, a matter before the Psychologists' Registration Board [2204] PRBD (Vic) 3:

Of the essence of "professional misconduct" is the assessment of impropriety by reference to the evaluation of professional peers. The panel is of the view that what is required for an assessment of whether a practitioner has engaged in "professional misconduct" is an evaluation of the nature of the practitioner's conduct within the context of the impropriety, taking into account all of the circumstances of what the practitioner did. However, matters that may go some distance towards explaining or mitigating the level of culpability on the part of the practitioner are not properly to be taken into account in determining whether the conduct would reasonably be regarded as disgraceful or dishonourable or worthy of strong reprobation, or falling a substantial way short or violating what would be expected by professional peers: if relevant, they go to the penalty that should be imposed in respect of such conduct. They may well impact upon whether the practitioner is likely to repeat such conduct and thus whether or the extent to which the community needs to be protected from the practitioner or whether the practitioner or other practitioners need to be deterred by the imposition of a penalty upon the particular practitioner.

1. It was her contention that, apart from the conduct in allegation 1, the doctor's conduct amounts to professional misconduct being a deliberate departure from acceptable standards as contemplated in Pillai. She submitted that were the Tribunal not able to conclude that the conduct was deliberate, nevertheless it constitutes conduct which departs 'from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant' and 'portrays an indifference and an abuse of the privileges which accompany registration as a medical practitioner'. Alternatively she submitted it is open to the Tribunal to conclude that Dr Stiglitz' behaviour is conduct which 'violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency'.
2. Mr Ruskin QC submitted first that in considering the distinction between unprofessional conduct and professional misconduct the Tribunal is bound to observe the Briginshaw principles. Those principles do not need to be spelled out as they are well known to all the parties. He too referred to Campbell v The Dental Board of Victoria, particularly to paragraph 22 where Mandie J referred to Re A practitioner of the Supreme Court [1937] SAStRp 34; [1937] SASR 316, 320-1 and repeated the following:

It is recognized that negligence and want of professional skill are not necessarily in themselves misconduct. In Re W.C. Mosely [1925] NSWStRp 17; (1925) 25 SR (NSW) 174 Street CJ, with whom Gordon and James JJ concurred, said "I agree that mere neglect or delay in the transaction of a client's business does not necessarily amount to misconduct of such a character as to be punishable by the court in the exercise of its disciplinary jurisdiction, but it may do so, and each case must depend upon its own circumstances. It may be difficult sometimes to know where to draw the line, but, wherever it should properly be drawn, I think that, in the present instance, the neglect was of such a character and took place in such circumstances, as to carry the case well over it and into the region of professional misconduct.

1. With that in mind Mr Ruskin submitted that although, in this case, there is no quarrel with the factual stratum, it is necessary to have regard to the fact that none of the conduct was for personal gain. Furthermore it was significant to consider the nature of the four patients in question. They were, he submitted, dishonest, they doctor-shopped, they were difficult and they were desperate. Mr Ruskin said that although the doctor's conduct was seriously wrong, it was not deliberate. He said Dr Stiglitz gave a consistent explanation - 'he did not focus', 'he was sidetracked', 'he did not turn his mind' - none of that, in his submission, amounts to deliberate conduct.
2. He reminded the Tribunal that whether the ultimate finding was one of unprofessional conduct or professional misconduct, suspension was not a mandatory consequence. In dealing with the possibility of sanction, he made the following points:

General deterrence is an important point when considering the need for protection of the public and every case has an aspect of general deterrence. It is not a necessary consequence of a case such as this that it gives rise to suspension.

The need to consider special deterrence does not arise here. The doctor went into the witness box and gave evidence, he confronted all the allegations, he was cross-examined at length and the Tribunal was able to see what sort of a person he was. He was ashamed, tearful, insightful and remorseful. He was unable to explain why he "went off the rails" but this does not in any way undermine his insight. True it is he was sidetracked, was naïve, too busy with people in pain, but that must be seen in the light of the four patients in question having regard to his exemplary conduct with the balance of his patients.

Since his fall from grace, the doctor had taken considerable steps to better acquaint himself with a number of matters. He has attended a series of lectures and workshops conducted by specialist practitioners, attended a training course with Turning Point Alcohol and Drug Centre, organized in-house drug education sessions with Dr Monheit, attended Professor Whelan, reviewed relevant literature and has achieved a greater and better informed awareness of chronic pain and its treatment. In addition he has complied with the requirements of the statutory declaration and non-prescribing regime imposed on him and has improved his note-taking.

We should have regard to the excellent character evidence given before us.

There is a public interest in allowing the doctor to practise because of the nature of his practice and the service he provides. He does hospital visits, home visits and nursing home visits and is involved in other community-based emergency service. His visiting regime is a rare service these days and is to be encouraged.

1. In respect of allegation 1 (the Magistrates' Court findings) the findings and determinations available to us are those set out in section 77 of the HPR Act. That section provides that after the Tribunal has completed a hearing under Division 1 of Part 4 of the Act, the Tribunal may make a finding whether or not the health practitioner has engaged in unprofessional conduct. We find that in relation to this allegation Dr Stiglitz has engaged in unprofessional conduct.
2. Section 169(1) of the HPR Act provides for the Tribunal to hear a matter concerning conduct which occurred prior to the commencement of the relevant sections of the Act, provided that no investigation inquiry or hearing had been commenced under the MP Act. That section applies to the conduct which underpins allegations 2 to 7.
3. Section 169(2) of the HPR Act provides that any determination or outcome of a hearing must be one that would have been available as a finding or decision under the MP Act.
4. Section 45A(a) of the MP Act provides that after considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the Tribunal may find, inter alia, that the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature or unprofessional conduct which is not of a serious nature.
5. In relation to each of the allegations numbered 2 to 7 where the conduct occurred prior to 1 July 2007 we find that Dr Stiglitz has engaged in 'unprofessional conduct' being professional misconduct pursuant to section 3(1)(c) of the MP Act and our reliance on the principles enunciated in Pillai v Messiter underpins those findings. For the purpose of section 45A of the MP Act the unprofessional conduct was of a serious nature.
6. In relation to allegation 2 (prescribing Schedule 8 drugs to BK, MT, DG and MB without having a permit to do so) we find he has engaged in professional misconduct and his behaviour amounted to a clear departure from accepted standards. Although Mr Ruskin submitted that the conduct should not on the evidence be regarded as deliberate, we cannot accede to that view. We are unable to credit that the doctor was just side-tracked, or naïve and trusting or that he just failed to turn his mind to the need for permits. It follows that his omission to take the compulsory steps required by law was in our view calculated and deliberate. In coming to this conclusion we took into account the fact the Dr Stiglitz was well aware of his obligations and that notwithstanding his awareness, he continued to prescribe in circumstances where no permits were held. Further we accept the largely unchallenged evidence of Drs Murdoch and Carr. Dr Murdoch reported that the conduct 'departed widely' from that which might be expected from a medical practitioner by his peers, and in his oral evidence said that he did not know of any reasonably competent medical practitioner who would behave as Dr Stiglitz did. Dr Carr reported that the doctor's failure to seek permits fell well below that standard that would reasonably be expected of a competent medical practitioner.
7. In respect of allegations 3, 4, 5 and 6 (failing to exercise the care and skill of a competent general practitioner and/or failing appropriately to manage the treatment of BK, MT, DG and MB) we find Dr Stiglitz has engaged in professional misconduct and that the conduct constituted a deliberate departure from accepted standards. It is clear that in relation to BK, DG and MB, Dr Stiglitz admitted he had reason to suspect they were drug dependent and the contents of the clinical notes more than adequately support that contention. The notes also demonstrate that in the case of BK, DG and MB, other practitioners had raised concerns in writing (of which Dr Stiglitz could hardly say he was unaware) yet he continued to prescribe Schedule 8 poisons for them. Despite this reason to suspect, he failed to notify the Department as he was required to do under section 33(1) of the Drugs, Poisons and Controlled Substances Act. Drs Murdoch and Carr expressed opinions which we accept that there was nothing in the clinical notes to justify diagnoses which would have supported the continued prescribing (as distinct from a one-off prescription for an acute episode) of Schedule 8 poisons to BK, DG and MB. The clinical notes demonstrate that MT had been a narcotic dependent person for many years. The material from other specialists ought to have alerted him to the fact that MT had overdosed on narcotics in the past and was at high risk if able to self-administer Schedule 8 poisons. Notwithstanding, he persistently prescribed five ampoules of morphine at a time for her. He admitted that in relation to BK, MT and DG he prescribed Schedule 8 poisons when he knew or ought to have known that another practitioner held a permit. He admitted that for a period he prescribed Schedule 8 poisons to MB notwithstanding his application for a permit had been refused and for a second period, he continued prescribing notwithstanding he knew that the previously held permit had expired. We find his suggestion that the refusal equated to a pending application frankly risible. Further he knew that MB was sharing a house with another drug dependent person and ought to have deduced they might share medication. Dr Murdoch reiterated his earlier view that Dr Stiglitz' medical management of all four patients departed widely from that which might reasonably be expected from a medical practitioner by his or her peers and confirmed in his viva voce evidence that he did not know of any reasonably competent medical practitioner who would behave as Dr Stiglitz did in respect of the medical management of these four patients.
8. That takes us to allegation 7 (failing to make appropriate clinical notes). Once again we find that Dr Stiglitz engaged in professional misconduct and that his conduct violated or fell short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency. We say that the conduct in this instance is elevated beyond that of unprofessional conduct for a variety of reasons. The following are examples that have led us to this conclusion:
   1. An inspection of the clinical notes for each of the four patients demonstrates that in most cases, Dr Stiglitz entered no more than the date and the details of what prescriptions were given.
   2. The number of minutes the patient's clinical computerised notes were said to be open for the insertion of appropriate notes of the consultation by the doctor was in many cases a distressingly short time.
   3. Dr Murdoch expressed the view that the notes in relation to each patient were grossly inadequate and Dr Carr expressed similar views. We accept their unchallenged evidence.
   4. Dr Murdoch said in his viva voce evidence that he would expect he minimum information that would be included would be the date, the name of the patient, the name of the doctor, the examination findings if any, the diagnostic conclusions, notes of what reviews were to take place and any plan for clinical management. He said that without exception, before prescribing a Schedule 8 drug, any doctor would ascertain that a therapeutic need existed.
   5. The conduct of maintaining poor clinical records was not isolated across the four patients whose care is the subject of this hearing, the conduct spanned more than two years and was repeated in all cases.
   6. It is self evident that a failure to keep adequate clinical notes in relation to patients of such complexity deprives other doctors in the same clinic, and indeed the doctor making the notes on any particular day, of an adequate record of the patient's clinical history and any management plan for the future. In this, the doctor potentially compromised his patients' care.
   7. In a multi-doctor clinic it is imperative that each doctor has confidence in the efficacy and accuracy of comprehensive clinical notes taken by his or her colleagues. In our view such confidence would have been entirely misplaced by other practitioners accessing these notes.

1. In respect of the findings of unprofessional conduct of a serious nature or professional misconduct the following relevant sanctions (to be found in either section 45A of the MP Act and section 77 of the HPR Act) VCAT may make one or more of the following determinations:

(a) require the health professional to undergo counselling;

(d) require the health practitioner to undertake and complete specified further education of training within a specified period:

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

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

(h) cancel the registration of the health practitioner.

1. Paragraphs (i) to (o) of section 77 also set out a number of other sanctions available to the Tribunal which are not relevant in this case.
2. In considering what sanctions should be imposed, the Tribunal is acutely mindful that its role is not penal but is protective of the public interest in the competence and integrity in the practice of medicine.
3. We are also mindful of the price already paid by Dr Stiglitz in relation to the public hearing and ultimate outcome of the Magistrates' Court proceedings. We also take into account the frank admissions made by him early in the proceedings which are to his credit. We have also had regard to the particular service he provides to elderly and bed-bound patients and to the efforts he has made to bring himself up to date with the issues that have brought him to the notice of the authorities.
4. In the circumstances of this particular case we do not propose to impose a period of suspension or to cancel the doctor's registration but we do propose to place some conditions on his right to practise.
5. We find it difficult to comprehend that an experienced general practitioner could have been so easily misled and to have been so naïve and careless. In our view there is no excuse for sketchy, inadequate notes and history taking. This is so in any situation and particularly so in cases such as those brought before us.
6. It is our view that these deficiencies in Dr Stiglitz' practice of medicine should be remedied and he must demonstrate that lasting changes have been made. With that aim in mind we propose that every three months for the next two years his professional activities should be the subject of monitoring and reporting by an experienced general practitioner approved by the Medical Practitioners Board. The doctor chosen should be experienced and knowledgeable in the care of difficult and complex patients especially those who are drug dependent and others requiring schedule 8 drugs for any other reason. This is to be at Dr Stiglitz' expense and the chosen practitioner should provide a quarterly report to the Board of his observations and comments and a final report at the conclusion of the two year period. That report should include his observations on the management of all of Dr Stiglitz' drug dependent patients. We expect that the doctor's note taking should be improved radically and to be the subject of proper enquiry by the monitoring practitioner. He should spend time and effort using computerised medical records to achieve a proper account of his patients' treatment and symptoms and if necessary obtain some expert training to ensure the effective use of the systems available in his practice. These notes should contain careful notes of home visits and nursing home visits as well as visits in his rooms. In addition we expect that he should continue to attend postgraduate professional development education organized by the Royal Australian College of General Practitioners and the supervising report should also indicate compliance with this request. In particular we suggest he should attend the annual weekend symposium on drug and alcohol management to be organized by the College in May 2011; if he is not already a member of the College he should join forthwith. In the interim it is likely that the Central Bayside Division of General Practice (Telephone 9553 2455) will conduct courses on drug and alcohol medicine and he should attend these courses.
7. We propose he should be reprimanded for his past conduct and cautioned in relation to the future practice of his profession.
8. Having made the findings set out herein the Tribunal determines that:
   • Dr Stiglitz is reprimanded.
   • He is cautioned.
   • The supervisory regime set out in paragraph 54 should be instigated as soon as possible but in any event no later than 60 days from the date of these orders.