1. Dr White has worked as a general practitioner since 1979. Since 1982 he has worked in group practices in the Yarra Valley. He has not worked as a medical practitioner since June 2009.
2. Dr White has suffered from serious ill-health over the past few years. He underwent major surgery in 2004 which has left him with some ongoing physical problems. He was diagnosed with idiopathic epilepsy in November 2009.
3. On 7 June 2010 the former Medical Practitioners Board of Victoria ('the MPBV') referred a number of allegations to the tribunal under s59(2)(g) of the Health Professions Registration Act 2005 ('the HPR Act') to conduct a hearing and make findings and determinations. On 1 July 2010 the Medical Board of Australia ('the Board') succeeded the MPBV: see Health Practitioner Regulation National Law (Victoria) Act 2009.
4. The referral was accompanied by the following allegation:

Between or around 31 July 2007 and March 2008, Dr Peter John White engaged in unprofessional conduct (as defined in paragraphs (a) and/or (b) and/or (d) of the definition of 'unprofessional conduct' in s3(1) of the HPR Act or professional misconduct (as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in s3(1) of the HPR Act) in that he inappropriately prescribed Hypnovel injections to [the patient].

(a) Failing to make adequate enquiries of other practitioners as to the clinical need, rationale, dosage, and duration of Hypnovel injections; and/or

(b) Prescribing excessive quantities (approximately 260 ampoules in 122 days) of Hypnovel injections; and/or

(c) Prescribing Hypnovel injections that were to be self-injected without ensuring appropriate safety measures were in place at home; and/or

(d) Prescribing Hypnovel injections in circumstances where there was no management plan in place.

1. The matter came on for hearing on 1 December 2010 when the tribunal was constituted by Senior Member Howell and Drs Burge and Fabris. At that time leave was granted to the Board to amend paragraph 1(b) of the allegations to read:
   • (b) Prescribing excessive quantities (approximately 590 ampoules in 236 days) of Hypnovel injections; and/or.
2. The tribunal also made the following order:

The respondent having given an undertaking to the tribunal that he will not practise as a medical practitioner from 1 December 2010 until the date upon which the tribunal delivers its final decision, the respondent by 28 February 2011 may serve upon the applicant a report prepared by a psychiatrist and relating to the respondent. Three copies of the report are to be provided to the tribunal by the applicant when this hearing resumes, for inclusion in the tribunal book.

1. The hearing was then adjourned to 3.00pm on Thursday 17 March 2011.
2. Following the expiration of Senior Member Howell's appointment on 19 December 2010 the tribunal was reconstituted by the President, Justice Ross, on 15 February 2011 pursuant to s108 of the VCAT Act. The effect of his Honour's order was that Deputy President Aird was substituted for Senior Member Howell as the presiding member.
3. In accordance with the orders for the tribunal's reasons dated 11 March 2011, Deputy President Aird has listened to the recording of the 1 December 2010 hearing.
4. The Board was represented by Mr Armstrong of Counsel and Dr White was represented by Mr McCullagh of Counsel. Mr McCullagh indicated to the tribunal that his client admitted that he was guilty of unprofessional conduct and professional misconduct as defined in s3(1) of the HPR Act. However, as properly pointed out by Mr Armstrong, it is not open for the tribunal to make both findings. For the reasons which follow and noting the respondent's admissions we find that Dr White's conduct constitutes professional misconduct as defined in s3(1)(a) and (b) of the HPR Act.[1]
5. As the allegations and particulars were admitted, Dr White did not require two of the Board's witnesses Mr Falcke and Dr Lavoipierre to attend the tribunal for the purposes of cross-examination. The contents of their witness statements are therefore admitted. Dr Carr was called by the Board to give evidence.
6. Dr White did not give evidence at the hearing. Mr McCullagh explaining he was not well enough to do so. Drs Fitzgerald and Walbran were called to give character evidence on behalf of Dr White.

1. For many years, Mr Chris Falcke, Senior Drugs and Poisons Officer with the Department of Human Services (DHS), has been involved in investigating Dr White's prescribing patterns, and counselling him about his obligations under the Drugs Poisons and Controlled Substances Act 1981 ('the Drugs Act') and the Drugs Poisons and Controlled Substances Regulations 2006 (and its predecessor, the Drugs Poisons and Controlled Substances Regulations 1995) ('the Regulations').
2. He arranged for a colleague to conduct prescription monitoring in the Yarra Junction region. Records collected by his colleague included details of Dr White's prescriptions of Hypnovel (midazolam) for his patient, Ms A. Hypnovel is a benzodiazepine which is a drug of dependence.
3. On 23 April 2008 Mr Falcke had written to Dr White about his prescribing Hypnovel to Ms A more frequently than recommended in the standard directions, requesting him to confirm whether he had been prescribing Hypnovel for her, and to explain the nature of the treatment within 21 days.
4. On 28 April 2008, Mr Falcke received an anonymous complaint dated 15 April 2008, signed by 'a worried Aussie'. The complaint set out concerns that Ms A was receiving addictive drugs from a local doctor and pharmacy to run an illegal drug business.
5. On 28 April 2008 Dr White wrote to Mr Falcke in response to his letter of 23 April 2008 advising that Ms A had often presented to the clinic advising: the box of ampoules had been broken when she opened the box; she had left her medication interstate; she had been involved in a motor vehicle accident and subsequently mislaid her medications; her bag and medications had been stolen.
6. Following receipt of Dr White's letter of 28 April 2008, and subsequent discussions with Dr Patrick Lavoipierre and Dr White, Mr Falcke wrote to Dr White on 15 May 2008 requesting further detailed information in relation to the prescriptions for Hypnovel for the patient. Dr White did not respond to this letter, or a reminder letter dated 26 June 2008. DHS notified the Board of its concerns by letter dated 21 August 2008.

1. Ms A suffered from severe psychiatric problems and migraine headaches. She consulted Dr Lavoipierre in July 2007. A very detailed description of her past history and medical conditions is set out in Dr Lavoipierre's witness statement dated 12 June 2009. She was apparently suffering from bipolar disorder and had a huge list of medications which she was taking for migraines. Dr Lavoipierre admitted her to hospital during which time he treated her migraines with Hypnovel injections. He states in his witness statement that it was his intention that these injections would only be used during her hospital stay.
2. After Ms A was discharged from hospital she attended Dr White's surgery where she had been a patient for a number of years. Although Dr White did not give evidence at the hearing, it is appropriate to have regard to his letter dated 27 October 2008 to Ms Walker who was the investigating officer of the MPBV at the time. Relevantly, in that letter Dr White states.

The patient in question consulted me on 31/07/07. She told me that she had recently been an inpatient at a private Psychiatric Hospital under the care of Dr Lavoipierre.

Whilst in hospital she had been treated with Hypnovel 5mg injections IM for acute Migraine. I have known this patient on and off for many years and she had a long history of debilitating Migraine attacks.

The patient also told me that she was self-administering the Hypnovel injections to aid her sleeping pattern. In the past lack of sleep was a major trigger for Migraine attacks. She had been taught to self-administer injections by her Neurologist in New South Wales.

I asked her if she could provide me with a letter from Dr Lavoipierre confirming the use of this medication...

Whilst she was using the Hypnovel injections she was largely free of Migraine headaches.

I continued to prescribe Hypnovel until March 2008 when I became uneasy at the number of scripts for Hypnovel I was writing.

I have included a copy of a letter to Chris Falcke (of DHS) which indicates my concerns.

With respect to the specific questions asked by Chris Falcke.

(1) Apart from the nightly use of Hypnovel injections I did not believe the patient to be a drug dependent person.

(2) The Hypnovel injections aided the patient's sleeping habits thus preventing her migraine attacks.

(3) Hypnovel is a benzodiazepine.

It is usually used as a short acting sleep inducing agent for short procedures.

For intra-muscular use the recommended dose for low risk adult patients, below the age of 60 is 5 mg IM.

I have included a letter from Dr Lavoipierre who initiated the use of Hypnovel injections for Migraine headaches.

(6) The intended rate of administration was Hypnovel 5 mg IM nightly self-administered by the patient.

(7) At the time I was prescribing for the patient I was the only treating doctor.

1. Evidence was called from Dr Carr, a medical practitioner who has been qualified since 1980. He has been a partner in a general practice in St Kilda since 1988. In his report dated 28 April 2010, he confirms that Hypnovel injections are not normally used in general practice and that it is important they be used under continuing medical supervision.
2. He states that Hypnovel is a potent short-acting benzodiazepine and is normally used in hospital and day procedure settings as a sedative. It has risks of overdose, respiratory depression, accident and misadventure. In his evidence to the tribunal Dr Carr said he had never seen Hypnovel being prescribed for home use and he considered it extraordinary for it to be self-injected in a home setting which was fraught with danger. He said he could not imagine how self-injecting at home could be done in a safe manner. Further, that it beggars belief that a specialist would teach someone to self-administer at home. He said he would be sceptical if he had been told by a patient he/she knew how to self-administer.

1. On 17 October 2002 there was an informal panel hearing before the MPBV. It seems this hearing followed the receipt by the MPBV of a complaint from the sister of one of Dr White's patients after the death of the patient ('Mr B'). The family knew that Mr B had been dependent on prescription drugs for more than five years. Dr White had prescribed Valium, Temazepam, Endone, Mogadon, Panadeine forte, Prothiaden and opiates for Mr B.
2. There had been a couple of occasions when Dr White had provided Mr B with replacement scripts: one when Mr B told him the script had been stolen and another when Mr B said the script had been destroyed in the washing machine.
3. Dr White's defence was that he did not believe Mr B was drug dependent. He said he prescribed the drugs for chronic back pain and stress; that he had only intended to prescribe them for a short period and therefore had not applied for a permit. His evidence was that he did not investigate the previous drug use by Mr B and felt that the drugs used and the dosage were consistent with his usual practice 'in this situation'.
4. In its Reasons the Panel found that Dr White should have considered that Mr B was likely to be drug dependent and that his suspicion should have been heightened on the two occasions the repeat prescriptions were requested.
5. The Panel noted that Dr White had not initiated any form of investigation to determine the cause of Mr B's back pain. He had merely supplied prescriptions for benzodiazepines and analgesic medication and later a tricyclic anti-depressant. The Panel concluded that this form of management of chronic back pain was of a lesser standard than would be expected of a general practitioner. It found pursuant to s43(1)(a) of the Medical Practice Act 1994 ('the MP Act') that Dr White had engaged in unprofessional conduct and relevantly determined that he be counselled with respect to the prescribing of drugs of dependence to persons who may be dependent on these drugs.

1. On 27 March 2006 the MPBV conducted a formal hearing after Dr White had been found guilty and convicted, in the Magistrates' Court of Victoria at Melbourne, of 27 summary offences pursuant to the Drugs Act and 3 indictable offences pursuant to the Regulations.
2. The parties filed a Statement of Agreed Facts which is recorded in the Board's decision. The hearing in 2006 followed a notification to the MPBV by Mr Keith Moyle, Manager of the Drugs and Poisons Unit of DHS on 9 November 2004 concerning Dr White's prescribing patterns. Prior to the notification, Mr Falcke had conducted an investigation into Dr White's prescribing, and in particular his prescribing of drugs of dependence for persons known to DHS for drug seeking behaviour.
3. It is recorded in the Panel's Reasons that Dr White was first investigated in 1992 and that in a tape recorded interview with Dr White on 16 April 1992, Mr Falcke determined that Dr White had breached the Drugs Act by prescribing Schedule 8 drugs without a permit, and prescribing Schedule 8 drugs in excess of limits of permits in relation to both expiry and the specified maximum dosage. Further, that following a review of Dr White's prescribing Mr Falcke visited Dr White on 15 November 1996 and counselled him in relation to apparent over-prescribing. There was further correspondence between DHS and Dr White in relation to DHS's ongoing concerns about specific patients. The legislative requirements were reiterated by DHS in letters to Dr White in November 1999, November 2000, May 2001 and June 2001.
4. It is recorded that Mr Falcke visited Dr White again on 12 July 2001 and there was further correspondence about specific patients in October 2001 and December 2001, and on 22 August 2003 detailing strategies to assist Dr White in addressing DHS's ongoing concerns.
5. Mr Falcke conducted a further interview with Dr White, in September 2004, in relation to his ongoing breaches of the legislative requirements for prescribing Schedule 8 drugs despite repeated advice and repeated attempts to have him comply with the provisions of the Drugs Act and the Regulations.
6. In the Statement of Agreed Facts filed in the formal hearing, Dr White agreed that he was counselled, instructed and warned by DHS over a very long period and that he was eventually charged with 403 contraventions of the Drugs Act and Regulations. On 16 May 2005 Dr White pleaded guilty in the Melbourne Magistrates' Court to 30 consolidated charges. He was convicted, fined $3,000, ordered to pay costs of $8,185.03 and placed on a bond to be of good behaviour for two years.
7. The Panel found that Dr White had engaged in unprofessional conduct as defined in paragraphs (a), (b), (h)(i), (h)(ii) and (h)(iv) of the definition of 'unprofessional conduct' in s3(1) of the MP Act and pursuant to s45A(1)(a) of the MP Act that such unprofessional conduct was of a serious nature. The Panel made the following determinations:

(1) Dr White was to undergo counselling and further education in dealing with issues relevant to prescribing drugs of dependence.

(2) Dr White was reprimanded for blatant and repeated disregard of his obligations under the Drugs Act.

(3) The following condition was imposed on Dr White's registration: that he was not to prescribe, possess or administer Schedule 8 drugs. He was granted leave to apply to the Board for a review of this condition after 12 twelve months.

(4) Dr White's registration was suspended for a period of 13 weeks commencing on 10 April 2006.

1. Two character witnesses gave evidence for Dr White: Dr Fitzgerald and Dr Walbran. Dr Fitzgerald has been a friend since University days but has not practised with Dr White. Dr Walbran has worked in Dr White's medical clinic for approximately 24 years.

1. Dr Fitzgerald is a GP practising in Traralgon. He has been friends with Dr White since they were medical students - approximately 40 years ago. Dr Fitzgerald said that one of Dr White's faults is that he is 'too caring', 'too inclined to accept' accounts given by patients 'at face value', when sometimes it is necessary to have some cynicism about what patients say about themselves.
2. Dr Fitzgerald gave evidence that he considered Dr White was a significant risk to himself due to his persistent chronic untreated depression and significant medical illnesses (including his idiopathic epilepsy). He said that he believed the depression was treatable and manageable if Dr White accepted treatment and, if properly treated, work would be good for him. Dr Fitzgerald said he could see no reason why Dr White would not be able to return to the workforce, sometime in the future, providing he received psychiatric treatment.
3. Dr Fitzgerald confirmed that he did not know about the details of this Inquiry or the previous two appearances before the Medical Board until a week before the 1 December hearing when he was asked to give character evidence. He recalled that Dr White made a passing reference to some trouble he had been in about five or six years ago, but Dr Fitzgerald said he had not pursued this with Dr White. He confirmed that he had observed a significant change in Dr White over the last 6 or 7 years but believed he had been 'far from depressed' in the years prior to that. He said he was really concerned about him in around 2004 during the time of the significant surgery.

1. Dr Walbran has been a colleague and employee of Dr White's for about 24 years. She agrees that he is depressed and believes the depression commenced in the early 2000's as indicated by mood irritability. She said she had referred him to a psychiatrist in the early 2000's. She knew that he attended once and thought he was to return for further treatment but could not be sure. She also said she had referred him to the Medical Practitioners Health Help support services in the early 2000's, well before the 2004 surgery. Dr Walbran confirmed that she was aware of the 2006 appearance before the Board but was not aware of the 2002 matter. She was not aware that Dr White was ordered to have counselling in 2006.
2. Dr Walbran said that Dr White is a good caring GP who treats patients appropriately and that patients like him. She said she suspects that he is too willing to be helpful and sometimes fails to get details he should get to confirm how he should be treating someone because he is 'too nice'.
3. Dr Walbran confirmed she did not think Dr White should be working at this time as she believes the untreated depression is affecting his ability to function at a professional level. She believes Dr White stopped practising around June 2009 because of the depression.

1. During the adjourned period a report was received from Dr Nigel Strauss, consultant and occupational psychiatrist. He was not called to give evidence. Dr Strauss has prepared an 8 page report dated 27 January 2011 in which he confirms he saw Dr White and his wife the same day. He then sets out something of Dr White's history and the difficulties he had with his first wife and one of the children from that marriage.
2. In the report Dr Strauss notes that Dr White smokes 25 cigarettes and drinks six to eight stubbies a day. Dr Strauss records that Dr White has avoided psychiatric treatment and does not take anti-depressant medication. He also notes that 'he told me that he is willing to have treatment but I doubted his motivation'.
3. Dr Strauss observed that Dr White was depressed and a little withdrawn, with negative thinking. Dr Strauss opines that Dr White suffers from a bipolar affective disorder which he believes has affected him for a number of years. He notes that Dr White has had psychiatric treatment including hospitalisation on at least two occasions but that he has avoided ongoing treatment. Relevantly, he concludes:

This man needs reasonably urgent psychiatric treatment and I have referred him to [a psychiatrist] at this clinic. Whether or not Dr White attends treatment is of course up to him but he is certainly unable to work as a medical practitioner at the present time because of his affective disorder and he will not be able to work in the future unless he has psychiatric treatment and ongoing psychiatric management indefinitely.

He may have acted inappropriately several years ago in relation to his prescribing and his psychiatric problems then may have influenced his behaviour. I cannot be certain of this.

The major point however is that this man has a significant ongoing psychiatric illness which is not being appropriately managed. He needs psychiatric treatment and once he has had this treatment he could be reassessed for suitability for practice as a medical practitioner.

1. The Board seeks a determination that Dr White's registration be cancelled and that he be disqualified from applying for registration as a medical practitioner for a period of two years. Mr McCullagh submitted that an appropriate determination would be that Dr White's registration be suspended for a period of 12 months, at which time he be required to provide the Board with a report from a psychiatrist confirming that he had been compliant with treatment during the 12 month period. We agree with Mr Armstrong for the Board that this is an unworkable condition.
2. In considering an appropriate determination, the protection of the public is of paramount importance. The purpose of disciplinary proceedings is the protection of the public and the maintenance of professional standards of the profession. In Craig v The Medical Board of South Australia (2001) SASC 169 Doyle CJ said:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. [41]

1. Whilst we accept that Dr White is unwell and suffering from serious psychiatric and physical illness, we are not persuaded that the 2007 events are directly attributable to his ill-health, as submitted by Mr McCullagh.
2. Although we pressed Mr McCullagh during the hearing to address us as to what we should make of Dr White's prior history, Mr McCullagh was unable to persuade us that the 2007 events were not simply a continuation of a long period of blatant disregard by Dr White of his statutory obligations.
3. Presumably, Mr McCullagh was acting on instructions when he focussed on Dr White's current psychiatric and physical ill-health as an explanation for the incidences in 2007. We reject these as being an explanation for that conduct in circumstances where Dr White has exhibited a long history of similar conduct since the early 1990's with repeated counselling and caution by DHS, culminating in two hearings before the MPBV and the findings of guilt and conviction in the Magistrates' Court in 2005.
4. Despite repeated communications and correspondence from DHS over a very long period, Dr White has consistently continued to over-prescribe drugs of dependence. The psychiatric evidence from Dr Strauss supports the view that Dr White is not currently fit to practise as a medical practitioner. Although he indicates that, with treatment, Dr White may be able to resume practice at some time in the future, there is no indication of a time frame in which this could be anticipated. Although Dr Fitzgerald and Dr Walbran both expressed hope that he would be well enough to return to work as a medical practitioner, again, there is no certainty when he will be well enough to do so.
5. Irrespective of Dr White's ill-health, we remain concerned as to whether he appreciates and understands his obligations under the Drugs Act.
6. In considering whether to suspend or cancel a medical practitioner's registration, it is important to understand that it is only in the case of cancellation that the practitioner will need to satisfy the Board that he or she is fit to resume practice. In contrast, a period of suspension carries with it an automatic right of recommencing medical practice upon expiration of that period of suspension.
7. In Mellifont v The Queensland Law Society Incorporated [1981] QldR 17 at page 31 Andrews J referred to statements by Reynolds JA in The Law Society of New South Wales v McNamara (C.A. 160 of 1979 unreported) where his Honour said at pages 7 and 8:

The choice lies between suspension and striking off...

An order for suspension must be based on a view that at the termination of the period of suspension the practitioner will no longer be unfit to practice because, subject to any limitation imposed on the issue of a practising certificate, his name will then be on the roll of solicitors and he may resume his practice.

Thus stated, it will be seen that in cases of present unfitness an order for suspension will not frequently be appropriate because it s difficult for a tribunal to feel confident that at the expiration of one or more years a person presently unfit to practise will be fit. The use of the power to suspend is valuable as a punitive measure but needs cautious application where fitness and the Court's protective function is involved. [emphasis added]

1. In view of his ongoing blatant disregard for his obligations under the Drugs Act, noting his current mental ill-health, and bearing in mind our primary consideration must be protection of the public together with maintenance of professional standards and general and specific deterrence, we consider the appropriate determination is that Dr White's registration as a medical practitioner be cancelled, and that he be disqualified for a period of two years before he can apply for registration as a medical practitioner.
2. The tribunal was referred to a number of decisions of the Medical Practice Board of Victoria. Whilst those decisions were generally concerned with incidences of over-prescribing, we have not considered it necessary to refer to them being satisfied cancellation of Dr White's registration is appropriate having regard to his continuing blatant disregard for his statutory obligations.

[1] 'Professional misconduct' includes -

(a) unprofessional conduct of a health practitioner which conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competency and diligence; and

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