VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z631/2022	
CATCHWORDS	
Review and Regulation List – medical practitioner – findings of fact, whether failure to maintain professional boundaries, whether inappropriately prescribing, whether failure to maintain adequate clinical records, whether offered cocaine, whether offered to pay for medication in exchange for a sexual relationship, whether bargained prescriptions for sexual relationship, whether gave kiss without consent and against express refusal, sections 5 and 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009, Briginshaw v Briginshaw (1938) CLR 336.

APPLICANT	Medical Board of Australia	
RESPONDENT	Dr Attila Danko	
WHERE HELD	Videoconference	
BEFORE	N Campbell, Member
Dr R Mason, Member
Dr L Warfe, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 March 2024 	
DATE OF ORDER	4 April 2024 	
DATE OF WRITTEN REASONS	4 April 2024	
CITATION	Medical Board of Australia v Danko (Review and Regulation) [2024] VCAT 300	

The Tribunal notes that on 30 August 2022, the Tribunal made the following order:
Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.
The Tribunal notes that on 5 March 2024, the Tribunal made the following further order:
VCAT finds:
1	Having regard to the primacy of the principle of open justice and the free communication and disclosure of information referred to in s 4(a) of the Open Courts Act 2013 (Vic) (the Act), VCAT is satisfied that the specific circumstances of this case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information by making a proceeding suppression order under s 17 of the Act.
2	The order is made on the grounds that it is in the interests of justice given the personal nature of the content of the material in this proceeding and the evidence likely to be given at the hearing. That material includes private medical records and/or details of private medical conditions of the respondent’s former patient (the patient). 
3	Further, the receipt of notifications and the assistance from witnesses in these types of cases are an important mechanism by which the applicant becomes aware of issues of concern that require investigation. Protecting the privacy of persons who make notifications (the notifiers) and persons who make statements to the applicant, other than the respondent or any expert witnesses (the witnesses), is essential if the applicant is to ensure that professional conduct issues under the Health Practitioner Regulation National Law (Victoria) Act 2009 are properly investigated when they arise.
4	The purpose of VCAT’s order is to avoid the unreasonable invasion of the privacy of the patient.
5	The duration of the order has been determined on the basis the Tribunal is satisfied it is necessary in the interests of justice for the specified person’s identity to be protected permanently.
VCAT orders under s 17 of the Act that:
1	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patient the subject of these proceedings to be identified must not be published or otherwise disclosed.
2	This order applies throughout Australia on the basis that VCAT’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of the person referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3	This order operates until the later of the death of the person referred to in order 1.
FIndings
The Tribunal finds as follows:
1	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko failed to maintain the professional boundaries that should, and ordinarily do, delineate a doctor/patient relationship, by engaging in a treating relationship with a patient, a person with whom he had a personal relationship and pursued an intimate and sexual relationship, in circumstances that were avoidable, and making uninvited physical and sexual contact with a patient.
2	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko inappropriately prescribed Schedule 4 medications to the Patient and inappropriately treated the Patient, including by prescribing drugs of dependence to a drug dependent person or a person with a history of drug dependence in circumstances where Dr Danko was aware of the Patient’s history of dependence, failing to provide safe care to the Patient, failing to undertake appropriate medical assessments of the Patient, providing medical advice over social media, offering to prescribe cannabidiol to the Patient, and prescribing Schedule 4 medications to a patient with whom he had a personal relationship, in circumstances that were avoidable.
3	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko failed to maintain adequate clinical records in relation to the Patient.
ORDERS
The Tribunal orders:
1	The application is listed for an administrative mention on 22 May 2024 by which time the parties may jointly request VCAT to make orders to list the proceeding for a hearing on the issues of the characterisation of the proven conduct and the appropriate determination. 
2	Any request must be accompanied by the filing of a joint electronic Tribunal Book, to be compiled by the applicant, containing all the material upon which the parties will seek to rely at the hearing. The Tribunal Book must be paginated, indexed and hyperlinked. No further documents may be filed after this date without the leave of the Tribunal. On review of the Tribunal Book, the Tribunal may require a hard copy (in triplicate) to also be provided.
3	In order for VCAT to decide whether the matter can proceed, the parties must also jointly:
(i) 	identify any preliminary matters that need to be resolved;
(ii) 	specify the likely duration of the hearing; 
(iii) 	provide all available (or unavailable) dates for the 4 month period starting November when all necessary participants (ie relevant parties/counsel/witnesses) will be available to attend the hearing;
(iv)	advise VCAT of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and 
(v)	advise VCAT as to whether the hearing should be held via Zoom or in-person (at 55 King Street Melbourne) and if any party or witness wishes to attend by Zoom or telephone.
4	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with VCAT’s requirements for the conduct of the hearing.
5	All contact with VCAT must include the VCAT case number, and the date of the administrative mention and be copied to the other party.

N Campbell 
Presiding Member 	Dr R Mason
Health Practitioner Member	Dr L Warfe
Health Practitioner Member	

APPEARANCES:		
For Applicant 	Mr J Stoller of Counsel instructed by Ms E Perconte, solicitor, Russell Kennedy Lawyers, Ms R Butler and Ms N Jayasinghe, Ahpra.	
For Respondent	Mr M McLay of Counsel instructed by Ms C Tuohey, solicitor, and Ms N Hendy, Solicitor, Avant Law and in person.	

REASONS
The proceeding
1	The Medical Board of Australia (‘the Board’) has referred to the Tribunal allegations about the respondent medical practitioner, Dr Attila Danko (‘Dr Danko’ or ‘the respondent’), under section 193 of the  Health Practitioner National Law (Victoria) Act 2009 (Vic) (‘the National Law’). In summary, the allegations are that Dr Danko:
a.	failed to maintain professional boundaries by engaging in a treating relationship with a patient, a person with whom he had a personal relationship and pursued an intimate and/or sexual relationship and making uninvited physical and/or sexual contact with the patient;
b.	inappropriately prescribed Schedule 4 medications to the patient and inappropriately treated the patient, including by prescribing drugs of dependence to a drug dependent person or a person with a history of drug dependence in circumstances where Dr Danko was aware of the patient’s history of dependence, failing to provide safe care to the patient, failing to undertake appropriate medical assessments of the patient, providing medical advice over social media, offering to prescribe cannabidiol to the patient, and/or prescribing Schedule 4 medications to a patient with whom he had a personal relationship;
c.	failed to maintain adequate clinical records in relation to the patient.
2	Dr Danko agreed to the allegations and the particulars to those allegations, save for four specific particulars under the first allegation. Dr Danko denied that he:
a.	offered to use cocaine with the patient (particular [1.9(h)];
b.	Used the treating relationship to attempt to form an intimate and/or sexual relationship with the patient, including by:
i.	Offering to pay for cannabidiol (a medication) for the patient if she engaged in a sexual relationship and/or sugar dating relationship with him (particular [1.11(a)]);
ii.	Attempted to use prescriptions to bargain with the patient for sexual contact by writing the prescriptions and then telling the patient, “but now you have to kiss me” (particular [1.11(b)(i)]);
iii.	Made uninvited sexual contact with the patient by kissing the patient without her consent, in circumstances where she had expressly told him she did not want to kiss him (particular [1.11(b)(ii)]);
3	The Tribunal is not comfortably satisfied that the particular that Dr Danko offered to use cocaine with the patient has been proven.  The Tribunal is comfortably satisfied that Dr Danko used the treating relationship to attempt to form an intimate and sexual relationship with the patient by offering to pay for cannabidiol (a medication) for the patient if she engaged in a sexual relationship or sugar dating relationship with him. The Tribunal is satisfied that this was an implied offer rather than an express offer by Dr Danko.
4	The Tribunal is comfortably satisfied that Dr Danko used the treating relationship to attempt to form an intimate and sexual relationship with the patient by attempting to use prescriptions to bargain with the patient for sexual contact by writing the prescriptions. The Tribunal is not comfortably satisfied that Dr Danko stated to the patient the words “but now you have to kiss me”, in relation to this bargaining. 
5	The Tribunal is comfortably satisfied that Dr Danko made uninvited sexual contact with the patient by kissing the patient without her consent. The Tribunal is not comfortably satisfied that the patient had expressly told Dr Danko she did not want to kiss him. 
6	The Tribunal is otherwise comfortably satisfied that the conduct described in the first allegation, and the other particulars to that allegation, have been proven. The Tribunal is also comfortably satisfied that the conduct described in the second and third allegations and the particulars to those allegations have been proven.
Background
7	Following a confidential notification to Ahpra on 21 October 2019, the Board decided on 9 December 2019, to commence an investigation of Dr Danko.
8	On 3 August 2020, the Sexual Boundaries Notifications Committee of the Board decided to take immediate action to suspend Dr Danko’s registration as a medical practitioner.
9	On 25 August 2022, the Board made a written referral to the Tribunal regarding Dr Danko and attached a Notice of Allegations (‘NOA’). The allegations and particulars contained in the NOA are reproduced in Schedule 1 to these reasons.
10	On about 14 July 2023, pursuant to directions made by the Tribunal, the parties filed with the Tribunal a joint Tribunal Book. The Tribunal Book contained various documents, including:
a.	A signed statement from the patient who is the subject of these proceedings (the patient), with attachments including Facebook Messenger conversations between the Patient and Dr Danko;
b.	The transcript of Dr Danko’s interview with Ahpra;
c.	A Proposed Statement of Agreed Facts, Findings and Determinations, dated 11 July 2023 (‘the SAFFD’).
11	Each party filed an Outline of Submissions as to the factual matters in dispute.
12	The proceeding came on for hearing before the Tribunal on 5 March 2024. 
13	The Board called the patient to give evidence and otherwise relied on the statements and other documents in the Tribunal Book. 
14	Dr Danko gave evidence to the Tribunal as to the disputed facts. The Tribunal reserved its decision.
15	The following are the Tribunal’s reasons for decision.
Factual context of Allegations
16	Dr Danko obtained his Bachelor of Medicine from the University of Newcastle in 1998. He was registered as a medical practitioner in Australia from 5 January 1999. 
17	At the time of the alleged conduct, Dr Danko was working as a general practitioner in a clinic in outer metropolitan Melbourne. 
18	Dr Danko and the patient met outside of the clinical environment. There is some dispute as to exactly how they first came in to contact with each other, but it appears that they both attended a harm reduction conference in August 2017. On 18 August 2018, they went out to dinner in what was described as a date. At the end of the date, they kissed. The kiss was consensual. The patient shortly after the date indicated to Dr Danko that she was not interested in a romantic relationship with him.
19	Dr Danko and the patient reconnected online some months later. The patient had sought through her Facebook postings, assistance with accommodation when visiting Melbourne for study. She was residing in regional Victoria at the time. 
20	Dr Danko offered for the patient to stay in his spare room. Dr Danko and the patient communicated on Facebook Messenger about a range of topics, including on 17 July 2019, when the patient sought advice regarding a potential overdose of medication. 
21	The patient stayed in Dr Danko’s spare room from 13 August 2019 to 16 August 2019. Much of what occurred in this period is contested. However, the parties do agree that:
a.	Dr Danko offered to prescribe the medication, CBD for the patient;
b.	Later, Dr Danko offered to pay for the CBD for the patient;
c.	Dr Danko wrote the patient prescriptions, including for diazepam and codeine;
d.	Dr Danko kissed the patient.

The Allegations 
22	The full allegations and particulars are set out at Schedule 1 to these reasons. The three allegations (omitting particulars) are as follows:
a.	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko engaged in: 
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law,
in that he failed to maintain the professional boundaries that should, and ordinarily do, delineate a doctor/patient relationship, by engaging in a treating relationship with a patient, a person with whom he had a personal relationship and pursued an intimate and/or sexual relationship, in circumstances that were avoidable, and making uninvited physical and/or sexual contact with a patient (‘Allegation 1’);
b.	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko engaged in:
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law,
in that he inappropriately prescribed Schedule 4 medications to the Patient and inappropriately treated the Patient, including but not limited to, prescribing drugs of dependence to a drug dependent person or a person with a history of drug dependence in circumstances where Dr Danko was aware of the Patient’s history of dependence, failing to provide safe care to the Patient, failing to undertake appropriate medical assessments of the Patient, providing medical advice over social media, offering to prescribe cannabidiol to the Patient, and/or prescribing Schedule 4 medications to a patient with whom he had a personal relationship, in circumstances that were avoidable (‘Allegation 2’);
c.	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko engaged in
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c) 	unsatisfactory professional performance within the meaning of the definition  of unsatisfactory professional performance in s 5 of the National Law,
in that he failed to maintain adequate clinical records in relation to the Patient (‘Allegation 3’).
23	Dr Danko accepted the three allegations as correct, but contested four particulars supporting Allegation 1. The particulars in contest were as follows:
1.9 	From 12 August 2017 to 19 September 2019, Dr Danko and the Patient were engaged in a personal relationship in that during this time:
	… 
	on one occasion, Dr Danko offered to use cocaine with the Patient.
…
1.11 	Dr Danko used the treating relationship to attempt to form an intimate and/or sexual relationship with the Patient, including but not limited to:
(a)  	on or around 14 August 2019, when Dr Danko offered to pay for cannabidiol for the Patient if she engaged in a sexual relationship and/or “sugar dating” relationship with him; and/or
(b)  	on or around 15 August 2019 when Dr Danko:
(i) 	attempted to use the prescriptions referred to at particular 1.10(f) to bargain with the Patient for sexual contact by writing the prescriptions and then telling the Patient, “but now you have to kiss me”; and/or
(ii) 	made uninvited sexual contact with the patient by kissing the Patient without her consent, in circumstances where she had expressly told him she did not want to kiss him.
24	The purpose of the hearing on 5 March 2024, was to hear evidence and determine the findings of fact relevant to the Allegations. 
The relevant law
25	Section 193 of the National Law relevantly provides:
(1) 	Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a) 	for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or
(b) 	for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal
26	In the circumstances where serious allegations are made against a party including falsifying a document or fraud, the Briginshaw standard applies to the state of satisfaction required in making adverse findings regarding these allegations.  In Briginshaw v Briginshaw (1938) CLR 336 at 362, Dixon J discussed the principle as follows:
The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
27	The principle does not change the standard of proof required to prove the allegations. The civil standard of on the balance of probabilities applies. The principle goes to the clarity and quality of the evidence and would require excluding or giving little weight to hearsay evidence, conclusions of fact and opinion without basis, as they are inexact proofs, indefinite testimony and/or indirect inferences. The evidence of the serious allegations against Dr Danko is considered in light of this principle.
28	The grave nature of allegations must affect the answer to whether the issue has been proved to the reasonable satisfaction of the Tribunal. The Tribunal must not make lightly a finding on the balance of probabilities that Dr Danko was engaged in the conduct alleged in the Allegations, particularly Allegations 1 and 2. 
General comments about the evidence
29	The evidence in regard to the disputed matters was in the form of oral evidence from the patient and Dr Danko before the Tribunal and documents contained in the Tribunal Book. This is not a case whether the Tribunal is able to clearly prefer the totality of the oral evidence of one witness. There were difficulties with the evidence of each witness and the Tribunal is careful to keep in mind the Briginshaw principle. 
30	The Tribunal accepts that the patient was attempting to tell the truth regarding the Allegations as best as she could recall. She did concede in cross-examination that conversations which she referred to in her witness statement (which she adopted under affirmation), were a summary of the conversations with Dr Danko and not what was actually said or words to the effect of what was said. The patient also gave evidence as to what she felt had occurred in conversations with Dr Danko. This has reduced the confidence of the Tribunal in finding her evidence of the key conversations was of sufficient clarity. The patient in cross-examination also raised a new allegation regarding illicit drugs and Dr Danko. This allegation had not been previously made and to be raised at such a late stage was not helpful to her credit. The patient also indicated that due to the passage of time, she had difficulty recalling all the relevant details of the allegations.  
31	Counsel for Dr Danko submitted that the Tribunal should have significant doubt as to the patients evidence, due to her failure to volunteer that she and Dr Danko had connected through a dating website. It was submitted that this information was not included, as it would have indicated that the relationship did not commence from a doctor /patient relationship and that there was no power imbalance at the commencement of the relationship. The Tribunal is not satisfied that this issue has done the significant damage to the patient’s creditability as claimed by Counsel for the Board or that the omission of any reference to the dating website by the patient was deliberate.
32	Dr Danko has been clear and consistent in his denial of some of allegations. In relation to other allegations, he made important concessions in the interview with Ahpra, which he appeared to back away from in giving his oral evidence. His reasons for changing his position were unconvincing. This has damaged his creditability in relation to a number of matters.
Factual matters to be resolved
Dr Danko offered the patient cocaine
33	Particular [1.9(h)] stated that Dr Danko offered to use cocaine with the Patient. The patient’s evidence regarding this issue, at [27] of her witness statement, was as follows, Dr Danko:
… said that he could get cocaine. I am unsure how this was brought up. But he said that he liked it and that he could get it and we could do it together. 
34	In cross-examination, the patient confirmed her evidence as to what Dr Danko told her. She also confirmed that none of the contemporaneous Facebook messaging correspondence refers to cocaine. It was put to the patient that given the seriousness of this allegation, she would have included it in a message she sent Dr Danko at 15:19 pm on 16 August 2019, when she set out a number of concerns with Dr Danko’s conduct. In response, the patient then made a further allegation regarding illicit drugs against Dr Danko. She accepted that this new allegation was not in her statement. She denied making it up. 
35	Dr Danko’s oral evidence was that he did not tell the patient that he could get cocaine. He stated that he hated cocaine, as it was open to abuse and addiction. He had no contacts to obtain cocaine. Dr Danko denied that cocaine use was raised by him.
36	In his interview with Ahpra, Dr Danko stated:
… she did at one stage say, ‘Look, if you just buy me some cocaine we can snort cocaine and then we can have sex.’ Um and I said, ‘No I don’t want to do that, really don’t.’ I mean I really hate cocaine as a drug, I think it’s quite toxic and, and um, you know, those sorts of stimulants especially are, are very, have a very high abuse potential and a very um, very negative consequences.
37	In submissions, the Board argued that the Tribunal should accept the patient’s evidence in relation to the cocaine allegation, for reasons including:
a.	The creditability findings it urged on the Tribunal arising from the other allegations;
b.	Dr Danko pushing sugar dating on the patient and the likely relationship between the offer of cocaine and sugar dating;
c.	The patient’s version was more credible;
d.	It was not credible for the patient to ask Dr Danko for cocaine in exchange for sex.
38	Counsel for Dr Danko in closing submissions argued that the Tribunal should accept as correct Dr Danko’s responses in relation to the cocaine allegation. It was also submitted that the patient’s evidence in her statement was inconsistent with her oral evidence.
39	The Tribunal notes that the allegation is grave, as it involved a medical practitioner offering to obtain illicit drugs for a patient. 
40	The Tribunal is not satisfied that the other evidence and surrounding circumstances makes the conduct more likely to have occurred. The Tribunal also notes the doubts it has as to the patient’s evidence of conversations with Dr Danko, as the conversations in the statement were a summary of what occurred and parts of the patients evidence were what she ‘felt’ had occurred in conversations. There was a lack of supportive documentary evidence for this allegation. The Tribunal also considered that Dr Danko gave compelling evidence in denying this allegation. Evidence which was consistent with his interview with Ahpra.
41	The Tribunal is not satisfied that the Board has made out this particular to our comfortable satisfaction. Particular [1.9(h)] will therefore not be included in the Tribunal’s findings of fact.
Dr Danko offer to pay for cannabidiol if the patient engaged in a sexual relationship and/or “sugar dating” relationship with him 
42	Particular [1.11(a)] states:
On or around 14 August 2019, when Dr Danko offered to pay for cannabidiol for the Patient if she engaged in a sexual relationship and/or “sugar dating” relationship with him.
43	The direct evidence of the patient contained in her witness statement for this allegation was as follows, Dr Danko:
… said there was a cannabidiol (CBD) Trial that could potentially help me with that instead of having to abuse codeine and that a part of his trauma work would be to help hopefully provide that CBD stuff to people who need it, like with Post Traumatic Stress Disorder (PTSD) and fibromyalgia. It’s really hard to remember everything that was said, but he brought up the CBD trial first.
Attila said that he was looking for his first patient as a cannabis trial person and that he wanted me to be that patient. I can’t remember if we messaged about this first before discussing it in person. But I think he first mentioned the cannabis trial in messenger and then he said he would talk to me more about it in person.
I know that the conversation went along the lines of that it would be really great if he could help me with my trauma. He talked about doing workshops and stuff like that with people with trauma and some of the things that he’d learnt about trauma and some of the ways that he’d learnt to treat it.
I can’t remember when he revealed the cost and the arrangement that he was thinking about, I think that he might have talked about the arrangement that he had envisioned for it the next day but he mentioned the cannabis trial that night. I said that the CBD thing was way too expensive, it was like $270 a month and I can’t afford $270 a month.
The night of the 13th Attila had offered the cannabis trial unfinanced. But the next day he offered to pay for it if I would be willing to be more physical with him and pressuring me to tell him why I wouldn’t put my legs on him.
…
…he suggested that as a part of the deal to get the cannabis we could enter into some sort of sex work sugar dating relationship. I can’t remember his exact words.
44	In cross examination, the patient stated that Dr Danko’s offer of CBD was something that she desperately needed for her medical conditions. She could not recall who first raised the issue of CBD. The patient rejected the proposition that Dr Danko had offered to pay for the CBD prescriptions but it was not part of a transaction.
45	The Board relied upon Dr Danko’s evidence in cross-examination that he was sexually attracted to the patient and he wished to have a sexual relationship with her. Dr Danko conceded that he was pressuring the patient for intimacy in the period when the conduct was alleged to have occurred. Dr Danko also considered the possibility of a sugar dating relationship with the patient. Dr Danko agreed that he had promised the patient that he would not try to get romantic if she stayed with him, telling her that if she comes to stay at his house, it is as a friend. Dr Danko conceded that, in fact, it was his intention to become romantic with the patient. 
46	When it was put to Dr Danko that he was lying to the patient, he responded that the romantic basis was not the main basis of having the patient stay over, but he had been a bit deceptive in some ways. Dr Danko also conceded in cross examination that the provision of CBD was a huge hope for the patient to deal with her medical issues. He denied that the patient would not otherwise be able to access this medication or that he was aware that the patient would not otherwise be able to afford the medication.
47	In his interview with Ahpra, Dr Danko stated:
… she was offering sexual favours in return for something like cocaine or something else. … it was this murky area where I was providing her with something that was really useful to her. And I didn’t want it to be directly a transactional thing but I think there was sort of a um, perhaps a bit of an unspoken ah thing where um, you know, would make her more likely to be positive towards me and then engage in a more equal sexual relationship. 
48	In cross examination, Dr Danko was asked about what things were really useful to the patient. He stated that a place to stay in Melbourne was useful to her. When asked about the CBD trial, he agreed that was useful to the patient.
49	The Board relied upon Facebook Messenger interactions, which include the following from Dr Danko on 17 August 2019:
And yes I want to help you. Without any expectation of sexual favours. 17 Aug 2019, 09:48
Drop that completely now. 17 Aug 2019, 09:48
50	A short time later, Dr Danko messaged as follows:
I think I was offering too much and expecting too much in return and both these need to be dialled back if we are to proceed in a way that we both feel comfortable with. 17 Aug 2019, 10:09
51	In cross examination, Dr Danko was asked what he meant by offering too much, whether it meant the offer of CBD for sexual favours. Dr Danko denied this. When Dr Danko was asked what he meant by offering too much, he responded by referring to the CBD and the prescriptions.  When Dr Danko was asked what he meant by expecting too much in return, he stated that he never made any agreement with the patient of sexual favours for medical treatment.
52	Dr Danko sent a message to the patient regarding the CBD at 17.56 on 16 August 2019, that he could maybe finance the medication as a gift.
53	Messages from the patient to Dr Danko on 17 August 2019, indicated that the patient believed that medical assistance was being offered by Dr Danko on a sexual transactional basis. 
54	Dr Danko’s evidence was that at the time, he was working in a multi-doctor general practice clinic and was getting bored. The vaping issues that he had been involved with had finished. He was looking for something else to get interested in. Dr Danko saw potential in the non-psycho-active CBD. He wanted to explore this medication for patients with cancer pain, anxiety and other conditions. He had what he considered, in retrospect, the stupid idea that he would initially prescribe to someone he knew. The patient would be patient with him, so he could take his time with the process. He felt that would be a good way for him to learn. The patient needed a place to stay and Dr Danko decided that he could combine these two things. He thought that they could also have a relationship. Dr Danko told the Tribunal that he was heartbroken due to previous relationships and was looking for a group that he could get involved with. 
55	Dr Danko gave evidence that he offered to fund the CBD for the patient, as she had left his home shortly after he had provided her with the prescriptions and they had kissed. Dr Danko went to work and when he came back, he found she had left. He thought that she was unhappy. He received a message from her that he had triggered her trauma. Dr Danko told the Tribunal that he thought his position in the harm reduction community was in jeopardy. He thought that he needed to offer her things to make her happy, so he offered to pay for the CBD. 
56	Dr Danko stated that he had been pressuring her for intimacy and she gave him mixed messages. 
57	In cross examination, Dr Danko stated that he offered to pay for the CBD as compensation to the patient for the trauma that he believed he had triggered. He also said that he was trying to placate her, as he was worried about her making things up about him. 
58	Dr Danko stated that his message on 17 August 2019, was about dropping his hopes for sexual interaction with the patient, was not dropping hopes for exchanging sexual favours for medical treatment. 
59	The Board submitted that the Tribunal should make the findings alleged regarding the CBD trial, as:
a.	Dr Danko conceded that he was sexually attracted to the patient;
b.	He offered to place the patient on his CBD trial;
c.	On 16 August 2019, he offered to pay for the CBD;
d.	On 17 August 2019, Dr Danko stated that he would help the patient without any expectation of sexual favours and he was dropping that completely now; 
e.	There was only one way to read these facts, and that is that the patient’s version must be preferred. 
60	The Tribunal is comfortably satisfied that Dr Danko was seeking a sexual relationship in exchange for paying for the CBD for the patient. The Tribunal finds that Dr Danko:
a.	was still interested in pursuing a sexual relationship with the patient at the time of the conduct; 
b.	accepted that he had deceived the patient about his intentions;
c.	offered to prescribe and pay for the CBD for the patient. The offer to pay for the CBD was by electronic messaging on 16 August 2019.
d.	conceded that he was pressuring the patient at this time for sexual intimacy;
e.	indicated to Ahpra in his interview that he was offering too much and expecting too much in return from the patient. Dr Danko conceded in cross examination that the offering included the CBD and the prescriptions. He gave a non-responsive answer when asked about what he expected in return, stating that no agreement was made. The allegation is that he made the offer, not that an agreement was made;
f.	indicated in messages the day after offering to pay for the CBD, that he wanted to help the patient without expectation of sexual favours and he dropped that completely now. This implied that Dr Danko had been seeking sexual favours in exchange for treatment of the patient prior to that time.
61	The patient’s messages to Dr Danko at the same time indicate that she understood that Dr Danko’s offer of prescribing and paying for the CBD was to be in exchange for sexual favours. 
62	In relation to the patient’s evidence that Dr Danko:
… suggested that as part of the deal to get cannabis we could enter some sort of sex work sugar dating relationship. I can’t remember his exact words.
63	In general, the Tribunal has doubts as to the patient’s evidence of conversations with Dr Danko, as the conversations set out in the statement were a summary of what occurred and parts of the patient’s evidence were what she ‘felt’ had occurred. In this case, the patient states Dr Danko suggested the sex work sugar dating arrangement. There is a significant degree of uncertainty in the language used by the patient in this regard. The patient was unable to recall the words used or the effect of the words used. There is considerable scope for interpretation by the witness in such circumstances. The Tribunal is not comfortably satisfied that Dr Danko stated what is alleged in [37] of the patient’s statement.
64	The Tribunal is comfortably satisfied that the offer of a sex work sugar dating relationship was partly express and partly implied. The offer was express in the form of Dr Danko’s express statements to the patient that he could prescribe and pay for the CBD for the patient. That the offer was on the basis that he would do so, if the patient engaged in a sexual relationship or “sugar dating” relationship with him, was implied from the conduct described above at [60].
65	The Tribunal is comfortably satisfied that particular [1.11(a)] has been proven by the Board.
Dr Danko attempted to use prescriptions to bargain with the patient for sexual contact
66	Particular [1.11(b)(i)] provides as follows:
On or about 15 August 2018 when Dr Danko (i) attempted to use the prescriptions referred to at particular 1.10(f) to bargain with the patient for sexual contact by writing the prescriptions and then telling the Patient, “but now you have to kiss me”
67	The direct evidence of this alleged conduct in the patient’s witness statement was as follows:
On either the 15th or 16th of August 2019, I think it was in the morning, he [Dr Danko] offered to help me put more stuff in the room and it was like here’s some money, you can go and get a bedside table and a desk for the room. It had an ensuite but it was bare as well. He gave me $200 cash to furnish my room.
I told him that I had to go home to Ballarat because I had to to (sic) pick up codeine and Valium from the pharmacy. I had a schedule of release at home, so I had to go home to get that. He said that it would be good if I could stay longer. He offered to write scripts for me, for the codeine and the Valium so that I could then stay.
We were in the dining room and I was sitting at the dining room table. He was to the left, sitting on the other side. He then got up to get his notepad, then he came back and wrote the script.
Then he started walking towards me and he was like ‘but now you have to kiss me’. …
68	When it was put to the patient in cross examination, that Dr Danko denies writing the script for the purpose of a sexual transaction, she stated that she disagreed. He was like now you have to kiss me. When it was put to the patient that there was no suggestion to her of sex for the prescription, she responded that she felt like there was, he wanted me to do more and more things.
69	The Board also relied upon the evidence outlined above at [43] to [62]. The Board also relied upon the transcript of Dr Danko’s interview with Ahpra, where he stated:
… she was already, you know, many times hinting or explicitly asking for a sugar baby arrangement with me after I’d given her the $200 to spend as she wished and the prescription I felt that, ‘Well look, if this is a sugar baby thing surely this is worth one kiss.’ That was my sense. And so – but at the same time I did not feel that she owed me a kiss. 
70	When it was put to him in cross-examination that this statement indicated there was some proposed transaction involved in the prescription for sexual favours, Dr Danko responded that his thoughts were in regard to the $200, not the prescription. He stated that he did not want a transactional relationship, however he was aware of the $200.00 and wanted to prove he was a good kisser. Dr Danko stated that he felt under pressure in the Ahpra interview, like a deer in the headlights.
71	Dr Danko denied saying that what he was providing was worth one kiss, but he admitted thinking that the $200 was worth a kiss. When Dr Danko was asked how the prescribing occurred, he stated that the patient was telling him that she could stay a couple more days, but would run out of her prescriptions. She said that if Dr Danko could just write her a couple of scripts, she could stay a couple more days. The patient asked Dr Danko a few times if he could write the scripts. 
72	Dr Danko gave evidence that he felt that the relationship was not going as well as he had hoped, there was tension. He felt that the patient could make his name mud, if he did not do what she wanted. 
73	Counsel for the Board submitted that the Tribunal should accept the allegation occurred in accordance with the patient’s evidence, as:
a.	The other conduct supports this evidence;
b.	It would be an incredible coincidence that Dr Danko says he thought it was worth a kiss but did not say it and the patient says that he did say it. 
74	Counsel for Dr Danko submitted that the Tribunal should find that Dr Danko never bargained the prescriptions for intimacy. It was submitted that the Tribunal should be careful and cautious in concluding that the bargaining was implicit, as if the Tribunal does not accept her evidence that the bargaining was express, that would damage her credibility and the balance would turn to Dr Danko.
75	The Tribunal is not comfortably satisfied that Dr Danko stated to the patient, ‘but now you have to kiss me’, after providing the prescription. As discussed above, the lack of clarity around the evidence of the patient about her conversations with Dr Danko, including as on this issue, means the Tribunal cannot be satisfied to the Briginshaw standard that the comment was made by Dr Danko. This was further confirmed in cross examination when the patient stated that she felt there was a suggestion of sex for the prescription. 
76	The Tribunal is comfortably satisfied that Dr Danko was attempting to bargain with the patient for sexual contact by writing the prescriptions. The Tribunal finds that Dr Danko:
a)	was still interested in pursuing a sexual relationship with the patient at the time of the conduct; 
b)	accepted that he had deceived the patient about his intentions;
c)	gave the patient prescriptions so that she could stay at his home for longer; 
d)	conceded that he was pressuring the patient at this time for sexual intimacy;
e)	Approach the patient for a kiss later in the same interaction with her, after the prescriptions were provided;
f)	indicated to Ahpra in his interview, that he was offering too much and expecting too much in return from the patient. Dr Danko conceded in cross examination that the offering included the CBD and the prescriptions. He gave a non-responsive answer when asked about what he expected in return, stating that no agreement was made;
g)	In relation to the similar allegation regarding paying for the CBD, Dr Danko indicated in messages the day after offering to pay for the CBD, that he wanted to help the patient without expectation of sexual favours and he dropped that completely now. This implies that he had previously been attempting to enter into transactions involving the exchange of medical treatment for sexual favours.
77	These factual findings lead the Tribunal to comfortable satisfaction of the proof of this particular, excluding the alleged statement by Dr Danko of ‘but now you have to kiss me’.
78	The Tribunal is therefore comfortably satisfied that on or about 15 August 2019, Dr Danko attempted to use the prescriptions referred to at particular 1.10(f) to bargain with the patient for sexual contact by writing the prescriptions. 
Dr Danko made uninvited sexual contact with the patient by kissing the patient without her consent, where she had previously told him that she did not want to kiss him
79	The final disputed particular is as follows:
(b) 	On or about 15 August 2019 when Dr Danko:
(ii)	made uninvited sexual contact with the patent by kissing the Patient without her consent, in circumstances where she had expressly told him she did not want to kiss him. 
80	The direct evidence of this alleged conduct in the patient’s statement was as follows:
… He offered to write scripts for me, for the codeine and the Valium so that I could then stay.
We were in the dining room and I was sitting at the dining room table. He was to the left, sitting on the other side. He then got up to get his notepad, then he came back and wrote the script.
Then he started walking towards me and he was like ‘but now you have to kiss me’. I stood up and I was like ‘I’m not sure’, ‘I thought that we were just going to cuddle or something and I don’t want to’. He said ‘no, no, no, you have to kiss me’. He just kept walking towards me and he wouldn’t stop walking towards me, until his face was on my face. Then he kissed me. He held me and he had his arms around me while he was kissing me. So I couldn’t move away from it either. I remember that he was shaking during it. It was really horrible and he did it for a really long time and it was really gross and I hated it. It was really weird and it just felt really horrible. It was really invasive.
…
I really didn’t want him to kiss me and I thought I was communicating quite well that I didn’t want that to happen and that I didn’t think that was going to happen, that I wasn’t party to it happening. I had said to him, I didn’t think you wanted to do this, I thought you just wanted to cuddle. That’s why he kept saying ‘no, no, no, you have to’.
81	When it was put to the patient in cross examination that she had consented to Dr Danko kissing her, she responded that she did not and made it clear that she did not consent. When it was put to the patient that there was a difference between her version of the kiss in her oral evidence and in her written statement, the patient responded that Dr Danko had walked towards her and smashed his face on hers and made her kiss him. She said that she got it across clearly to Dr Danko that it was without consent.
82	The patient agreed that after their first date when she consented to a kiss, Dr Danko had been upset that she thought he was a bad kisser. 
83	A Facebook Messenger communication from the patient to Dr Danko on 16 August 2019, after the kiss, included the following:
I’m exhausted from days of discussing your life, relationships, sexual needs and feeling pressured to do tho vs I don’t want to. Making me kiss you after you wrote me a script for my medication and money (sic) gave me money to set up my room was just so wrong.
84	Dr Danko denied in his evidence that the kiss was without consent and stated that the patient had indicated consent before he kissed her. Dr Danko gave evidence that the patient had told him after the kiss on their first date that she did not enjoy the kiss and that he was a bad kisser. He stated that when they had kissed, their teeth had clashed and he did not feel he had a fair go of giving her a good kiss. Dr Danko stated that his concerns were juvenile and he wanted to prove himself. He stated that he was a broken man due to past failed relationships.  Dr Danko had divorced a couple of years earlier and a compelling relationship for him had not worked out the way he wanted it to. He was looking for intimacy with women. Dr Danko was interested in the patient romantically.
85	Dr Danko stated that when in August 2019, he kissed her at his house, he had asked if he could kiss her, as he wanted a chance to prove he was a good kisser. The patient was reluctant but said ok. Dr Danko stated that he kissed her and asked her if that was better than the first kiss and she said yes. 
86	The Board submitted that there was no inconsistency in the patient’s evidence regarding the kiss. 
87	Counsel for Dr Danko submitted that Dr Danko had never kissed the patient without her consent. It was also submitted that the patient’s evidence about the kiss was inconsistent with what she said in the witness statement and that Dr Danko’s evidence on this issue was consistent and credible.
88	The Tribunal prefers the evidence of the patient that she did not consent to the kiss from Dr Danko. The Tribunal is satisfied that the patient’s evidence of what physically occurred and her intention at the time is better evidence than Dr Danko. The Tribunal considers that Dr Danko’s evidence in relation to this matter should not be accepted. The Tribunal is also not satisfied that the patient indicated consent to Dr Danko before he kissed her.
89	Dr Danko argued that the kiss was a matter of his ego and not sexual in nature. He argued that he wanted to prove he was a good kisser. The Tribunal rejects this evidence on the basis of the surrounding circumstances, including Dr Danko’s own evidence that at around the time of the conduct, he was interested in pursuing a sexual relationship with the patient and he was pressuring the patient to be intimate with him.
90	The Tribunal is comfortably satisfied that:
a.	Dr Danko kissed the patient after giving her prescriptions at his home in August 2019;
b.	The patient did not consent to kiss;
c.	The kissing by Dr Danko of the patient was uninvited sexual contact.
91	The patient gave evidence that she had made it clear to Dr Danko that she was not consenting to the kiss. The Tribunal is not comfortably satisfied on the clarity of the evidence of the patient, that she told Dr Danko that she was not consenting, is sufficient for the Tribunal to reach the conclusion that the patient had expressly told Dr Danko she did not want to kiss him. The Tribunal accepts the patient’s evidence that she did not want to be kissed by Dr Danko but is not satisfied that it can make the findings that she had expressed that to Dr Danko.
92	The Tribunal is therefore satisfied that in relation to particular [1.11(b)(ii)] it should make the following finding of fact:
On or around 15 August 2019, Dr Danko made uninvited sexual contact with the patient by kissing the Patient without her consent.
Conclusion on disputed factual matters
93	The Tribunal has therefore reached the following conclusions on the disputed particulars:
a	The Tribunal is not comfortably satisfied of particular [1.9(h)] being that on one occasion, Dr Danko offered to use cocaine with the Patient. 
b	In relation to particular [1.11], the Tribunal makes the following finding (which differs from the particular in the NOA):
1.11 	Dr Danko used the treating relationship to attempt to form an intimate and sexual relationship with the Patient, including by:
(a)  		on or around 14 August 2019, when Dr Danko offered to pay for cannabidiol for the Patient if she engaged in a sexual relationship and “sugar dating” relationship with him; and
(b)  	on or around 15 August 2019 when Dr Danko:
(i) 	attempted to use the prescriptions referred to at particular 1.10(f) to bargain with the Patient for sexual contact by writing the prescriptions; and
(ii) 	made uninvited sexual contact with the patient by kissing the Patient without her consent.
The agreed factual matters
94	The Tribunal then considered the agreed factual matters. The relevant principles for a tribunal to apply in circumstances when there is an agreed statement of facts and findings, as in the present case, are that the tribunal must be satisfied itself that the findings are appropriate and no agreement between the regulator and the practitioner can supplant that duty.  However, any agreement between the parties is a highly relevant matter.  Whether a person is legally represented may be an important consideration. 
95	In relation to Allegation 1, the Board relied upon the SAFFD, the transcript of Dr Danko’ Ahpra interview, the witness statement of the patient and various other documents contained in the Tribunal Book, including the Facebook Messenger communication between Dr Danko and the patient. The evidence relied upon by the Board was internally consistent and credible. 
96	Dr Danko admitted the conduct alleged in Allegation 1 and the particulars to that allegation (save for particulars [1.9(h)] and [1.11] discussed above) at [15.1] of the SAFFD and at [4] of his written outline of submissions. Dr Danko gave evidence at the hearing and admitted his conduct.
97	On the basis of the evidence before it, the Tribunal is comfortably satisfied that Dr Danko has engaged in the conduct alleged in Allegation 1 of the NOA and as particularised (with the exceptions of the finding above regarding particulars [1.9(h)] and [1.11]), being that between on or about 17 July 2019 and on or about 19 September 2019, Dr Danko failed to maintain the professional boundaries that should, and ordinarily do, delineate a doctor/patient relationship, by engaging in a treating relationship with a patient, a person with whom he had a personal relationship and pursued an intimate and sexual relationship, in circumstances that were avoidable, and  by making uninvited physical and sexual contact with a patient.
98	In relation to Allegation 2, the Board relied upon the SAFFD, the transcript of the Ahpra interview with Dr Danko, the witness statement of the patient and various documents in the Tribunal Book, including evidence of the prescriptions written by Dr Danko for the patient. The evidence relied upon by the Board was internally consistent and credible. 
99	Dr Danko admitted the conduct alleged in Allegation 2 and the particulars to that allegation at [15.1] of the SAFFD and at [4] of his written outline of submissions. Dr Danko gave evidence at the hearing and admitted his conduct.
100	On the basis of the evidence before it, the Tribunal is comfortably satisfied that Dr Danko has engaged in the conduct alleged in Allegation 2 of the NOA and as particularised. The alleged conduct being that between on or about 17 July 2019 and on or about 19 September 2019:
a	Dr Danko inappropriately prescribed Schedule 4 medications to the Patient; 
b	inappropriately treated the Patient, including by, prescribing drugs of dependence to a drug dependent person or a person with a history of drug dependence in circumstances where Dr Danko was aware of the Patient’s history of dependence; 
c	failing to provide safe care to the Patient; 
d	failing to undertake appropriate medical assessments of the Patient, providing medical advice over social media; 
e	offering to prescribe cannabidiol to the Patient; and 
f	prescribing Schedule 4 medications to a patient with whom he had a personal relationship, in circumstances that were avoidable.
101	In relation to Allegation 3, the Board relied upon the SAFFD, the transcript of the Ahpra interview with Dr Danko, the witness statement of the patient and various documents in the Tribunal Book. The evidence relied upon by the Board was internally consistent and credible. 
102	Dr Danko admitted the conduct alleged in Allegation 3 and the particulars to that allegation at [15.1] of the SAFFD and at [4] of his written outline of submissions. 
103	On the basis of the evidence before it, the Tribunal is comfortably satisfied that Dr Danko has engaged in the conduct alleged in Allegation 3 of the NOA and as particularised, being that between on or about 17 July 2019 and on or about 19 September 2019, Dr Danko failed to maintain adequate clinical records in relation to the Patient.
Conclusion 
104	The Tribunal will therefore make findings on the basis of these reasons and make orders to progress the matter towards a hearing on the characterisation of the proven conduct and the appropriate determinations.

N Campbell 
Presiding Member 	Dr R Mason
Health Practitioner Member	Dr L Warfe
Health Practitioner Member	

Schedule 1 

NOTICE OF ALLEGATIONS

The following allegations are referred to the Victorian Civil and Administrative Tribunal pursuant to s 193(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009.

In the allegations, the following defined terms are used:
•	Ahpra – Australian Health Practitioner Regulation Agency.
•	Board – Medical Board of Australia.
•	Code of Conduct - Good Medical Practice: Code of Conduct for Doctors in Australia, 2014 (in effect from 16 March 2014 to 30 September 2020).
•	National Law – Health Practitioner Regulation National Law (Victoria) Act 2009.1
•	Sexual Boundaries Guidelines - Sexual Boundaries: Guidelines for doctors, 2018 (adopted by the Board 12 December 2018).

Failure to maintain professional boundaries

1. 	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko engaged in:

(a)	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law,

in that he failed to maintain the professional boundaries that should, and ordinarily do, delineate a doctor/patient relationship, by engaging in a treating relationship with a patient, a person with whom he had a personal relationship and pursued an intimate and/or sexual relationship, in circumstances that were avoidable, and making uninvited physical and/or
sexual contact with a patient.

Particulars

1.1 	On 5 January 1999, Dr Danko was first registered as a medical practitioner.
1.2 	From 1 July 2010, with the commencement of the National Law, Dr Danko was registered with the Board (registration number MED0001173578) as a medical practitioner with general and specialist registration (General Practice).

1.3 	At all material times, Dr Danko was a registered medical practitioner within the meaning of the National Law.
1.4 	On or around 12 August 2017, Dr Danko and the Patient met in a personal capacity at a nicotine law reform advocacy conference.
1.5 	Dr Danko and the Patient subsequently connected online.
1.6 	On or around 16 April 2018, Dr Danko and the Patient met again in person and went out for dinner. At the end of the night, Dr Danko kissed the Patient. The Patient told Dr Danko that she was not interested in him romantically and they parted ways.
1.7 	In or around May 2019, Dr Danko and the Patient reconnected online and recommenced their personal relationship, which continued until on or about 19 September 2019.
1.8 	Dr Danko was aware, or ought to have been aware, that the Patient was inherently vulnerable, in that:
(a) 	she told him that she was a ‘hypochondriac’ with health anxiety,
depression, anxiety and post-traumatic stress disorder, fibromyalgia and chronic pain;
(b) 	she told him that she was a victim of sexual abuse;
(c) 	she told him that she had a history of drug dependency, substance abuse, accidental overdose and suicidality; and
(d) 	on one occasion, she contacted Dr Danko for advice with concerns that she had consumed excessive amounts of codeine and paracetamol, and was substance affected.
1.9 	From 12 August 2017 to 19 September 2019, Dr Danko and the Patient were engaged in a personal relationship in that during this time:
(a) 	they formed a friendship;
(b) 	they interacted online through social media in a personal capacity;
(c) 	they shared deeply personal conversations, including discussions about their past sexual relationships, personal history, political views, drug use, and mental health;
(d) 	on more than one occasion, they drank alcohol together;
(e) 	on more than one occasion, including but not limited to on 17 July 2019, 25 July 2019 and 10 August 2019, Dr Danko invited the Patient to sleep at his house;
(f) 	on three nights, between 13 August 2019 and 16 August 2019, Dr Danko allowed the Patient to sleep in the spare room at his house; and
(g) 	while the Patient stayed at his house, Dr Danko gave the Patient $200 to furnish her room; and/or
(h) 	on one occasion, Dr Danko offered to use cocaine with the Patient.
1.10 	From on or around 17 July 2019 to on or around 19 September 2019, during the time that Dr Danko and the Patient were engaged in a personal relationship, Dr Danko also engaged in a treating relationship with the Patient by:
(a) 	on or around 17 July 2019, providing medical advice to the Patient during a phone conversation and by private message on Facebook Messenger in response to her concerns that she had overdosed on paracetamol and codeine;
(b) 	providing medical advice in relation to the Patient’s health, including her use of opioids and paracetamol, drug use and dependency, sleep issues, smoking cessation, lung issues, fibromyalgia and chronic pain, and discussing and offering to assist with the Patient’s anxiety, post-traumatic stress disorder and mental health;
(c) 	allowing and/or encouraging the Patient to discuss her health issues with him;
(d) 	discussing cannabidiol prescribing with the Patient in person and on social media;
(e) 	on 13 August 2019, offering to prescribe cannabidiol to the Patient to address her fibromyalgia, depression, anxiety and post-traumatic stress disorder; and/or
(f) 	on 15 August 2019, writing prescriptions for the Patient for the following Schedule 4 medications:
(i) 	Prodeine Forte 30mg-500mg x 5 tablets;
(ii) 	diazepam 5mg x 10 tablets; and
(iii) 	codeine phosphate 30mg x 20 tablets.
1.11 	Dr Danko used the treating relationship to attempt to form an intimate and/or sexual relationship with the Patient, including but not limited to:
(a) 	on or around 14 August 2019, when Dr Danko offered to pay for
cannabidiol for the Patient if she engaged in a sexual relationship and/or “sugar dating” relationship with him; and/or
(b) 	on or around 15 August 2019 when Dr Danko:
(i) 	attempted to use the prescriptions referred to at particular 1.10(f) to bargain with the Patient for sexual contact by writing the prescriptions and then telling the Patient, “but now you have to kiss me”; and/or
(ii) 	made uninvited sexual contact with the patient by kissing the Patient without her consent, in circumstances where she had expressly told him she did not want to kiss him.
1.12 	The personal relationship between Dr Danko and the Patient ceased on 19 September 2019.
1.13 	On or around this date, Dr Danko and the Patient planned an appointment to take place at the medical centre that Dr Danko practised at, where Dr Danko would prescribe cannabidiol to the Patient. The relationship ended because Dr Danko did not agree to the Patient’s request to bring a support person to her appointment with Dr Danko.
1.14 	The Board refers to:
(a) 	as set out in the attached Schedule, Principles 1.4, 2.1.4, 3.2.6, 3.13, 3.14, 8.1 and 8.2, of the Code of Conduct; and
(b) 	the Sexual Boundaries Guidelines.
1.15 	Dr Danko’s conduct is inconsistent with the Principles and Guidelines set out at paragraph 1.14.

Inappropriate prescribing and medical treatment

2. 	Between on or about 17 July 2019 and on or about 19 September 2019, Dr  Attila Danko engaged in
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b)  	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law,
in that he inappropriately prescribed Schedule 4 medications to the Patient and inappropriately treated the Patient, including but not limited to, prescribing drugs of dependence to a drug dependent person or a person with a history of drug dependence in circumstances where Dr Danko was aware of the Patient’s history of dependence, failing to provide safe care to the Patient, failing to undertake appropriate medical assessments of the Patient, providing medical advice over social media, offering to prescribe cannabidiol to the Patient, and/or prescribing Schedule 4 medications to a patient with whom he had a personal relationship, in circumstances that were avoidable.

Particulars

The particulars include, but are not limited to:
2.1 	The Board refers to and repeats particulars 1.1 to 1.13.

Inappropriate prescribing of Schedule 4 medication

2.2 	At the relevant time, the medications referred to at particular 1.10(f) were Schedule 4 medications. The medications are also drugs of dependence.
2.3 	Dr Danko’s prescribing of the medications referred to at particular 1.10(f) to the Patient was:
(a) 	inappropriate, in that Dr Danko was in a personal relationship with the Patient at the time of prescribing; and/or
(b) 	avoidable, in that the Patient was able to obtain prescriptions and medical advice from independent medical practitioners during this time; and/or
(c) 	unsafe, in that Dr Danko:
(i) 	did not undertake any assessments of the Patient or consider whether the medications were clinically justified; and/or
(ii) 	was aware, or ought to have been aware, that the Patient was a drug dependent person or had a history of drug dependence, substance abuse, and accidental overdose; and/or
(iii) 	prescribed the medication outside of a clinical setting; and/or
(iv) 	failed to consider the balance of benefit and harm in his decision to prescribe the medications.
Offer to prescribe cannabidiol

2.4 	At the relevant time, cannabidiol was a Schedule 4 medication.
2.5 	On more than one occasion from on or about 23 July 2019 to on or about 19 September 2019, Dr Danko and the Patient discussed cannabidiol prescribing, both in person and on social media.
2.6 	On or around 13 August 2019, Dr Danko offered to prescribe cannabidiol to the Patient.
2.7 	On or around 14 August 2019, Dr Danko offered to pay for the cannabidiol to the Patient if she agreed to participate in a physical and/or sexual and/or “sugar dating” relationship with him.
2.8 	Dr Danko’s offer to prescribe and pay for cannabidiol for the Patient was:
(a) 	inappropriate, in that Dr Danko was in a personal relationship with the Patient; and/or
(b) 	avoidable, in that the Patient was able to consult with independent medical practitioners about obtaining a cannabidiol prescription; and/or
(c) 	unsafe, in that Dr Danko:
(i) 	did not undertake any assessments of the Patient or consider whether the medications were clinically justified;
(ii) 	was aware, or ought to have been aware, that the Patient was a drug dependent person or had a history of drug dependence, substance abuse, and accidental overdose;
(iii) 	prescribed the medication outside of a clinical setting; and/or
(iv) 	failed to consider the balance of benefit and harm in his decision to prescribe the medications; and/or
(d) 	exploitative, in that Dr Danko:
(i) 	was aware of the Patient’s interest in trying cannabidiol to address her health issues; and/or
(ii) 	was aware that the Patient was unable to afford the cannabidiol.

Inappropriate provision of medical advice
	
2.9 	From on or about 17 July 2019 to on or about 19 September 2019, Dr Danko provided medical advice to the Patient on Facebook Messenger and did not:
(a) 	take a thorough history; and
(b) 	conduct assessments or examinations.
2.10 	Dr Danko’s conduct in providing medical advice on social media was inappropriate.
2.11 	The Board refers to as set out in the attached Schedule, Principles 1.4,  2.1, 2.2, 3.2.6, 3.13, 3.14, 5.2.1, 8.1 and 8.2, of the Code of Conduct.
2.12 Dr Danko’s conduct is inconsistent with the Principles set out at paragraph 2.11.

Inadequate records

3. 	Between on or about 17 July 2019 and on or about 19 September 2019, Dr Attila Danko engaged in 
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c) 	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,
in that he failed to maintain adequate clinical records in relation to the Patient.

Particulars

3.1 	The Board refers to and repeats particulars 1.1 to 1.3 and 1.10.
3.2 	Dr Danko did not make clinical records in relation to his prescribing of the Schedule 5 medication to the Patient referred to at particular 1.10(f).
3.3 	Dr Danko did not make clinical records in relation to his provision of medical advice referred to at particular 1.10(a) – (e).
3.4 	The Board refers to, as set out in the attached Schedule, Principles 1.4, 2.1, 2.2, and 8.4 of the Code of Conduct.
3.5 	Dr Danko’s conduct is inconsistent with the Principles set out at paragraph 3.4.

(Footnotes omitted)