VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z411/2020	
CATCHWORDS	
Review and Regulation List – health practitioner – medical practitioner holding out an employee at his clinic as a registered medical practitioner  – found guilty of criminal charges under the National Law – pre-signing blank prescription forms and pathology and radiology requests – employee seeing patients, carrying out treatments and writing prescriptions – failing to store medications correctly – inappropriate arrangements for disposal of sharps – false and misleading statements to AHPRA – Health Practitioner Regulation National Law (Victoria).	

APPLICANT	Medical Board of Australia	
RESPONDENT	Roger Bernard	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth, Member A Sungaila and Member L Warfe OAM	
HEARING TYPE	Hearing via video conference	
DATE OF HEARING	11 March 2021	
DATE OF ORDER AND Oral REASONS	11 March 2021	
date of written reasons	18 March 2021	
CITATION	Medical Board of Australia v Bernard (Review and Regulation) [2021] VCAT 222	

Findings
With the agreement of the respondent, the Tribunal finds the allegations referred by the applicant proven, and finds that the respondent has engaged in the following:
1	Professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of s 5 of the Health Practitioner Regulation National Law (Victoria) (National Law), in that, on dates between on or about 14 June 2016 and 3 November 2016, he held out Ms Phoebe Pacheco (Ms Pacheco) as a registered medical practitioner and as a person able to use the title ‘medical doctor’ in that he:
•	delegated and referred patients to Ms Pacheco; and
•	knowingly allowed Ms Pacheco to consult and/or treat patients,
when he knew, or ought reasonably to have known, that Ms Pacheco was not a registered health practitioner under the National Law.
2	Professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of s 5 of the National Law in that, on or about 3 October 2016, Dr Bernard failed to practise medicine ethically and safely, in that he:
(a)	possessed pre-signed blank prescription forms; 
(b)	possessed pre-signed blank radiology and pathology request forms;
(c)	incorrectly stored medications, including Schedule 4 drugs of dependence;
(d)	possessed expired medications; and
(e)	had inappropriate and inadequate arrangements for the disposal of sharps.
3	Professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (c) of s 5 of the National Law in that, on or about 31 August 2016, he made a false and/or misleading statement(s) to AHPRA.
Order
1	Under s 196(2)(a) of the National Law, the respondent is reprimanded.
2	Under s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a medical practitioner for a period of two years from the date of these orders.  

E Wentworth
Senior Member, Presiding	Dr A Sungaila 
Health Practitioner Member	Dr L Warfe OAM
Health Practitioner Member	

APPEARANCES:		
For Applicant	Ms S Joosten of Counsel	
For Respondent	Mr M McLay of Counsel	

Note: Orders under the Open Courts Act 2013 are in force
On 9 June 2020, the Tribunal made the following orders:
On its own motion, the Tribunal 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 patients the subject of these proceedings or their family members to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the patients would be breached if persons living outside Victoria know or come to know their identity or that of members of their families.
3.	This order operates until the later of the death of all of the relevant patients and their family members.

Written reasons
Overview
1	At the hearing we gave oral reasons for our findings and determinations.  At the request of the applicant, we provide these written reasons which include the background, agreed facts, and legal principles.
2	These are health profession disciplinary proceedings under the Health Practitioner Regulation National Law (Victoria) (National Law).
3	Dr Roger Bernard has admitted the facts alleged by the Medical Board of Australia (Board) in three allegations concerning his conduct between June and November 2016.  In summary, he admits that he:
•	held out an employee, Ms Pacheco, as a registered medical practitioner in that he delegated and referred patients to her and knowingly allowed her to treat patients and carry out cosmetic medical procedures;
•	failed to practise medicine ethically and safely including by pre-signing blank prescription forms and radiology and pathology requests, incorrectly storing medications and disposing of sharps and possessing expired medications; and
•	made false and misleading statements to Australian Health Practitioner Regulation Agency (AHPRA) officials during a compliance inspection about Ms Pacheco’s registration status.  
4	Ms Pacheco has overseas medical qualifications but had unsuccessfully applied for registration as a nurse in Australia and did not have any form of registration as a medical practitioner. 
5	Dr Bernard has already faced criminal proceedings in respect of his conduct.  On 19 November 2018, he pleaded guilty to and was convicted of seven charges under the National Law for knowingly claiming an unregistered person was registered.  Ms Pacheco was also prosecuted for related offences.
6	At the start of the hearing before us, there was agreement in part on how the admitted conduct should be characterised.  Dr Bernard agreed that the conduct in each of the allegations constitutes professional misconduct within the meaning of paragraphs (a) or (b) (or both) of the definition of professional conduct in s 5 of the National Law.  The Board submitted that the conduct also constitutes professional misconduct under paragraph (c) of the definition.
7	The respective paragraphs of the definition in s 5 of the National Law are:
“professional misconduct”, of a registered health practitioner, includes— 
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
8	During the hearing, Dr Bernard’s counsel advised that Dr Bernard was now prepared to agree that the conduct constituted professional misconduct under paragraph (c).  Counsel explained that Dr Bernard recognised the seriousness of the conduct but considered he had made significant progress since.  He had been reluctant to agree that he was not currently fit and proper.  As discussed at the hearing, a finding that conduct falls within paragraph (c) relates to the quality of the conduct.  It does not preclude a finding that the person is fit and proper to hold registration at the time of the hearing.
9	We were satisfied that conduct was appropriately characterised as submitted by the parties and made those findings, set out in our orders above.
10	There was agreement in part as to what should be the appropriate determinations (consequential orders when findings are made).  The parties jointly submitted that a reprimand and disqualification were appropriate but disagreed as to the period of disqualification.  
11	Dr Bernard submitted that the period of disqualification should be one year from the date of the Tribunal’s orders.  The Board submitted that the period should be two years.
12	Dr Bernard is not currently registered and has not worked as a medical practitioner since November 2016.  His registration was suspended on 28 November 2016 by the Immediate Action Committee of the Board.  That suspension was revoked by the Board in April 2020 when the Board instead accepted Dr Bernard’s surrender of his registration.  We note here that he had attempted to surrender his registration in 2016 but the suspension decision had been made, precluding surrender.
13	After considering the submissions made by the parties and the principles relating to determinations as applied to this case, we were satisfied that a disqualification order was warranted and that a period of two years from the date of our orders was appropriate.
14	Our orders do not mean that Dr Bernard will return to practice in two years’ time, nor that we consider he should be re-registered then, only that he may not apply to be re-registered until then.  It will be entirely a matter for the Board, if and when Dr Bernard makes the application, to decide whether he then meets the requirements of registration.  
15	The following are the agreed facts as provided by the parties.
Agreed Statement of facts 
Background
16	At all relevant times, Dr Bernard was registered as a medical practitioner under the National Law.
17	On 21 May 2020, a Notice of Allegations concerning Dr Bernard was filed in the Victorian Civil and Administrative Tribunal (Tribunal).  It contained three allegations of professional misconduct referred by the Board pursuant to s 193(2)(a) of the National Law.  Under s 6 of the Health Practitioner Regulation National Law (Victoria) Act 2009, the Tribunal is the responsible tribunal for the purposes of the National Law as it applies in Victoria.
18	The first allegation concerns alleged professional misconduct of Dr Bernard in that between about 14 June 2016 and 3 November 2016, Dr Bernard held out Ms Pacheco as a registered medical practitioner and/or as a person able to use the title ‘medical doctor’ when he knew, or ought reasonably to have known, that she was not a registered medical practitioner (Allegation One).  The second allegation is that Dr Bernard failed to practise medicine ethically and/or safely (Allegation Two).  The third allegation concerns false and/or misleading statements made by Dr Bernard to AHPRA compliance officers (Allegation Three).
19	On the afternoon of 28 November 2016, an Immediate Action Committee of the Board suspended Dr Bernard’s registration in connection with matters the subject of this referral.  On the evening of 28 November 2016, Dr Bernard purported to surrender his registration.  The surrender was not effective as Dr Bernard was taken not to be registered at the time. On 23 April 2020, the Board revoked its decision to suspend Dr Bernard’s registration, pursuant to s 159 of the National Law, and accepted Dr Bernard’s surrender of registration.  As a result, Dr Bernard is not presently registered.
20	The parties have reached agreement as to the factual matters underlying the referred allegations and, in part, as to the characterisation of those allegations, and the appropriate determinations to be made by the Tribunal.  The parties will make separate submissions regarding two outstanding matters (concerning characterisation of the admitted conduct and the length of the disqualification period to be imposed).  This document records the position on each of those matters.
The Facts
21	Dr Bernard admits each of the facts (including the particulars) stated in Allegation One, Two and Three of the Notice of Allegations as follows:
Allegation One
That Dr Bernard engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of section 5 of the National Law, in that, on dates between on or about 14 June 2016 and 3 November 2016, he held out Ms Phoebe Pacheco (Ms Pacheco) as a registered medical practitioner and as a person able to use the title ‘medical doctor’ in that he:
(a)	delegated and referred patients to Ms Phoebe Pacheco; and
(b)	knowingly allowed Ms Pacheco to consult and/or treat patients,
when he knew, or ought reasonably to have known, that Ms Pacheco was not a registered health practitioner under the National Law.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Bernard was a registered medical practitioner practising at the Werribee Cosmetic Medicine Pty Ltd (Clinic) (Werribee Cosmetic Clinic);
(ii)	at all material times, Ms Pacheco was not a registered health practitioner under the National Law;
(iii)	Ms Pacheco conducted medical consultations and/or cosmetic medical procedures and/or cosmetic procedures at the Werribee Cosmetic Clinic on the following occasions:
(A)	on or about 14 June 2016, Patient B attended Werribee Cosmetic Clinic and Ms Pacheco conducted a cosmetic procedure on Patient B;
(B)	on or between 16 June 2016 to 3 November 2016, Patient A attended Werribee Cosmetic Clinic and Ms Pacheco conducted a medical consultation with Patient A;
(C)	on or about 5 July 2016, Patient C attended Werribee Cosmetic Clinic and Ms Pacheco conducted a medical consultation with Patient C;
(D)	on or between 11 July 2016 to 15 August 2016, Patient D attended Werribee Cosmetic Clinic and Ms Pacheco conducted a cosmetic medical procedure on Patient D;
(E)	on or about 15 July 2016, Patient F attended Werribee Cosmetic Clinic and Ms Pacheco conducted a cosmetic medical procedure on Patient F;
(F)	on or about 1 August 2016, Patient E attended Werribee Cosmetic Clinic and Ms Pacheco conducted a medical consultation with Patient E; and
(G)	between 14 June 2016 and 3 November 2016, Patients A, C and E attended Werribee Cosmetic Clinic and Ms Pacheco conducted medical consultations with each of Patients A, C and E;
(iv)	on each of the occasions referred to in particular (iii) above, Dr Bernard knew, or ought to have known, that Ms Pacheco was not a registered health practitioner because:
(A)	of his role in managing the clinic; and/or
(B)	he was present at the Werribee Cosmetic Clinic; and/or
(C)	of claims in relation to consultations and/or procedures that were made to Medicare in his name.
(v)	on each of the occasions referred to in particular (iii) above Dr Bernard knew or ought to have known that Patients A to F would be likely to believe Ms Pacheco to be a registered medical practitioner;
(vi)	on each of the occasions referred to in particular (iii) above Dr Bernard:
(A)	failed to take any or all reasonable steps to ensure Ms Pacheco had the requisite qualifications, experience, knowledge and skills to provide care to each of the patients she consulted and/or treated; and/or
(B)	failed to ensure that each of the patients who consulted and/or were treated by Ms Pacheco accessed and received the necessary level of healthcare;
(vii)	On 19 November 2018, Dr Bernard pleaded guilty to, and was convicted of, seven offences under the National Law for knowingly claiming an unregistered person was registered.
(viii)	‘Good medical practice: a code of conduct for doctors’ (March 2014) provides that:
(A)	1.4 Professional values and qualities of doctors …
(I)	While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice.
(II)	Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively.  They must be ethical and trustworthy.
(III)	Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion.  Patients also rely on their doctors to protect their confidentiality.
(IV)	Doctors have a responsibility to protect and promote the health of individuals and the community.
(V)	Good medical practice is patient-centred.  It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient.  This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor–patient relationship and on the delivery of health services.
(B)	2.2 Good patient care
…
Maintaining a high level of medical competence and professional conduct is essential for good patient care.  Good medical practice involves:
(I)	2.2.4 Considering the balance of benefit and harm in all clinical-management decisions.
(C)	4.3 Delegation, referral and handover
…
Delegation involves you asking another health care professional to provide care on your behalf while you retain overall responsibility for the patient’s care.  Referral involves you sending a patient to obtain opinion or treatment from another doctor or healthcare professional.  Referral usually involves the transfer (in part) of responsibility for the patient’s care, usually for a defined time and for a particular purpose, such as care that is outside your area of expertise.  Handover is the process of transferring all responsibility to another healthcare professional.  Good medical practice involves:
(I)	4.3.1 Taking reasonable steps to ensure that the person to whom you delegate, refer or handover has the qualifications, experience, knowledge and skills to provide the care required.
(II)	4.3.2 Understanding that when you delegate, although you will not be accountable for the decisions and actions of those to whom you delegate, you remain responsible for the overall management of the patient, and for your decision to delegate.
(III)	4.3.3 Always communicating sufficient information about the patient and the treatment they need to enable the continuing care of the patient.
(D)	8.1 Introduction
…
(I)	In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community.  This includes observing and practising the principles of ethical conduct.
(ix)	‘Guidelines for Registered Medical Practitioners who Perform Cosmetic Medical and Surgical Procedures’ (1 October 2016) provides that:
(A)	6. Provision of patient care by other health practitioners
(I)	6.1 The medical practitioner is responsible for ensuring that any other person participating in the patient’s care has appropriate qualifications, training and experience, and is adequately supervised as required.
(II)	6.2 When a medical practitioner is assisted by another registered health practitioner or assigns an aspect of a procedure or patient care to another registered health practitioner, the medical practitioner retains overall responsibility for the patient.  This does not apply when the medical practitioner has formally referred the patient to another registered health practitioner.
Allegation Two
That Dr Bernard engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of section 5 of the National Law in that, on or about 3 October 2016, Dr Bernard failed to practise medicine ethically and/or safely, in that he:
(a)	possessed pre-signed blank prescription forms; and
(b)	possessed pre-signed blank radiology and pathology request forms;
(c)	incorrectly stored medications, including Schedule 4 drugs of dependence;
(d)	possessed expired medications; and
(e)	had inappropriate and inadequate arrangements for the disposal of sharps.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Bernard was a registered medical practitioner;
(ii)	on or about 3 October 2016, AHPRA compliance officers executed a search warrant at Werribee Cosmetic Clinic and observed the following:
(A)	pre-signed Dorevitch Pathology requests;
(B)	pre-signed Healthscope Pathology forms;
(C)	pre-signed prescription forms;
(D)	pre-signed (VIC) Victorian Medical Imaging;
(E)	pre-signed MIA Radiology forms;
(F)	over-filled sharps containers;
(G)	storage of medication in shopping bags, offices, shelves, cabinets; and
(H)	expired medication.
(iii)	‘Good medical practice: a code of conduct for doctors’ (March 2014) provides that:
(A)	1.4 Professional values and qualities of doctors …
(I)	Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively.  They must be ethical and trustworthy.
(II)	…
(III)	Doctors have a responsibility to protect and promote the health of individuals and the community.
(B)	6.1 Introduction … Risk is inherent in healthcare.  Minimising risk to patients is an important component of medical practice.  Good medical practice involves understanding and applying the key principles of risk minimisation and management in your practice.
(C)	6.2 Risk management … Good medical practice in relation to risk management involves:
…
(I)	6.2.2 Participating in systems of quality assurance and improvement.
…
(II)	6.2.5 Working in your practice and within systems to reduce error and improve patient safety, and supporting colleagues who raise concerns about patient safety.
(III)	6.2.6 Taking all reasonable steps to address the issue if you have reason to think that patient safety may be compromised.
(D)	8.1 Introduction … In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community.  This includes observing and practising the principles of ethical conduct.
Allegation Three
That Dr Bernard engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (c) of section 5 of the National Law in that, on or about 31 August 2016, he made a false and/or misleading statement(s) to AHPRA.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Bernard was a registered medical practitioner;
(ii)	at all material times, Ms Pacheco was not a registered medical practitioner;
(iii)	on or about 31 August 2016:
(A)	AHPRA compliance officers, Nicole Iaccarino and Mark McPherson (Dianella Health Compliance Officers), met with Dr Bernard at the Dianella Health GP Super Clinic;
(B)	Dr Bernard stated to the Dianella Health Compliance Officers words to the effect that:
(I)	he also worked at the Werribee Cosmetic Clinic;
(II)	Dr Pacheco was an overseas trained doctor who deals with all of the women’s health matters at the Werribee Cosmetic Clinic;
(III)	he was currently supervising Ms Pacheco as her nominated supervisor; and
(IV)	Dr Pacheco would need to cease practice until she obtained an alternative supervisor if it were inappropriate for Dr Bernard to act as supervisor;
(C)	at the time of making the representations referred to in sub-particular (B), Dr Bernard knew, or ought reasonably to have known, that:
(I)	Ms Pacheco was not a registered medical practitioner;
(II)	he was not her nominated supervisor;
(III)	there was no legal reason for Ms Pacheco to cease to practise until she found another supervisor because she was not entitled to practise in the first place; and/or
(IV)	Ms Pacheco’s ability to practise medicine was not contingent upon him being able to supervise her;
(iv)	on or about 3 October 2016:
(A)	the Dianella Health Compliance Officers, accompanied by an additional Compliance Officer, Mona Thakkar (Werribee Cosmetic Compliance Officers) attended the Werribee Cosmetic Clinic;
(B)	the Werribee Cosmetic Compliance Officers requested that Dr Bernard clarify the roles of the practice staff;
(C)	Dr Bernard stated to the Werribee Cosmetic Compliance Officers words to the effect that:
(I)	‘Dr Phoebe’ was an overseas trained doctor working towards getting her medical registration; and
(II)	she was not registered as a medical practitioner.
(D)	Ms Pacheco was also observed by the Werribee Cosmetic Compliance Officers to be consulting with patients;
(v)	On 19 November 2018, Dr Bernard pleaded guilty to, and was convicted of, an offence under the National Law, in that he knowingly used a title indicating an unregistered person was authorised to practise.
(vi)	‘Good medical practice: a code of conduct for doctors’ (March 2014) provides that:
(A)	1.4 Professional values and qualities of doctors …
…
(I)	Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively.  They must be ethical and trustworthy.
(B)	8.1 Introduction … In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community.  This includes observing and practising the principles of ethical conduct.
Characterisation
22	Having made findings of fact, the next task in disciplinary proceedings is to characterise the conduct – identify the relative seriousness of the conduct by reference to the definitions in the National Law of unsatisfactory professional performance, unprofessional conduct, and professional misconduct.
23	We were satisfied that the conduct was appropriately characterised as the parties submitted.  In particular, we were satisfied that the conduct represented by each of the allegations was very serious conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession, and therefore within paragraph (c) of the definition.
24	The expression ‘fit and proper’ requires an assessment of whether the person has the:
necessary honesty, knowledge and ability but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or license entails.
25	The conduct in each of the allegations involves deception in almost every aspect of the practice of medicine: 
•	deception of patients who were led to believe that Ms Pacheco was a registered medical practitioner when she advised them, treated them and wrote prescriptions for them; 
•	deception of Medicare in that items, which depended on a GP providing the service, were claimed for under his provider number; 
•	deception of the pharmacists who dispensed medication and the pathologists and radiologists who carried out pathology and imaging requests; and 
•	deception of the regulator.
26	Ms Pacheco wrote prescriptions under Dr Bernard’s name for blood pressure medication, malaria treatment, stroke related medication and dermal fillers.  She carried out vaginal swabs, skin checks (including on a 16-year-old girl who had already seen her GP and wanted a second opinion), administered injections to treat varicose veins and administered filler.  The items were charged as if Dr Bernard had been the provider, in most cases while he was seeing other patients.  It effectively allowed him to be in two places at once.
27	The conduct was in direct breach of obligations of a medical practitioner under the Code of Conduct to be trustworthy, practise ethically and safely, and make the care of patients the doctor’s first concern.  Dr Bernard put his personal and financial interests first and patient care last.
28	We agree with the submission on behalf of the Board that by allowing an unregistered practitioner to consult with and perform procedures on patients, Dr Bernard endangered the health and safety of those patients.  While the risk in this case was not realised – the Board does not say that actual harm was caused – this constituted a gross breach of trust, and risks the reputation of the medical profession.  
29	We do not consider that it matters that Ms Pacheco had overseas qualifications.  This is not to diminish the quality of the education or experience she may have obtained.  The fact is that she had not met the various requirements that are designed to ensure the person is able to practise safely and ethically in Australia at the time they apply, and has the benefit of oversight by the regulator during any period of clinical training, study or supervised practice deemed necessary.  
30	Dr Bernard has also engaged in criminal conduct directly connected to the practise of medicine.  Further, by the conduct, Dr Bernard not only exploited Ms Pacheco but also put her future prospects at risk.  Her witness statement in the Tribunal Book describes her discomfort at the position she was put in and the pressure she felt.  That obvious risk was realised when she was found guilty of offences under the National Law for her conduct.  
Determinations 
The principles applicable to determinations under the National Law
31	The applicable principles are well-established.  The primary purpose of determinations is to protect the public, not to punish the practitioner.  That primary purpose, together with protection of the reputation of the medical profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained. 
32	As the Tribunal observed in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 (Honey) at [14] and [16]: 
It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish …
…
Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.
33	With that protective focus in mind, the Tribunal considers a range of factors including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.  Personal matters such as shame, personal ordeal and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.
34	In considering the importance of specific deterrence in any case – whether there is a need to deter the individual practitioner from repeating the conduct – the Tribunal assesses any ongoing risk posed by the practitioner taking into account factors such as: 
•	whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred; 
•	whether they have shown genuine remorse and have taken independent steps to reduce the risk of repetition; and 
•	whether they have any past disciplinary history, which in turn may suggest that stronger penalties may be required to deter them in future.
35	In considering the importance of general deterrence, the Tribunal looks at:
•	the nature and seriousness of the conduct and the risk it poses to the public if engaged in by others; and
•	whether there is therefore a need to deter other members of the profession from engaging in the same conduct by signalling that adverse consequences will follow such conduct.
36	In Honey at [42]-[45], the Tribunal discussed the difference between the determinations of suspension and cancellation:
The major difference between a suspension and cancellation is that once the doctor’s registration is cancelled, he must reapply after the period specified.  He is not guaranteed that he will be so re-registered.  He must satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration …
Cancellation of registration sends a clear message of unsuitability to practice.  Suspension may be thought to indicate confidence in the doctor’s future ability to practice once the period of suspension is served.
There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.
This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender.
37	Where a person does not hold registration at the time of the Tribunal’s decision on determinations, a cancellation order is not appropriate but the Tribunal may make a disqualification order.
38	Whilst the Tribunal may be assisted by submissions as to the appropriate sanction, it is ultimately in the discretion of the Tribunal as to the appropriate sanction in any given case.
39	Determinations in other cases of similar or analogous conduct will provide useful guidance.  Consistency and proportionality are important.  But every case is different, with its own combination of facts and relevant factors, including the degree of seriousness of the conduct, the length of time the practitioner engaged in the conduct, the number of patients or others impacted by the conduct, and the circumstances involved. 
Applying the principles
40	As submitted by the Board, the nature and gravity of the conduct, discussed above in relation to characterisation, is relevant to a decision about the appropriate consequential orders.  We refer to without repeating our analysis above.
41	It will be directly relevant to assessing the importance of general deterrence – the need to deter others in the profession from engaging in the same conduct by signalling the sanctions that will follow.  General deterrence is most important here, in our view, because of the potential risk to patient safety, to the financial integrity of the Medicare system and to the ability of the regulator to protect the public.
42	The nature and gravity of the conduct will also be relevant to assessing the need for specific deterrence.  The fact that a practitioner has engaged in serious misconduct necessitates an assessment of the risk of them repeating the conduct unless sufficient sanction is imposed.  That risk will be lessened where they have demonstrated insight into what they did, why it happened, and the seriousness and impact of the conduct.  Conversely, the risk will usually be increased where the practitioner has previously engaged in unprofessional conduct or misconduct, has been sanctioned, but has engaged in further conduct – indicating that they have not been deterred by the previous sanctions.
43	In this case, it is to Dr Bernard’s credit that he admitted the allegations and accepted that the conduct should have significant consequences.  We agree with his counsel’s submission that insight has been demonstrated by Dr Bernard’s attempt to surrender his registration in November 2016, his pleas of guilty to the criminal charges, his admission of the allegations in these proceedings, and his acceptance of the need for strong sanctions in the form of a reprimand and disqualification for a period.  
44	After making our findings about the characterisation of the conduct, we received information from the Board about Dr Bernard’s disciplinary history, relevant to the issue of specific deterrence.
45	It is of concern that Dr Bernard has previously been found guilty of criminal offending and been removed from practice.  In November 2000, by a determination of the Medical Tribunal of NSW, Dr Bernard’s name was removed from the register for three years.  
46	The decision followed convictions in 1998 for serious fraud, unrelated to his medical practice.  Dr Bernard was found guilty with conviction of two charges involving passing cheques to create the illusion of credit balances.  The offending involved over 1,000 cheques written over the period October 1994 to August 1995.  The District Court of NSW at Newcastle sentenced Dr Bernard to terms of imprisonment to be served by periodic detention.
47	We disagreed with the submission of his counsel that the passage of time between offending (almost two decades) indicates Dr Bernard’s ability to practise safely for long periods.  To the contrary, we consider that repetition of deceptive and criminal conduct in 2016, despite the earlier sanction, increases the importance of specific deterrence and raises serious questions about Dr Bernard’s character.
48	It is also of concern that, at the time of the conduct the subject of the allegations before us, Dr Bernard was already subject to regulatory action.
49	In 2014, the Tasmanian Medical Board imposed conditions on his registration requiring him to have a chaperone present when he was performing intimate examinations, amongst other health related conditions.  He was later cautioned by AHPRA, in 2019, for breaches of the conditions in 2015 - failing to record the chaperone details correctly.  
50	As submitted by his counsel, this was not a formal disciplinary finding, and no finding was made that he had failed to have a chaperone present.  What concerned us however, was that Dr Bernard was already subject to regulatory action (the imposition of conditions in 2014) and had nevertheless engaged in serious misconduct in 2016. 
51	We also received two letters, from Dr Bernard’s treating psychiatrist and GP respectively.  Although neither letter referred to a diagnosis, it is apparent that Dr Bernard is being treated with medications for bipolar disorder and depression and has been seeing his current psychiatrist since 2014.
52	Further information about Dr Bernard’s past psychiatric history was in the 2000 decision of the NSW Medical Tribunal provided to us at the hearing.  The decision refers to evidence before the District Court and the Medical Tribunal that, at the relevant time, Dr Bernard was suffering from bipolar disorder; that he originally suffered a serious psychotic illness in 1982 (when a medical student) requiring hospitalisation and deferral of his medical studies; a diagnosis of schizophrenia was made initially and bipolar disorder later; and that he had received no treatment from late 1984 until seeking treatment in 1995. 
53	The sentencing judge in 1998, his Honour Judge McGuire, accepted that the illness was a contributing factor in Dr Bernard’s criminal conduct but did not accept that the fraudulent behaviour was related to disorganisation and poor judgment rather than a deliberate attempt to defraud and deceive.  His Honour found that, to the contrary, the fraud required clear and concentrated thought processes, and Dr Bernard demonstrated the antithesis of disorganisation. 
54	The Medical Tribunal was concerned with the question of whether Dr Bernard was of good character, finding that he was not.  After considering the extensive medical evidence before it, the Tribunal concluded that while Dr Bernard’s psychiatric illness may well have been a contributing factor, the predominating motivators for his conduct were financial pressures and greed.
55	As the Board submitted to us, although we know that Dr Bernard was under the care of a psychiatrist at the time, we have no equivalent evidence before us about the extent of Dr Bernard’s illness in 2016, and any contribution it might have made to his conduct.  
56	His counsel’s account of Dr Bernard’s psychiatric history since 2000 and other matters of personal history was based on instructions, and nothing in the nature of an expert report was provided.  The Tribunal Book, however, contained the transcript of the plea hearing before the Magistrate in 2018.  Sections of the transcript refer to evidence, including medical reports before the Magistrate, which we take into account, but we do not have the documents referred to.  Nor did the Magistrate express a view in her sentencing reasons as to any contribution Dr Bernard’s illness may have made to the offending, or the extent to which it was regarded as a mitigating factor.
57	We accept that Dr Bernard has suffered from bipolar disorder but agree with the submission of the Board that that there is no basis for us to make a finding about those matters, including a Verdins finding.  Nor was it submitted on Dr Bernard’s behalf that we could make such a finding.  As conceded, a medical practitioner has an obligation to ensure that any psychiatric illness is managed and controlled.  He was under the care of, and presumably being treated by, a specialist at the time.  And, in any event, the conduct here was not in the nature of impulsive action.  It was deliberate and sustained and only ended when the AHPRA compliance visit uncovered the pre-signed prescription forms and other issues.
58	Counsel on Dr Bernard’s behalf raised the issue of delay between the start of the Board’s investigation in 2016 and the hearing before the Tribunal.  Here there are two explanations for the delay: the appropriate decision of the Board to put the investigation on hold pending the criminal proceedings, which were finalised in late 2018, and the impact of the pandemic.  
59	As submitted, delay can be relevant, not only as a mitigating factor in itself but also as providing an opportunity for the person to show rehabilitation by not re-offending.  We take it into account.  It is also relevant where, as here, the practitioner has been out of practice for several years already because of related regulatory action.  We discuss that further below.
60	A further document referred to by counsel on behalf of Dr Bernard was the 2016 document in the Tribunal Book evidencing that Ms Pacheco had medical indemnity insurance over the period of the holding out, in the member category of ‘International practitioner awaiting registration’ and on the basis of ‘Clinical training/study’.  
61	The certificate of insurance has no bearing on her actual registration status.  To Dr Bernard’s knowledge, Ms Pacheco did not hold any of the categories of registration available to students or overseas qualified practitioners who are undergoing a period of supervised practice.  Nor was she undergoing any form of clinical training or study.  It indicates only that she may have been insured had there been any adverse events, subject to any limitation on the insurance arising from the actual circumstances. 
62	When all the circumstances and relevant factors are taken into account, we consider that a period of disqualification is appropriate to address the requirements of specific and general deterrence and thereby protect the public, and to maintain the standards and reputation of the medical profession.  We also consider that a formal reprimand, which is a statement of professional rebuke and condemnation, is appropriate.
63	As to the appropriate period of disqualification, the Board referred us to several cases where some of the elements of the conduct here resulted in various sanctions.  We agree with the submission that this case is more serious than most of those because of the range of conduct represented by the three allegations in this case, and that none of the cases are directly comparable.  We consider, however, that they indicate that the period of disqualification the Board seeks is well within an appropriate range and refer to them below.  
64	The following is from the Board’s summary of the cases:
•	Health Care Complaints Commission v Fraser [2014] NSWCATOD 29; and Health Care Complaints Commission v Fraser (No 2) [2014] NSWCATOD 84, in which a finding of professional misconduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration was made under the National Law (NSW) in respect of a nurse who was recklessly indifferent to the fact that a former medical practitioner was not registered at the time of administration of alternative cancer therapy, with the registration of the practitioner cancelled and the practitioner disqualified from applying for registration for one year;
•	Chinese Medicine Registration Board v Li [2013] VCAT 464, in which a finding of unprofessional conduct within the meaning of paragraph (a) of section 3(1) of the Health Professions Registration Act 2005 (Vic) (being conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence) was made in respect of a practitioner who held out and advertised that his son was a registered acupuncturist when he ought to have known that his son was not so registered.  The practitioner was reprimanded and fined $15,000.00;
•	Chiropractic Board of Australia v Zaphir [2014] QCAT 307, where a person who was the holder of a doctorate in chiropractics, used the title “Dr”, when writing prescriptions and pathology forms for patients, in circumstances where he was not registered as a medical practitioner.  The Tribunal noted it would have cancelled the practitioner’s registration for a period of two years if the practitioner had been registered.  It instead disqualified him for reapplying for registration for one year;
•	Medical Board of Australia v Al Raheb [2020] VCAT 614, where a medical practitioner who operated a clinic from her home was found to have engaged in professional misconduct under paragraphs (a), (b) and (c) of s 5 of the National Law, when she failed to meet acceptable infection control standards, failed to properly store and safely secure medication, stored excessive quantities of medication including Schedule 2, 3 and 4 medications – among other things.  The practitioner was reprimanded, and conditions were placed on her registration.  As noted by the Board, this case did not involve additional allegations comparable to Allegations 1 and 3 here;
•	Psychology Board of Australia v Sweeney [2019] QCAT 134, in which a finding of professional misconduct under paragraph (c) of s 5 of the National Law (QLD) was made in respect of a practitioner who provided false and misleading information to the relevant Board in circumstances where the practitioner denied (but later admitted) allegations that he had failed to maintain appropriate boundaries with respect to a patient.  For the single allegation in relation to providing false or misleading information to the Board, the practitioner was prohibited from applying for registration for a period of one month.  As noted by the Board, this case did not involve additional allegations comparable to Allegations 1 and 2 as related to the current respondent;
•	Medical Board of Australia v Jiang [2018] VCAT 1999, in which a finding of professional misconduct under paragraph (a) was made in respect of an allegation of providing false and misleading information to the Board.  This finding was made on the basis that the practitioner had denied that he engaged in a sexual relationship with a patient, denied the basis on which the relationship with the patient ended, and falsely alleged that the patient had threatened to notify the Board if the practitioner refused to engage in a sexual relationship with her; 
•	Chinese Medicine Registration Board of Victoria v Ghaffurian [2012] VCAT; 478; and Chinese Medicine Board of Australia v Ghaffurian (No 2) [2012] VCAT 1944, where a person who was a registered Chinese medicine practitioner held himself out as a qualified “western doctor” and a “surgeon” on a number of occasions and provided treatment outside the scope of Chinese medicine to a patient with a serious disease.  This case involved other allegations related to the quality of treatment rendered, patient consent and adequate record keeping.  The practitioner was reprimanded, he was fined $8,000.00, his registration was cancelled and he was disqualified from applying for registration for a period of two years; and 
•	Medical Board of Australia v Anwar [2019] VCAT 1803, in which findings of professional conduct under paragraphs (a) and (c) were made in respect of an allegation that the practitioner misrepresented his qualifications to the Australian Medical Council.
65	In our view, a period of disqualification of two years by way of a global penalty is necessary and appropriate in this case, and one year is not sufficient.  Each of the allegations, if brought individually, would have warranted a period of disqualification, in our view.  Two years is not so long a period as to be disproportionate or crushing.  It properly reflects the very serious nature of the conduct and ensures the appropriate message is sent to the profession and the community.  It takes into account the matters in Dr Bernard’s favour including his cooperation with the Board’s investigation but also reflects the importance of specific deterrence given his disciplinary history.
66	We consider the period should start from the date of our orders.  We recognise that it means Dr Bernard will have been out of practice for just under six and a half years by the time he is able to apply for re-registration and have taken that into account.  We also recognise that, as his counsel noted, he already faces considerable hurdles in becoming re-registered including recency of practice requirements.

E Wentworth
Senior Member, Presiding	Dr A Sungaila 
Health Practitioner Member	Dr L Warfe OAM
Health Practitioner Member