VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z473/2020	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law (Victoria), s 196 – Two allegations of professional misconduct concerning doctor prescribing Schedule 4 drugs for purposes of self-administration, in most cases using prescriptions in the name of a person with whom he was in a personal relationship – Agreed Statement of Facts, Findings and Determinations, including admissions as to the conduct and its characterisation – Dispute as to certain determinations – Whether suspension and/or fine is required for general deterrence – Whether conditions to be imposed should include an audit condition. 	

APPLICANT	Medical Board of Australia	
RESPONDENT	Dr Yogananda Ballekere	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Presiding Member
Dr A. Williams, Health Practitioner Member
Dr L. Warfe OAM, Health Practitioner Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	12 April 2022	
DATE OF ORDER and reasons	16 June 2022	
date of correction	24 June 2022	
CITATION	Medical Board of Australia v Ballekere (Corrected) (Review and Regulation) [2022] VCAT 645 	

Findings
In relation to each of the two allegations set out in the Amended Notice of Allegations, reproduced at Appendix 1 to the Reasons, we find Dr Ballakere engaged in professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct in section 4 of the Health Practitioner Regulation National Law (Victoria) (National Law).
Orders
1	Under section 196(2)(a) of the National Law, Dr Yogananda Ballekere is reprimanded.
2	Under section 196(2)(d) of the National Law, Dr Ballekere’s registration is suspended for a period of three months starting on 1 November 2022.
3	Under section 196(2)(b) of the National Law, on his return to practice, the conditions set out in Appendix 2 to the Reasons are imposed on Dr Ballekere’s registration.
4	Under section 196(3) of the National Law, the review period for the conditions is six months from the date of these orders.
5	Under section 196(2)(c) of the National Law, Dr Ballekere is fined an amount of $15,000 which is to be paid to the Medical Board of Australia. 

R. Tang, AM
Presiding Member	Dr A. Williams
Health Practitioner Member	Dr L. Warfe, OAM
Health Practitioner Member	

APPEARANCES:		
For Applicant 	Ms F Holmes of Counsel	
For Respondent	Ms R Ellyard of Counsel	
Orders are in force under the open Courts Act 2013 (Vic)
On 18 June 2020, the Tribunal ordered 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, the notifier or the other witnesses (excluding the respondent) 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, notifier and other witnesses 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, notifier and the other witnesses.

Reasons
1	Dr Yogananda Ballekere is a consultant psychiatrist at Northpark Private Hospital who specialises in geriatric psychiatry and is the Director of the Older Persons Mental Health Unit at the hospital.
2	It is alleged that:
•	on some 38 occasions between January 2017 and August 2018, Dr Ballekere prescribed some 13 different Schedule 4 poisons in the name of XZ (an acronym for a person with whom he was in a personal relationship) for the purposes of self-administration (Allegation 1).  A number of those drugs are psychotropic medications and one, Clonazepam, is a ‘drug of dependence’ under schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act); and
•	on two further occasions (31 December 2014 and 26 October 2016), Dr Ballekere self-prescribed two Schedule 4 poisons, being amitriptyline and esomeprazole (being two of the psychotropic medications), for self-administration (Allegation 2).  
3	Dr Ballekere admits the conduct the subject of each allegation and that the conduct in each case amounts to professional misconduct under the Health Practitioner Regulation National Law (Victoria) (National Law).  
4	Dr Ballekere accepts that he should be reprimanded and subject to conditions regarding continuing treatment for depression and anxiety (Treatment Condition) and requiring him to produce a reflective practice report to the Australian Health Practitioner Regulation Agency (Ahpra) demonstrating that he has ‘reflected on the issues that gave rise to the referral of his conduct to the Tribunal and how [he] has incorporated the lessons learnt in the education [he has undertaken since the referral] into [his] practice’ (Reflective Practice Condition). 
5	Where the parties do not agree is as to whether a further condition requiring an audit of Dr Ballekere’s practice (Audit Condition) should be imposed, and whether a suspension or fine should be imposed for reasons of general deterrence.
6	For the reasons which follow, we are comfortably satisfied that: 
•	the conduct particularised in the Amended Notice of Allegations dated 28 September 2021 (as reproduced in the Appendix 1 to these reasons, with some minor changes which were agreed at the hearing marked up) (Amended Notice) has been proven; and
•	the conduct amounts to professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct in section 5 of the National Law.
7	The context for the misconduct appears to be the breakdown of a personal relationship that resulted in Dr Ballekere becoming depressed and anxious and self-medicating to help him sleep and manage his depression and anxiety.
8	While Dr Ballekere agrees that a suspension would usually be called for in relation to misconduct of this nature, he contends that in this case the Tribunal should be satisfied that the maximum fine of $30,000 would achieve the purpose of general deterrence, without the difficulties that would be occasioned for Dr Ballekere’s elderly patients if he was suspended.
9	A recent decision, Medical Board of Australia v Lodhi (Lodhi), concerned another doctor, who also self-prescribed medication using a third party’s name because of ‘significant stress’ including in relation to his marriage.  In determining that a suspension was required, mainly for general deterrence, the Tribunal observed:
The stressful circumstances Dr Lodhi experienced do not, however, excuse the conduct, as conceded by him. Nor do they sufficiently explain it, in our view. Personal and work stressors are common to medical practitioners in Australia. … What is uncommon is for a medical practitioner to take the steps taken by Dr Lodhi in this case.
10	Those statements are equally apt in the present case.
11	In all the circumstances, and for the reasons which follow, we have determined that:
•	Dr Ballekere should be reprimanded;
•	Dr Ballekere’s registration should be suspended for a period of three months, commencing on 1 November 2022; 
•	Dr Ballekere should be fined an amount of $15,000; and
•	upon Dr Ballekere’s return to practice, he be subject to the Treatment Condition and Reflective Practice Conditions set out in Appendix 2 to these reasons.
Findings as to conduct and its characterisation
12	The particulars supporting the two allegations are set out in the Amended Notice, specifying the dates and poisons prescribed by Dr Ballekere on each occasion.  They are supported by prescribing history summaries received from the Commonwealth Department of Human Services and Priceline Pharmacy.  Further, the Board has filed a Table of Schedule 4 Medications which links the allegations to the evidence set out in the Tribunal Book.
13	Dr Ballekere admits the conduct.  He offers some explanation, namely that he did not know that self-prescribing was not permitted in Australia (suggesting that it is allowed in India where he qualified for his medical degree), and that he used the name of his partner because of the embarrassment that would follow if doctors and pharmacies were to become aware of his depression and anxiety.
14	On the basis of the evidence in the Tribunal Book and the admissions made by Dr Ballekere, we are comfortably satisfied and find for each of Allegation 1 and Allegation 2 that: 
•	Dr Ballekere issued prescriptions for each of the medicines listed in the particulars, on the identified dates;
•	he did so for the purpose of self-medication;
•	each of the medicines is a Schedule 4 poison, a number are psychotropic medications and clonazepam is a drug of dependence; and
•	his conduct was in breach of: 
o	the cited provisions of the DPCS Act and associated regulations; 
o	sections 1.4 and 9.2 of Good Medical Practice: Code of Conduct for Doctors in Australia (2014) (Code of Conduct) relating to self-care and appropriate management by doctors of their own health; 
o	the Royal Australian and New Zealand College of Psychiatrists (RANZCP) Code of Ethics 2018 (Code of Ethics); and
o	the ‘strong recommendation’ on the RANZCP website that psychiatrists avoid self-prescribing, and should never self-prescribe psychotropic drugs or drugs of addiction.
15	Having regard to the number of prescriptions he wrote (particularly those in XZ’s name), the nature of the drugs he self-administered and the consequential breaches of the DPCS Act and regulations, the Code of Conduct and the Code of Ethics, we are comfortably satisfied and find that Dr Ballekere’s conduct in relation to each of Allegations 1 and 2 is conduct that individually and collectively fell ‘substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ and, as such, is (in each case) professional misconduct within the meaning given in paragraphs (a) and (b) of the definition of that phrase in section 5 of the National Law.
Determinations
16	Under section 196(2) of the National Law, where the Tribunal decides that a practitioner has behaved in a way that constitutes professional misconduct, the Tribunal may decide to:
•	caution or reprimand the practitioner;
•	impose a condition on the practitioner’s registration;
•	require the practitioner to pay a fine of not more than $30,000;
•	suspend the practitioner’s registration for a specified period; and/or
•	cancel the practitioner’s registration.
17	In the present case, there is no material to suggest that Dr Ballekere is not fit and proper to practise and, in circumstances where the Board is not seeking cancellation, it is unnecessary to consider that determination further.  Below, we consider each of the other determinations which are open.
Reprimand
18	The parties agree that Dr Ballekere should be reprimanded, and we agree.
19	A reprimand is a form of official censure.  It should not be considered a ‘slap over the wrist’.
20	Relevantly, Dr Rodney Smith, a colleague and mentor of Dr Ballekere gave evidence at the hearing about: 
•	the role of Dr Ballekere’s ‘pride’, in the sense of a reluctance to show colleagues that he was ‘not coping’, as an explanation for his misconduct; and 
•	how the ‘whole process’ from the original notification to the hearing has brought about a ‘profound humbling’ for Dr Ballekere.  Dr Smith noted that, instead of being able to keep things private, Dr Ballekere has had to disclose his wrongdoing to his colleagues, including management at the Northpark Private Hospital.  
21	In this light, it can be anticipated that the publication of these reasons, together with the record of the reprimand on the register of practitioners, will serve to reinforce the official nature of the censure, and act as a constant reminder to Dr Ballekere of the importance of adhering to the standards of his profession in the future.
Conditions
22	The parties are in agreement that conditions should be imposed as to continuing treatment with his general practitioner and psychologist and the provision of a reflective practice report regarding his recent education in relation to ethical decision making, self-care, prescribing principles and ethics obligations, knowledge and skills.
23	Noting that the evidence Dr Ballekere gave to the Tribunal suggests that he continues to deal with his depression and anxiety, we agree that the Treatment Conditions are necessary and appropriate.
24	While Dr Ballekere has undergone education to address his apparent (but clearly misguided) view that self-medication was permitted, the Reflective Practice Condition will serve to reinforce that education.  We agree that it is also necessary and appropriate.
25	As already noted, the parties disagree as to the utility of an Audit Condition.
26	In her oral submissions, Ms Holmes (counsel for the Board) suggested that the Audit Condition is ‘self explanatory’ and is in the nature of a ‘safety net’.
27	In response, Ms Ellyard (counsel for Dr Ballekere) asked rhetorically, ‘a safety net for what?’, noting that the allegations do not relate to Dr Ballekere’s treatment of his patients.  She submitted that any conditions imposed should have ‘work to do’ in terms of mitigating the risks that arise from the alleged misconduct.  She suggested a condition requiring an audit might be appropriate in a case where a doctor has engaged in inappropriate prescribing towards a patient, but observes that the misconduct the subject of the present allegations ‘would not have emerged from an audit’.   Further, she noted that audits are expensive and disruptive.
28	The Board set out the proposed conditions it sought, including the proposed Audit Condition, in the Agreed Statement.  The proposed Audit Condition would require Dr Ballekere to ‘submit to an audit of [his] practice (the audit), including any supporting records’, with a ‘focus on [his] self-prescribing’.  It would require Dr Ballekere to allow the approved auditor ‘to attend any and all places of practice’.  As is usually the case, Dr Ballekere is required to pay ‘all costs associated with compliance with the conditions on [his] registration’.
29	Although the proposed Audit Condition is meant to be focused on his ‘self-prescribing’, the audit itself is of his practice.  We accept that any audit of a doctor’s practice is likely to be expensive and disruptive.  Importantly, there is nothing in the particulars of the allegations or the material in the Tribunal Book to suggest that Dr Ballekere has engaged in self-prescribing using the name of a patient.  In those circumstances, we do not consider the imposition of an Audit Condition is necessary or appropriate.
30	For these reasons, we will make orders for conditions limited to continuing treatment and the provision of a reflective practice report, and otherwise in the form sought by the Board (with some minor changes for clarity).
Fine and/or suspension
-	Board’s submissions
31	The Board seeks that Dr Ballekere be suspended for a period of six months which it submits is ‘sufficient to protect the public’ when coupled with the reprimand and conditions on his registration, and which represents the ‘minimum regulatory force’.
32	While the Board accepts that Dr Ballekere has ‘shown a level of insight into the seriousness of the conduct’, it contends ‘specific deterrence still has work to do’.  
33	More significantly, the Board suggests that general deterrence ‘has a critical role to play in this case’, making it ‘imperative … [that] the Tribunal make it clear to other practitioners that conduct of the kind admitted by [Dr Ballekere] is unacceptable’.  In this regard, the Board contends that general deterrence is necessary to protect the public and notes the comments of the South Australian Supreme Court in Craig v The Medical Board of Australia that the ‘protection of the public does not permit mercy to be shown’.
34	In addition, the Board submits that Dr Ballekere’s conduct ‘has the capacity to undermine the regard in which the profession is held by members of the public’ and that a suspension is required to ‘ensure public confidence in the integrity and professionalism of individual practitioners and the profession as a whole’.
35	In closing, Ms Holmes indicated that the Board accepts that suspension will have an impact on Dr Ballekere’s patients and colleagues which is ‘far from ideal’, and a matter for which the Board has some empathy.  However, the Board’s position remains that protection of the public is the paramount consideration and is not ‘outweighed’ by the needs of particular patients or Dr Ballekere’s colleagues. 
36	In answer to a question from the Tribunal, Ms Holmes accepted that a fine could serve the purposes of general deterrence if the Tribunal was to find that a suspension was not warranted.  Further, in reply (in relation to a question the Tribunal posed to the applicant’s counsel), Ms Holmes submitted that a fine coupled with a shorter period of suspension was ‘preferable to a fine alone’.
-	Dr Ballekere’s submissions
37	In the Agreed Statement, Dr Ballekere submits that: 
by reason of the significant impact on his patients and colleagues if he is away from work for any period, and having regard to the education he has undertaken, a period of suspension of one month should be imposed or, in the alternative, he be required to pay a fine in an amount determined by the Tribunal in lieu of a suspension.
38	In closing, Ms Ellyard invited the Tribunal to impose the maximum fine ($30,000) on the basis that this would impose a sanction on Dr Ballekere, while ensuring his ‘patients are not punished for his [mis]conduct’.
39	Ms Ellyard observes that, where there is a choice of sanctions, ‘it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public’.  Addressing the relevant considerations, she submitted as follows:
•	Specific deterrence – there is no need for specific deterrence in this case given that Dr Ballekere made admissions as early as October 2018, co-operated with the Board in terms of the conduct of the investigation and has formally admitted to the conduct the subject of the allegations and its characterisation as professional misconduct.  
Ms Ellyard also referred to the evidence of Dr Smith as to the insight shown by Dr Ballekere, supported by Dr Ballekere’s proactive steps to seek assistance for his depression and anxiety from his general practitioner and psychologist and that he has told colleagues and management at the Northpark Hospital about his misconduct.
•	General deterrence – while not denying there is a need for general deterrence, Ms Ellyard suggests that ‘all determinations serve general deterrence, not just time out of practice’ and that, given ‘a financial consequence is at the heart of suspension’, a fine can be accepted as achieving the same purpose.  
Ms Ellyard referred to Medical Board of Australia v Soh (Soh), where a fine of $10,000 was imposed for the purposes of general deterrence despite the doctor engaging in ‘significant dishonesty’.  Reference was also made to Medical Board of Australia and Stephens (Stephens) where a fine of $30,000 was imposed for deficiencies in clinical care.
•	Protection of the community and standards of the profession – Ms Ellyard submitted there is no evidence that Dr Ballekere has ever posed a risk to his patients and ‘a lot of evidence’ that he has a lot of patients with high needs who will not get psychological care if he is suspended because he is ‘irreplaceable’ given his speciality (ie. geriatric psychiatry) and practice location (ie. in the Northern suburbs of Melbourne). 
Ms Ellyard referred again to Stephens for support, as well as Medical Board of Australia v Smith where it was recognised that there is a public interest in a specialist practitioner (in that case, a paediatric neurologist) continuing to practice.
Ms Ellyard contended that the evidence demonstrated that, while Dr Ballekere’s emergency in-patients ‘can be covered to some extent’ by his colleagues, given the complex and multiple needs of his patients:
o	this could not be maintained for six months; and 
o	they would find it difficult to obtain appointments with other psychiatrists with appropriate geriatric experience and, in any event, such psychiatrists would not have the same level of history and relationship with the patients that Dr Ballekere has.
As such, if he was suspended for six months, there would be ‘hundreds of patients missing at least one or more appointments’.  
40	Ms Ellyard concluded that a suspension is ‘out of proportion’ with the need to send a message to the profession, noting the ‘salutary effect of a four year investigation and the imposition of a fine’, adding (somewhat dramatically) that ‘without psychiatric care, some patients may die’.
41	In response to a question from the Tribunal, Ms Ellyard accepted that it was open to the Tribunal to impose a mix of a fine and suspension, although she questioned the protective work to be achieved by a suspension as against a fine, suggesting that ‘even a relatively short suspension is disruptive to patient care’.
42	In response to a further question, Ms Ellyard indicated that, if the Tribunal were minded to impose a suspension, it should commence three months after the orders were made, which she suggested ‘speaks to the impact of a suspension’.
-	Analysis and conclusion
43	We accept that there is a limited (if any) role for specific deterrence in this proceeding.  Dr Ballekere has shown insight into his (mis)conduct and has engaged with medical professionals to address his underlying issues of depression and anxiety, as well as undertaking education to address the apparent shortcomings in his understanding of his professional obligations.
44	Insofar as the standards of the profession are concerned, we consider that the public would recognise that the (mis)conduct of one practitioner cannot be attributed to the profession as a whole, particularly where the conduct arose in the context of Dr Ballekere’s depression and anxiety.
45	However, we readily accept the Board’s submission that there is a real need for general deterrence, and for the Tribunal to send a strong message to the profession, that self-prescribing controlled substances – particularly in the name of another person – will not be tolerated and will result in a significant sanction being imposed.  As the Tribunal indicated in Lodhi, it is important that doctors appreciate the hazards associated with self-prescribing controlled substances in a (vain) attempt to manage their stress, rather than ‘putting their hand up for help’.
46	While it is true that there is no evidence that Dr Ballekere’s conduct adversely impacted on his patient care, as was indicated in Lodhi, it clearly ‘had the potential to harm himself and impact the care he provided to patients’.  Similarly, by writing prescriptions in XZ’s name, there was also the ‘potential to impact on her medical care in the future, or her credibility (if she rightly denies that she used the drug at the time’.
47	As a medical practitioner and psychiatrist, Dr Ballekere was (and remains) entrusted to treat the mental health challenges of his patients and, for this purpose, given the privilege of prescribing medications, including Schedule 4 drugs.  His conduct: 
•	has abused the trust reposed in him; 
•	is demonstrably serious; and
•	as already noted, represents a substantial departure from the standards expected of a practitioner of his experience and training.
48	While we accept that it is open to fine rather than suspend, this is not a case where a fine alone would suffice.  In this regard, we note the observations of Edelman J in Australian Building and Construction Commissioner v Pattinson as to the limitations of a civil penalty in achieving the purposes of general deterrence, as well as the references made by a number of the judges to the dangers of such penalties being viewed as just ‘a cost of doing business’.  
49	Although there is no suggestion that Dr Ballekere is likely to be a repeat offender, there is a real risk that – if doctors practising in specialist fields came to the view that they could escape with a fine (capped at a relatively low amount of $30,000) when they engaged in serious misconduct – that would not serve to deter them from engaging in such conduct.
50	It is relevant to observe that, in Lodhi, the practitioner also sought to contend that it was sufficient for the Tribunal to impose a fine (in that case, $10,000 was proposed) instead of a suspension.  However, the Tribunal concluded that a two-month period of suspension was required, noting that the doctor’s remorse, insight, admissions and rehabilitation ‘reduced what would otherwise be a much longer period out of practice’.
51	We do not find Soh or Stephens of much assistance because the nature of the misconduct in those matters was quite different to this proceeding.  In Soh, the misconduct involved plagiarism, while Stephens related to failures to follow up with a patient about a problematic pathology report.  
52	Ms Ellyard also made reference to Medical Board of Australia v GMZ (GMZ) and Medical Board of Australia v Pang (Pang), both of which were cases involving doctors who self-prescribed medications.  
53	In Pang, a three-month suspension was imposed in respect of the self-prescribing which was repeated and took place over a lengthy period (although it did not involve as many prescriptions or as long a period as this case).  In our view, that decision supports the imposition of a period of suspension in the present case.
54	In GMZ, the self-prescribing was extreme, occurring on more occasions and over a much longer period than the present case.  In that case, the Tribunal accepted the joint submissions of the parties that it was appropriate to reprimand the practitioner and impose conditions on his registration, but not suspend him.  It is relevant to observe that that practitioner had already pleaded to, and been found guilty of, 40 rolled up charges under the DPCS Act.  
55	Importantly, it seems that the practitioner had overcome his addiction to the Schedule 4 drugs and been drug free since 2015.  Indeed, in the lead up to the hearing, the Board modified conditions on his registration to move from monthly to quarterly hair testing.  
56	Significantly, and by contrast to the present case, in GMZ, the doctor was at a relatively early stage in his career (about 8 years in practice at the time of the first notification) and there was evidence that he had since been able to completely turn things around, including finishing his training to become a general practitioner and work as a registrar (albeit subject to conditions). 
57	Further, the doctor in that case had eight-months out of practice as a result of a voluntary undertaking, prior to the matter being referred to the Tribunal.
58	Due to the significant differences in the factual scenario, we do not find GMZ to be as of much assistance as Lodhi.
59	Ultimately, we have formed the view that a period of suspension is required in this proceeding, primarily for general deterrence.
60	Although Dr Ballekere’s conduct relates to the self-prescribing of Schedule 4 drugs (rather than the Schedule 8 opioids the subject of the allegations in Lodhi), some of the drugs were psychotropic medications and one was a drug of dependence, and Dr Ballekere engaged in the misconduct more times and over a longer period than Dr Lodhi.  As such, the gravity of Dr Ballekere’s conduct can be seen to be more serious, requiring a longer period of suspension.
61	While we accept that there will be an adverse impact on Dr Ballekere’s patients and colleagues during any period he is suspended, this is not a case like Medical Board of Australia v Benedicto where the practitioner is the only full-time medical practitioner at the relevant service and the suspension of the practitioner might cause the closure of the ward or have a ‘potentially catastrophic impact on the safety and continuity of the care’ of patients. 
62	Nevertheless, we are persuaded that it is appropriate to ameliorate the period of suspension to some extent to minimise the impact on Dr Ballekere’s patients and colleagues, and therefore to impose a fine in lieu of a more extended period of suspension.
63	In all the circumstances, we have determined that it is appropriate to:
•	suspend Dr Ballekere for a period of three months, with that suspension to commence on 1 November 2022 (more than four months from now) (noting that the period of suspension occurs over the Christmas/New Year period when it might be expected that Dr Ballekere would take some leave in any event); and
•	impose a fine of $15,000, in lieu of a longer period of suspension.   
Open Courts Act orders
64	Orders were made under the Open Courts Act 2013 (Vic) (OC Act) on 18 June 2020, on the Tribunal’s own motion, prohibiting the publication of information that might enable the patients the subject of these proceedings, the notifier or the other witnesses (excluding the respondent) to be identified (OCA Orders).  
65	At the hearing, the Tribunal referred the parties to the decision of the Court of Appeal of the Supreme Court of Victoria in WEQ (a pseudonym) v Medical Board of Australia, where the Court suggested that, consistent with principles of open justice, any suppression orders under the OC Act should be as limited in scope and duration as is consistent with the interests of justice.
66	At the end of the hearing, we granted leave for the parties to file submissions as to whether any changes should be made to the scope and/or duration of the OCA Orders.
67	On 3 May 2022, the parties filed joint submissions contending that the current scope of the OCA Orders is appropriate to protect XZ in circumstances where the media was in attendance at the hearing where XZ was named.  Further, they contend that the orders should remain in place until the death of the witness and confidential notifier in order that the proceeding suppression order can achieve its purpose.
68	The Tribunal notes that, although there were journalists in attendance at the hearing who heard the discussion about the scope and duration of the OCA Orders, no submissions have been received from their media organisation to change the scope or duration of the orders in place.
69	In the circumstances, we accept the joint submissions of the parties and will leave the existing OCA Orders in place.

R. Tang, AM
Presiding Member	Dr A. Williams
Health Practitioner Member	Dr L. Warfe, OAM
Health Practitioner Member	

Appendix 1 – Amended Notice of Allegations 
(with edits agreed to at the hearing marked up)

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

In the allegations, the following defined terms are used:

•	Code of Conduct – Good Medical Practice: Code of Conduct for Doctors in Australia, 2014.
•	RANZCP Code of Ethics – Royal Australian and New Zealand College of Psychiatrists
•	Code of Ethics, 2018.
•	DPCS Act - Drugs Poisons and Controlled Substances Act 1981.
•	DPCS Regulations 2006 - Drugs Poisons and Controlled Substances Regulations 2006.
•	DPCS Regulations 2017 - Drugs Poisons and Controlled Substances Regulations 2017.
•	National Law - Health Practitioner Regulation National Law (Victoria) Act 2009.
Self-prescribing for purpose of self-administration
1. 	Between on or about 1 January 2017 and on or about 6 August 2018, Dr Yogananda Ballekere engaged in:
(a)	professional misconduct within the meaning of paragraphs (a) and/or (b) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of s 5 of the National Law; and/or
(c) 	unsatisfactory professional performance within the meaning of s 5 of the National Law,
in that he prescribed Schedule 4 poisons, namely amitriptyline, periciazine, doxycycline, methylprednisolone, metformin, rabeprazole, metronidazole, lithium carbonate, valproate, rosuvastatin, clonazepam and escitalopram, in the name of [XZ], for the purpose of self-administration.
Particulars
The particulars include, but are not limited to:
1.1	At all relevant times, Dr Ballekere was a registered medical practitioner with specialist registration (psychiatry) and was working as a consultant psychiatrist.
1.2	Between 1 January 2017 and 6 August 2018, Dr Ballekere issued a prescription in the name of XZ for the following medications:
(a)	on or about 27 January 2017, for periciazine, and rosuvastatin;
(b)	on or about 9 January 2017, for rabeprazole sodium, and periciazine;
(c)	on or about 3 February 2017, for doxycycline;
(d)	on or about 8 and 28 February 2017, for rosuvastatin, and periciazine;
(e)	on or about 7 and 17 March 2017, for rabeprazole sodium, and rosuvastatin;
(f)	on or about 2 and 12 April 2017, for amitriptyline, and clonazepam;
(g)	on 10 April 2017, for amitriptyline;
(h)	on 8 May 2017, for metformin;
(i)	on or about 31 May 2017, for doxycycline, rosuvastatin, and clonazepam;
(j)	on 13 July 2017, for metronidazole;
(k)	on or about 27 July 2017, for metformin, rosuvastatin, and clonazepam;
(l)	on 23 August 2017, for doxycycline;
(m)	 on 25 August 2017, doxycycline, pericyazine, and rosuvastatin;
(n)	on or about 4 September 2017, for metformin, rosuvastatin, and clonazepam;
(o)	on 13 October 2017, for amitriptyline, metformin, and pericyazine;
(p)	on 20 October 2017, for escitalopram;
(q)	on 22 November 2017, for valproate, amitriptyline, rosuvastatin, and pericyazine;
(r)	on or about 23 November 2017, for valproate;
(s)	on or about 22 November 2017, for pericyazine, methylprednisolone, and clonazepam;
(t)	on 16 December 2017, for lithium carbonate;
(u)	on 18 December 2017, for lithium carbonate;
(v)	on 3 January 2018, for escitalopram;
(w)	on 23 January 2018, for amitriptyline;
(x)	on 30 January 2018, for escitalopram;
(y)	on 4 February 2018, for metformin, methylprednisolone, and rabeprazole;
(z)	on 2 March 2018, for amitriptyline, pericyazine, and rosuvastatin;
(aa)	on 13 March 2018, for escitalopram;
(bb)	on 15 March 2018, for escitalopram;
(cc)	on 30 April 2018, for amitriptyline, rosuvastatin, and pericyazine;
(dd)	on or about 30 May 2018, for amitriptyline, pericyazine, and clonazepam;
(ee)	on or about 4 June 2018, for clonazepam;
(ff)	on or about 7 June 2018, for amitriptyline, metformin, rosuvastatin, pericyazine, and clonazepam;
(gg)	on 1 July 2018, for amitriptyline, and pericyazine;
(hh)	on or about 11 July 2018, for clonazepam; and
(ii)	on or about 6 August 2018, for escitalopram.
1.3	Amitriptyline, clonazepam, periciazine, doxycycline, methylprednisolone, metformin, rabeprazole, metronidazole, lithium carbonate, valproate, rosuvastatin, escitalopram, and esomeprazole are Schedule 4 poisons.
1.4	Amitriptyline, clonazepam, periciazine, lithium carbonate, valproate, and escitalopram are also psychotropic medications.
1.5	Clonazepam is also a drug of dependence.
1.6	Dr Ballekere prescribed the Schedule 4 poisons listed at paragraph 1.2 without the consent of [XZ] and for the purpose of self-administration.
1.7	Dr Ballekere used private scripts to self-prescribe clonazepam.
1.8	All of the Schedule 4 poisons listed at paragraph 1.2 were:
(a)	dispensed to Dr Ballekere; and
(b)	except valproate and lithium carbonate, self-administered by Dr Ballekere.
1.9	Between April 2017 and July 2018, a large number of clonazepam tablets were dispensed to Dr Ballekere, being 300 2mg tablets and 1200 0.5 mg tablets.
1.10	Under s 73 of the DPSC Act, a person must not possess drugs of dependence unless authorised to do so under the DPSC Act or the DPCS Regulations 2006 or DPCS Regulations 2017. Dr Ballekere was not authorised to possess drugs of dependence.
1.11	Under s 77 of the DPSC Act, a person must not forge or fraudulently alter a prescription for a drug of dependence.
1.12	Under s 36B(1) of the DPCS Act, a person must not knowingly by false representation, whether oral or in writing or by conduct, obtain a schedule 4 poison.
1.13	Under s 36B(2) of the DPCS Act, a person must not possess a schedule 4 poison unless authorised to do so under the DPSC Act or the DPCS Regulations 2006 or DPCS Regulations 2017. Dr Ballekere was not authorised to possess schedule 4 poisons.
1.14	Under r 8(1) of the DPCS Regulations 2006 and r 17 of the DPCS Regulations 2017, a registered medical practitioner must not issue a prescription unless, amongst other things, the prescription is for the medical treatment of a person other than the practitioner.
1.15	Under r 48 of the DPCS Regulations 2006 and r 105(1) of the DPCS Regulations 2017, a person must not self-administer a Schedule 4 poison unless authorised to do so. Dr Ballekere was not authorised to self-administer any of the schedule 4 poisons listed in paragraph 1.2.
1.16	Dr Ballekere’s conduct was in breach of, including but not limited to:
(a)	s 73, s 77, s 36B(1) and s 36B(2) of the DPCS Act;
(b)	r 8(1) and r 48 of the DPCS Regulations 2006; and
(c)	r 17 and r 105(1) of the DPCS Regulations 2017.
1.17	Dr Ballekere’s conduct was in breach of the Code of Conduct, including but not limited to, by failing to attend to self-care and appropriate management of his own health and not conforming with self-prescribing regulations (section 1.4 and 9.2 of the Code of Conduct).
1.18	Dr Ballekere’s conduct was in breach of the RANZCP Code of Ethics by, including but not limited to, failing to:
(a)	attend to his own health and wellbeing (principle 9); and
(b)	maintain appropriate ethical standards (principle 10).
1.19	The RANZCP strongly recommends that psychiatrists avoid self-prescribing, and that psychotropic drugs, sedatives, analgesics, and other drugs of addiction are never self-prescribed.

2. 	On or about 31 December 2014 and 26 October 2016, Dr Yogananda Ballekere engaged in:
(a)	professional misconduct within the meaning of paragraphs (a) and/or (b) of the definition of professional misconduct in s 5 of the National Law; and/or
(b)	unprofessional conduct within the meaning of s 5 of the National Law; and/or
(c)	unsatisfactory professional performance within the meaning of s 5 of the National Law,
in that he self-prescribed Schedule 4 poisons, namely amitriptyline and esomeprazole, for the purpose of self-administration.
Particulars
The particulars include, but are not limited to:
2.1	At all relevant times, Dr Ballekere was a registered medical practitioner with specialist registration (psychiatry) and was working as a consultant psychiatrist.
2.2	On or about 31 December 2014, Dr Ballekere issued a prescription in his own name for esomeprazole for the purpose of self-administration.
2.3 	On 26 October 2016, Dr Ballekere issued a prescription in his own name for amitriptyline for the purpose of self-administration.
2.4	Esomeprazole and amitriptyline are Schedule 4 poisons.
2.5	Esomeprazole and amitriptyline are also psychotropic medications.
2.6	Esomeprazole and amitriptyline were dispensed to, and self-administered by, Dr Ballekere.
2.7	Under s 36B(1) of the DPCS Act, a person must not knowingly by false representation, whether oral or in writing or by conduct, obtain a schedule 4 poison.
2.8	Under s 36B(2) of the DPCS Act, a person must not possess a schedule 4 poison unless authorised to do so under the DPSC Act or the DPCS Regulations 2006 or DPCS Regulations 2017. Dr Ballekere was not authorised to possess schedule 4 poisons.
2.9	Under r 8(1) of the DPCS Regulations 2006 and r 17 of the DPCS Regulations 2017, a registered medical practitioner must not issue a prescription unless, amongst other things, the prescription is for the medical treatment of a person under his care and not the practitioner.
2.10	Under r 48 of the DPCS Regulations 2006 and r 105(1) of the DPCS Regulations 2017, a person must not self-administer a Schedule 4 poison unless authorised to do so. Dr Ballekere was not authorised to self-administer the schedule 4 poisons listed in paragraphs 2.2 and 2.3.
2.11	Dr Ballekere’s conduct was in breach of, including but not limited to:
(a)	s 36B(1) and s 36B(2) of the DPCS Act;
(b)	r 8(1) and r 48 of the DPCS Regulations 2006; and
(c)	r 17 and r 105(1) of the DPCS Regulations 2017.
2.12		Dr Ballekere’s conduct was in breach of the Code of Conduct, including but not limited to, by failing to attend to self-care and appropriate management of his own health and not conforming with self-prescribing regulations (section 1.4 and 9.2 of the Code of Conduct).
2.13	Dr Ballekere’s conduct was in breach of the RANZCP Code of Ethics by, including but not limited to, failing to:
(a)	attend to his own health and wellbeing (principle 9); and
(b)	maintain appropriate ethical standards (principle 10).
2.14	The RANZCP strongly recommends that psychiatrists avoid self-prescribing, and that psychotropic drugs, sedatives, analgesics, and other drugs of addiction are never self-prescribed.

Appendix 2 – Conditions on registration of Dr Ballekere

1 	Attend treating practitioner
1.1	The Practitioner must undertake treatment with a general practitioner and psychologist (the treating practitioner(s)) and attend at a frequency determined by the treating practitioner(s).
1.2	Within 14 days of the notice of the imposition of these conditions, the Practitioner must provide the following to the Australian Health Practitioner Regulation Agency (Ahpra):
(a) 	The contact details, on the approved form (HPF3), of all treating practitioners;
(b) 	Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a monthly basis; and
(c) 	Confirmation, on the approved from (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner’s registration and are aware Ahpra may contact them to seek reports.
2 	Provide Reflective Practice Report
2.1 	Within 14 days of the notice of imposition of these conditions, the Practitioner must provide to Ahpra:
(a) 	a reflective practice report demonstrating, to the satisfaction of the Medical Board of Australia (Board) or Chair of the Board, that the Practitioner has reflected on the issues that gave rise to the referral of his conduct to the Tribunal and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner’s practice;
(b) 	The reflective practice report is to include reference to the recent education the Practitioner has undertaken, namely the following courses:
(1) 	Ethical decision making;
(2) 	Self-care for psychiatrists;
(3) 	Prescribing principles: Chapter one - general prescribing issues; and
(4) 	Ethics obligations knowledge and skills: professionalism in medicine.
2.2 	The Practitioner is not entitled to claim the hours spent on education in compliance with these conditions as part of the Continuing Professional Development requirements for registration. 
3	General
	All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.