Update July 2008

Mal's Musings

Malcolm A Traill

Updated 20/7/2008



G'day. In this chapter I want to tell you how bureaucrats can get-at medical professionals quite easily, by setting up an entrapment using the provisions of the laws relating to addictive drugs, such as the benzodiazepines (eg Valium, Serapax, Rohypnol etc.) and the opiates (eg Morphine, Pethidine, Codeine, Oxycodone ("Proladone" etc.). The most addictive drugs are covered by Schedule 8 of the Act, and are loosely referred-to as S8 drugs and a Permit is required to prescribe or administer these to any particular patient, if administered for a period of greater than eight weeks.

There can be a number of ways doctors can be set-up, from "losing" Permit applications and putting increasing restrictions and time limitations on the Permits. All rely on the basic weakness that busy and dedicated doctors will put their patients first, that there are no reminder notices issued, and that there are time delays introduced for second opinions and the like.

The "losing" of Permit applications became so bad 2000-2001 that I began to wonder if there was any point having the bureaucracy to oversee the Permit system ! Yet, overseeing it they were - a note indicates that the Unit was checking the nearby pharmacy about 20/11/2000. Since no "alert" or warning notices ensued soon after, the conclusion is that the Unit was confirming that the entrapment campaign was working as planned !

To follow, is a slightly edited submission to a Medical Board Panel set up to look at breaches (lapses) found in my Permits. Mixed in amongst, but to be expanded later, is an attempt involving the Office of the Medical Board to set me up with respect to a specific patient (DF) and another patient who seemed to be another set-up, but the connections are unclear (MM)



                                       MPB Open Hearing 28/3/2006


                                            Defendant: Dr Malcolm A Traill


The Panel consisted of Dr S Horne (Chairman), Dr BM White and Mr M Gorton (a lawyer drawn, presumably by Mr John Smith, Deputy CEO, from the Governor-in-Council's list). As with the previous Panel in 2005, the Governor-in-Council's list seemed to provide those destined to take control and run the Hearings. (The appointment protocol for those on the list is not clear, but may deserve examination.)


1/ Adjournment. I request an adjournment of this Hearing. The Attached Documents (Exhibit MAT1-1) set out a request to the President of the Board for a deferment of the Commencement date of this Hearing, and the response from Ms B Broberg, 6/3/2006 for Mr John Smith (“JHS”), Deputy Chief Executive Officer (“DCEO”) of the Medical Practitioners board of Victoria (“MPB”)


I do not accept the letter from Mr Smith because there is no evidence, other than his account, that my application went before the Board, that he is reflecting truly what the Board determined and, without the letter being signed by a MPB member, no Board member is accepting responsibility for the reply. My letter was to the President and I expected a response from the President. Formal Hearings are significant steps for the Board, and to allow the delegation of signing out for such matters not only looks poor, but is a dangerous policy, allowing the Office of the Board to assume control without adequate checks and supervision from the Board.


In applying for a deferment of this Hearing (now commenced) I shall initially address the points I made to the President of the Board and the response by Mr Smith, signed-for by Ms Broberg, and introduce new issues :


  1. The conduct of the Medical Practitioners Board of Victoria (“MPB”) with respect to the case before the VCAT and the current Hearing has been dilatory; the former matter having a lag time of four years, the latter eighteen months since notification from the Drugs and Poisons Unit, about two years from the Court hearing, and some four - five years since the patients assessment interval concerned. One can hardly consider this a valid reason.
  2. The matters may not be considered related, but both matters involve the office of the MPB, the conduct of which is being called into question. The VCAT will (no doubt) be looking much more closely and impartially into this aspect, which would be relevant to the current Hearing and lies outside the competence of the current Hearing (point 7. below). By jumping the queue, the office of the MPB has avoided the close examination required before this Hearing (see later)
  3. An adverse finding by a Panel could be used by the VCAT in determining penalties. By then, the time will have passed to examine the probity of the MPB with respect to the current Hearing. An adverse finding relating to the conduct of the office of the MPB would have a profound effect upon the current Hearing if it were to follow-on from the VCAT process.
  4. The Court’s findings should not be accepted without question in a subsequent Tribunal Hearing (Forbes[1], 12.65-12.75, p. 183-188). Preparation of the VCAT and the current Hearing are different, and the latter involves professional aspects that were largely irrelevant to the black and white issues before the Court. The Court hearing was not the time nor place to argue professional considerations.
  5. I had an understanding that the Formal Hearing would be deferred until the processing of the earlier issue (before the VCAT) is finished. What was agreed in this matter at the Preliminary Conference is not included in the minutes. The MPB version is not recalled and is denied. (Mr John Smith is documented as providing to the VCAT false and misleading accounts, so his version cannot be accepted.)
  6. The proposed time table does not allow new evidence arising from the VCAT Hearing to be applied to the current Hearing process.
  7. There is an intrinsic bias, upon which the MPB is not in a position to adjudicate impartially.
  8. In order to reject a request for deferment, the Panel needs to have good reasons (Forbes1, 12.12.-12.13, p153; 12.37-12.40, 169-172)
  9. The rejection by the Board did not involve open and recorded debate, as may be possible now.
  10. There are issues in the current Hearing which link the current matter with others, and raise the issue of entrapment:

Ø      Only the Alert notification (27/11/2000) relating to (“VN”) medications stands alone. All the others were issued on 21/3/2001[2]. This means that :

Ø      Document searching started before 27/11/2000 (for VN) and,

Ø      The rest of the document searching was collected and stored as a cohort until 21/3/2001, before release, and

Ø      There was some reason for collecting the cohort – the course of events towards court action was planned by that stage.

Ø      I have no difficulty picturing JHS, acting for outside interests, picking up his telephone and talking to a senior officer in the Drugs & Poisons Units, saying (to the effect) “We have a who doctor we would like you to ensure that he comes to our area. I am sure you can assist with this favour for us.”

Ø      To return the favour, the Drugs & Poisons Unit officers would be able to:

ü      Generally harass me

ü      Shorten significantly the Permit durations

ü      Demand Consultant opinions

ü      Hold up Permits pending Consultant opinions

ü      “Lose” Permit applications

ü      Pursue me regarding a patient whom I ceased seeing about two weeks after receiving an Alert letter

ü      Demand dose reductions without consultation etc.


All these actions were done, to the degree that the Drugs & Poisons Unit officers effectively became my employers (with the responsibilities) – an unacceptable relationship with a medical professional in private practice.


Ø      The date of 21/3/2001 is significant, because a separate Associate Professor GG's complaint was “sent” 14/3/2001 to the Board concerning another patient (“SO”), and was office stamped by the Office of the Board 20/3/2001. The juxtaposition of dates can hardly be coincidental. On the assumption that these events were linked, I can propose an overall sequence, linking the two main attacks against me: I can picture Mr Smith contacting a senior officer in the office of Drugs and Poisons by telephone on 20/3/2001 and suggesting that a two-pronged campaign can intensify. With such a link, other dates show matching:

Ø      GH, diagnosed with small cell lung cancer, commenced cytotoxic chemotherapy in September 2000. She claimed severe side effects and opted out, coming to me with a referral for other options in treatment. There seem good grounds in believing that she believed then that she had incurable disease, was deferring cytotoxic chemotherapy until symptoms developed, and sought alternative treatments as part of an entrapment plan for, amongst other things, obtaining a payout from United Medical Protection by a criminal deception. Her alternative treatment started on 5/10/2000, being completed on 2/11/2000, the point where she could claim completion of the initial part in the entrapment. Preparation for VN’s alert notice started, and it was issued 27/11/2000.

Ø      However, SO developed a lung infection and was hospitalized in Leongatha on 2/12/2000. This set-back, from which she could have died, put a holt to more alert notices being issued – the documentation being collected and put their release on hold, until notified by the office of the Board (JHS) to release them.

Ø     SO reached the Peter MacCallum Cancer Institute on 25/1/2001 and came under the “care” of Associate Professor GG. He made a telephone call to me on 8/2/2001 with allegations, threats and menaces.

Ø     SO lodged a complaint about her treatment under me to the Health Services Commissioner (“HSC”) on 16/2/2001, with a follow-up letter of complaint from Associate Professor GG 20/2/2001.

Ø     SO seemed to have been interviewed by the HSC on 8/3/2001.Unofficial feedback from the HSC office was that they were not inclined to pursue the complaint. (Apparently subsequently, a non-standard pathway was followed.)

Ø      The GG report “sent” 14/3/2001 has an hiatus in days before being date stamped by the office of the Board 20/3/2001. It formed the registered complaint to the Board, and the basis for further steps, although later, there has been an attempt to shift the complaint to SO.

Ø      I suggest that the GG complaint was delivered to Mr Smith shortly after 14/3/2001, that he considered it, and then had it stamped on 20/3/2001, the day he notified the Drugs and Poisons Unit to step up the entrapment plan.

Ø      I have difficulty rejecting the possibility that Mr Smith was not involved in the scandalous and unconscionable (if not illegal) conduct involving the MPB, Professor Paul Desmond and Dr J Nettleton, as outlined in Ms DF’s Affidavit (attached). Professor Desmond provides a nexus linking the events in the Hearing 2005/VCAT and the current Hearing. He is to receive a Summons to appear before the VCAT to explain his roles. The current Hearing, if it is to proceed, could prejudice the VCAT process.

Ø      Of particular concern is the role of Mr John H Smith DCEO. Issues and points of concern to be aired at the VCAT will be summarized in the section below :


         For many years, from before 1990, Mr John H Smith has played a key role in the office of the Boards (under the Medical Practitioners Act 1970 and, later, the Medical Practice Act 1994), with correspondence issued from the Boards carrying his signature, the signatures of others acting on his behalf, or his initials in the “Our Ref.” (or equivalent). His name has, to many people, become virtually synonymous with the MPB. But all may not be well :

a)      In February 1990, Mr John H Smith (“JHS”) wrote a letter to the then State Minister for Health in response to a concern raised by the my father. Why JHS was in the position to respond, and how he was able to respond the way he did in smoothing over the issue has not been made clear but, considering that the “sale” of Glendon Diagnostics (Aust) Pty Ltd (“Glendon”) involved a major fraud involving officers of the HIC, in which almost every law relating to the operation of the pathology industry (Health Insurance Act 1973) was breached (RB2, 129; TRA.002.300-347), the ability of JHS to allay the father’s concerns the way he did marked him out as being friendly to organized crime figures in the Pathology Industry.

b)      JHS was initially the Secretary, later the Registrar of the Board. About 1999-2000 there was appointed above JHS Mr I Stoney, the new Chief Executive Officer (“CEO”), JHS being the Deputy CEO. This would appear to be a demotion. I do not know the reasons for this.

c)      Over the next 10 years, the I made numerous submissions to the Medical Boards (old and new), expressing concerns over the Glendon fraud, the failure to have investigation of it and the ramification it has had in the practice of Pathology in Australasia. Letters were sent by me to the Board of the time on 6/12/1989, 7/3/1992, 22/6/1998, 14/10/1999 and 11/11/1999. On no occasion did I receive any indication or convincing evidence that the Board of the time (other than the office of the Board) had had the concerns properly submitted to it, or had seriously considered the concerns in order to provide reasoned responses.

d)      At the Informal Hearings relating to Lithium in 1997 and 1998, reference was made to “expert opinions” which were never sent to me, tabled nor read openly at the Hearings. When I sought copies of these and the covering letters to obtain them, his letter did not receive a response. Some months later, I wrote again seeking the information under FoI. The reply from JHS claimed that the original letter had “lost in a compactus” and now had been found. The requested documentation then turned up.

e)      JHS was almost certainly involved in the unconscionable release to the Pubic area the alleged Minutes of the Informal Hearings involving Lithium (see earlier) 

f)        On 23/4/2002, JHS submitted to a subcommittee of the MPB the contents of a Complaint Management Form Team 2, dealing with the complaint by Associate Professor MacManus for GH. The submission contains an important misquotation from a letter to the MPB by me. There was presented to the MPB (inter alia) “He states that he also recommended chemotherapy but of a palliative care type.” (The underlining is JHS’s, 2002.) The original letter in 26/2/2001 stated “I advised chemotherapy as being the only way she may achieve a long-standing remission/cure, and believed that she may be persuaded to change her mind if she received less toxic, palliative care based chemotherapy in the interim.” (Underlining by me, 2006.) The MPB’s version implies that GH had been classified by me as in “palliative care” (ie incurable) at the time, whereas my version 2001 indicates that the modified chemotherapy was an interim measure to coax her back to accepting the recommended forms of chemotherapy, along the lines she had received previously. The misquotation was taken up later  “. . .had he been fully aware that Ms Hargreaves did, at the commencement of her treatment course, have a chance of a cure, such a report (X-ray) should have been totally unacceptable.” The presentation slide has reached the point where what I had written indicated to the MPB that I was unaware that she had the chance of a cure (ie a false representation). I submit that this misquotation involving JHS was a significant point in the decision to proceed to a Formal, Open Hearing. Many of the points appearing in the Particulars of the Notice appear in the Form JHS presented to the MPB.

g)      The absence of Lithium in the Complaint Management Form is also significant (see earlier) (There was no MPB endorsement to proceed with the issue.).

h)      Following from the Panel’s Determination 19/10/2005, I appealed to the VCAT. At the Directions Hearing, Senior Member Davis gave the Order “1  Order of the Medical Practitioners Board made 19/10/2005 be stayed pending final determination of the application review, . . .” Despite this Stay, over the ensuing weeks there came reports from some 4 independent areas that registration reinstatement had not been fully and speedily implemented. After the first one of these came to my notice, there were letters sent to the MPB and the VCAT. In response to the former, JHS responded with an email letter on 7/11/2005, stating “Following the decision made by Mr Davis in the VCAT on Friday 28 October 2005, a TWIMC was posted that afternoon* to all the organizations that the Board notified regarding the outcome of the Formal Hearing. - On checking with Medicare Australia following your e-mail it was discovered that the Board’s advice had not been actioned, I understand that this has now been rectified at Medicare Australia. Given the delays experienced in this case the Board will in the future e-mail all the organizations notified of a hearing decision where the VCAT has granted a Stay Order.” (*It was evening.) However, deregistration claims continued from some 3 other areas subsequently. I submits that JHS made a false and misleading claim involving the VCAT and that JHS treated the Order with contempt; an ominous sign for one in such a hitherto respected position. (Some people call those who make false and misleading statements liars.)

i)        Subsequently JHS sent an e-mail 19/12/2005, supposedly a circular, in which Registration queries were to be directed to a new e-mail address, instead of to the general office for all to see. This would be consistent with JHS keeping deficiencies traceable to himself, unobserved by others in the office.

j)        Because my concerns about the lack of action involving my correspondence on Pathology, I sought to obtain copies under Freedom of Information (“FoI”) late 2005. Reference was made to correspondence received from the Board which inevitably had an “Our Ref. JHS: etc.” When these were quoted to the FoI officer, a reply came that the references were not detailed enough. When the I wrote back to the FoI officer pointing out that they were all I had to go on, a letter came back from JHS stating (to the effect) that there had not been provided enough file reference information, that the office did not have the time and resources to do searching, and that the FoI request was to be denied. This means that, at least since 1990, the office of the Board has operated a filing system for non-patient matters dependent upon JHS, and that JHS was overseeing a filing system which was insulated, whereby attempts to access the files under FoI was blocked by JHS.

k)      The extraordinary juxtaposition in dates in the appointment of Minter Ellison, a firm that had deceived the Federal court about the Applicant mid 2002 (Mal’s Musings) and the MPB’s appointment of Minter Ellison at about the same time, with JHS giving the firm the referral before the appointment date (as recounted), coupled with the Firm’s involvement with Market Form Ltd, a party to the civil action with GH, is remarkable. I submit that I cannot believe that there is a coincidence; that the reason for the appointment of Minter Ellison was to continue the Federal issues into the MPB area. Likewise, I submit that the Market Form Ltd/Minter Ellison decision not to honour David Spall’s medical indemnity on the grounds that GH was identified as a potential litigant is specious! A more likely explanation was the intention to see David Spall ruined financially, so that I could not continue practising as  I was. (That I can consider such motives and actions shows that the legal activities and arrangements were not transparent.)

l)        By late 2004, I had reached the conclusion that the office of the Board contained a mole and there was little difficulty deducing who it was: JHS. I submit that JHS has, since February 1990 at least, pursued a vendetta, as part of the vendetta conducted by the HIC/Medicare Australia since 1989, and documented in Mal’s Musings[3], again as part of a concerted campaign to ensure that medical clinical pathology is eliminated. This would transfer the control of pathology laboratories almost entirely to non-medical interest groups. (The Pharmaceutical industry may also be applying pressure with respect to Lithium treatments.)

m)    The composite Extract of the Minutes of the Meeting of the Medical Practitioners Board and annotation is unattributed, and undated with respect to the annotation. I submit that this document, presumably created by JHS or on his behalf, should not be accepted into evidence by the VCAT, because I entertain doubts about its veracity.

n)      In early correspondence with the MPB over the MacManus complaint, the issue of the significance of the Item 105UF and other points were strongly contested, apparently by JHS

o)      A letter from Dr Annie Moulden indicated that there had been a breach of confidentiality by the MPB (non-specific, office malaise)

p)      On the first morning of the Hearing, JHS sat as the only member of the audience, for an hour or so. Later he turned-up and sat in the audience to hear the Finding and Determination (it being after 6 pm). He would seem to have a particular interest.

q)      A Registered Letter was sent by me to the Chairman person-to-person on 22/8/2005. It was returned marked “unclaimed.” (non-specific, office malaise)

r)       JHS had to be involved in the unconscionable and possibly illegal release into the public arena of the Minutes of two Informal Hearings

s)       JHS oversaw the office of the MPB in its dealings with Ms DF and others, which involves Professor Paul Desmond, of St Vincent’s Hospital (also selected by JHS with regard to an “expert” opinion regarding lithium in 1998. This concerns the VCAT – see earlier & later)

t)        I do not have any difficulty believing that the alleged clash of court hearings which allowed Mr O’Neill to seek deferment of the VCAT Hearing followed from the inability to obtains Ms Franklin’s cooperation in the MPB’s sleazy secret Board business. This then allowed the MPB to “jump the Queue” and bring the current Hearing on ahead of the VCAT Hearing, to create a bias.

u)      JHS had to oversee the Panel selection and composition in 2005, with the bizarre outcome (see later)

The significance of all the above points listing concerns about probity and propriety of JHS is as follows :

v)      JHS has, over the last 16 years held a trusted, powerful and influential position within the office of the MPB. As such he has been in the position to influence in many ways :

·        The recruitment, selection and appointment of MPB Members

·        The suggestions of candidates for the Panel list submitted to the Governor in Council

·        The selections of Panel Members from the MPB Members or the approved list made by the Governor in Council

·        The Processing of incoming complaints, including supervising and advising staff including Investigating Officers (eg Dr Sally Middleton), how to process the issues and interview relevant persons and the selection of relevant persons to provide expert opinions etc.

·        Presenting Summaries and Minutes to the MPB or Subcommittees of the MPB, with recommendations for action or inaction

·        The appointment and supervision of staff, legal firms (eg Minter Ellison) and the like.

·        The influence that comes from being in such a trusted and key position; he would be able to influence other areas, such as the Health Department(s), their sub-departments and the like.

w)    My concern is that, after some 16 years of overseeing the office of the Board, with no perceptible MPB concern over the events in the Pathology Industry, and various actions being taken against me, JHS’s influence may have progressively affected the impartiality, not merely of the MPB, but particularly the Panels of the more recent Hearings. Perhaps there were two key Panel Members who owed a favour to JHS or had received some incentives. I submit that, given all of the points above, an impartial bystander should entertain the suspicion of bias within the operations of the MPB and its Panels, and that this may not relate only to me; it may relate to all Board activities over the last 16 years (at least).

x)      The Panel of four (in 2005), I observe, based upon the MPB’s Annual Report for 2005, comprised one Board Member and three members drawn from an Appointee list approved by the Governor in Council at the commencement. Ms Sanders, the sole Board Member resigned from the Board in July 2005. The I understand that this list should not be drawn from unless there is an inability to draw Members from the Board or if there is a requirement for special skills or knowledge. The Panel members exhibited no special skills or knowledge relevant to the matters being dealt with. I find that an inability to draw more than one Member from the Board difficult to believe, and to have her resign from the board in July, at or about the time of the second group of full Hearing days and well before the Reasons were contemplated, left the Panel dispossessed from the MPB. In the final analysis, the Panel was not representing the MPB, but rather, the office of the MPB, overseen by JHS ! He was their supervisor !!! I submit that there has been a selection process for the Panel involving criteria which have not been declared and which have introduced bias. I also submit that the Panel did not comply with the spirit, intention or wording of the legislation regarding the selection of Panel Members, that a Panel without a Board Member is not legally competent, appropriate and/or is without standing for making judgments and determinations, and that the Panel has perpetrated a deception.

y)      The MPB Bulletin March 2006, presented a full report of the Hearing and noted aspects of the VCAT appeal and undertakings. My understanding is, that after an appeal is lodged there is an embargo on such reporting. I am concerned over the propriety of the office of the MPB and the role of JHS in assembling the report.


These allegations are, of course, most serious, and lie outside the competence of the Medical Board to assess. They are issues to be heard before the VCAT, and it following the outcome of that Hearing that the Drugs and Poisons issues, which could prejudice the VCAT Hearing, should be heard – meaning that the current Hearing should be deferred until after the VCAT Hearing.     


2/ Definitions (a-e[4]).

a)      Dependant. 1. one who depends on or looks to another for support, favour, etc.

b)      Addicted. Devoted or given up (to a practice, habit or substance). (fol. By to)

c)      Addict. 1. one who is addicted to a practice or habit: a drug addict.

d)      Narcotic. 5. any of a class of substances that blunt the senses, relieving pain, etc. and inducing sleep, and in large quantities producing complete insensibility, often used habitually to satisfy morbid appetite. (Often referred-to as Section 8 [“s8”] drugs (poisons), eg morphine, pethidine, Fentanyl, oxycodone and codeine.)

e)      Prescription. 1. a. a direction (usu. written) by the doctor to the pharmacist for the preparation and use of a medicine or remedy. b. the medicine prescribed

f)       Entrapment[5]. A person is “entrapped” when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit; and the law as a matter of policy forbids conviction in such a case. (etc.). In the USA, entrapment is illegal. Whilst the above defines the term, its place in Australian law is clarified by Professor S Bronitt[6]. He states “In Australia, the High Court in Ridgeway v The Queen took a slightly different path. The court rejected the general proposition that proceedings based on evidence obtained by entrapment constituted an abuse of power, content instead to extend the public policy discretion to exclude evidence on the grounds of illegality or impropriety.” So we need to assess what was done under the headings of :

                                                               i.            Whether unreasonable

                                                             ii.            Whether illegal

                                                            iii.            Whether improperly discriminatory

                                                           iv.            Whether otherwise wrong (eg unprofessional, malicious defamation)

The Panel should note that discussions about entrapment revolve around obtaining evidence for convictions in criminal cases, very often when other avenues have failed and are exhausted. All this is a far cry from seeking convictions, with the associated expenses and manpower resources paid by taxpayers, for lapses in Permits under the Drugs, Poisons & Controlled Substances Act 1981. Entrapment for these lapses would seem quite unconscionable, unreasonable, improperly discriminatory, malicious defamation and unprofessional and, in the case of Ms Franklin, possibly illegal – in total, gross abuse of power and taxpayers’ monies.


3/ Use of Terms.

a)      Drug dependant can apply in two extreme ways.

                                 i.            Severe pain may make a sufferer dependant upon pain killing drugs in order to attain a reasonable quality of life. The dependency is pain motivated and,

                               ii.            Any person taking an narcotic analgesic at high enough dose for long enough, with experience withdrawal symptoms (fevers, muscle pains cravings etc.) Such people are drug dependant, here motivated by the withdrawal symptoms.  

b)      Drug addiction is typically characterized by drug seeking, where a person so afflicted uses inordinate and underhand methods to obtain narcotics, not clearly related to any pain-relieving effect.

c)      A prescription is usually taken to mean an instruction written on a piece of paper to instruct the pharmacist: n prescriptions = n pieces of paper.

The Drugs and Poisons has used a different meaning, whereby the individual items on the piece of paper is each a prescription: n prescriptions = n pieces of paper x number of individual items (eg ampoules). This significantly swells out the perceived number of “prescriptions;” eg one prescription (piece of paper) with a box of 5 ampoules of morphine and a box of 12 Proladone suppositories = 17 prescriptions (items). This creates a deception and bias.



4/ Cultural & Religious views. There are acknowledged differences in views about pain and the use of narcotics to relieve it. For the current Hearing, there is some relevance in considering the attitudes of Roman Catholicism because of its involvement with St. Vincent’s Hospital. A writer on the topic of catholic bioethics[7] states “Physical suffering is an inevitable part of the human condition; it serves a useful purpose but so affects human psychology that it can become so severe that one wishes to remove it at any cost. Christians recognize that suffering has a special place in God’s saving plan as a sharing in Christ’s passion and union with his redemptive work. But there is nothing wrong in using painkillers as such so long as their use does not prevent one from carrying out religious and moral duties, even if one foresees that their use may shorten life.” Others in the same publication seem to have more tolerant views. There are some who believe that pain should not necessarily be a major feature of a person’s life.


5/ In Practice, few cases are clear-cut (I shall confine this presentation to non-terminal   conditions)

a)      Patients who have severe and disabling pain from physical afflictions, such as spinal or other bone disorders, migraines (vascular dysfunction), bowel obstructions and deep abscesses, may justify levels of narcotic dosing for long enough to become drug dependant. Such people have a dual dependency upon the narcotic – a pain-relief based dependency and a drug withdrawal based dependency. They can be expected to have the return of pain (with reduced quality of life) and withdrawal symptoms (adding discomfort) on sudden cessation of the medication.

b)      Some may develop an additional craving, which may be interpreted as a superimposed addiction. (Based upon studies of cancer patients, this percentage is said to be relatively low)

c)      Drug addicts, or those with a history of drug addiction, may still develop severe and crippling pain. Such patients may still deserve to be treated, provided the treater is satisfied that the pain component is genuine. This is not always easy to determine. Such patients can be expected to be more challenging to manage. That such patients exist means that there need to be some practitioners willing to take on the responsibility of treating their pain (eg Specialists). This challenge may leave the practitioner exposed to manipulative peer criticisms.


6/ The Law and Medicine – Ethical considerations.

            Medical practitioners can be in a conflict situation with the law. There are two examples (at least) that occurred in the relevant time :

a)      The situation when the Drugs & Poison Unit, without consultation, refuses to issue a Permit for a long-term patient with significant pain and on the high ongoing dose of narcotic, pending a Consultant’s report. Obtaining such reports for pensioner patients can be slow and difficult. Is the practitioner to cut the patient’s supply forthwith, leaving the patient in pain and having withdrawal symptoms, or should the practitioner follow Hippocratic principles and continue the treatment pending the Consultant’s report ? When confronted with this on several occasions in the relevant time, I put my patients’ care first – at a potential price now being extracted.

b)      What is one to do when family members report and confirm that some accident (or other event) has caused loss or damage to medications and, as a consequence, the patient’s consumption is at risk (or is actually) over that provided in the Permit. This occurred with Ms Margaret Bourke, whose daughter’s Statutory Declaration is attached (Exhibit MAT1- 2) The Permits specify that “the permit holder must take all reasonable steps to ensure (compliance).” But what does that mean in clinical practice, when the Drugs & Poisons Unit is pursuing an entrapment campaign ?

c)      In the case of JO, after an Alert notice from the unit early in the relevant time, I had only two more consultations with her over the next three weeks. Despite that, the Unit pursued her over the years as an example. If a police officer gives you a warning, you do not expect to be charged with the offence some 3-4 years later. This would seem to be biased, unreasonable, vindictive and vexatious, consistent with the entrapment conclusion.  


7/ The current Hearing - Historical.

a)      This Hearing relates to the outcome of charges brought against me by the Drugs and Poisons Unit of the Department of Human Services, heard in the Melbourne County Court on the nineteenth of March 2004.

b)      I pleaded guilty. This was because the Court was dealing with the black and white issue of legal compliance and there was little point in pleading extenuating circumstances of a professional type: the Court hearing was not the time or the place.

c)      The Magistrate accepted the main reason given for the lapses, that they were oversights in a busy clinic.

d)      He accepted that the patients comprised a relatively small group of patients who were involved in an ongoing treatment relationship with me, that there were usually Permits before and after the lapses, and that the patients were not large numbers of feral, roaming drug addicts.

e)      The Magistrate recorded a conviction, and ordered me to pay $1000 to the Court Fund, and adjourned the matter for twelve months.

f)        Costs were not awarded against me

g)      The money was paid on time and the twelve months passed without incident.

h)      Accordingly, I believe that the Court matter is closed.

i)        On Friday the twenty fourth of December 2004, Mr Keith Moyle of the Drugs and Poisons Unit wrote to Mr John Smith, DCEO of the MPB, reporting the County Court hearing.

j)        Mr Moyle erred in fact – the adjournment was for twelve months, not twenty four months.

k)      Most of the breaches occurred in 2000-2001. The County Court hearing was in March 2004, and the current Hearing is in March 2006. Thus, some 5 years have elapsed since the breaches occurred. Much has changed:

                                 i.            I have dropped out of the  primary care setting

                               ii.            I am now semi-retired

                              iii.            I only see about 20 patients per week, usually in the morning

                             iv.            There are considerably fewer pressures to distract from the necessity of remembering to submit Permit applications.


8/ The Current Hearing – Statement

a)      Naturally, I am concerned and regret that the oversights and omission occurred. I was then, and am now doing my utmost to try to prevent further lapses.

b)      At the relevant times, I tried my best endeavours to adhere to the laws but, in the context concerned, oversights and lapses occurred which I tried to avoid; they were not deliberately made.

c)      At all times, I have been aware of the importance of the need to regulate the delivery of Section 8 poisons to the public – of the need to prevent “doctor shopping” and to control the escalating demands for increased consumption of the Section 8 poisons by those with an addiction problem. Over the relevant time, I did endeavour to observe the spirit of the legislation, but with imperfections.

d)      Having said this, I note :

                           i.            The extreme difficulty one can have remembering to renew a Permit (or license etc.) when there is no reminder notice issued. (How do you fare with bills without reminder notices ?)

                         ii.            There remains uncertainty as to what to do when a patient with a relapsing-remitting condition suddenly deteriorates. The increased level of narcotic is unknown. Does one apply for a permit at once, by guessing a limit ? Does one supply increased amounts, on a wait and ascertain basis, before applying ? How long does one wait in a relapse before accepting that there is not going to be a remission soon ?

                        iii.            What is one to do with a chronic drug dependant patient for severe pain when the Drugs and Poisons Unit declines a Permit application pending a Consultant’s report that is demanded by the Unit without consultation ? Does one obey the law and cut the medication “cold turkey” to inflict pain and withdrawal symptoms on the patient at the Department’s pleasure ? or does one continue with the medications until the Consultant’s report can be provided (which can take months in the Public hospital system) (see later).

                       iv.            What is one to do when the Drugs and Poisons Unit officers direct that the level of medications increased in a patient’s relapse must be reduced as soon as possible – such fiats coming from those who have no contact with the patients and without consultation ?

                         v.            What is one to do when under pressures as outlined above, and the Drugs and Poisons Unit issues short duration Permits, such as 1-4 months ? This means that one has to be on the alert all the time for Permit terminations, difficult to achieve in a busy clinic, with a concurrent number of patients having different, short Permit durations.

                       vi.            What is one to do when the Permit application is sent by telephone facsimile (“fax”) to the Drugs and Poisons Unit fax number, and there is no response ? How is one (who is busy) to remember that a Permit application has been sent, when it was sent, but nothing has returned ? How long should one wait before telephoning the Unit ? Would it be better to re-fax the Permit application ? How long should one wait before re-faxing the application ?

                      vii.            What is one to do when, having received an Alert notice from the Drugs & Poisons Unit and acted upon it such that the patient does not return, yet the Unit still pursues the matter ?

All the issues listed above occurred during the relevant time. I shall illustrate later how my conclusion is that the Drugs & Poisons Unit was conducting an entrapment campaign ultimately to bring me to an Open Hearing (as described earlier).  


9/ The Current Hearing – Examples


a)      Generally harass me to encourage lapses and oversights. This can be seen in the examples listed below. The significant feature is that the harassment ceased abruptly with the Court Hearing on 19/3/2004. It was as if a wand had been waved – the Unit left me and my patients entirely alone ! This sequence is quite consistent with the proposal presented earlier that someone (JHS) in the office of the MPB enticed the Drugs & Poisons Unit to harass in ways so that I would be brought to the court and subsequently referred to the MPB.

Having complied with the assignment to get me to court, the Unit lost interest and ceased its harassment.


b)      Shorten significantly the Permit durations. The requested durations in the Application and those on the Permits granted are set out in Charts 1 and 2. The Court date had an almost miraculous effect upon the responses of the Drugs & Poisons Unit.

By shortening the granted Permit durations, often to 1, 3, 4, and 6 months made remembering to renew the applications very difficult, especially when there seemed little constancy. This was certain to produce lapses and oversights in almost any busy practitioner to whom it was applied. It was a variation of entrapment.


                         CHART 1

Months                                           Before 19/3/2004


      The difference with the attitude of the Unit is shown with the Applications sought and Permit applications granted after 19/3/2004, in Chart 2. 


                         CHART 2

Months                                           After 19/3/2004

The only Permit duration less than the requested 12 months was issued on 24/3/2004 – the officer in the Drugs and Poisons Unit was still applying the old policy from before the court Hearing on 18/3/2004.


c)      Direct/Demand Consultant opinions


            Patients                              MB    LC     DF     JJ     MJ    VN   JO  Total

Pre Court (19/3/2004)               4         1          0        1        2        2      0     10       

Post Court                           0         0        0        0        0        0      0      0


Of 7 patients, before the Court date, there were a total of 10 directives or demands for Consultant opinions. In the case of Ms MB, there were 4 ! This number would seem excessive, biased,  vindictive and vexatious. (There seems to have been no demand for Ms DF.) After the court date (2 years) there has been none !


d)      Hold up Permits pending Consultant opinions


            Patients                              MB    LC     DF     JJ     MJ    VN    JO Total

Pre Court (19/3/2004)                1                  1                  1                         3

Post Court                            0        0        0        0        0        —     —    0


A rejected Permit application for Ms MB 23/4/2002 was followed by an assessment (Charge 14)


e)      “Lose” Permit applications


            Patients                             MB     LC     DF     JJ     MJ    VN    JO  Total

Pre Court (19/3/2004)                                           2                   1       3                 6

Post Court                           0         0        0        0         0       0       0        0


Faxed Permit applications in the early 2000-2002 seemed to be “lost.” Some copies of those sent, with the faxing details noted are extant. This problem was discussed with an officer of the Drugs & Poisons Unit. He commented that there had been a problem requiring a change of protocol within the Unit !


f)       Demand dose reductions/special conditions without consultation etc


            Patients                              MB     LC     DF     JJ     MJ    VN   JO Total

Pre Court (19/3/2004)               0         1          5        0        0        1       0     10       

Post Court                           0         0        0        0        0        0       0       0


These fiats from those without contact with the patients and knowledge of the clinical picture became disruptive, and the inability to accommodate the directives in practice, coupled with short Permit durations, made management of relapsing-remitting conditions difficult. The Unit was acting as an employer a “calling the shots.”


g)      Pursue me regarding a patient whom I ceased prescribing-for and seeing about two-three weeks after receiving an Alert letter (JO)


Summary of the preceding

These features of harassment could, to a casual observer, merely reflect careful monitoring and supervision by the Drugs and Poisons Unit. However, having apparently had such tight overseeing confirmed by a court, the observer would expect the overseeing to continue, perhaps even more intensely, having had Court endorsement. This has not occurred. Surprisingly the reverse has occurred, demonstrating that the concern of the Unit was not patient-cantred, but practitioner-centred; that having taken the practitioner to a Court conviction, the Unit virtually could relax all overseeing – its job had been done. This is entirely consistent with the proposal that the office of the MPB sought cooperation from the Drugs & Poisons Unit to have me brought into the purview of the MPB with a conviction – a version of entrapment.


10/ Particulars (Charges) and their details. The table below sets out the basic features of the Charges  listed in the Book of Evidence for the current Hearing :


  Chge     Inits.      Period                           Basis                              Alert            Notes







Assessed over ~3 week






P appl 29/5/01 missing










Period (morph.)


P appl. 30/2/02 missing. New P 7/10/02 è




Period (oxycod.)


P appl. 30/2/02 missing. New P 7/10/02è












Wrong dose on P






? Wrong dose on P






? Wrong dose on P;  Cancelled ?


















P0 till P 8/3/01è






P0 prev. had been 6 m












P0 prev. had been 2 m












P0 prev. had been 6 m






P appl. 24/12/01 missing,

P appl. 23/4/02 rejected

P appl. 2/7/02è ,(with wrong dose)












Last Rx 6/4/01, Last seen 17/4/01

(Permit 14/6/00-14/6/01)










Quantity (morph.)


P expired 5/4/01; (1-3 m P)




Quantity (oxycod.)


P expired 5/4/01; (1-3 m P)




Period (morph.)


P 7/6/01-7/9/01




Period (oxycod.)


P 7/6/01/7/9/01




Quantity (morph..)


1 m interval




Quantity (oxycod)


~ 3 w interval




Period (morph.)


P appl. X 2 missing




Period (oxycod.)


P appl. X 2 missing

Chge = Charge, Init. = Initials of Patient, morph. = morphine, oxycod. = oxycodone

Alert = Notice sent alerting of concern, P = Permit, P appl. = Permit application,

m = month, prev. = previous, w = week


*Name not correct, identity undefined

With regard to the Particulars/Charges :

a)      The Charges/Particulars presented to the Magistrate on 18/3/2004 were not contested because :

ü      The Court did not seem the right place to argue issues relating to medical dilemmas,

ü      The Magistrate was satisfied that the breaches occurred through oversights, lapses and unintentional omissions,

ü      The patient base was relatively stable and ongoing with patients having documented disease to account for severe chronic pain and, in may cases second (or more) Consultant opinion to provide back-up. The patients were not roving, feral drug addicts from all over the state.

ü      The issues related “black and white” issues as far as the law was concerned, as seen at the time,

ü      There had not been demonstrated the change which came over the conduct of the Drugs & Poisons Unit after the Court Hearing (see earlier)

ü      There had not been detected the perversions within the office of the MPB at that stage

ü      The documentation obtained under Freedom of Information had not been obtained

ü      In the circumstances, a close scrutiny of the documentation did not seem warranted.

This situation has now changed.

b)      Now, again, there is little point arguing over whether there were breaches in the law – they occurred. What I wish to present at this Hearing is that the breaches in law were, with regard to Professional Medical Practice, of a minor or negligible nature which, in context, should be dismissed, and not considered to be of an unprofessional nature

c)      That a professional person has oversights in clerical dealings with a Government agency applying harassment should not necessarily impact or reflect upon that person’s ability to perform responsible professional activities.

d)      I have presented earlier documentation to support the proposal that there was an entrapment campaign. More documentation to support this will follow.

e)      There are concerns over procedural fairness :

Ø      The “Alert” notices issued by the Drugs and Poisons Unit in all bar one case, followed on from the commencement of the monitoring and assessment period, providing lapses in procedural fairness.

Ø      In the case of JO, after receiving the Alert notice, she was only seen twice more – corrective action was taken. Yet, some 3 years later, the charges were laid. This does not seem compatible with procedural fairness.

Ø      There were cases where the transcription of the doses onto the Permits was in error (MJ, MB)

Ø      Some of the assessment intervals were short, thereby subject to sampling errors, problems due to relapses within a relapsing/remitting condition (eg DF, 8/8/01-7/9/01 & 14/8/01-7/9/01) or excessive and unreasonable zeal.

Ø      Some assessment periods followed unilateral cancellation by the Drugs and Poisons Unit of the Permit application (see earlier, MJ and MB)

Ø      A number of Permit applications seemed to have been “lost” within the Drugs and Poisons Unit. This is difficult to prove, but the inks on the original applications could be tested and matched with the clinical notes of the time. The Unit officer to whom I spoke 4/10/2002 confirmed that there had been a problem with facsimile (“fax”) transmissions and that the Unit protocols had been changed. The impression gained during the relevant times was that this was a significant problem.

Ø      There were other deficiencies found in the documentation obtained under FoI – There were no Alert notices produced. Similarly, my application provided for the Permit for DF 4/1/2001- 5/4/2001 was absent. Clearly, both would seem to be Unit matters

Ø      The officers of the Drugs and Poisons Unit provided harassment, unreasonable and excessive demands and directives, thereby effectively becoming employers. I attempted to cope with these as best I could under the circumstances, which included being busy with other patients.

Ø      There is no claim that any patient suffered ill effects or damage as a result of the oversights – rather, their medical requirements were catered-for and looked-after even at the risk of punitive action. The interests of my patients were put first.

Ø      There have been no complaints by patients.


11/ Summary of Charges. (Author unknown – apparently unattributed. As such, it, and its attachments, should not be acceptable as evidence.)

a)      The Permit system. The unknown author notes the need for the permit system in order to stop multiple doctors being involved (“doctor shopping.”) There is no mention of restricting levels of daily dose. This latter, then would seem to be considered of considerably lesser importance (which seems logical).

b)      More than one prescription on the same day. Here, the author is applying the defined meaning of prescription. The author seems to be lacking in experience in the practical matter of prescribing. If one has a patient who needs one prescription per day and has limited mobility and wants to obtain the prescription under the Commonwealth’s Pharmaceutical Benefits Scheme, the patient will try (reasonably) to pick up several day’s supply on one day. There are two ways that this can be done :

                                             i.            The doctor can write both prescriptions with the date of the consultation on each, or

                                           ii.            The doctor can write one prescription with the date of the day following the consultation (forward-date x 1 day) and the next prescription one further day ahead (forward-date x 2 day).

      With i. Each pharmacist is limited to one prescription of the narcotic medications per attendance, meaning that the patient has to visit another pharmacist with the second prescription in order to pick up both on the same day. This is not “pharmacist shopping” because it is a practical necessity if prescriptions are written that way. When the Drugs and Poisons Unit started insisting that the patients visit one pharmacist, this form of prescription-writing had to cease, with a change to method ii. With ii. the doctor is forward dating, which the pharmacists can handle, but the doctor is not dating the prescription with the date on which it was written. The Unit forced the change to the latter method – there was no other option.

      By making an issue of the dual pharmacists, the unknown author demonstrated a lack of practical understanding in prescription-writing for these medications. I am unaware of any guidelines on this problem from a medical representative body.

c)      In the same paragraph, the author claims that “The Defendant continued to prescribe in contravention on Section 35 . . ., even after he had been interviewed over these offences on 17 October 2002 . . .” There is reference to Charges :

Charge 4. Here Mr VN had a Permit in place form 7/10/2002 onwards and there is no later Charge. Why there should be considered a contravention is not clear.

Charge 5. As for Charge 4.

Charge 22. Permit applications on 18/11/2001 (for 12 months) and 31/3/2001 (open interval) seem to have been mislaid in the Drugs and Poisons Unit.

Charge 23. As for Charge 22.

The claimed contraventions are either not clear, or due to a lapse in the Drugs and Poisons Unit.

d)      Lapses occurred due to oversights when under the harassment for entrapment (see earlier).

e)      Variation. I did apply for variation of Permits. Sometimes the applications were rejected, sometimes they were “lost.”

f)       Supervision.In that was, the Department is able to supervise the administration of these drugs. . . “ I would have thought that it is the medical practitioner which supervises the administration of these drugs; the Department records and monitors the administrations.

g)      The explanation that I gave, that the lapses occurred by oversight was simplistic. We now know that there was an entrapment campaign in operation, which ceased (as far as the Drugs and Poisons Unit was concerned, with the court Hearing and conviction.  The campaign, as revealed by the Affidavit of Ms DF, has still been very active up until recently (at least) with “secret business of the office of the Medical Practitioners Board,” which should go before the VCAT and should involve the police.


12/ Concluding comments.

a)      The evidence acquired by the Drugs and Poisons Unit was obtained by a campaign of entrapment.

b)      Such a campaign is consistent with the conduct of groups associated with the illegal activities presented in Mal’s Musings.

c)      The Office of the MPB is one such group.

d)      The assistance of the officers of the Drugs and Poisons Unit was, in all probability, sought and obtained by the office of the MPB

e)      Named officers include :

                                             i.            The Office of the MPB: Mr JH Smith, Ms B Broberg, Ms C Lethlean

                                           ii.            Drugs and Poisons Unit: Mr K Moyle, Mr McCormack, Mr F Boland, Mr C Falcke, Mr D Foschia.

f)        Whilst, in Australian law, entrapment is not illegal, its use is questionable. Its place in obtaining convictions under the Drugs, Poisons and Controlled Substances Act 1981 must be a gross abuse of power and inappropriate allocation of taxpayers funds.

g)      In the circumstance, the lapses and oversights found and forming the basis for a Court Hearing in 2004 were of a trivial and inconsequential nature with respect to professional conduct, and the charges of Unprofessional conduct should be dropped because they arose through a campaign of entrapment conducted by the officers of the Drugs and Poisons Unit.



                                                                             Dr Malcolm A Traill FRCPA

                                                                             For Hearing 28/3/2006


Patient MM

Brief mention may made of MM, who appeared on the list of patients to be discussed by the Drugs & Poisons representatives in 2002, and then the name disappeared.

She had a history of seeking S8 drugs at, what seemed, a "casual" level. On occasions she would ask for them supposedly for her son, who was said to have a rare eye disease with a presumed immune basis (which I had never seen, but interested me). She arrived, with a family member, at the reasonably busy clinic, late on a Friday afternoon (31/5/2002). She was in night attire and dressing gown, looking sick and toxic. She described severe abdominal pain and vomiting. I suspected acute pancreatitis, took blood for pathology and, in view of the pain (and with the knowledge of her previous drug seeking) prescribed Oxycodone suppositories. She attended the next day, again with company, and still reporting abdominal pain. The pathology indicated severe acute hepatocellular damage, and not pancreatitis. I was a bit stumped by this. Over the weekend, she sought, and was provided, with more Oxycodone (sparingly). I ordered tests for the hepatitis viruses and, on the Monday, a CT scan of the abdomen/spine, in case there was a pericolic or retroperitoneal abscess (or other). These all came back negative, and she slowly improved. Later, a man claiming to be her father turned up and stated that she had taken an overdose of Oxycodone and had been taken to the accident and emergency department of a hospital. I received no communication from the hospital, nor any other form of confirmation. Suspecting a set-up, I asked the laboratory to check the original blood for its paracetamol level; but the specimen could not be found (I even went to the laboratory to see for myself, because it should have placed in long-term storage) ! Nothing ever came of the issue after that, but I learned that all local clinics (but not mine, until afterwards) had been sent "alert" notices about a female patient resembling MM seeking Oxycodone suppositories. I was left to suspect that she had been persuaded (bribed ?) to take an overdose of paracetamol to create her sickness, and thereby obtain Oxycodone suppositories: quite a risk, and worth a lot ! Either someone reported me to the Drugs and Poisons Unit spontaneously (unlikely), or there was involvement in some way and prior knowledge. However, this had been set up too late and occurred after the initial alert interview with the Officials in 2001, and so the issue was dropped, presumably because the due process could not have been established for her.


Round Off: One certain attempted set-up involving the MPB (DF), one probable set-up involving the Drugs and Poisons Unit (MM), and a saga consistent with entrapment. Surely, these could hardly be chance events !


[1] Forbes JRS; “Justice in Tribunals,” Federation Press, 2002

[2] Significantly, these Alert notices posted out by the Drugs & Poisons Unit were not included in the documents obtained under Freedom of Information (“FoI’) from the Unit at the end of 2005.

[3] Mal’s Musings by Dr MA Traill; attached, and also at the Website http://home.iprimus.com.au/matraill

[4] The Macquarie Dictionary; The Macquarie Library Pty Ltd, 1981, NSW

[5] USA law: found at “Lectric Law Library’s Lexicon” http://lectlaw.com 2006

[6] Bronitt S. “The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviews in Australia, Europe and Canada.” Common Law, World Review, 2004; 33:35-80. p40.

[7] May, William E. “Catholic bioethics and the gift of human life”  Our Sunday Visitor Inc. 2000, p43.

Copyright (C) MA Traill March 2007 and 2008.

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