VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z243/2020	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law (Victoria), ss 196(2) and (4) – Appropriate determinations following findings that former practitioner had engaged in professional misconduct, including by touching patient’s vulva without clinical indication and for an intentional, sexual, inappropriate or non-clinical purpose – Former practitioner to be reprimanded, disqualified from applying for registration for six years and prohibited from providing identified health services for similar period. 	

APPLICANT	Physiotherapy Board of Australia	
RESPONDENT	Byron Espedido	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Senior Member
S. Boyd-Squires, Member
Prof. C. Delany, Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	7 August 2023	
DATE OF ORDER and reasons	13 September 2023	
CITATION	Physiotherapy Board of Australia v Espedido (No. 2) (Review and Regulation) [2023] VCAT 1056	

Order
1	The Tribunal has scheduled an administrative mention on 11 October 2023, by which time the parties may write to the Tribunal with any comments as to the form of the proposed orders (set out in the Annexure to the Reasons) to give effect to the Tribunal’s decision.
2	After receiving any administrative mention responses, the Tribunal will finalise the orders to give effect to the Tribunal’s decision. 

R. Tang, AM
Senior Member and 
Presiding Member	S. Boyd-Squires
Health Practitioner Member	Prof. C. Delany
Health Practitioner Member	

APPEARANCES:		
For Applicant 	Mr B. Jellis of Counsel	
For Respondent	No appearance	
ORDERS ARE IN PLACE UNDER THE OPEN COURTS ACT 2013 (VIC) (ACt)
On 28 July 2022, the Tribunal ordered:
1	The Tribunal’s orders under s 17 and 20(1) of the Act made on 27 July 2022 are revoked.
2	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patient the subject of these proceedings or the relevant witnesses (excluding, for the avoidance of doubt, the respondent or any expert witness) to be identified must not be published or otherwise disclosed.
3	The relevant evidence [being the evidence given by the patient in camera in relation to criminal proceedings concerning the respondent] must not be published or otherwise disclosed.
4	These orders apply 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 people referred to in orders 2 and 3 would be breached if persons living outside Victoria know or come to know their identity or any of the relevant evidence which is extremely sensitive.
5	Order 2 operates until the death of the patient.
6	Order 3 operates until:
(a)	the publication of the Tribunal’s reasons for decision in this proceeding relating to the facts in dispute, in respect of those elements of the relevant evidence which are referred to or incorporated in those reasons; and
(b)	the death of the patient in respect of the remainder of the relevant evidence. 
REASONS
1	This proceeding arises from the referral by the Physiotherapy Board of Australia (‘Board’) of four allegations of professional misconduct or unprofessional conduct to the Tribunal, under the Health Practitioner Regulation National Law (Victoria) (‘National Law’), in respect of the conduct of Mr Byron Espedido during physiotherapy consultations with a female patient (‘Ms K’) on 17 and 27 June 2017.  This included an allegation that (on the latter occasion) he touched Ms K’s vulva without clinical indication or justification and for an intentional, sexual, inappropriate or non-clinical purpose.  The allegations were the subject of an Amended Notice of Allegations referred to the Tribunal on or about 27 March 2020 (‘Amended Notice’).
2	On 20 October 2022, we published our reasons (‘Liability Reasons’) for finding that Mr Espedido had engaged in the conduct alleged in the Amended Notice.  
3	On 30 January 2023, we published our further reasons (‘Characterisation Reasons’) for finding that the conduct the subject of the allegations constituted professional misconduct within paragraph (c) of the definition of that phrase in section 5 of the National Law.  In the latter reasons, we described the conduct as involving a ‘gross abuse of patient trust’. 
4	These reasons address the appropriate determinations to be made under section 196 of the National Law in light of the findings made in the Liability Reasons and Characterisation Reasons.
5	It is relevant to note that: 
(a)	Mr Espedido has not practised as a physiotherapist for more than 4 ½ years since he gave an undertaking not to practice to the Board and that undertaking was accepted by the Board by way of immediate action under section 156 of the National Law.  Further, on 12 December 2022, following the publication of the Liability Reasons, Mr Espedido surrendered his registration (in lieu of the Board taking further immediate action).  
(b)	At the hearing in relation to whether the conduct was proved, Mr Espedido gave evidence that his current occupation (i.e. in July 2022) was ‘case manager support’.  However, as Mr Espedido has chosen not to participate in the proceedings since giving that evidence, it is unclear whether he remains in that role or, indeed, what that role involves (i.e. whether it may involve the provision of any service that falls within the definition of ‘health service’ in section 5 of the National Law).
6	The Board seeks that Mr Espedido be reprimanded, disqualified from applying for registration for a period of 10 years (i.e. until September 2033) and that an order be made prohibiting him from providing any health service until he regains his registration.
7	In all the circumstances, and for the reasons which follow, we accept that it is appropriate that Mr Espedido be: 
(a)	reprimanded; 
(b)	disqualified from applying for registration as a health practitioner for a lengthy period, save that we consider that the period of disqualification ought be reduced from ten years to six years from the date of our orders; and 
(c)	prohibited from providing health services that pose a demonstrable risk to the public for an equivalent period, save that the prohibition should not preclude him from applying his experience and skills in activities which have not been demonstrated to pose such a risk.
Law and principles regarding determinations
8	Where the Tribunal determines that a practitioner has engaged in professional misconduct, it may (amongst other things), reprimand the practitioner and, in circumstances where the person no longer holds registration under the National Law, disqualify that person from applying for registration as a registered health practitioner for a specified period or prohibit the person from providing any health service, either permanently or for a stated period. 
9	The purpose of making determinations under the National Law is well known, with the primary objectives being to:  
(a)	protect the public; and 
(b)	maintain professional standards of the given profession. 
10	The matters to be considered in reaching a decision on determinations include:
•	the nature and seriousness of the conduct;
•	whether the practitioner has shown remorse (including by way of pleading guilty to the allegations);
•	the need or otherwise for specific and general deterrence;
•	the practitioner’s disciplinary history;
•	any evidence regarding the practitioner’s character and/or rehabilitation since the conduct occurred;
•	delay; and
•	other mitigating factors.
11	In Medical Board of Australia v Salter, it was accepted that, where a practitioner’s registration had been cancelled, section 196(4) allows the Tribunal to both disqualify the person from applying for registration for a period of time and prohibit the person from providing a health service, despite the word ‘or’ appearing between the two paragraphs of that section.
12	In determining an appropriate period of disqualification, it may be appropriate to have regard to the period of time that the person has already been out of practice.  However, this will not always be the case or involve a credit for all of the time that the person has been out of practice.
Reprimand
13	The Board submits that a reprimand ‘will ordinarily follow a finding of professional misconduct and is appropriate in the present case’.  
14	We agree that it is necessary and appropriate to reprimand Mr Espedido to express our disapprobation of his conduct which, as previously noted, involved a gross abuse of patient trust.  
Disqualification
15	The Board seeks a lengthy period of disqualification as ‘a consequence of the gravely serious conduct, which involved a gross abuse of trust, and the relative absence of relevant mitigating features’.  In particular, the Board submits:
•	Specific deterrence is ‘important because of the deliberate nature of the conduct [and] the lack of insight’.  The conduct is said to be deliberate given it occurred notwithstanding Mr Espedido previously being reprimanded and counselled in relation to a similar disciplinary matter.  Further, Mr Espedido’s evidence at the hearing ‘was not consistent with meaningful insight or contrition’, suggesting that any emotional displays ‘appeared self-pitying and directed towards his own circumstances, rather than [Ms K]’.
•	General deterrence is also ‘important to reassure the public that there are severe consequences for sexual misconduct of this kind’, noting it involved a gross breach of trust and has had a significant impact on Ms K.
16	In relation to the first point, the Board provided a ‘bundle of material’ which discloses that, in January 2007, Mr Espedido was reprimanded and required to undertake counselling by a panel after being found to have exposed a patient’s genitals in the course of a physiotherapy consultation (despite having claimed it was accidental).  It is noted that the counselling was intended to ‘assist Mr Espedido in better appreciating and implementing appropriate professional behaviour in his dealings with patients’, particularly in terms of ‘recognis[ing] professional boundaries in the patient-therapist relationship’.  Some months later, the appointed counsellor indicated that she ‘was confident he had a far better understanding of both informed consent and his ethical obligations’.  The Board submits the fact that the conduct in the present case ‘occurred after this professed insight, underlines the seriousness of the present case and the importance of … specific deterrence’. 
17	In relation to the latter point, the Board provided a copy of the transcript of the victim impact statement of Ms K which was read on her behalf following Mr Espedido’s criminal trial (noting that Mr Espedido was not ultimately convicted of any crime).  In that statement, Ms K: 
•	describes suffering from depression and anxiety as a result of the conduct;
•	indicates that she has ‘not been to see a physio[therapist] since being sexually assaulted, and still suffer[s from] severe shoulder and back pain’; and
•	suggests that the social impact of the conduct is that she has major social anxiety, ‘especially around males’ and ‘find[s] it hard to trust in professionals, so [she] avoid[s] seeing them’.  
18	In terms of the period of disqualification, the Board submits there are ‘no obviously comparable cases’ or tariff to be imposed and that the period imposed ought to be ‘consistent with contemporary community and professional standards’.  
19	The Board notes that the South Australian Civil and Administrative Tribunal (‘SACAT’) imposed a disqualification period of 15 years (with an equivalent prohibition order) in Chinese Medical Board of Australia v Zhao (‘Zhao’), a case that involved rape of a patient by digital penetration in the course of a massage (for which the practitioner was convicted).
20	During the hearing, we asked Mr Jellis (counsel for the Board) to comment on the decision of the State Administrative Tribunal of Western Australia (‘WASAT’) in Chiropractic Board of Australia and Ebtash (‘Ebtash’).  In that case, the WASAT imposed a disqualification period of four years and six months after finding that the chiropractor had engaged in professional misconduct in relation to sexual touching of five female patients in the course of chiropractic treatment.  It appears the conduct involved Dr Ebtash touching the patients' breasts or genitals (through their clothing), touching a patient’s  body in close proximity to their genitals and, in one case, pressing his pelvis and groin against a patient’s buttocks (through her clothing).
21	In that case, the WASAT observed that the Chiropractic Board sought a disqualification period ‘of five to seven years’, which was ‘in line with authorities in relation to serious sexual misconduct by health practitioners’.  The WASAT concluded:
The serious nature of the professional misconduct in which Dr Ebtash engaged, together with the other factors discussed above, including the penalties imposed in broadly comparable cases, warrant a substantial period of disqualification from practise, in the interests of protecting the public.  We consider that the appropriate period of disqualification is five years.  However, Dr Ebtash should be given credit for the period since 16 September 2020 within which he has been unable to practise, as a result of the Board's suspension of his registration in light of the Reasons and Orders.  In order to give credit for that period, the period of disqualification from applying for re-registration, commencing from the date of the Tribunal's final orders, will be four years and six months.
22	Mr Jellis submitted that some of the cases considered in Ebtash were ‘wildly off base’ and that reference should be made to the decision of the Full Federal Court in Richardson v Oracle Corporation Australia, where the Court had regard to ‘prevailing community standards’ in upholding an appeal on the basis that an award of damages for sexual harassment was manifestly inadequate.  
23	Further, Mr Jellis suggested that the period of disqualification in Ebtash took account of the practitioner’s submissions regarding the lack of prior disciplinary history, his understanding of the seriousness of the conduct and evidence of insight and regret, all of which differ to the present case.  He contended the current proceeding is ‘closer to Zhao’.
24	We accept that both specific and general deterrence are significant in this proceeding and warrant Mr Espedido being disqualified from practice for a significant period.
25	While the context for the Full Federal Court’s decision in Richardson is different (i.e. it involved a claim by an employee against an employer rather than disciplinary proceedings), it supports account being taken of prevailing community standards in civil proceedings.  
26	We accept that, viewed in that context, the disqualification period imposed in Ebtash may be considered to be inadequate.  However, we also think that the Board’s attempt to equate this proceeding to Zhao is inappropriate given that involved penetration and resulted in a criminal conviction.  
27	Similarly, while it is true that Mr Ebtash did not have any prior disciplinary history and apparently had better insight and demonstrated remorse, it should be noted that the inappropriate touching in that case was as serious, given it involved five different patients (as compared to the one patient in this proceeding).
28	We have ultimately determined that a disqualification period of six years from the date of our orders is appropriate.  In this regard, we consider that the ‘headline’ disqualification ought to be eight years but have reduced this by two years to recognise, to an extent, the significant period that Mr Espedido has already been out of practice.
29	We note that, because Mr Espedido has surrendered his registration, he would still need to satisfy the Board that he was fit and proper at the end of the disqualification period, in order to seek re-registration.  Whether he wishes to do so, and what steps he will need to take in order to achieve this, is a matter for him to determine.
Prohibition on providing health services
30	The Board contends it is ‘also necessary’ to impose a prohibition order because Mr Espedido ‘is not a safe person to provide a health service to any person’.  In this regard, the Board observes that a power imbalance or opportunity for exploitation ‘can occur when any health services is provided (for example, massage services by a physiotherapist who is no longer registered)’ as the ‘same dynamic, power imbalance, and risk to patient is present’.  
31	The Board submits that ‘[l]ogically, such a prohibition order should remain in place (unless) and until Mr Espedido is re-registered under the National Law’, when there would be an opportunity to assess whether he is a fit and proper person.
32	We accept that, at present, Mr Espedido continues to pose a risk to any female to whom he provides massage, exercise or like services (whether or not as a physiotherapist).  Further, if he were to be left alone with a female client in other contexts, that may also pose a risk.
33	On the other hand, we acknowledge that there is a general need for people with Mr Espedido’s skills in terms of case managing people with physical injuries and conditions (e.g. in the context or Workcover and transport accident claims or National Disability Insurance Scheme clients) and there is nothing to suggest that Mr Espedido would pose any risk if he were to work in such an environment providing oversight, review or program advice generally.
34	In the Annexure to these Reasons, we have modified the proposed form of orders put forward by the Board, to make it clear that Mr Espedido can engage in that form of work.  However, rather than making orders at this stage, we have set the matter down for an administrative mention in four weeks in the event that either party wishes to comment on the proposed form of orders (which we will then finalise on the papers).

R. Tang, AM
Senior Member and 
Presiding Member	S. Boyd-Squires
Health Practitioner Member	Prof. C. Delany
Health Practitioner Member	

Annexure – Proposed form of orders

1	Under s 196(2)(a) of the Health Practitioner Regulation National Law (‘National Law’), Mr Byron Espedido is reprimanded. 
2	Under s 196(4)(a) of the National Law, Mr Byron Espedido is disqualified from applying for registration as a registered health practitioner for six years. 
3	Under s 196(4)(b) of the National Law, Mr Byron Espedido is prohibited from providing any health service involving consultation in person with any client or patient until he is registered as a health practitioner under the National Law.  For the avoidance of doubt, this prohibition applies whether the consultation is provided as an employee, contractor or volunteer.