VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
REVIEW AND REGULATION LIST	VCAT Reference: Z412/2024	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law (Victoria) Act 2009 ss 156(1)(e) & 202 – physiotherapist facing charges of sexual assault – whether registration should remain suspended, through immediate action, or resume subject to conditions
	
APPLICANT:	Hany Bebawy	
RESPONDENT:	Physiotherapy Board of Australia	
BEFORE:	Deputy President I. Proctor  	
HEARING TYPE:	Stay Hearing	
DATE OF HEARING:	7 June 2024	
DATE OF ORDERS & REASONS:	17 June 2024	
CITATION	Bebawy v Physiotherapy Board of Australia (Review and Regulation) [2024] VCAT 563	
OrderS
Stay decision
1	Under section 50(3) the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the decision under review in this proceeding is stayed until further order of the Tribunal, on condition that:
(a)	The applicant must not practise as a physiotherapist until the respondent approves practice locations.
(b)	After publication of approved practice locations, the practitioner must not have any contact with Female patients and must only practise at approved practice locations.
For the purposes of this condition, the following definitions apply:
‘Practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a physiotherapist in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a physiotherapist in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession of physiotherapy.
‘Practice location’ means any location where the practitioner practises the profession including any place where the practitioner: 
(a)	is self-employed.
(b)	shares premises with other registered health practitioners
(c)	is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement.
(d)	provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or
(e)	provides professional services at the residential premises of a patient.
‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member or guardian/carer of this individual.
‘Contact with a patient’ includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.
‘Male’ is defined as any individual whose biological sex is that of a male, as well as all individuals whose gender identity or gender expression is that of a male.
‘Female’ is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.
(c)	The applicant must comply with Ahpra’s Gender-based restriction protocol in force at the date these conditions are imposed and then as amended from time to time.
(d)	Within 7 days of notice of these conditions being imposed the applicant is to provide acknowledgement to Ahpra, on the approved form (GBR-1)) that:
i	they have read and understood the Gender-based restriction protocol;
ii	they understand the definition of ‘patient’, ‘practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition;
iii	they are aware that they are not permitted to practise until such time as approved practice locations are published;
iv	they understand the definition of ‘patient’, ‘practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition; and
v	they are aware of the actions Ahpra may take for the purposes of monitoring compliance with the gender-based restriction. 
(e)	Within 21 days’ notice of the imposition of these conditions the applicant must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that:
i	Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and
ii	The Applicant will be required to provide the same form: 
(1)	within seven days of the commencement of practice at each and every subsequent place of practice, and
(2)	within seven days of each and every notice of any subsequent alteration of these conditions.
(f)	All costs associated with compliance with the conditions on their registration are at the applicant’s own expense.
Procedural orders
2	The parties have liberty to apply seeking amendment of the above gender-based restriction.
3	The application for review is listed for an administrative mention on 15 July 2024 by which time the parties may jointly request VCAT to make orders to list the proceeding for a hearing. 
4	In order for VCAT to decide whether the matter can proceed to hearing, the parties must also jointly:
a)	identify any preliminary matters that need to be resolved;
b)	specify the likely duration of the hearing; 
c)	provide all available (or unavailable) dates over September to November 2024 when all necessary participants (ie relevant parties/counsel/witnesses) will be available to attend the hearing;
d)	advise VCAT of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and 
e)	advise VCAT whether the parties would prefer the hearing to be held via Zoom or in-person at 55 King Street Melbourne.
5	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with VCAT’s requirements for the conduct of the hearing.
6	All contact with VCAT must include the VCAT case number and be copied to all other parties (unless otherwise ordered).

Ian Proctor
Deputy President	
APPEARANCES:		
For the Applicant 	Mr S Reid of Counsel	
For the Respondent	Mr G Ayres of Counsel	

REASONS FOR DECISION
1	On 6 May 2024, VCAT received an application by Hany Bebawy, physiotherapist, under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). 
2	Bebawy seeks review of a 5 April 2024 decision by an Immediate Action Committee of the physiotherapy Board of Australia (the Board), to take immediate action suspending his registration as a physiotherapist (Suspension Decision).
3	The Board took the immediate action under section 156(1)(e) of the National Law, on the basis that it reasonably believed suspension is in the public interest.
4	As part of his application, Bebawy applied for VCAT orders staying the Suspension Decision, so that Bebawy could return to practice, under conditions, until this proceeding is decided.
5	On 7 June 2024, Bebawy’s stay application came before me for hearing. Bebawy submitted that conditions on his registration that were in place before the Suspension Decision should be restored or, in the alternative, his registration should be restored with gender conditions, that he not be permitted to treat female patients.
6	At the end of the stay hearing, I reserved my decision, which is now given.
The law relating to stay applications
7	Section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) generally gives the Tribunal power to stay a decision which is the subject of a review application.
8	Here the exercise of the discretion is considered in context of the paramount guiding principles under section 3A of the National Law:
•	protection of the public; and
•	public confidence in the safety of services provided by registered health practitioners.
9	Another guiding principle is that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
10	The exercise of the discretion is also considered in context of section 156 of the National Law which relevantly says:
Power to take immediate action
(1)	A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if—
(a)	the National Board reasonably believes that—
(i)	because of the registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and
(ii)	it is necessary to take immediate action to protect public health or safety; or
…
(e)	the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest—
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
11	Concerning section 50(3) of the VCAT Act, there are well established criteria which assist in deciding a stay application:
•	Whether refusing the stay will render the application for review nugatory.
Refusal to grant a stay will render an application nugatory where irreparable damage will be done by the operation of the decision under review before VCAT decides the review proceeding and that damage cannot be undone if the application succeeds.
While this factor has been called the ‘dominant principle’, it must be balanced against other factors.
•	Where the decision under review is a decision under a professional regulatory regime, particular care needs to be exercised before a stay is granted. There is a powerful public interest in protecting the public from unsafe practitioners, and a clear public interest in maintaining standards in regulated professions.
•	Whether there is a serious question to be tried on the review.
On whether there is a serious question to be tried, it is proper to consider the likely outcome of a review application in light of fundamentally uncontested matters, but it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of hearing evidence.
•	Whether or not a party will suffer prejudice if the application is granted or refused.
Generally, VCAT has a predilection in favour of not, ‘putting people out of business’ until they have had the opportunity to prosecute their review applications.
However, in cases involving immediate action against a health practitioner, the protection of the public will often take priority, even if damage would result from refusing the stay. VCAT has said that, in cases of this kind, the protection of the public is paramount, so that, in general terms, the impact of risk to the public will override the private impact on the practitioner.
•	Whether the granting of the stay is in the community or public interest.
•	The time that will elapse before the final hearing of the application for review.
•	The extent to which the person facing regulatory proceedings has an incentive not to engage in further inappropriate behaviour for the duration of the VCAT proceeding.
•	Whether any stay should be granted subject to conditions.
History / Evidence
12	Bebawy was a veterinarian doctor in Egypt, having graduated from Cairo University with a Bachelor of Veterinary Medicine in 2003. In 2009 he moved to Australia and became an Australian citizen in 2014. In 2018, he graduated from Charles Sturt University with a Bachelor of Physiotherapy.
13	He has established three successful physiotherapy practices in Melbourne. In March 2023, he advised the Board that he then employed four physiotherapists, a remedial message therapist, a Pilates instructor, a practice manager, and three administrative staff members. In early 2024, he hired a women’s health practitioner. In part this enabled him to work under the previous conditions (see below), given other staff were always present and available. While providing no details, he had advised the Board earlier this year that some staff left the business due to the conditions of his registration.
14	On 27 December 2022, Victoria Police notified the National Health Practitioners Regulation Agency (Ahpra) that a female patient (Patient 1) had made a complaint that on 28 November 2022, Bebawy ‘massaged’ her breasts including her nipples and moved her underwear aside to touch the outside of her labia during a consultation (First Notification). Victoria Police advised that it was investigating the complaint.
15	On being notified of the notification, Bebawy denied the allegations, including denying that he had touched Patient 1’s breasts and brief examination of the labia was clinically justified with Patient 1’s consent, and gave a detailed explanation of his view of the circumstances of the consultation.
16	On 15 March 2023, the Board took immediate action under section 156(1)(a) of the National Law, on the basis that it reasonably believed that because of Bebawy’s conduct or performance, he posed a serious risk to persons, and it was necessary to take immediate action to protect public health or safety.
17	The Board imposed conditions on Bebawy’s registration. The conditions included that he was not to “undertake any external pelvic floor examinations” and “must not undertake treatment of the pelvic region being any muscle, within 5cm of the perineum on a patient” (First Conditions).
18	On 23 June 2023, a different female patient (Patient 2) notified Ahpra that Bebawy had given her a therapy massage “on the buttocks and upper thigh area very close to the perineum” (Second Notification).
19	On being notified of the Second Notification, Bebawy provided a detailed denial that he had breached the First Conditions.
20	On 31 August 2023, the Board modified the conditions on Bebawy’s registration. Bebawy was from 5 September 2023, not to ‘undertake on any patient any physical examination or treatment of the perineum’. The Board did this to make the conditions more precise and because it considered that the existing conditions did not “adequately mitigate the serious risk identified by his alleged conduct” (Second Conditions).
21	On 7 March 2024, as required under section 130 of the National Law, Bebawy notified the Board that he has been charged with two counts of sexual assault in connection with the First Notification, being that on 28 November 2022:
a)	Bebawy committed sexual assault by intentionally sexually touching Patient 1 on her nipples without her consent in circumstances where he did not reasonably believe she consented to the touching.
b)	Bebawy committed sexual assault by intentionally sexually touching Patient 1 on her outer labia without her consent in circumstances where he did not reasonably believe she consented to the touching.
22	On 25 March 2024, the Board obtained the Police Brief relating to the charges. The Brief contained substantial new, to the Board, information relating to the notification concerning Patient 1.
23	Bebawy made written and verbal submissions (by his counsel) and provided material regarding the charges.
24	On 5 April 2024, the Board made the Suspension Decision.
25	The Board said that while acknowledging Bebawy’s submissions, including his denials, intent to defend the charges and supporting references from members of the public, it placed weight on the fact that Bebawy remains charged with objectively serious criminal offences alleged to have occurred during the course of his physiotherapy practice. 
26	The Board no longer held the belief with reference to section 156(1)(a) that Bebawy poses a serious risk. The Board acknowledged Bebawy’s submissions, including the steps he had taken in his practice to mitigate the identified serious risk which was the subject of the First and Second conditions.
27	In early June 2024, the criminal charges were listed for contest mention at the Magistrates’ Court on 12 July 2024 and the earliest available hearing date appeared to be October 2024.
Bebawy’s general submissions
28	As noted above, Bebawy submitted that registration with the Second Conditions should be restored, or if not, his registration should be restored with gender conditions that he not treat female patients.
29	Bebawy submitted that the Suspension Decision (under section 156(e) only), was taken after and when the only new information was, from Bebawy, on 7 March 2024, that he had been charged with the two offences concerning his alleged conduct toward Patient 1 and when in March 2024 the Board received a copy of the Police Brief with 13 exhibits.
30	It was submitted that the Board had been aware since the first notification, by Victoria Police, of Patient 1’s allegations and that Victoria Police was investigating. 
31	The Board decided to address serious risk by imposing the First then Second Conditions, (under section 156(a) only). This is in content that in response to Patient 1’s and then Patient 2’s notification, Bebawy promptly provided comprehensive responses and denials. Bebawy also submitted that it is notable that the Board could have initially also relied on section 156(e).
32	The charges dated 27 February 2024, repeated the substance of Victoria Police’s 27 December 2022 notification to Ahpra, alleging the conduct was done with sexual intention.
33	It was noted while the Suspension Decision to taken in the context of the main guiding principles of protection of the public and public confidence, the guiding principle of only imposing restrictions if necessary to ensure services are provided safely and are of an appropriate quality is also important consideration.
34	It was submitted that from the first notification (17 December 2022) to the Suspension Decision (5 April 2024), Bebawy continued to work, with favourable audit reports by Dr Joseph Mikhael of 13 May, 10 June, 15 July and 12 August 2023. These reports pre and post-date Patient 2’s notification.
35	Concerning Patient 2’s allegations, while the Board in its Second Conditions decision described Bebawy as in clear breach of the First Conditions in his conduct concerning Patient 2, it was submitted that Bebawy denied and denies that he was in breach. 
36	However, it was submitted that the Board acted proportionally and reasonably when it made the first two condition decisions, concerned about alleged, and denied, misconduct.
37	It was submitted that the Board has not acted proportionally in suspending Bebawy’s registration where it no longer regards him as posing serious risk, and now relies on public interest.
38	I return to other submissions below.
Board’s general submissions
39	The Board submitted that in its reasons for the Suspension Decision, it provided key reasons for the Suspension Decision:
a)	Bebawy had now been charged with two counts of sexual assault, based on the evidence in the Police Brief;
b)	the alleged conduct underlying the charges occurred in the course of Mr Bebawy’s practice, was not clinically justified, and harmed Patient 1;
c)	if proven, the alleged conduct demonstrates failure to observe appropriate boundaries, failure to act in accordance with the law and with professional and ethical standards and a lack of honesty, integrity, ethics and/or compassion for another person or persons;
d)	the alleged conduct is inconsistent with suitability to hold registration as a physiotherapist;
e)	public confidence in the physiotherapy profession would be adversely affected by the charges, particularly where Mr Bebawy is alleged to have sexually assaulted the patient twice in the course of providing physiotherapy services; and
f)	a perception of inaction on the part of the Board, when on notice of serious allegations, would also erode public confidence in the profession and the protective function of the regulator.
40	
The Board considered competing public interests, including the presumption of innocence and that immediate action is only taken when it is necessary and proportionate to do so, but considered that those matters did not override the need to take immediate action.
41	The Board also observed that the information then newly available, in particular the Police Brief, may call into question the information previously provided to the Board by Bebawy in which he denied the allegations in the First Notification, and the account he provided to police.
42	The Board submitted that the Board carefully considered the form of action that was required and the basis on which it should be taken. Having regard to steps Bebawy had taken to mitigate the risk he poses to patients, including hiring a women’s health practitioner, the Board decided section 156(a) no longer applied and decided that suspension under section 156(1)(e) was required for reasons quoted at paragraph 56(c) below.
The stay criteria
Whether failure to grant a stay would render the application for review nugatory
43	Bebawy submitted that refusing a stay will render Mr Bebawy's application for review nugatory. He is the principal physiotherapist at his practice. 
44	He provided two letters from SR Perks Chartered Accountants and Business Advisers.
45	The first letter dated 4 April 2024 says the accountants have acted for Bebawy for more than 10 years and continues:
As per the historical financial records, we can confirm that [the] business is heavily dependent on Hany Bebawy’s involvement as a practicing physiotherapist. Physiotherapy has always been his passion, which can be reflected in the growth of business so far. The business has grown 4-fold in the last 4 years due to Hany’s dedication … employing number of physiotherapist and admin professionals). Nearly 70% of the business revenue comes due to Hany’s appointments with the clients. This is a significant number, if removed from the equation would lead to dire consequences, both to the business and to its employees.
If Hany Bebawy was taken out of [the business], then it is highly likely that the business will go into liquidation leaving plenty of employees out of work and will have a domino effect on their individual family’s survival too.
…
I can already see that business has been suffering since last few months, ever since his professional integrity was questioned. Practicing physiotherapy is his only livelihood and it could be detrimental to his personal mental health and of his family if he was not allowed to practice his profession.
46	The second letter dated 29 May 2024 briefly outlines business profitability for the seven weeks before the suspension and seven weeks after the suspension. It provides a high-level statement of income, expenses and profit/loss, showing the business moving from profit in the first seven weeks to loss in the second seven weeks. It speaks of revenue decreasing with Bebawy suspended, having to hire more physiotherapists and the legal costs related to the notifications. The letter speaks of negative financial consequences for Bebawy’s family and concludes:
it is evident that the businesses faced a major setback and the financial losses incurred due to the absence of Hany Bebawy may not be sustainable in the long run. Being the senior most physiotherapist in the clinic, if Han remains absent from the clinic, the business may run into liquidation and bankruptcy in the next 2-4 months.
47	The Board submitted that this is not a situation where the review would be rendered nugatory because Bebawy would not be able to return to physiotherapy irrespective of the outcome of the review or the review would cause irreparable damage to him before the review can be completed.
48	The Board submitted that the evidence from the accountants was brief and failed to explain in any meaningful way why his absence from providing physiotherapy services would cause bankruptcy within months, given the multiple other staff working over three sites. How could it be that Bebawy earns 70% of the practice income from three apparently successful locations with multiple staff employed? The Board noted inconsistencies in the brief financial analysis and that no supporting documentary evidence was provided with the brief letters. It also appears that the legal costs related to this proceeding are included as business costs. Given the 14 week period in the analysis, potentially most legal costs would have already been incurred, including in representation before the Board, with the costs for the period presumably being a relatively small proportion. The Board noted that the second letter showed only a 15% drop in income and asked how that could be reconciled with the claim as to the loss of income arising directly from Bebawy’s absence.
49	While I agree with the Board that questions concerning the brief analysis provided by the two letters, raise questions as to that analysis, I am persuaded by the statement by this firm of chartered accountants that the business may face liquidation and bankruptcy in the next 2-4 months. That is not a statement that chartered accountants would lightly make, having supported Bebawy’s business for over 10 years.
50	It is unsurprising that the notifications and charges which Bebawy faces pose severe challenges to the business, himself and his family.
51	This criterion supports a stay.
52	
Given the above, it is not necessary to further explore prejudice to Bebawy should have stayed not be given. In one sense the from the Board’s perspective as regulator it suffers a prejudice if the public interest is not served.
Is there is a serious question to be tried in this application for review?
53	Bebawy submitted there is a serious question to be tried. While he has been charged with serious criminal offences, the question between the parties is in the assessment and application of the "public interest" having regard to the meaning of that phrase and the relevant considerations applicable to this case.
54	He submitted the serious question was illustrated by:
a)	the Board twice imposing conditions and then imposing suspension, now relying on public interest after charges were laid;
b)	Bebawy being suspended after practising close to 18 months following the First Notification;
c)	The four audit reports confirming compliance with the previous conditions;
d)	That he denies and is presumed innocent of the charges. A letter from his solicitors acting in the criminal matter speaks of ‘optimism with respect to a successful outcome when defending the charges’;
e)	The operation where a person is charged with an offence contrary to section 40(1) of the Crimes Act 1958 (Vic) of the exception provided by section 48A. This says that a person does not commit an offence if the touching of a person is done in the course of a procedure carried out in good faith for medical purposes; and
f)	That the matter is listed in the Magistrates' Court that with reference to section 113 of the Sentencing Act 1991 (Vic). The maximum term of imprisonment that can be imposed by the Magistrates' Court is 2 years. 
g)	This goes to the analysis identified in CJE v Medical Board of Australia where VCAT observed that it was necessary to consider where the facts of a particular case fell within a spectrum of offending.
It was submitted that the charges are not at the high end of the spectrum.
55	The Board agreed there is a serious question to be tried, whether, at the final hearing, VCAT should form a reasonable belief that immediate action is in the public interest, correctly noting that VCAT’s role in this stay application VCAT is not to reach any conclusive determination about the merits of the review application.
56	That said, the Board submitted that Bebawy’s case on the review application is not strong and does not weigh in favour of granting a stay because:
a)	There is a strong public interest in a physiotherapist, who has been charged with sexual assault of a patient during a consultation and who is the subject of a related complaint by another patient, not being permitted to continue to practise while those charges are pending and while the Board’s investigations of the complaints are ongoing. It is likely that the Tribunal will form a reasonable belief that it is in the public interest for Bebawy’s registration to be suspended as an interim measure. This is because the protection of the public, and the public’s confidence in the appropriate regulation of health practitioners including physiotherapists, require that step.
b)	VCAT should reject Bebawy’s submission that there is “no ‘new’ information” that could justify taking immediate action under section 156(1)(e).
First, the existence of criminal charges is relevant to the application of section 156(1)(e), as shown by the note to the section. The need for immediate action is likely to be stronger, not weaker, if the alleged conduct took place in the course of the practitioner’s practice. As Niall JA observed in Medical Board of Australia v Leow (Joo Leow), consistent with the guiding principles in s 3A of the National Law:56
In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to the reputation of the profession as a whole.
As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners. 
Consistently with those observations, in Milky v Medical Board of Australia, VCAT accepted that the difference between a situation where criminal charges have not been laid, and a situation where criminal charges have been laid, is “significant” for the purposes of section 156(1)(e). In Milky, it appears to have been determinative that the practitioner had not been charged with a criminal offence. 
In Vo v Medical Board of Australia, VCAT said:
Without needing to resolve the issue as a proposition of law, we consider it uncontentious that the fact that a practitioner has been charged with a criminal offence will be a relevant objective factor to be taken into account under both ss 156(1)(a) and (1)(e). 
In relation to s 156(1)(e), we think it will have some additional significance in the minds of the public, compared to a report of an allegation, although they are also taken to understand the presumption of innocence. We think that a criminal charge relating to conduct towards a patient is likely to be of more concern to the public than a charge unrelated to the doctor’s practice, but this might well depend on the charge. Certainly, the fact that the charge in this case relates to Dr Vo’s practice, unlike the example in s 156(1)(e), means that public perception will have to be carefully considered. 
The fact of a charge will not, however, be determinative and much will depend on the circumstances in the particular case, all of which fall to be considered. 
Second, the above passage informs as to why Bebawy’s submission that there is “no ‘new’ information” should be rejected. The Board and VCAT, now have the Police Brief, which the Board received in March 2024. In the Board’s letter providing reasons for the Suspension Decision, the Police Brief is expressly described as “New information obtained since taking the current immediate action”.
The Board submitted that the material in the Police Brief is important to the assessment of whether it is in the public interest to suspend Mr Bebawy’s registration. 
Patient 1 gives a detailed and compelling account of what she says occurred — which, if proved, amounts to a serious sexual assault. She also describes Bebawy as “really pushy” attempting to form a relationship with her and an escalating course of conduct over the course of several sessions; 
The Police Brief records what the Board submitted was an important admission by Bebawy concerning the second charge, as well as an expert opinion that the conduct was not clinically indicated.
Concerning the spectrum described above, the Board’s submitted that the charges against Bebawy sit at the end of the spectrum where immediate action is likely to be required.
c)	It is not significant to the strength of the parties’ cases on the review that the Board made the Suspension Decision under section 156(1)(e) and not section 156(1)(a). The question for the Tribunal in the review proceeding will be whether the Tribunal “reasonably believes the action [of suspending Bebawy’s registration] is otherwise in the public interest”: section 156(1)(e). The Board’s reasons for the Suspension Decision provide a detailed and compelling explanation as to why it is in the public interest to suspend Bebawy’s registration.
The Suspension Decision was based on the "otherwise in the public interest limb". As the Board’s letter explained at paragraph 20:
...whilst acknowledging Mr Bebawy's submissions, including his denials, intent to defend the matter and supporting references from members of the public, the Board places weight on the fact that Mr Bebawy remains charged with objectively serious criminal offences alleged to have occurred during the course of his practice. As such, the Board continues to consider it is now otherwise in the public interest to take further immediate action in the form of suspension, in circumstances where:
a)	Mr Bebawy is alleged to have sexually assaulted the patient on two occasions during a physiotherapy consultation.
b)	The information detailed in the Police Brief may call into question the information previously provided to the Board by Mr Bebawy.
c)	The current conditions on Mr Bebawy's registration addressed the serious risk identified on 20 March 2023 and 31 August 2023, however such conditions are not sufficiently protective of the public interest, particularly public confidence in the physiotherapy profession.
d)	This new form of immediate action is proportionate to the alleged conduct, which has resulted in serious criminal charges
d)	While VCAT may have regard to the character references that have been provided by Bebawy and the audit reports that have been prepared regarding his practice, these should be given limited weight when considering the strength of his case on review of the Suspension Decision. In circumstances where the Second Notification indicates a clear breach of the conditions on Mr Bebawy’s registration that then existed, and where expert evidence reflects poorly on Mr Bebawy’s practices in obtaining informed consent and record keeping, VCAT cannot have confidence in Mr Bebawy’s compliance with conditions, nor that he has “a comprehensive understanding of consent” as he submits.
The Board referred to two expert reports. 
In investigating the Second Notification, the Board obtained an expert report form K Hunt, dated 4 April 2024. This pre-dated the Suspension Decision. Hunt described her 30 years experience as a physiotherapist and experience in assessing and treating women with lumbo-pelvic dysfunction. Hunts report criticises lack of clarity in Bebawy’s, inadequate in Hunt’s opinion, clinical notes and treatment strategy concerning Patient 2. Hunt opines that if Patient 2’s report of Bebawy’s treatment is accepted, Bebawy appears to have breached the First Conditions.
The Police Brief contains a report from Dr M Moller, Forensic Physician, Victorian Institute of forensic medicine dated 15 June 2023 concerning Bebawy’s alleged conduct and Patient 1. Moller confined her opinion to the allegation concerning Bebawy touching Patient 1’s labia, regarding her expertise as not extending to the charge related to Bebawy allegedly massaging Patient 1’s breasts. Moller did not see a clinical basis for examination of the vulva, did not regard specific clear patient consent as obtained and did not view the manner of the examination as described in allegations and Bebawy’s responses as within the standards for gynaecological examination that apply to medical practitioners, which Moller assumed were similar to those that apply to physiotherapists.
e)	Nor is it substantially in Mr Bebawy’s favour, on the stay application or the review, that he submitted the Notice of Certain Events to the Board, section 130 of the National Law required him to do so.
57	In my view, there is a serious question to be tried. 
58	The issue for VCAT at final hearing will likely be, based on full evidence and final submissions, whether the Suspension Decision should stand or whether some form of conditions on Bebawy’s registration should be in place, pending the outcome on the criminal charges, whether the charges are proven or not, and then the Board’s action concerning the notifications. There is no prospect that, with charges not resolved, VCAT would permit Bebawy to practice as a physiotherapist without conditions.
59	Concerning expert evidence, it appears likely that that will be tested at hearing, noting there is expert evidence for (Mikhael) and against (Hunt and Moller) Bebawy.
60	Fundamental to the final decision in this proceeding will be maintaining public confidence in the safety of services provided by physiotherapists, while only imposing restrictions necessary to ensure physiotherapy services are provided safely and are of an appropriate quality.
61	
This is in the context that:
a)	While serious and highly concerning, the alleged conduct is not at the higher end of the spectrum of offending;
b)	Bebawy is presumed to be innocent of the criminal charges against him; and
c)	if the notifications lead to the Board making a referral to VCAT because the Board reaches a reasonable belief that Bebawy has behaved in a way that constitutes professional misconduct, on referral (but not in this review proceeding) the Board bears the onus of proof.
62	This criterion supports a stay.
Is a stay in the community or public interest?
63	Bebawy acknowledged that in some stay applications, the public interest and the protection of the public from unsafe practitioners may well trump the concern to avoid a review application being rendered nugatory.
64	It was submitted that this is not such a case here; proper consideration of the discretionary factors relevant to a suspension based on section 156(e) support the stay application.
65	Concerning reputation of the physiotherapy profession, VCAT can have regard to the fact that the reputation of the physiotherapy profession is already very high. 
66	In Medical Practitioners Board of Victoria v Lal, the Supreme Court of Victoria Court of Appeal said:
Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost-gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practice medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not relevant that the standing of the medical profession in this community is very high.
67	It was submitted that if Bebawy resumes working, subject to the Second Conditions or, in the alternative, subject to gender conditions, while the criminal matters are resolved, that is unlikely to have any material or lasting effect on the established reputation of the physiotherapy profession as a whole.
68	Bebawy cited what ‘public interest’ has been held to mean and how it is assessed. In Joo Leow, Niall JA observed:
The nature of 'public interest' determinations in the exercise of statutory powers was described as follows in O'Sullivan v Farrer:
the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.
69	Similarly, the observations of the Tribunal in Farshchi v Medical Board of Australia (Farshchi) are also relevant: 
… the public interest is not a one-sided construct.
The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
There is a public interest in members of health professions in whom training and expenditure has been made, being able to practise.
…
There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
There is a public interest in ensuring immediate action is only taken when it is necessary to do so. Immediate action is not required every time a health practitioner's conduct is brought into question. There will be many cases where no immediate action against a practitioner is taken, even though they may later be found to have engaged in serious misconduct.
70	It was submitted VCAT should also keep firmly in mind the additional observations of Niall JA, in Joo Leow:
In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered responses having regard to all the competing factors.
71	In Sarni v Medical Board of Australia other relevant considerations were identified as follows:
a)	The deterrent effect of the events which have occurred since the incident.
b)	The response of the practitioner to the incident including acceptance of blame and responsibility, expression of remorse and personal actions.
c)	The principle identified in Kozanoglu v Pharmacy Board of Australia  that while safety of the public must necessarily be the primary concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance. The same principle applies when considering section 156(1)(e), where it must be noted that the consideration is not the safety of the public but “considering public confidence in the profession, as an aspect of public interest, which is a more abstract consideration”.
72	Bebawy submitted that what is necessary, as per the decisions of Joo Leow, Farshchi, Lal, is a considered, balanced and proportionate approach to all of the issues. Approaching the task in this way clearly points to suspension not being necessary in all the circumstances of this case.
73	The Board submitted that if VCAT considers that not granting a stay would render the review nugatory, the public interest trumps that factor, and it is necessary to give effect to the “paramount” guiding principles in section 3A of the National Law by refusing the stay application. 
74	The Board submitted that the public or community interest does not favour a stay. It is not in the public or community interest for a physiotherapist who has been charged with sexual assault of a patient, in the circumstances that exist here, to be permitted to continue to practise while the charges are pending. This is a case in which immediate action by way of suspension is necessary to protect patients and to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession. 
75	The Board’s position was that no conditions could be appropriate, in circumstances where the criminal charges call into question Bebawy’s fitness to hold registration and where concerns exist regarding his compliance with conditions. Although conditions might be appropriate as a response to a specific risk to safety, they are not appropriate where the public interest is engaged by criminal allegations that call into question a practitioner’s fitness to hold registration.
76	In my view, the public interest in reassuring the public that the regulatory system is operating to protect and protect the reputation of the profession will here, on what is known now, be achieved by the imposition of a gender condition on Bebawy’s registration, that he may not provide any treatment to females. This is in context where it is not that Bebawy continuing to practice presents serious risk to patients.
77	I have rejected Bebawy’s primary submission that the Second Conditions should be restored by way of a stay. The Board is correct that the Police Brief provides concerning evidence in support of the charges, which was not available to the Board when it imposed conditions. 
78	Without predicting the outcome of the criminal charges, in my view with more known, a higher degree of restriction, via gender conditions is a proportionate response.
The time until VCAT will decide the application for review
79	It appears that the evidentiary documents that will be available at the final hearing in this proceeding are largely if not entirely already available in the 433 page Statement of Reasons for the Suspension Decision provided by the Board in this proceeding. It is unlikely that the Board will provide further documentary evidence. If Bebawy provides further documentary evidence, that is likely to be of limited volume compared to the Section 49 Statement.
80	Applications for review of immediate action decisions should receive priority at VCAT. A one-day hearing seems likely.
81	The time to the final hearing and then to a VCAT decision may be relatively short, decided well before the end of 2024. That said, this prediction is tentative.
82	This criterion has little weight here in the sense that concerning public interest, a relatively short time to final hearing and so short operation of the stay granted, would reassure the public that the regulatory system is acting promptly to address the issues raised. The chartered accountants predict liquidation in bankruptcy within 2 to 4 months. Therefore, it is not a situation where it may be that relatively little harm would be caused over a relatively short time.
83	If it proves to be the case that the hearing does not occur for some time, the potential for the review to be rendered nugatory increases.
84	Here I focus only on the likely final hearing and decision in this proceeding, not on further action of the Board concerning the notifications or the likely date of the resolution of the criminal charges.
85	This criterion supports a stay.
Whether the applicant facing these proceedings has incentive not to engage in further inappropriate behaviour for the duration of the proceeding
86	Bebawy has overwhelming incentive to comply with a gender condition and, to give no reason at all for the Board to be further concerned as to his practice as a physiotherapist.
87	This criterion supports a stay.
Whether any stay should be granted subject to conditions
88	As discussed above, the stay should be granted with gender conditions.
Decision
89	Bringing these criteria together, in my view, they support staying the Suspension Decision and imposing gender conditions, given:
•	I have accepted that failure to grant a stay will render Bebawy’s application for review nugatory and will cause Bebawy prejudice; 
•	There is a serious question to be tried;
•	A gender condition will sufficiently support the maintenance of the public interest in confidence in the regulatory system;
•	The application for review will probably be decided well before the end of 2024. Given the nature of these types of proceedings, that is not an overly long time from now; and
•	Bebawy has overwhelming incentive to comply with gender conditions and give the Board no additional reason to be concerned as to his registration as a physiotherapist.
90	Therefore, Bebawy’s application that the Suspension Decision be stayed partially succeeds, with his application that his registration be restored with the Second Conditions applying refused, but with his registration to resume with gender conditions to operate.
91	The gender conditions set out above are closely drawn from Ahpra’s August 2017 ‘Gender-based restriction for sexual misconduct allegation’ template.
92	This decision does not immediately restore Bebawy’s registration. He must first obtain the Board’s approval for practice locations.
93	The above conditions are drafted on the assumption that Bebawy will seek approval to practices will be the practices which Bebawy owns and operates. The template conditions allow for the putting in place of appropriate supervision of the conditions.
94	This is not a situation where it is likely that the conditions will prove unworkable, given Bebawy proposed them and he has no need to find an employer who will employ him with gender conditions in place.
95	As the parties did not have the opportunity to make submissions as to the substance of the gender conditions, they have liberty to apply for amendment to the conditions, in terms of their practical application, if needed.
Ian Proctor
Deputy President