VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z365/2023
	
CATCHWORDS	
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 – chiropractor - allegations of failing to maintain professional boundaries by engaging in inappropriate sexual conduct with a patient and failing to maintain adequate or appropriate clinical records in relation to the patient –  agreed statement of facts, findings and proposed determinations – findings that the chiropractor engaged in the alleged conduct - characterisation of conduct as professional misconduct – determinations of reprimand, cancellation of registration, disqualification from applying for registration for 12 months, and prohibition from providing any health service to any female patients until registered as a health practitioner under the National Law.  
	
APPLICANT	Chiropractic Board of Australia	
RESPONDENT	PLE 	
WHERE HELD	Melbourne	
BEFORE	J Billings, Senior Member 
Dr B Draper, Member
Dr J Waterhouse, Member	
HEARING TYPE	Hearing via videoconference  	
DATE of Hearing 	3 October 2024	
DATE OF ORDER	24 October 2024 	
CITATION	Chiropractic Board of Australia v PLE (Review and Regulation) [2024] VCAT 1014	
Order

1	Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), PLE is reprimanded.
2	Under section 196(2)(e) of the National Law, PLE’s registration as a health practitioner is cancelled.
3	Under section 196(4)(a) of the National Law, PLE is disqualified from applying for registration as a health practitioner for the period of 12 months from the date of this order.  
4	Under section 196(4)(b)(i) of the National Law, PLE is prohibited from providing, whether as employee, contractor, manager or volunteer, and whether directly or indirectly, any health service as defined in section 5 of the National Law to any female patients, until he is registered as a health practitioner under the National Law.  

J Billings
Senior Member and Presiding Member	Dr B Draper 
Health Practitioner Member 	Dr J Waterhouse 
Health Practitioner Member 	

APPEARANCES:		
For Applicant:	Ms S Joosten of counsel 	
For Respondent: 	Mr S Cash of counsel     	

NOTE: Orders under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the Open Courts Act 2013 (Vic) are in force. 

On 25 September 2024 the Tribunal made the following order: 

1.	Under section 80 of the [Victorian Civil and Administrative Tribunal Act 1998 (Vic)] that the respondent in this proceeding must be referred to as ‘PLE’.
2.	Under s 17 of the [Open Courts Act 2013 (Vic)], that any report of the whole or part of these proceedings or information derived from this proceeding that might enable the respondent to be identified (other than as PLE) must not be published or otherwise disclosed.
3.	Subject to any further orders of the Tribunal, these orders operate until the death of the respondent.
4.	These orders apply throughout Australia on the basis that VCAT’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The health of the respondent would likely be seriously threatened if persons living outside Victoria know or come to know their identity.

On 1 October 2024 the Tribunal made the following order under the Open Courts Act 2013 (Vic):

1.	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, the notifier and the witnesses to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that VCAT’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 order 1 would be breached if persons living outside Victoria know or come to know their identity.
3.	This order operates until the later of the death of all of the people referred to in order 1.

Reasons
1	The Chiropractic Board of Australia (Board) has referred allegations to VCAT concerning the respondent chiropractor, PLE, under section 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).  The referral was dated 8 May 2023.
2	The referral attached a Notice of Allegations alleging a failure by PLE to maintain professional boundaries including by engaging in inappropriate sexual conduct with a patient (Ms A); and further alleging a failure to maintain adequate or appropriate clinical records in relation to the patient.  
3	There were two notifications made to the Board, both in July 2021.  The first was by Ms A.  The second was made confidentially by her counsellor.  
4	PLE has admitted the allegations and the parties have submitted an Agreed Statement of Facts, Findings and Determinations dated 28 February 2024 (Agreed Statement).  We set out the terms of the Agreed Statement, which includes the contents of the Notice of Allegations, in an attachment to this decision record. 
5	Although PLE has admitted the allegations, it was not until January of this year, just prior to a VCAT compulsory conference, that he did so.  We were informed that he had engaged new lawyers by then.  Before that time - in formal submissions in 2021 and 2022, and during an interview conducted by Australian Health Practitioner Regulation Agency (Ahpra) investigators on 29 June 2022 – PLE categorically denied his boundary transgressions.  He even asserted that Ms A made sexual advances towards him and complained about him after he resisted. 
6	At all material times PLE was registered as a chiropractor under the National Law and treated patients at a treating suite located within a commercial gymnasium in Melbourne (gymnasium).  
7	PLE was first registered by the Board as a chiropractor in March 2020, having obtained his qualifications in the preceding year.  He was then aged in his mid-twenties.  Towards the end of 2020, he commenced practice at the gymnasium as an employee.  From early 2021 he was practising there as a self-employed sole practitioner.
8	The Board alleges that Ms A saw PLE at the gymnasium for chiropractic treatments for sore and tight muscles on 11 occasions from March to June 2021.  Ms A was then aged in her early forties.  During the second and subsequent consultations, PLE engaged in physical intimacy and/or sexualised conduct with Ms A as particularised in the Notice of Allegations.  According to a summary in the Board’s submissions, PLE engaged in ‘inappropriate sexual conduct with Ms A in the treatment sessions including sexualised touching and expressions, kissing, oral sex and engaging in sexual intercourse with Ms A’.  PLE’s conduct included being present while Ms A undressed, making inappropriate comments to her and moaning in a sexual way while he was massaging her.  PLE thereby breached, or acted inconsistently with, the Code of Conduct for Chiropractors in Australia (March 2014) (Code).  
9	The Board further alleges that PLE failed to maintain adequate or appropriate clinical records for Ms A for any of the 11 consultations.  The alleged failures particularised by the Board are many and varied.  Among other deficiencies, the clinical records for the first consultation did not contain a relevant history, a diagnosis or even clinical impressions or a working diagnosis of Ms A’s presenting complaints.  The clinical records for a number of the consultations did not contain details such as relevant clinical findings; sufficient documentation of treatment; or information about Ms A’s response to previous treatment.  PLE thereby breached, or acted inconsistently with, the Code and with Guidelines – Clinical Record Keeping for Chiropractors (March 2013) (Guidelines).
10	On 26 August 2021, the Board’s Immediate Action Committee (IAC) took immediate action and imposed conditions on PLE’s registration in the form of a ‘gender-based restriction’ whereunder he must not have any contact with female patients and must practise only at approved practice locations.  
11	There was a hearing before us on 3 October 2024.  Ms Joosten, counsel for the Board, and Mr Cash, counsel for PLE, made oral submissions further to written submissions filed beforehand.  PLE attended the hearing but he did not give evidence.
12	The Tribunal Book contains the Board’s investigation materials including a witness statement by Ms A and a witness statement by Ms A’s friend (Ms B); text messages and emails between Ms A and PLE; screenshots of social media communications between Ms A and friends; PLE’s submissions to the Board in August 2021 and November 2022; a statement by the owner and operator of the gymnasium; a consultant psychologist’s report concerning PLE made in August 2021; and transcript of the June 2022 interview.  
13	We discuss PLE’s social history, including his and his family’s strict religious background, in the context of our determinations.  We mention now that on 25 September 2024 a presidential member made the relevant pseudonym order.  When PLE applied for the order, he submitted a recent report by a psychiatrist who considered that there was a significant risk that PLE would commit self-harm if his identity was disclosed.  At the hearing we formally received the psychiatrist’s report into evidence.  Mr Cash relied on information in the psychiatrist’s report, and in the report that the consultant psychologist made in 2021, in advocating that we should accept the parties’ joint position on determinations.  
Principles concerning the proper approach to an Agreed Statement
14	The principles concerning the proper approach for a disciplinary tribunal to take to an Agreed Statement of the kind submitted in the present case have been discussed in numerous decisions of courts and tribunals.  
15	The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 (McGrath) at [19]-[21]. See also, in particular, the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46 (Fair Work).
16	VCAT has observed that it is important to take the parties’ agreement into account in forming its own view on relevant matters, ‘particularly … when it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances’: Medical Board of Australia v Fox [2016] VCAT 408 (Fox) at [6]. 
17	We observe that, beyond whatever negotiations the parties may have had, they participated in the compulsory conference in January 2024, conducted by a senior member of the Tribunal.  
Findings of fact
18	The Board carries the burden of proof.  The standard of proof is the usual civil standard: on the balance of probabilities.  In the context of disciplinary proceedings where serious misconduct is alleged, the Court of Appeal has observed that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) ‘reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account’: see Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 (Kyriackou) at [26].  In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 (Karakatsanis) the Court referred to Briginshaw before stating that it was entirely proper for VCAT to require that it be ‘comfortably satisfied’ of the facts in issue: at [37].  See also Medical Board of Australia v Alkazali [2017] VCAT 39 (Alkazali)  at [33]-[36].
19	We have referred to the evidence in the Tribunal Book.  That includes a  detailed witness statement by Ms A and a witness statement by her friend, Ms B, in which Ms B sets out Ms A’s contemporaneous disclosures about her and PLE’s sexual engagements.  In addition, there are various communication records that support Ms A’s account.  And there are the clinical records themselves.  On the basis of the evidence, and further on the basis of the comprehensive admissions that PLE has now made, we are comfortably satisfied that PLE engaged in the alleged conduct.
20	We announced our findings at the hearing. 
Characterisation of conduct 
21	Section 5 of the National Law includes the following definitions of ‘professional misconduct’ and ‘unprofessional conduct’. 
professional misconduct, of a registered health practitioner, includes—
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers …  
22	The Code and the Guidelines are evidence of what constitutes appropriate professional conduct or practice for the chiropractic profession: see section 41 of the National Law.
23	The Board set out the relevant parts of the Code and the Guidelines in the Notice of Allegations.  
24	In relation to the first allegation (failure to maintain professional boundaries), the parties jointly submit that PLE’s conduct amounts to professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.  
25	In relation to the second allegation (failure to maintain adequate or appropriate clinical records), the parties jointly submit that PLE’s conduct amounts to professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct.  
26	We accept the parties’ joint submission on characterisation.  
27	In relation to the first allegation, Ms Joosten pointed to several relevant factors.  The conduct was serious.  Among other things, it involved repeated, inappropriate sexual conduct over a period of months. It could not be described as isolated or a single lapse in judgement. PLE’s relationship with Ms A continued over regular appointments in that period.  The context was a treating relationship in which PLE provided Ms A with care and treatment that required him to touch her whilst she was in a state of undress.  There is an inherent power imbalance that exists between a health practitioner and patient. Patients depend on their health practitioner to assist them in times of vulnerability and to carry out procedures such as physical examinations without any ulterior motives.  Community expectations and reputational risk to the profession are relevant.  PLE’s conduct carries the potential to seriously undermine the profession’s good standing and the inherent trust that the public has in the profession.  Patients need to trust that their health practitioner will act in their best interests and will never take advantage of them.  The community expects that the focus of the treating relationship will be good health care, and that practitioners will not approach that relationship with other intentions.  The community expects that health practitioners can be trusted to maintain professional boundaries and act in the best interests of their patients.  The community would be shocked to learn the nature of the conduct engaged in by PLE. PLE’s conduct was plainly contrary to the Code, including the specific expectations not to exploit patients sexually and engage in inappropriate relationships.  Of particular importance in the present case is that the Code makes clear that it is incumbent on the chiropractor to adhere to these expectations and obligations, rather than focusing on the patient’s conduct. 
28	Mr Cash indicated in his submissions that PLE accepts what the Board put forward as reasons for the joint submission on characterisation.
29	In the context of our determinations, we comment on PLE’s training and experience.  For now, we indicate that we consider that his conduct was unprofessional conduct that amounts to conduct substantially below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.  Further, it was conduct that is inconsistent with PLE being a fit and proper person to hold registration in the chiropractic profession.  
30	We adapt what VCAT said in Psychology Board of Australia v Ferrero [2019] VCAT 1648 (Ferrero)  by saying that engaging in an intimate or sexual relationship with the patient is one of the most serious violations of professional boundaries that can occur.  It fundamentally undermines the patient/chiropractor relationship.  It introduces an element of the chiropractor’s own personal needs and desires into what should be just a therapeutic, objective, professional relationship. It undermines the trust inherent in that relationship.  Such conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
31	Similarly, in relation to the second allegation Ms Joosten pointed to several relevant factors.  The conduct covered a period of about three months and involved inadequate notes made on 11 occasions.  It was not a matter of one specific shortcoming being repeated.  There were various shortcomings.  The conduct is serious because poor and inadequate notetaking can pose a risk to patients, for in the event that another practitioner assumes care of the patient, it is important that there be detailed notes to provide an overview for the new practitioner in relation to treatment already provided, to ensure that appropriate steps are taken in providing continuing care.  PLE’s conduct was plainly at odds with relevant expectations expressed in the Code and the Guidelines as to providing good care.  Good care includes formulating and implementing a reasonable management plan and maintaining adequate records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners.
32	As we have noted, Mr Cash indicated that PLE accepts what the Board put forward as reasons for the joint submission on characterisation. 
33	We conclude in relation to the second allegation that there was more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
34	We announced our characterisation of PLE’s conduct at the hearing. 
Determinations
35	The parties jointly propose that we reprimand PLE; cancel his registration as a health practitioner; disqualify him from applying for registration for 12 months; and prohibit him from providing health services to women for 12 months.
36	Having deliberated, we have reached the conclusion that the proposed determinations are appropriate although, as we discuss below, we have reformulated the terms of the prohibition. 
37	Ms Joosten referred to the guiding principles in section 3A of the National Law and submitted that protecting the public and ensuring public confidence in the safety of services provided by registered health practitioners are principles that underpin any decision to take regulatory action.  She then referred to Medical Board of Australia v Jansz [2011] VCAT 1026 (Jansz) and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 (Naik) and summarised the principles: 
•	the purpose of determinations is to protect the public
•	determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public
•	determinations should in no way be punitive
•	the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner 
•	personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner 
•	the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the determinations
•	the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner 
•	insight can include as an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions
•	any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a ‘slap over the wrist’
38	Before proceeding to apply the principles, we address certain submissions Mr Cash made and record some additional relevant matters.  
39	We have mentioned that the psychiatrist who saw PLE recently considered there was a significant risk that PLE would commit self-harm if his identity was disclosed.  Against this background, PLE did not give oral evidence at the hearing.  This meant that we did not have the benefit of hearing directly from him especially with respect to his insight or remorse.  
40	Mr Cash reasonably submitted that PLE’s admissions and his cooperation with the regulator indicate that he has a degree of insight and remorse.  Through Mr Cash, PLE expressed sorrow for having let down both his patient and the chiropractic profession.  On the other hand, it was not until the beginning of this year that PLE admitted his conduct, so Mr Cash was right to describe PLE’s appreciation of his wrongful actions as ‘belated’.  Prior to this year, not only did PLE repeatedly make denials to the regulator but in doing so, he made disparaging remarks about Ms A that were designed to undermine her credibility.  And at his interview and in written submissions to Ahpra, PLE offered disingenuous explanations for the text messages between him and Ms A.  (As Ms Joosten pointed out, when he was first contacted by Ahpra in August 2021, PLE asserted that Ms A was fabricating allegations against him.  In written submissions made that month, he said among other things that he had been warned at the gymnasium that Ms A was ‘not all there’ and was ‘a bit crazy’.  PLE made similar statements during his interview in June 2022, including that Ms A was ‘pretty dangerous’ and that she made a lot of complaints about people and started ‘a lot of drama’ at the gymnasium).  
41	Through Mr Cash, PLE acknowledges that his disparagement of Ms A is an aggravating factor in the case.  
42	Mr Cash addressed us in detail about PLE’s personal and social history, seeking to give context to PLE’s boundary transgressions and his interactions with the regulator.  The essential elements were to the effect that PLE is a religiously devout man who has a strict, conservative religious family background.  His religion forbids sexual intercourse before or outside marriage.  In 2021 PLE told the psychologist that he dated women in the past and had ‘sexual experience’.  We were told that this was actually limited to ‘mild petting’ and that the first time PLE had sexual intercourse was with Ms A.  PLE told the psychologist that in or about 2019 he had resolved to become more devout and that he remained single.  
43	After he qualified as a chiropractor, PLE worked for only a short time as an employee before he embarked on practice as a sole practitioner.  He lacked supervision or mentoring at this very early stage of his career when it was most important for him to have supervision and mentoring.  
44	We were therefore told in essence that when Ms A went to him for treatment, PLE was sexually inexperienced and lacked the maturity and resources to ensure that he did not transgress professional boundaries in the first place or that, once he had done that, to discontinue the consultations and ensure he did not transgress further.  Developing his submissions, Mr Cash portrayed PLE as a frustrated young man who became excited when sexual interest was shown in him.  Mr Cash highlighted parts of Ms A’s witness statement that described what occurred during the third consultation when PLE massaged her, and that went on to detail Ms A’s own actions that immediately preceded consensual sexual intercourse.  He also drew our attention to parts of Ms A’s statement that referred to her subsequent communications with PLE in which she encouraged him to continue the sexual relationship.  
45	PLE’s religion and family background, and the fear he had that his behaviour would become widely known, were put forward as relevant context for his false denials and his disparagement of Ms A.  We were told in effect that PLE thought that if his denials were to be believed, he would somehow have to explain why Ms A would make her complaints.
46	Each case must of course be determined according to its individual circumstances.  We have taken into account the points Mr Cash made.  But there are two further matters in particular that we take into account.  One is the impact PLE’s conduct had on Ms A: see below.  The other is that, as PLE acknowledged during the investigation, at the time he breached professional boundaries, he was aware of his obligations and why they exist.  For instance, in his submission to Ahpra in 2021 he professed to understand the importance of maintaining professional boundaries and said that he was cognisant of the ‘inherent power imbalance within all treating relationships, whereby the client is in a position of vulnerability and is at risk of being taken advantage of by a treating professional who abuses their power’.  
47	Even junior, relatively inexperienced chiropractors have or should have knowledge of these professional obligations imparted to them in their training.  And they must comply with these professional obligations from the moment they are given the privilege of practising the profession.
48	The actual impact of PLE’s conduct on Ms A is a relevant consideration.  Ms A gave information about that in her notification and later statements.  
49	In a statement Ms A wrote in February 2024 for consideration by VCAT, she said that she felt like she had been a victim of ‘gaslighting’, for when she raised with PLE what he did to her, he said that he did not know what she was talking about.  This made her feel weak and she ‘second guessed’ herself.  His comment made her feel that she was ‘crazy’.  Ms A said that she is a strong person and she does not like to have felt weak and doubt herself.  She said that it has had ‘such an impact’ on her.  
50	Ms A said, further, that every time she was contacted by Ahpra it took her days to recover as she felt so anxious.
51	Ms A went on to say that she now finds it extremely difficult to have physical contact with any male professional who might need to touch her body.  She prefers to see only female professionals now.  She has lost her trust and feels that if she sees a male she struggles emotionally with that contact and feels vulnerable and she doesn’t want them to see her like that as she prides herself in being emotionally strong.  She added that she didn’t realise how much what happened to her has affected her and that she hates feeling like that.  She said that there has been almost three years of her life where she has had to think about what was going to happen.  She feels like the events have taken the power from her and that she has had no control.  Ms A concluded her statement by saying that she hopes she is going to be ‘OK’ in the future.
52	In her witness statement to Ahpra, in August 2021, Ms A said that a week or so after her last appointment with PLE, she became scared and anxious when a male massage therapist was giving her a massage.  She said she could not understand why she felt like that given she had consented to having sex with PLE.  (It is clear from the second notification that Ms A told her counsellor about her distress when she had the massage).     
53	We mention at this point that Mr Cash told us about major developments in PLE’s life and some efforts he has made towards rehabilitation.  Since he engaged in the admitted conduct he has married and become a parent.  He has completed courses on the following topics: ‘challenging communication’, ‘essential clinical data entry’ and the ‘revised Code of Conduct’.  
54	Significantly, we were not informed about any prior disciplinary history.
55	The Tribunal Book included a witness statement made in August 2023 by the owner and operator of the gymnasium.  The witness said he had received ‘an overwhelming amount of positive feedback’ from male and female gym members about PLE.  He said that Ms A was one exception to that.  He went on to detail complaints Ms A had made about numerous people.  As it appears from the statement that the witness was aware only that Ms A complained about the treatments provided by PLE, the statement is of limited value.  Beyond that, there were no character references submitted - whether from someone at PLE’s current place of work or otherwise.  
56	Now applying the principles regarding determinations, we indicate that we accept the Board’s submission that PLE’s conduct, when considered overall, was so serious and fell so far short of the standards required of a registered health practitioner that cancellation of registration and a substantial period of disqualification is warranted in addition to a reprimand.  As VCAT observed in Honey v Medical Practitioner Board of Victoria [2007] VCAT 526 (Honey),  cited by Ms Joosten, cancellation of registration (in contrast to suspension of registration) ‘sends a clear message of unsuitability to practise’.  Having regard to all the circumstances, and to comparable cases which we discuss below, we consider that disqualification for 12 months is appropriate.  (In our conclusion to these reasons we say more about the adequacy of the 12-month disqualification).  Further, we consider that PLE should be prohibited from providing health services to any female patients until such time as he is registered as a health practitioner under the National Law.  
57	There is a need for specific deterrence.  We are mindful of everything we were told about PLE and his circumstances, but we remain concerned that he had so many opportunities to demonstrate insight and remorse that he did not take adequately if at all until this year.  There appears to us to be more still that he could do to demonstrate insight and remorse, and to show that he does not pose a risk to the public. 
58	There is also a need for general deterrence.  We make clear that by our determinations we intend to signal to other members of the chiropractic profession that serious adverse consequences will follow conduct of the kind PLE engaged in so as to deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession.  
59	We further intend to secure the maintenance of proper professional standards and to protect the public, and the chiropractic profession, by making orders that will assure the public that appropriate standards are being maintained within the profession. 
Reprimand
60	In Peeke v The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) (Peeke) Marks J expressed the view that a reprimand is not a trivial penalty.  His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had a potential for serious adverse implications. 
61	We consider that there should be a reprimand in PLE’s case.  
Cancellation and disqualification 
62	We consider that cancellation of registration is warranted and that we should disqualify PLE from applying for registration as a health practitioner for 12 months. 
63	We have regard to the time that has passed since the Board commenced its investigation and the impact this has had on him.  Mr Cash acknowledged that PLE’s denials throughout the investigation ‘no doubt’ contributed to it becoming protracted but he highlighted that three years have elapsed since the notifications were made to the Board.  He said that during that time PLE has endured an anxious period in which his future as a registered chiropractor has been in doubt.  He therefore submitted that PLE has already been impacted very substantially as a consequence of his conduct.
64	We observe that the consultant psychologist wrote in in August 2021 that PLE was then suffering ‘a degree of anticipatory anxiety and reactive depression’.  And we refer to Medical Board of Australia v Proctor [2018] VCAT 576 (Proctor).  In that case, VCAT noted that the lengthy disciplinary process had been a heavy weight for the practitioner to carry, given the uncertainty about his continued ability to practise.  We consider that the same can fairly be said for PLE.   
65	There is a further impact on PLE that we mention.  Mr Cash said that PLE’s practice has been curtailed for the past two years as a result of the gender-based restriction.  Further to that, for about three months PLE was unable to practise because he had to have his current practice location approved.  Mr Cash drew our attention to PLE’s ongoing financial commitments during this time when he was not able to earn income.   
Prohibition 
66	The Agreed Statement contains the following wording for the proposed prohibition: ‘[PLE] is prohibited from treating women in a health service for a period of 12 months following the date of the Tribunal order under section 196(4)(b) of the National Law’.  
67	At the hearing, we raised the concern that this formulation would not go far enough to protect the public.  Ms Joosten and Mr Cash agreed that the following alternative we proposed would be appropriate: ‘Under section 196(4)(b)(i) of the National Law, PLE is prohibited from providing, whether as employee, contractor, manager or volunteer, and whether directly or indirectly, any health service as defined in section 5 of the National Law to any female patients, until he is registered as a health practitioner under the National Law’.  (The definition of ‘health service’ in section 5 of the National Law includes services provided by masseurs, whether provided as public or private services).  
68	We consider that a prohibition order in the terms we proposed is necessary to safeguard against risk to the public.  Adapting what VCAT has said in cases involving other health professions, we say that it would undermine the effectiveness and reputation of the regulatory system for someone who is disqualified from applying for registration as a chiropractor for a period of time to be able to work in an unregulated profession and continue to provide health care services.  This could be seen as a backdoor way of overcoming orders for cancellation and disqualification.   
Comparable cases 
69	Ms Joosten cited the following cases in order to demonstrate that the determinations proposed by the Board are appropriate, while acknowledging that none of the cases is comparable in every way to the present case: Medical Board of Australia v Yeo (No 2) [2019] VCAT 1928 (Yeo); Nursing and Midwifery Board of Australia v Adam [2020] SACAT 48 (Adam); Medical Board of Australia v Holten [2019] VCAT 837 (Holten); Medical Board of Australia v Topchian [2013] VCAT 86 (Topchian); Podiatry Board of Australia v Lawson (No 1) [2020] VCAT 125 (Lawson).  
70	It is desirable that there be consistency in determinations though we have to be cautious when comparing cases.
71	The circumstances in the cases varied widely, for instance as to the degree of the patient’s vulnerability (by reason of age, health or social situation); and as to whether the practitioner contested the allegations or made admissions (and the stage at which the practitioner made admissions).  To the extent that they involved interference with the practitioner’s registration, the determinations ranged from suspension for three months to cancellation of registration and disqualification for two years.  
72	We have found Yeo and Lawson the most helpful cases to consider.   
73	In Yeo, the doctor contested allegations that he had a sexual relationship with a patient when he was aged 54 and she was aged 19 and vulnerable.  VCAT found the allegations proved.  VCAT reprimanded the doctor, cancelled his registration and disqualified him for two years.  
74	In Lawson, the podiatrist admitted that he had a sexual relationship with a patient and that he failed to maintain accurate and adequate clinical notes regarding\ her.  There were other allegations relating to treatment and billing that he denied.  VCAT found the allegations proved.  The podiatrist was not registered at the time VCAT made its determinations and had ceased practice approximately three years before then.  VCAT reprimanded the podiatrist and disqualified him for six months.   
75	While there are important differences between PLE’s case and the cases Ms Joosten cited, we consider that our determinations are proportionate and consistent with the determinations in those cases.  
Conclusion 
76	For the reasons given, we reprimand PLE; cancel his registration; disqualify him from applying for registration as a health practitioner for 12 months; and prohibit him from providing any health service to any female patients until he is registered as a health practitioner under the National Law.   
77	After the disqualification period ends, if PLE applies for registration as a chiropractor, the Board will need to be satisfied that he is a fit and proper person to hold registration.  The Board may require satisfactory evidence that PLE has developed the necessary degree of insight and that he does not pose a risk to patients – that he really has ‘come full circle’, as Mr Cash put it.  The Board may consider whether, if PLE is to be granted registration, there should be conditions imposed on his registration, such as a gender-based restriction as was imposed when the Board took immediate action, or a condition that requires his clinical records to be audited periodically.  
78	We agree with counsel that it is highly desirable for the regulator and health practitioners to resolve matters, especially where that avoids former patients who have been adversely impacted by the practitioner’s conduct having to give evidence and be cross-examined.  That said, in concluding our reasons we indicate that we initially had reservations about whether the proposed disqualification period was long enough.  Mr Cash submitted that we should not have reservations but he also cited Chinese Medicine Registration Board of Victoria v Eskander [2011] VCAT 1387 (Eskander) and submitted that the fact that the parties have reached agreement as to particular determinations may justify VCAT in acceding to what they propose even though the Tribunal might not have been inclined to do so in the absence of agreement.  
79	Having duly considered the submissions made on behalf of the Board and on behalf of PLE, we are satisfied that the proposed determinations are appropriate in the individual circumstances of the case.   

J Billings
Senior Member and Presiding Member	Dr B Draper 
Health Practitioner Member	Dr J Waterhouse 
Health Practitioner Member	

ATTACHMENT – Agreed Statement of Facts, Findings and Determinations 
PART A - FACTS
1.	Introduction
1.1	The parties jointly submit this agreed statement of facts, findings and determinations for the Tribunal’s consideration.
2.	Background
2.1	The Health Practitioner Regulation National Law (Victoria) (National Law) applies in Victoria pursuant to section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).
2.2	The Chiropractic Board of Australia (Board) is established pursuant to section 31 of the National Law and has functions referred to in section 35 of the National Law including to register suitably qualified and competent persons in the health profession, develop or approve standards, codes and guidelines for the health profession and the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
2.3	The Board published the following documents which set out the standards of professional behaviour and conduct expected for chiropractors in all practice settings in Australia.
(a)	Code of Conduct for Chiropractors in Australia (March 2014) which was applicable from 17 March 2014 to 28 June 2022 (Code of Conduct); and
(b)	Guidelines - Clinical Record Keeping for Chiropractors (issued on 22 March 2013) (Guidelines).
2.4	[PLE] was first registered by the Board as a Chiropractor on 20 March 2020.
2.5	[PLE]’s registration is currently subject to gender-based restriction conditions to protect public health or safety under section 156(1)(a) of the National Law pursuant to immediate action taken on 26 August 2021.
2.6	At all material times, [PLE]:
(a)	was a registered health practitioner under the National Law; and
(b)	was required to practice in accordance with the National Law, the Code of Conduct and the Guidelines.
3.	Notification, investigation and referral
3.1	On 18 July 2021 and 19 July 2021, the Australian Health Practitioner Regulation Agency (Ahpra) received notifications about [PLE]. The notifications raised concerns that [PLE] had engaged in inappropriate sexual conduct and made inappropriate sexualised comments with a patient.
3.2	On 22 July 2021, the Board decided to investigate [PLE] under section 160(1) of the National Law.
3.3	On 26 August 2022, the Board formed a reasonable belief that because of his conduct, [PLE] poses a serious risk to persons and it was necessary to take immediate action to protect public health or safety under section 156(1)(a) of the National Law by imposing conditions of gender-based restriction on [PLE]’s registration.
3.4	On 27 January 2023, the Board decided to refer the matter to the Tribunal under section 193(1)(a)(i) of the National Law, as it reasonably believes that [PLE] engaged in conduct that constituted professional misconduct. The referral was made on 8 May 2023.
4.	Allegation 1: [PLE] failed to maintain professional boundaries by engaging in inappropriate sexual conduct and/or sexualised comments with a patient (Ms A)
4.1	At all material times, [PLE] was registered by the Board as a chiropractor under the National Law.
4.2	At all material times, [PLE] treated patients within a treating suite at [a gymnasium].
4.3	Between 6 March 2021 and 2 June 2021, Ms A saw [PLE] for chiropractic treatments for her sore and tight muscles on 11 occasions at [the gymnasium], being:
(a)	4 March 2021 (First Consultation);
(b)	6 March 2021 (Second Consultation);
(c)	11 March 2021 (Third Consultation);
(d)	8 April 2021 (Fourth Consultation);
(e)	15 April 2021 (Fifth Consultation);
(f)	29 April 2021 (Sixth Consultation);
(g)	2 May 2021 (Seventh Consultation);
(h)	8 May 2021 (Eighth Consultation);
(i)	15 May 2021 (Ninth Consultation);
(j)	19 May 2021 (Tenth Consultation); and
(k)	2 June 2021 (Eleventh Consultation).
4.4	During the Second Consultation, [PLE] engaged in physical intimacy and/or sexualised conduct with Ms A including that he:
(a)	rested his testicles in Ms A’s left palm;
(b)	massaged Ms A’s legs, including her inner thigh and groin for an extended period of time; and/or
(c)	brushed his fingers past her genital area.
4.5	During the Third Consultation, [PLE] engaged in physical intimacy and/or sexual intercourse with Ms A including that he:
(a)	massaged Ms A’s shoulders and back in a sensual way;
(b)	rested his groin on Ms A’s head;
(c)	ran his hand down Ms A’s back and side of Ms A’s breasts, and touched her on the breast;
(d)	moaned in a sexual way; and/or
(e)	initiated and engaged in unprotected intercourse with Ms A.
4.6	During the Fourth Consultation, [PLE] watched Ms A undressed to her underwear in preparation for her treatment and dressed after the treatment.
4.7	During the Fifth Consultation, [PLE] engaged in physical intimacy and/or sexualised conduct with Ms A in that he:
(a)	massaged Ms A in a sensual way; and/or
(b)	moaned in a sexual way.
4.8	During the Seventh Consultation, [PLE] engaged in sexualised conduct with Ms A in that he:
(a)	watched Ms A get undressed to her underwear; and/or
(b)	assisted Ms A with zipping up her jumpsuit and when doing so inappropriately made reference to Ms A’s jumpsuit using words to the effect that it was “Nice”.
4.9	During the Eighth Consultation, Ninth Consultation and Tenth Consultation, [PLE] engaged in physical intimacy and/or sexualised conduct with Ms A in that he:
(a)	watched Ms A undressed and dressed;
(b)	touched Ms A sensually; and/or
(c)	moaned in a sexual way while massaging Ms A.
4.10	In one of the consultations referenced at paragraph 4.3:
(a)	[PLE] massaged the upper part of Ms A’s breasts which was further down her chest than usual;
(b)	Ms A asked [PLE] using words to the effect that “Oh so you’re massaging my boobs now?”; and/or
(c)	[PLE] responded with words to the effect “Oh [Ms A] I can’t see where my hands are”.
4.11	In one of the consultations referenced at paragraph 4.3, [PLE] inappropriately placed Ms A’s foot near his genitals during a consultation.
4.12	In one or more of the consultations referenced at paragraph 4.3, [PLE] made inappropriate comments about Ms A, including:
(a)	that Ms A was “beautiful already”;
(b)	words to the effect “I will need to buy an expensive perfume just for you”;
(c)	that he had lit a candle or incense sticks in the treatment room just for Ms A; and/or
(d)	in response to Ms A saying “don’t play with fire”, [PLE] said words to the effect “especially when you’re wearing red” referring to Ms A’s red underwear.
4.13	During the Eleventh Consultation, [PLE] engaged in physical intimacy and/or sexual conduct with Ms A including that:
(a)	[PLE] watched Ms A as she undressed;
(b)	[PLE] did not provide Ms A with a modesty covering until asked by Ms A;
(c)	[PLE] noticed the tag on Ms A’s underwear and stated words to the effect “Oh Victoria Secret”;
(d)	Ms A performed oral sex on [PLE];
(e)	[PLE] kissed Ms A on the lips; and/or
(f)	[PLE] inserted his fingers into Ms A’s vagina.
4.14	By engaging in the above conduct whilst registered as a chiropractor under the National Law, [PLE] breached, or acted inconsistently with, the following sections of the Code of Conduct:
(a)	1.2 Professional values and qualities: which states that “health practitioners must be ethical and trustworthy. Patients trust health practitioners because they believe that, in addition to being competent, health practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion”;
(b)	3.2 Partnership: which states that “a good partnership between a chiropractor and the person they are caring for requires high standards of personal conduct. This involves the chiropractor:
a)	being courteous, respectful, compassionate and honest…
g) recognising that there is a power imbalance in the chiropractor–patient relationship. It is important to ensure that all decisions are directly relevant to clinical experience; unaffected by non-clinical motivations; and capable of being regarded so by reasonable observers in the circumstances”;
(c)	9.1 Professional behaviour: which states that “in professional life, chiropractors must display a standard of behaviour that warrants the trust and respect of the community. Good practice involves:
a)	observing and practising the principles of ethical conduct, and
b)	practitioners conducting themselves appropriately in public while representing themselves as a registered chiropractor”; and
(d)	9.2 Professional boundaries: which states that “professional boundaries refers to the clear separation that should exist between a chiropractor’s professional conduct that is aimed at meeting the health needs of patients, and a chiropractor’s own personal views, feelings and relationships that are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protects both parties. Good practice involves:
a)	maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually;
b)	never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a chiropractor’s care; this includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient; and
c)	recognising that sexual relationships with people who have previously been patients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of the person who was previously a patient”.
5.	Allegation 2: [PLE] failed to maintain adequate or appropriate clinical records in relation to patient, Ms A.
5.1	At all material times, [PLE] held a registration as a registered chiropractor under the National Law.
5.2	At all material times, [PLE] treated patients within a treating suite at [the gymnasium].
5.3	Between 6 March 2021 and 2 June 2021, Ms A sought chiropractic treatment from [PLE] at [the gymnasium] to deal with sore and tight muscles.
5.4	[PLE] failed to maintain adequate or appropriate clinical records for the First Consultation on 4 March 2021, as the clinical records did not contain:
(a)	Ms A’s emergency contact’s details;
(b)	a diagnosis, clinical impressions or working diagnosis of Ms A’s presenting complaints;
(c)	a management or care plan;
(d)	relevant family history;
(e)	relevant social or lifestyle history;
(f)	sufficient documentation of the treatment to identify the specific levels or an approximate location within those regions treated; and/or
(g)	information given to the patient regarding advice or instructions around any follow up care or at home management of Ms A’s complaints.
5.5	[PLE] failed to maintain adequate or appropriate clinical records for the Second Consultation, Third Consultation and Fourth Consultation on 6 March, 11 March and 8 April 2021, as the clinical records did not contain:
(a)	relevant objective information about the physical examination of Ms A for the visit or any relevant clinical findings;
(b)	sufficient documentation of the treatment to identify the specific levels or an approximate location within those regions treated; and/or
(c)	information given to the patient regarding advice or instructions around any follow up care or at home management of Ms A’s complaints.
5.6	[PLE] failed to maintain adequate or appropriate clinical records for the Fifth Consultation which took place on 15 April 2021, was created 2 days after the appointment, and did not contain:
(a)	relevant subjective information provided such as Ms A’s response to the last treatment or notes regarding her progression or regression of her current or past complaints;
(b)	relevant objective information about the physical examination of Ms A for the visit or any relevant clinical findings;
(c)	sufficient documentation of the treatment to identify the specific levels or an approximate location within those regions treated; and/or
(d)	information given to Ms A regarding advice or instructions around any follow up care or at home management of Ms A’s complaints.
5.7	[PLE] failed to maintain adequate or appropriate clinical records for the Sixth Consultation on 29 April 2021, as the clinical records did not contain:
(a)	relevant subjective information provided, such as Ms A’s response to the last treatment or notes regarding her progression or regression of her current or past complaints, noting the new left foot complaint that was reportedly assessed and treated at this consultation and referred to in the text messages exchanged between [PLE] and Ms A on 29 and 30 April 2021;
(b)	relevant objective information about the physical examination of Ms A for the visit or any relevant clinical findings;
(c)	details around any changes to previous informed consent that was either extended or modified informed consent to include the reported new left foot complaint;
(d)	details of any additional diagnoses provided for the reported new left foot complaint;
(e)	details of any particular care plan or management plan in place and/or modification to any treatment plan to include the new left foot complaint; and/or
(f)	treatment interventions for the left foot.
5.8	[PLE] failed to maintain adequate or appropriate clinical records for the Seventh Consultation on 2 May 2021, as the clinical records did not contain:
(a)	relevant objective information about the physical examination of Ms A for the visit or any relevant clinical findings;
(b)	sufficient documentation of the treatment to identify the specific levels or an approximate location within those regions treated;
(c)	notes covering the unusual exacerbation of the foot injury or any notes detailing Ms A’s need to seek treatment from a podiatrist following the Sixth Consultation; and/or
(d)	information given to Ms A regarding advice or instructions around any follow up care or at home management of Ms A’s complaints.
5.9	[PLE] failed to maintain adequate or appropriate clinical records for the Eighth Consultation, Ninth Consultation, Tenth Consultation and Eleventh Consultation on 8 May 2021, 15 May 2021, 19 May 2021 and 2 June 2021, as the clinical records did not contain:
(a)	relevant subjective information provided such as Ms A’s response to the last treatment or notes regarding her progression or regression of her current or past complaints; and/or
(b)	sufficient documentation of the treatment to identify the specific levels or an approximate location within those regions treated.
5.10	By engaging in the above conduct whilst holding registration as a registered chiropractor under the National Law, [PLE] breached, or acted inconsistently with, the following sections of the Code of Conduct:
(i)	2.1 Providing good care: which states that “Providing good care includes:
a) appropriately assessing the patient, taking into account their history (history includes relevant psychological, social and cultural aspects), views and conducting an appropriate physical examination” and “ formulating and implementing a reasonable management plan (including providing treatment/ care and advice and, where relevant, arranging investigations and liaising with other treating practitioners);…
a)	formulating and implementing a reasonable management plan…
(b)	Good practice: which states that “maintaining a high level of professional competence and conduct is essential for the good practice of the profession. Good practice involves… d) maintaining adequate records”;
(c)	3.5 Informed consent: which states that “obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment/care (this may not be possible in an emergency) or involving patients in teaching or research, including providing information on material risks... and documenting consent appropriately”; and
(d)	9.4 Health records: which states that “maintaining clear, appropriate, factual, objective and accurate health records is essential for the continuing good care of patients… Good practice involves:
a)	keeping accurate, up-to-date, contemporaneous and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners
b)	ensuring that records contain sufficient information to allow another chiropractor to continue the management of the patient and to facilitate continuity of chiropractic care
c)	making records at the time of events or as soon as possible afterwards and including a record of every patient consultation”.
5.11	By engaging in the above conduct whilst holding registration as a registered chiropractor under the National Law, [PLE] breached, or acted inconsistently with, the following sections of the Guidelines:
(a)	1. Responsibilities which states that “Chiropractors have both professional and legal responsibilities to:
a.	keep and maintain adequate clinical records for each patient…”
(b)	2. General principles to be applied which states that:
c. A chiropractic clinical record should be made at the time of the consultation or as soon as thereafter as practicable or as soon as information (such as test results) becomes available. It must be an accurate and contemporary reflection of all consultations or interactions. If the date the record is made is different to the date of the consultation…
e. Chiropractic clinical records must be legible and understandable and of such a quality that another chiropractor could read and reasonably understand the terminology and abbreviations used, from the information provided, be equipped to manage the care of the patient…
j. Chiropractors should be familiar with, and adhere to the requirements in the Board’s Code of Conduct for Chiropractors that relate to record keeping
(c)	3. Information to be recorded at an initial or new presentation: which states that “the following information forms part of the clinical record and is to be recorded, at the initial presentation about that consultation...
b.	contact details of the person the patient wishes to be contacted in an emergency (not necessarily the next of kin)...
e. relevant diagnosis(es)/clinical impressions/ working diagnosis(es), therapeutic trials or management/care plan(s)...
f. current health history including a relevant medical history, systems review, work history, ‘red flags’, current medications/supplements, allergies, referrals...
h. relevant family history
i. relevant social and lifestyle history including cultural background (where clinically relevant)”; and
(d)	4. Information to be recorded at a subsequent consultation or any consultation where care or advice is provided: which states that “for each presentation , clear documentation of information relevant to that consultation including the following clinical details...
e. relevant subjective information including response to any treatment, including that provided by other practitioners
f. relevant objective information about any examination or investigation conducted and relevant clinical findings...
h. details of any informed consent...
j.	changes to a documented working diagnosis or therapeutic trial
k.	changes to a documented management/care plan
l.	procedures conducted, techniques used and advice/instructions given...
o. any unusual sequelae of treatment or changes in contra-indications or health alerts”.
PART B - FINDINGS
6.	[PLE] admits that the facts set out in Part A establish the allegations particularised in the notice of allegations.
7.	The parties jointly invite the Tribunal to make the following findings in relation to the allegations particularised in the notice of allegations:
(a)	In relation to Allegation 1 (failure to maintain professional boundaries), [PLE] has engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.
(b)	In relation to Allegation 2 (failure to maintain adequate or appropriate clinical records), [PLE] has engaged in professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct in section 5 of the National Law.
PART C - DETERMINATIONS
8.	The parties jointly invite the Tribunal to make the following determinations under section 196 of the National Law:
(a)	[PLE] is reprimanded under section 196(2)(a) of the National Law.
(b)	[PLE]’s registration is cancelled under section 196(2)(e) of the National Law.
(c)	[PLE] is disqualified for applying for registration for a period 12 months under section 196(4)(a) of the National Law.
(d)	[PLE] is prohibited from treating women in a health service for a period of 12 months following the date of the Tribunal order under section 196(4)(b) of the National Law.