VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z1017/2023
	
CATCHWORDS	
Health Practitioner Regulation National Law (Victoria) Act 2009 – s 196 – medical practitioner a long-term volunteer at a local sports club – as a volunteer doctor at the club offers sports massage to players in club setting and at his home – convicted on four charges of sexual assault – appropriate findings and determinations. 	

APPLICANT	Medical Board of Australia	
RESPONDENT	Stuart Anderson	
WHERE HELD	Melbourne	
BEFORE	I Proctor, Deputy President
Dr R Mason, Member
Dr P Molloy, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	7 November 2024	
date of orders	7 November 2024	
date of written reasons	13 November 2024	
CITATION	Medical Board of Australia v Anderson (Review and Regulation) [2024] VCAT 1078	
Order
Findings and Determinations:
Under section 196 of the Health Practitioner Regulation Nation Law (Victoria) Act 2009 (‘National Law’), the Tribunal:
1	Under section 196(1) finds with respect to Allegation 1 (the only allegation in this proceeding), that the respondent has engaged in professional misconduct as defined by meanings (a) and (c) of section 5 of the National Law.
2	Under section 196(2) determines to:
a)	Reprimand the respondent under section 196(2)(a);
b)	Disqualify the respondent from applying for registration as a medical practitioner for 10 years from the date of these orders under section 196(4)(a); and
c)	Prohibit the respondent from providing, whether directly or indirectly, any health service involving provision of care to any person, until such time that the respondent obtains registration as a health practitioner under section 196(4)(b)(i).

I. Proctor
Deputy President and Presiding Member	Dr R. Mason
Health Practitioner Member	Dr P. Molloy
Health Practitioner Member	

APPEARANCES:		
For the Applicant 	Ms B Seignior of Counsel	
For the Respondent	No appearance	

Reasons
1	In December 2023, the Medical Board of Australia (the Board), under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law) referred one allegation against Dr Anderson to VCAT. 
2	The Board alleged, and Dr Anderson admitted, that he engaged in professional misconduct within the meaning of the definition in paragraphs (a) and (c) of the National Law.
3	On 21 February 2020, the Magistrates’ Court of Victoria convicted Dr Anderson of four charges of sexual assault under section 40 of the Crimes Act 1958 (Vic) (Crimes Act).
4	He had been a registered medical practitioner since 1979 and since the late 1990’s, a volunteer at a local football club. At the time of the offending, he had an established paediatric practice.
5	Dr Anderson plead guilty to:
a)	Once in August 2015, intentionally touching FG, then 19 years old, in a sexual manner by touching FG’s penis without his consent where Dr Anderson did not reasonably believe that FG consented to the touching;
b)	Between 1 April and 30 June 2016, more than once intentionally touching FG in a sexual manner by touching FG’s genitals without his consent, where Dr Anderson did not reasonably believe that FG consented to the touching;
c)	Between 1 January and 31 December 2016, more than once intentionally touching IC, then about 21 years old, in a sexual manner by touching IC’s genitals without his consent, where Dr Anderson did not reasonably believe that IC consented to the touching; and
d)	Once in April 2017, intentionally touching TW, then about 19 years old, in a sexual manner by touching TW’s penis and testicles without his consent where Dr Anderson did not reasonably believe that TW consented to the touching.
6	The Court sentenced Dr Anderson to a 24-month community correction order, with conditions requiring him to perform 200 hours of community work, be supervised by the Secretary to the Department of Justice and Community Safety and undergo sexual offender treatment.
7	In September 2024 the Board and Dr Anderson (who was legally represented) provided VCAT with a joint, Agreed Statement of Facts, Findings and Proposed Determinations.
8	On 7 November 2024, the referral came before VCAT for hearing. Ms Seignior of counsel appeared for the Board. Dr Anderson had previously advised VCAT that neither he nor his lawyers would appear at the hearing.
9	We heard the Board’s submissions, made the above orders and now provide these reasons.
Findings of Fact
10	The first step in this proceeding is to decide whether the allegation is proven.
11	The evidence was a 433-page Tribunal Book including:
a)	The brief of evidence that was put before the Magistrates’ Court, including statements by FG, IC and TW, a Confidential Forensic Medical Report, and a transcript of interview of Dr Anderson by Victoria Police;
b)	Documents relating to the notifications to the Australian Health Practitioner Regulation Authority (Ahpra) which gave rise to the allegation;
c)	A transcript of the Magistrates’ Court sentencing hearing; and
d)	the relevant codes of conduct published by the Board.
12	Dr Anderson had provided a March 2024, ‘Reflective Statement’.
History
13	In June 2017, the Board received a notification about Dr Anderson’s professional conduct while conducting medical examinations and massages on young male football players.
14	Dr Anderson denied the allegations, claiming he had been providing medical treatment including therapeutic massage to the players. 
15	Early in its investigation, the Board considered taking but did not take immediate action concerning Dr Anderson’s registration. 
16	However, on receiving further information during its investigations, in July 2018, the Board took immediate action (under section 156 of the National Law) restricting Dr Anderson’s practice to general paediatrics and prohibiting any practice in sports medicine.
17	In mid-2019 Dr Anderson was charged with 23 criminal offences (namely, Sexual Assault under section 40 of the Crimes Act and Indecent Act with a Child 16 to 17 years old, under section 49(1)2 of the Crimes Act). The charges related to the alleged conduct towards 14 players at the football club which the Board was investigating. Two extra charges were later laid.
18	Shortly after, the Board took immediate action suspending Dr Anderson’s registration as a medical practitioner. He has not been registered or practiced since.
19	On 20 February 2020, a three-day committal hearing started at the Magistrates’ Court of Victoria concerning four of the 25 charges, related to three players. The other charges would not be pursued.
20	On the second day, after two of the players had given evidence and been cross-examined, Dr Anderson changed his plea to guilty on the basis that it would be recommended that he be subject to a community corrections order and related orders, sentenced at the Magistrates’ Court and there would be no committal to the County Court of Victoria.
21	On 21 February 2020, as recorded in certified extracts from the Magistrates’ Court, Dr Anderson, then 64 years old with no prior criminal history, plead guilty and was convicted of the above charges and was sentenced as described above. The certified extract records the comment by the sentencing magistrate that but for the plea of guilty he would have sentenced Dr Anderson’s eight months imprisonment.
22	The sentencing hearing transcript includes the magistrate reading out FG’s victim impact statement. FG described his sense of betrayal, his disappointment that Dr Anderson was allowed to get away with his behaviour for so long, that FG moved football clubs and his trust in the medical profession is low with him having minimal contact with training staff at his new club. While FG was hopeful Dr Anderson would get treatment, he took comfort knowing that Dr Anderson will not have a future role treating boys and men in sport.
23	In sentencing, the magistrate commented that Dr Anderson was effectively retiring early from medical practice. The magistrate described the negative effects on the victims, young men, where they had been sexually assaulted under the guise of therapeutic massage. 
24	The magistrate described the community corrections order as reflecting denunciation that the community has for these kinds of offences, the need to punish, the need to deter both specifically and generally, ‘people of your standing who commit these kinds of offences’.
25	Shortly after, Dr Anderson gave the Board notice of his retirement from medical practice, surrendering his registration. The Board lifted the suspension and accepted his surrender of registration.
26	In mid-2023 the Board determined to refer Dr Anderson’s conduct to VCAT under section 193(1)(a)(i) of the National Law because it reasonably believed that he had engaged in conduct that constituted professional misconduct.
Alleged conduct proven
27	The conduct with respect to the allegation, as the Board alleges, which Dr Anderson admits, which is supported by the documentary evidence before us, is proven.
Finding on the Allegation
28	With the conduct proven, the second step is to decide whether the conduct falls within the definitions of ‘professional misconduct’ and/or ‘unprofessional conduct’ under the National Law.
The Law/Code
29	The fundamental objective of the National Law is to maintain public safety and public confidence in the health profession and the standards of conduct of health practitioners. Section 3A provides that the main guiding principle of the national registration and accreditation scheme is the protection of the public, and that public confidence in the safety of services provided by registered health practitioners and students, are paramount.
30	Section 5 of the National Law defines professional misconduct as:
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;
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.
31	It defines unprofessional conduct as 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, providing examples, none of which are directly applicable here.
32	We found Dr Anderson’s conduct as alleged is professional misconduct as defined by meanings (a) and (c).
33	Dr Anderson’s conduct is as he has admitted:
a)	unprofessional conduct 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)	conduct in connection with his practice as a health practitioner’s profession that is inconsistent with him being a fit and proper person to hold registration in the profession.
34	Dr Anderson plead guilty resulting in four convictions for sexual assault, where the maximum penalty for a single charge is 10 years imprisonment.
35	His serious abhorrent conduct against his patients involves multiple instances of sexual offending against three patients over a prolonged period, 20 months from August 2015 to April 2017.
36	The three patients trusted Dr Anderson as a volunteer doctor at the local football club, such that they consented to him providing them with medical treatment. Patients trust that the doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion in providing treatment.
37	The sentencing magistrate in part said:
You are qualified as a paediatrician. that particular qualification carries with it a degree of kudos in the community which even people who are surgeons or general practitioners do not hold. Because what it carries with it is a guarantee to families that you are a person in whom they can place their trust. So by being a consultant paediatrician of your experience and years, you carry with you a reputational benefit that may people would not have had… It was with that kudos you joined the club. 
38	Dr Anderson betrayed the trust taking advantage of each of the patients. As demonstrated by FG’s victim impact statement, such breaches of trust will have eroded those patients’ trust in the medical profession.
39	He deliberately took advantage of the power-imbalance between himself and his patients, as an experienced practitioner specialising in paediatrics, where his patients were vulnerable given their young age.
40	He was either prepared to damage the reputation of the medical profession, or was ignorant of the damage his conduct could do to the profession. Given the publicity that sexual misconduct cases have attracted over the entirety of his career and the regulatory guidelines that are in place, it seems extremely unlikely that he was ignorant of the damage.
41	His conduct has the potential to erode the trust of the community in medical professionals, to everyone’s detriment.
42	Dr Anderson’s conduct breached multiple aspects of the Board’s, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’, (March 2014 to 30 September 2020) related to professional values and qualities of doctors, working with patients, effective communication, informed consent, and professional behaviour (this last element focused on maintaining professional boundaries).
43	He also breached the Boards ‘Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (in effect since 12 December 2018 and based on the preceding version which was in place at the time of the offending ‘Guidelines: Sexual Boundaries: Guidelines for Doctors 28 October 2011).
44	In particular, Dr Anderson breached that Code concerning trust as a foundation of the doctor-patient relationship, why breaching sexual boundaries is unethical and harmful, behaviours which amount to breaches of sexual boundaries and the Code as to physical examinations.
45	He also breached the Boards ‘Guidelines: Sexual Boundaries: Guidelines for Doctors (in effect before 12 December 2018), particularly understanding sexual boundaries and why breaching sexual boundaries is unethical and usually harmful, with reference to the power imbalance and trust.
Determinations
46	The third step in this decision-making process, with findings made is to make determinations under National Law.
47	VCAT’s role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual from repeating the misconduct) and/or general deterrence (to warn others in the profession against such misconduct). VCAT’s role is also to uphold the medical profession’s reputation.
48	Specific deterrence may have a role to play here, in part given the nature of Dr Anderson’s reflective statement. 
49	His statement assists Dr Anderson in that it broadly describes his reflection on his conduct, a combination of online study modules, group sections through a court-imposed treatment program, working with his own general practitioner and, ‘much solitary reflection’.
50	He describes starting at the club in the 1990s when his son started playing football as a parent helper. His role gradually evolved culminating in taking further studies in sports medicine and sports massage, offering treatment at the club and at his home. Players started consulting him for unrelated medical concerns.
51	He describes his failings as:
a)	Combining personal friendship and a doctor-patient relationship such that he became complacent about professional boundaries;
b)	Wrongly presuming that a casual friendly relationship implied consent for medical or other treatment;
c)	Inviting players to his home for treatment when he should have seen them in a clinical setting;
d)	Concerning one of the players, with the player’s consent massaging the groin area but, without consent touching his penis to move it aside; and
e)	Concerning the two other players, presuming their consent to being undressed and having massage in sensitive areas.
52	The statement concludes by saying his conduct was clearly inappropriate and professionally unacceptable. Therefore, he pleaded guilty, and ‘could not in all consciousness resume medical practice with those convictions in my history’. He could not expect families to put their trust in him as they once did. He expressed deep regret and remorse for the impact on the young men, having betrayed their trust as a friend and a doctor as well as regret for any negative impact his conduct had on the sports club.
53	It is highly concerning that Dr Anderson’s statement does not acknowledge that he has pleaded guilty to sexual assault of these players. The reflection reads more like a statement of regret for inadvertent mistakes, for which he must pay a high penalty, permanent separation from the medical profession. He expresses no regret or remorse for the impact his behaviour has had on his colleagues and the profession.
54	That lack of frank acknowledgement indicates less than full insight into his offending.
Reprimand
55	Under section 196(2)(a) of the National Law we reprimanded Dr Anderson. Reprimand is a serious form of censure and condemnation, combined with a finding of professional misconduct. 
56	This achieves specific deterrence (see below) general deterrence and protection of the profession’s reputation.
Disqualification from seeking reregistration
57	Under section 196(4)(a) of the National law we disqualified Dr Anderson from applying for registration as a medical practitioner for 10 years from 7 November 2024 to 7 November 2034.
58	This achieves general deterrence and protection of the profession’s reputation. 
59	This does not directly serve the purpose of specific deterrence given, theoretically in the circumstances, if Dr Anderson was to seek re-registration, he would have to satisfy the Board that he was a reformed person posing no risk to persons (among a range of preconditions to re-registration).
Prohibition order
60	Under section 196(4)(b)(i) of the National Law we prohibited Dr Anderson from providing, whether directly or indirectly, any health service involving provision of care to any person, until such time that he obtains registration as a health practitioner.  
61	We have no knowledge of Dr Anderson’s current situation. The evidence before us illustrates that he has the skills to work in the capacity of a health practitioner such as a provider of sports massage.  He is now prohibited from doing so.
62	This determination serves as a specific deterrence as well as general deterrence and protecting the profession’s reputation.
63	Given the absence of significant evidence that Dr Anderson has achieved full insight concerning his past offending, this prohibition, and the reprimand, are intended to minimise any risk (and perhaps there is no risk - we do not know) of Dr Anderson relying on his past as a doctor to make his way into some, say sporting field, and under the guise of sports massage to once again sexually offend. 

I. Proctor
Deputy President and Presiding Member	Dr R. Mason
Health Practitioner Member	Dr P. Molloy
Health Practitioner Member