VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z176/2019  	
CATCHWORDS	
Review and Regulation List – Medical Practitioner – review of immediate action decision – conditions substituted for gender-based restriction – Health Practitioner Regulation National Law (Victoria) Act 2009 s 156.	
APPLICANT	Dr Murray Gerstman	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth, Member A Sungaila and Member Y Phang	
HEARING TYPE	Hearing	
DATE OF HEARING	27 & 28 May 2019	
DATE OF ORDER	5 June 2019	
date of reasons	26 June 2019	
CITATION	Gerstman v Medical Board of Australia (Review and Regulation) [2019] VCAT 830	
OrderS
1	By consent, the applicant’s application under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 for a stay of the respondent’s decision dated 5 February 2019 pending hearing and determination of his review application is struck out.
2	With effect from 11 June 2019, the respondent’s decision dated 5 February 2019 to take immediate action in the form set out in that decision is set aside and the following immediate action decision is substituted.
3	By way of immediate action under s 156 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the following conditions are imposed on the applicant’s registration:
1.	The Practitioner must not undertake any breast examinations of female patients.
For the purposes of this condition:
‘Breast examinations’ are defined as any assessment, examination of, test or procedure, or treatment involving the exposure of and / or palpation of the breast and / or nipple of a female patient.
‘Female’ is defined as any individual whose biological gender is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.
‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner.
2.	By 4:00pm on 14 June 2019, the Practitioner must provide to AHPRA: 
2.1.	acknowledgement that he has read and understood:
a.	these conditions, and
b.	the definition of ‘breast examination’, ‘patient’, ‘female’, ‘contact’ and ‘outpatient’ as detailed in these conditions.
2.2.	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:
a.	AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and
b.	The Practitioner will be required to provide the same form:
i.	within three business days of the commencement of practice at each and every subsequent place of practice, and
ii.	within three business days of each and every notice of any subsequent alteration of these conditions.
2.3.	on the approved modified form (HP7), acknowledgement that AHPRA may:
a.	Seek reports from the senior person at each place of practice on at least a monthly basis or as otherwise required.
b.	Request and access from the senior person at each place of practice copies of rosters, pay slips, appointment diaries or the equivalent and patient clinical records.
c.	Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
d.	Have contact with patients.
2.4.	on the approved modified form (HPS7), acknowledgement from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
3.	The practitioner must provide a statutory declaration to AHPRA, by the seventh day of each calendar month commencing 7 July 2019, declaring that he has complied with the conditions on his registration at all times throughout the preceding month. The practitioner must make the declaration using the template text provided by AHPRA.
4.	The Practitioner must place the template sign provided to him by AHPRA, in a clearly visible location in the patient waiting area or equivalent of each and every place he has contact with outpatients excluding hospital j departments.  The sign must:
a.	be at least A4 in size,
b.	set out the requirement that the practitioner must not undertake breast examinations,
c.	include the definitions of breast examinations, female and patient, and
d.	should not be obscured at any time.
For the purpose of this condition the following definitions apply:
‘Contact' includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient in person.
'Outpatient' includes patients that attend for consultation, interview, examination, or treatment by the practitioner but do not stay overnight.
5.	All costs associated with compliance with the conditions on his registration are at the Practitioner’s own expense.
4	The Tribunal’s orders dated 27 May 2019 under the Open Courts Act 2013 are amended under s 119 of the Victorian Civil and Administrative Tribunal Act 1998 to record the appearances as follows: 
Applicant: Mr N Murdoch, QC and Respondent: Ms R Ellyard of Counsel.

E Wentworth
Senior Member and Presiding Member	A Sungaila
Health Practitioner Member	Y Phang
Health Practitioner Member	

APPEARANCES:		
For Applicant	Mr N Murdoch, QC 	
For Respondent	Ms R Ellyard of Counsel	

Note: Orders under the Open Courts Act 2013 are in force
On 27 May 2019, the Tribunal made suppression orders as follows:
The Tribunal finds:
1.	Having regard to the presumption in favour of disclosure contained in s.4 of the Open Courts Act 2013 (Vic) (the Act), the Tribunal is satisfied that a proceeding suppression order ought to be made under s.17 of the Act on the grounds that such an order is in the interests of justice.  
2.	The making of an order is in the interests of justice given the personal nature of the content of the material in this proceeding and the evidence likely to be given at the hearing.  
3.	Further, the receipt of notifications and the assistance from witnesses in these types of cases are an important mechanism by which the Medical Board of Australia (the Board) becomes aware of issues of concern that require investigation.  Protecting the privacy of persons who make notifications and statements to the Board and the identity of patients named is essential if the Board is to ensure that professional conduct issues can be properly investigated when they arise.
4.	The purpose of the Tribunal’s order is to avoid the unreasonable invasion of the patients’ and notifiers’ privacy.
On its own motion, the Tribunal orders under s.17 of the Act that:
1.	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subject of these proceedings and the notifiers to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the patients and notifiers would be breached if persons living outside Victoria know or come to know their identity or that of members of their families.
3.	This order operates until the later of the death of all relevant patients and notifiers.

Reasons
We gave notice of our decision and gave outline oral reasons at the close of the hearing.  The following is an edited transcript of those reasons with background, a summary of the evidence and the legal framework added. 
Background and overview
1	This case is our review of an immediate action decision of the Medical Board of Australia’s Sexual Boundaries Notifications Committee (the Board).  Dr Murray Gerstman has applied for the review. 
2	Our decision is made under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). 
3	On 4 February 2019, the Board decided to take immediate action under       s 156 of the National Law and imposed gender-based restrictions as conditions on Dr Gerstman’s registration.  The restrictions prohibited him from treating or having contact with female patients. 
4	Immediate action under the National Law is intended to be short-term action to secure public health or safety, with as little damage to the practitioner as is consistent with that aim, while the Board investigates complaints or notifications and decides whether and what allegations to refer to the Tribunal for hearing and determination.  
5	Dr Gerstman is a specialist endocrinologist.  Just over half of his patients are female.  The immediate action decision has had significant impact on his practice and on him personally.  Dr Gerstman denies that he has ever acted inappropriately. 
6	The Board’s concerns arose from multiple notifications over 12 years about breast examinations Dr Gerstman had conducted, which appeared to have occurred without a proper explanation in advance as to the reasons for the examination and what he was going to do – and therefore without informed consent.  
7	There is no suggestion that Dr Gerstman’s conduct is predatory or for sexual gratification.  None of the notifiers perceived the touching as sexual in nature. 
8	In 2013, the Board had taken regulatory action, including requiring Dr Gerstman to undertake a performance assessment.  The assessment, completed in 2016, was favourable to him.  In 2016, the Board had decided to take no further action. 
9	The Board then received three more notifications, one of which related to a consultation in the 1990s, one relating to a consultation in 2015 and the third relating to consultations in 2018.  The most recent notification, which had triggered the immediate action, raised a concern about whether the breast examination was clinically justified.  Dr Gerstman says it was clinically justified but he should have discussed the reasons for it with the patient.
10	Until 2014, it was Dr Gerstman’s practice to routinely perform breast examinations as part of a physical examination.  He says he ceased doing so in 2014 and changed his practice to perform them only when clinically indicated or specifically requested by the patient.  The three clinical indications were: the existence of breast symptoms; a patient on or under consideration for hormone replacement therapy; or to investigate diabetic mastopathy. 
11	There was evidence from Dr Gerstman’s treating psychiatrist that Dr Gerstman sees himself as a thorough and painstaking physician who is concerned not to miss anything that might be clinically significant but who has not in the past seen the need for detailed explanation.  
12	Nevertheless, over the last 12 years, seven patients have reported concerns including not knowing why he had conducted a breast examination and why they were required to undress for it, a feeling of discomfort, in some cases distress, and in most cases a decision to change practitioner.  The reports related to examinations conducted over two decades.
13	Dr Gerstman contends that the Board went too far in taking the action, and that it has caused disproportionate damage to him. 
14	He denies that he has ever conducted a breast examination that was not clinically justified but he recognizes that he has fallen short in the past in providing proper explanations of what he proposed to do and the reasons for it.  He did not agree that the requirements for immediate action were met but he nevertheless offered an undertaking that he would not undertake breast examinations on female patients.  
Immediate action: the legal framework
15	Section 156 of the National Law gives the Board, and this Tribunal on review, the power to take immediate action, including imposing a condition on a practitioner’s registration, or suspending their registration.
16	It may be taken based on complaints or notifications that are yet to be tested, provided the requirements of s 156 are met.
17	In this case, the Board relied upon s 156(1)(a):
156	Power to take immediate action
(1)	A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if—
(a)	the National Board reasonably believes that—
(i)	because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)	it is necessary to take immediate action to protect public health or safety; or
…
18	The Court of Appeal in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656 (Kozanoglu) described the nature of review of immediate action at [119]: 
The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error. 
19	The case law gives us the following legal principles for immediate action under s 156(1)(a) of the National Law. 
20	Immediate action may be taken where a reasonable belief is formed in relation to three matters:
•	Because of the practitioner’s conduct or performance (factual substratum);
•	the practitioner poses a serious risk to persons (evaluative assessment); and
•	immediate action is necessary to protect public health and safety (evaluative assessment).
21	The Board bears the persuasive burden of establishing preconditions for the taking of immediate action.
22	Reasonable belief requires the existence of a factual matrix sufficient to induce the belief in a reasonable person.  “Belief” is an inclination of the mind toward assenting to, rather than rejecting, a proposition. 
23	The taking of immediate action does not require proof of conduct.  Immediate action might be taken based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations. 
24	The underlying facts giving rise to the reasonable belief do not have to be established on the balance of probabilities, however there must be proven objective circumstances sufficient to justify the belief.  The material available should be carefully scrutinised to determine the weight to be attached to it.  The nature of the allegations will for example be highly relevant to the question of whether an order is justified.  A complaint that is trivial or misconceived on its face should clearly not be given weight.
25	Immediate action is not a substitute for the action that a Board (or VCAT), would/may take after an investigation into allegations of misconduct or unprofessional conduct had taken place.  An immediate action hearing is not conducted as if it were a referral proceeding under s 193 of the National Law.  The focus for immediate action is on serious risk (s 156(1)(a)) and/or the public interest (s 156(1)(e)) and the necessity (or otherwise), for taking immediate action.
26	Immediate action is intended to be a short-term protective measure.  In Kozanoglu at [126], the Court of Appeal emphasised the importance of timely referral to a panel or VCAT:
The IAC [Immediate Action Committee] will generally be required to make quick decisions on the basis of limited information. When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error. Accordingly, the IAC and the Board must always be conscious of the possibility of error. The consequences of that error may be serious. Two safeguards against such consequences should therefore be kept to the forefront. The first is the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
27	Immediate action, where taken, should take a form which protects the public safety, secured with as little damage to the practitioner as is consistent with the maintenance of that public safety. 
28	We note here that in this case, the Board’s investigation is well-advanced and there should be little delay in allegations being referred to VCAT.  This was relevant to our decision.
Summary of the materials
29	We had before us the materials that the Board took into consideration:
•	Notifications
•	Witness statements and interview summaries
•	Earlier confirmed decisions and notices related to actions
•	Performance assessment report dated 4 March 2016
•	Dr Gerstman’s responses, and written submissions to the Immediate Action Committee.
30	We also had additional materials before us that were not before the Board at the time of the decision:
•	A report of Associate Professor Glynis Ross dated 17 March 2019 and the Board’s instructions to Associate Professor Ross
•	Dr Gerstman’s response to Associate Professor Ross’ report
•	A further notification received on 26 February 2019
•	Various character references
•	Details of an education program undertaken by Dr Gerstman – report dated 10 May 2019 and Dr Gerstman’s reflective report
•	Correspondence about approval of practice locations for the purposes of the gender-based restrictions
•	Psychiatric report from Professor Maurice Eisenbruch dated 16 May 2019.
31	As at the date of the immediate action decision, the Board and its predecessor had received seven notifications:
•	One in 2006 relating to a consultation in 2005
•	Three in 2013 relating to consultations in 1998, 2006, 2008 and 2013
•	One in 2016 relating to a consultation in 2015
•	One in 2018 relating to consultations in 1995 and 1998 
•	A second in 2018 relating to conduct in 2018.
32	Although there are some differences, and without relating them in detail, they each have a common component: an unexplained breast examination.
33	The notification that triggered the immediate action decision, received in October 2018, related to alleged conduct earlier that year.
34	That was a notification by a mother on behalf of her 20-year-old daughter, expressing concerns that Dr Gerstman had conducted a breast examination without providing an explanation as to why it was necessary.  The examination occurred in the ward of a hospital, in her presence, in the course of an assessment by Dr Gerstman.  The notifier’s daughter had come to emergency very unwell after being diagnosed that day with Type 1 diabetes and had been admitted via the emergency department.
35	Dr Gerstman agrees that he undertook the breast examination and says he did so to check for diabetic mastopathy.  He asked and received permission.  He agrees he did not explain in advance or in retrospect why he performed the examination.
36	We extract paragraph 24 of the submissions on Dr Gerstman’s behalf to the Board opposing the immediate action decision
Dr Gerstman states that it was his practice in 2018 to ask a patient in [the patient’s] situation “have you any lumps or bumps in your breasts’.  He asked [the patient] this question and then asked if he could perform an examination.  He waited for her to reply, whereupon she said “sure”.  Dr Gerstman then performed the breast examination looking for signs of diabetic mastopathy. He found none. 
37	We note here that the Board’s instructions to Associate Professor Ross attached a copy of the submissions but that paragraph 24 was redacted and excluded the sentences in italics above. 
38	Relevantly, the patient’s statement also records that he first asked her if she had any breast lumps or bumps, and she replied ‘no, I did not have any, not that I know of’.  He then came over to her side and said ‘do you mind?’ and she believes she said ‘sure’.
39	Further, the background information the Board gave to Associate Professor Ross did not include the information that Dr Gerstman had asked for and received permission, and did not include that the patient said (in answer to the question about lumps and bumps) “none that I know of”. 
40	Other potentially relevant paragraphs of the submissions were also redacted.  
41	For these reasons, the opinions expressed by Associate Professor Ross about consent have reduced or no weight in our view.  Her opinion about whether a breast examination was clinically indicated in the particular case also has reduced weight because it was on the basis that the patient had only said she had no lumps or bumps.  
42	Associate Professor Ross’ more general views on the clinical presentations of diabetic mastopathy remain relevant but her report does not take the question of clinical justification in this case any further, in our view.
43	The notifier and her daughter were also concerned about a subsequent consultation.  Her daughter had told Dr Gerstman she had been injecting insulin into her “backside” and asked if that was ok.  Dr Gerstman asked to be shown where and then, according to the notification, asked her daughter to ‘sit on his hand’.  She was fully clothed. According to their statements, he explained it was to ‘check where her sitting bones were’ (the patient’s statement), to check the thickness of the skin (the patient’s mother’s statements).  
44	Dr Gerstman says that the patient told him she was injecting insulin into her backside.  She was self-administering four injections daily.  He had some concerns with her injecting into that area because of the possibility of compression with sitting altering insulin absorption.  Because “backside” covers a significant area, he asked the patient to show him where she was injecting, then moved round the desk to look at the area.  He put his finger on the spot she indicated and asked her “can you please sit down” as he wanted to see if she was actually sitting on and compressing that spot.  She was not.  He then explained about compression of the injecting site.  He agrees he did not otherwise explain in advance what he was doing or why.
45	As the Board conceded, the above conduct is not of the same concern as the breast examination.
46	As noted above, we also heard evidence from Professor Maurice Eisenbruch and have given weight to it.
47	Professor Eisenbruch is an experienced psychiatrist with expertise in treating medical practitioners with boundary issues.  Since 2007, he has been a member of AHPRA panels.  He has been treating Dr Gerstman since February this year and has seen him 17 times. 
48	Professor Eisenbruch’s evidence is in summary:
•	Professor Eisenbruch carried out a wide-ranging assessment earlier this year including a focus on Dr Gerstman’s capacity for self-reflection and insight.  Dr Gerstman has been profoundly distressed by the notifications and the Board’s actions.
•	Psychotherapy, which is continuing, has brought to light factors in his life which may have limited his ability to recognise the impact on female patients of his behaviour and approach.  While Dr Gerstman held the belief that the patient should just trust him to know what he was doing, he realises now that there is a difference between his intent and the impact of his approach.  In Professor Eisenbruch’s opinion, Dr Gerstman is gaining insight.
•	A key point is that Dr Gerstman has shown a high level of moral drive to do all he can for his patients and a determination to make no mistakes – to miss nothing.  
•	This ‘overzealous’ approach is linked to the death of his father when Dr Gerstman was a young child and a desire to live up to and honour his father’s achievements.  His father was a pre-eminent ophthalmologist, who died young.
•	Dr Gerstman has made significant progress and in Professor Eisenbruch’s opinion, his conduct and performance would not pose a serious risk to women or any patient group.
•	Dr Gerstman has recognised that he should stay away from breast examinations because of the issues that have arisen for patients in the past.  
•	In answer to a question about why the ‘overzealousness’ has resulted in patient concerns only in relation to breast examinations, Professor Eisenbruch agreed that it was the one area in which Dr Gerstman seemed to have ‘stumbled’ but considered it was no surprise because other than genitals, the breasts are the area of greatest emotional significance in female patients.
49	We had evidence that in May this year, Dr Gerstman completed further education in communication, professional boundaries and clinical management: breast examination technique, which is to his credit and we had the benefit of a self-reflective report he wrote.
50	Counsel for Dr Gerstman also handed up a bundle of character references from a range of professional colleagues, patients (including a number of medical practitioners), and friends.  We were also given a letter from Dr Gerstman’s wife, also a medical practitioner, who wrote of the impact of the Board’s decision, personally and financially.  We accept that the immediate action has had a devastating effect on Dr Gerstman and his family.
51	The references were universally favourable and supportive.  Dr Gerstman is, clearly, highly-regarded by those who gave references.  We have taken them into account but, as is always the case, we gave the most weight to references from those who knew the detail of the allegations made against Dr Gerstman.
52	We note here that after it made its decision, the Board received a notification from a long-term patient who became concerned when she learned of the gender-based restriction.  Dr Gerstman had seen her over the years for hormone replacement therapy (HRT) and had routinely conducted breast examinations, which is appropriate for patients on HRT.  The notification was not so much a complaint as a query whether she had any reason to be concerned.  In our view, it is too early to say what the outcome of any investigation might be.
Our decision
53	We stress:
•	We are not making findings of fact.
•	The Board is yet to formulate allegations to refer to the Tribunal. 
•	We are mindful, as we must be, that the information on which a decision was made may be later shown to be in error.
•	Any final views are for the Tribunal panel hearing any allegations that are brought, after consideration of all the evidence.  The outcome may be different.
•	Our focus is assessing risk in the interim and deciding whether and what action is required in the short-term.
•	This is a case where the investigation is well-advanced and there should be little delay in the Board bringing properly formulated allegations to the Tribunal.
54	As the Board submitted, conducting a breast examination without proper explanation and therefore informed consent, is conduct that has the potential to cause harm.  Conducting a breast examination with neither informed consent nor clinical justification would be even more serious.  
55	For whatever reason, Dr Gerstman’s approach to breast examinations has generated a notable number of notifications.  Despite the action taken by the Board in 2013-2016, further notifications have been received. 
56	In each case, the conduct reported by the patient caused concern; in some, distress; and in most, a decision to change their specialist. 
57	Objectively, it is evident the experience of the patients had an impact on them, in some cases profound.  We were struck by the statement of one woman who, in 2018, made a notification about her experience years ago.  She said it had sat uncomfortably in her mind for 23 years, and she was reporting it in case other women had had a similar experience. 
58	The October 2018 notification is of concern as it is evident on what is agreed that Dr Gerstman gave no explanation to a young woman, who had been admitted that evening very unwell with newly diagnosed Type 1 diabetes, for why he was conducting a breast examination.
59	Our view was that the test for immediate action was met.  We are not able to say one way or another whether there was a clinical justification for the examination – it remains an open question.  Our concern is that no explanation was given and therefore no informed consent, and that looks like repetition of conduct that had been the subject of previous notifications and regulatory action. 
60	There was an issue about what action would be the minimum necessary to secure public health or safety, with as little damage to Dr Gerstman as is consistent with that aim.
61	The Board did not contend that Dr Gerstman’s registration should be suspended.  The Board contended that the appropriate action, which it had taken, was a gender-based restriction in the terms of AHPRA’s Gender-based restrictions protocol published June 2017.  While chaperone conditions might have been considered in the past, their use has been limited following the February 2017 report by Professor Ron Paterson.
62	If there were any suggestion that Dr Gerstman’s conduct was predatory or for sexual gratification, we would have affirmed the decision to impose a ‘blanket’ restriction on treating female patients.  But there was no such suggestion.  Instead, there appeared to be a real possibility here that Dr Gerstman had a ‘blind spot’ about what was required when undertaking a breast examination of a female patient in terms of information, understanding and consent. 
63	If we had any concerns that Dr Gerstman was generally unsafe as a medical practitioner, we would be taking quite a different approach. 
64	As noted above, we have given weight to Professor Eisenbruch’s assessment and opinion, and we give Dr Gerstman credit for undertaking what has clearly been confronting and distressing psychotherapy at this stage in his life.  It is evident from Professor Eisenbruch’s evidence that Dr Gerstman has demonstrated a capacity to understand and to change. 
65	We agree that in the interim, Dr Gerstman should avoid breast examinations.  We take into account that Professor Eisenbruch regarded it as important that Dr Gerstman himself had accepted he should avoid breast examinations.  It indicates recognition of the risk and the need for steps to be taken.
66	We considered, however, that Dr Gerstman’s proposed undertaking would not be sufficiently protective.  That is, protecting female patients from the risk that there will be an unexplained breast examination conducted, an intimate examination that they do not understand and they cannot be said to have consented to. 
67	We decided that a condition on Dr Gerstman’s registration that he not undertake breast examinations on female patients, together with appropriate notification to senior persons in each place of practice, and a visible copy of the condition in each place of private practice, would address protective concerns, without disproportionate damage.
68	We are satisfied it is necessary, but we consider that it is not necessary to go any further. 

E Wentworth
Presiding Member