VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z61/2020	
CATCHWORDS	
Review and Regulation – health practitioner – appeal of an immediate action decision to re-impose a gender-based restriction – whether previous condition preventing practitioner conducting breast examinations on female patients sufficient to ameliorate risk – where subsequent notifications of previous conduct indicate broader risk – short-term gender-based restriction continued with modifications – Health Practitioner Regulation National Law (Victoria) ss 156(1)(a), 199. 	

APPLICANT	Dr Murray Gerstman	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth, Member A Reddy, Member Yi-Lee Phang	
HEARING TYPE	Hearing by video conference	
DATE OF HEARING	17 and 18 September 2020	
Date of further submissions and Evidence	15 October 2020	
DATE OF ORDER and reasons	7 December 2020	
CITATION	Gerstman v Medical Board of Australia (Review and Regulation) [2020] VCAT 1367	

Order
Under s 202 of the Health Practitioner Regulation National Law (Victoria), the decision of the Medical Board of Australia dated 29 January 2020 to impose a condition on Dr Gerstman’s registration, namely a gender-based restriction, is amended to vary the definition of ‘Patient’ in the gender-based restriction, which is otherwise to remain in place, as follows: ‘Patient’ is defined as ‘any individual awaiting, requiring, or receiving the professional services of the practitioner’.

E Wentworth
Senior Member and Presiding Member	Dr A Reddy
Health Practitioner Member	Dr Yi-Lee Phang
Health Practitioner Member	
APPEARANCES:		
For Applicant	Dr P Halley of Counsel	
For Respondent	Mr J Pizer, SC 	

Note: Orders under the Open Courts Act 2013 are in force
On 17 February 2020, the Tribunal made suppression orders as follows:
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the subject of these proceedings, the notifiers, the Board’s witnesses or their family members to be identified must not be published or otherwise disclosed.
2.	Any information which might enable the identification of any person to whom an allegation relates, or any notifier or witness in this matter (except Dr Gerstman should he wish to give evidence) must not be published or otherwise disclosed.
3.	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 patient/notifiers/witnesses would be breached if persons living outside Victoria know or come to know their identity or that of members of their families.

Reasons
Introduction 
1	Dr Murray Gerstman is a specialist endocrinologist who has been in medical practice for over four decades.  Since 2006, the Medical Board of Australia (the Board) has received 17 notifications concerning alleged conduct by Dr Gerstman in the course of examinations of female patients over three decades.  
2	In 2014, following a particular notification from a patient, who was herself a doctor, Dr Gerstman gave an undertaking to the Board that he would cease performing routine breast examinations and only perform breast examinations where clinically indicated.  At the Board’s direction, he also underwent a performance assessment in 2016, which had a satisfactory outcome.
3	In 2019, after receipt of further notifications, described in more detail below, the Board took immediate action against Dr Gerstman for the first time.  The Board imposed a gender-based restriction preventing him from seeing female patients, which was amended by VCAT on appeal to a condition that he not conduct breast examinations on female patients.
4	This proceeding is Dr Gerstman’s appeal to VCAT against a second immediate action decision by the Board, made on 21 January 2020, after it received nine further notifications concerning Dr Gerstman.  An additional notification was received after the Board had made its decision.
5	By its decision, the Board re-imposed a gender-based restriction prohibiting Dr Gerstman from having contact with female patients (the restriction). 
6	In the restriction, ‘patient’ is defined broadly as:
•	any individual waiting, requiring, or receiving;
•	the professional services of the practitioner; or 
•	a registered health practitioner within the same place of practice as the practitioner; and
•	any spouse, partner, parent, family member or guardian/carer of this individual.
7	The Board made its decision under s 156(1)(a) of the Health Practitioner Regulation National Law (Victoria) (National Law).  
8	Immediate action under the National Law is intended to be short-term protective action while the Board investigates complaints or notifications and decides whether and what allegations to refer to the Tribunal for hearing and determination. 
9	It may be taken under s 156(1)(a) of the National Law where the Board forms a reasonable belief that because of the practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons, and immediate action is necessary to protect public health or safety.  In assessing the form of immediate action to be taken, the safety of the public must necessarily be the prime concern, with as little damage to the practitioner as is consistent with that concern.
10	The Board has not yet referred any allegations about Dr Gerstman to the Tribunal for hearing and determination under the National Law, although it expects to shortly.  Nothing has been proved and we are not making findings of fact against him.  Instead we are evaluating what is before us to decide whether immediate action may be and should be taken in the interim, and what the form of any immediate action should be.
Background
Summary of the 2019 immediate action
11	Dr Gerstman has had immediate action restrictions in place since February 2019 after the Board received a notification alleging that in 2018, he had performed a breast examination on a young woman, newly diagnosed with diabetes, without informed consent. 
12	The Board then reviewed six earlier notifications relating to Dr Gerstman’s performance of breast examinations.  The notifications related to consultations over two decades, from 1995 to 2015.  Some of those had been closed.  One, received in 2013, had led to a satisfactory performance assessment in 2016.  
13	The Board re-opened those and, on the basis of all seven notifications, decided to impose gender-based restrictions on Dr Gerstman’s registration pending finalisation of its investigation (the 2019 Board decision).
14	In summary, as at the date of the 2019 Board 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; and 
•	A second in 2018 relating to conduct in 2018.
15	Dr Gerstman appealed the 2019 Board decision to VCAT, submitting it went too far and caused disproportionate damage to him.  He offered an undertaking to cease performing breast examinations in the interim.
16	For the reasons set out in the decision published as Gerstman v Medical Board of Australia [2019] VCAT 830 (the Tribunal’s 2019 decision), the Tribunal substituted for the broader gender-based restrictions imposed by the Board, a condition that Dr Gerstman must not undertake any breast examinations of female patients.
17	In its decision, the Tribunal observed that there was no suggestion that Dr Gerstman’s conduct was predatory or for sexual gratification.  None of the notifiers perceived the touching as sexual in nature.  If there had been any suggestion otherwise, the Tribunal said at [62], it would have affirmed the Board’s decision.  
18	Instead, the notifications concerned 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.  
19	This of itself was sufficient to form a reasonable belief as to risk and potential harm under s 156(1)(a) of the National Law, but the broader gender-based restriction, which would cause greater damage to Dr Gerstman, was in all the circumstances not necessary, in the Tribunal’s view.  
20	The circumstances considered by the Tribunal included expert evidence from Professor Maurice Eisenbruch, a psychiatrist and psychotherapist who began treating Dr Gerstman in February 2019.  Professor Eisenbruch’s evidence is summarised at [46]-[48] of the Tribunal’s 2019 decision. In essence, Professor Eisenbruch’s opinion was that Dr Gerstman was not predatory but instead ‘overzealous’, concerned to miss nothing, and ‘old-fashioned’ in the sense of not seeing a need to provide explanations, expecting his patients should ‘just trust him’. 
21	The Tribunal also observed, at [28], that the Board’s investigation was well-advanced and there should be little delay in allegations being referred to the Tribunal.
22	As noted, the Board has not yet referred allegations to the Tribunal in respect of the seven notifications the subject of its 2019 immediate action decision and says it has not done so because it received the further notifications which it needed to consider and investigate.  We turn to those now.
Background to the 2020 immediate action decision
23	After the publication of the Tribunal’s 2019 decision, the Board received nine further notifications from female patients.  They related to consultations over the period 1990 to 2016.  
24	They included allegations that Dr Gerstman had:
•	Asked patients to undress more than necessary.  These included allegations that Dr Gerstman had asked patients to remove all their top clothing and bra for breast examinations and cardiac examinations, and left them undressed for longer than necessary;
•	Performed breast examinations without explaining why and for no apparent reason.  These included an allegation by one woman that in 1990, when she was 11, Dr Gerstman had touched her breasts in what she assumes was a breast examination in a room without her mother present;
•	Examined a patient’s genitals without properly explaining why or obtaining informed consent.  The context, which is relevant, is that the patient had Polycystic Ovary Syndrome and the examination was of the patient’s clitoris; 
•	Made a sexualised comment to a patient – that difficulties in paying could be worked out in other ways; and
•	Asked a patient to perform squats in her underwear.
25	Unlike the notifications considered by the Tribunal in its 2019 decision, some of the patients perceived they had been touched in a sexual manner, others reported that although it might not have been sexual, they felt humiliated, distressed or violated.  
26	All reported that the experience had stayed with them, in some cases for decades.  In some cases, it had led to a fear of male doctors; in one case, avoidance of endocrinologists ever since.  One notifier wrote that on reading the reports in the media of the 2019 action taken against Dr Gerstman, she was distressed because she felt responsible for not saying something sooner and preventing it happening to other women. 
27	Dr Gerstman made submissions to the Board and to the Tribunal which are, in summary:
•	He is at a considerable disadvantage in responding to these historical allegations, the majority of which relate to conduct more than 20 years ago.  He has no recollection of some of the consultations and no longer has some of the clinical records.
•	He denies that he has ever engaged in any examination of a patient for sexual gratification or made sexualised comments.  Nor has he conducted examinations without clinical justification.  
•	He recognises that he has had issues in the past with providing proper explanations to female patients before conducting examinations of sensitive areas, particularly breast examinations, and in obtaining informed consent.  
•	He modified his practice in relation to breast examinations in 2014; he had previously performed them routinely and changed to only performing them when clinically indicated.  He ceased conducting them entirely in 2019 under the condition imposed by VCAT, with which he had complied.
•	To the extent that he had previously requested female patients to remove their bras for a heart examination, which is not inappropriate, he had modified his practice and no longer requests patients to do so.
•	Since the performance assessment in 2016 and education programs he has undertaken, he has gained a greater understanding and insight into issues relating to patient privacy, modesty and potential embarrassment.
•	He has continued with therapy under Professor Eisenbruch which has given him a greater understanding and insight into the unintended impact of how he had previously conducted examinations and interacted with women patients.
•	He has no recollection of the particular consultation where he is alleged to have conducted a genital examination without proper explanation and informed consent (the patient saw him between 1999 and 2004) but there is established clinical reasoning behind examining a patient’s clitoris for enlargement in the context of a diagnosis of Polycystic Ovary Syndrome and to exclude other pathology.  He is in any event prepared to give an undertaking or agree to a condition that he will not perform genital examinations.
•	He does not currently pose a risk and a gender-based restriction is not required as the minimum force necessary to protect public health and safety.
28	The Board took into account all of Dr Gerstman’s submissions but nevertheless stated, in summary, that:
•	It held a reasonable belief that he posed a serious risk because of objective circumstances that he had engaged in serious boundary violations, not confined to breast examinations;
•	The accounts provided by the notifiers clearly outline the alleged events as they recall them;
•	Considered collectively, the notification material indicated a longstanding history of Dr Gerstman breaching boundaries with female patients;
•	While it was encouraged by the education he has completed and the progress he has made with Professor Eisenbruch, it was of the view that his progress is in the early stages and that he had not yet developed full insight regarding the extent of the issues raised in the notifications nor how they impacted his practice; and
•	Imposing a gender-based restriction on his practice is the minimum regulatory force necessary to mitigate the serious risk posed by his conduct at this time.
29	Before considering the submissions and material before us at the hearing, we set out below the legal framework for the decision we are making.
Legal Framework
Statutory framework
30	Section 156(1)(a) of the National Law provides as follows:
(1)	A National Board may take immediate action in relation to a registered health practitioner … 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; … 
31	We set out later a summary of the case law about s 156(1)(a) but first provide the statutory provisions to do with VCAT’s role, ahead of discussion of an issue raised in this case: whether VCAT is bound by a recent policy direction of the Ministerial Council.
VCAT’s role
32	An immediate action decision of a National Board is an appellable decision under s 199 of the National Law, under which the person who is the subject of the decision has the right to appeal against the decision to the appropriate responsible tribunal.  
33	VCAT is the ‘responsible tribunal’ under the National Law as it applies in Victoria. 
34	The decisions VCAT may make after hearing the matter are in s 202(1) of the National Law:
(a)	confirm the appellable decision; or
(b)	amend the appellable decision; or
(c)	substitute another decision for the appellable decision.
35	Section 202(2) provides:
(2)	In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision. 
36	Section 155 of the National Law relevantly provides that immediate action, in relation to a registered health practitioner or student, means—
(a)	the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or
(b)	accepting an undertaking from the health practitioner or student; or
(c)	accepting the surrender of the health practitioner’s or student’s registration.
(d)	if immediate action has previously been taken suspending a health practitioner’s or student’s registration—the revocation of the suspension and the imposition of a condition on the registration; or
(e)	if immediate action has previously been taken imposing a condition on a health practitioner’s or student’s registration—the suspension of the registration instead of the condition.
Relevance of the Guiding Principles in the National Law
37	As an entity exercising functions under the National Law, VCAT is required by s 4 of the National Law to do so having regard to the objectives and guiding principles set out in s 3.
38	Most relevant to VCAT’s role as a responsible tribunal are:
Objectives: s 3(2)(a):
to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 
Guiding principles: s 3(3)(a) and (c):
(a)	the scheme is to operate in a transparent, accountable, efficient, effective and fair way.
(b)	…
(c)	restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
2019 Ministerial Policy Direction 
39	On 8 January 2020, the Ministerial Council issued a policy direction to AHPRA and the National Boards that refers expressly to application of the guiding principle in s 3(3)(c) of the National Law: Policy Direction 2019-1 headed ‘Paramountcy of public protection when administering the National Scheme’ (Policy Direction).  
40	The Board submitted to us that VCAT is bound by the Policy Direction when hearing an appeal of an immediate action decision because on a review, it stands in the shoes of the Board.  Counsel on behalf of Dr Gerstman submitted that VCAT is not bound to apply the Policy Direction.  The issue has been referred to but not determined in two recent VCAT decisions, discussed below.  The Board asked that the Tribunal determine the question in this case.
Content of the  Policy Direction
41	The Policy Direction states that:
The purpose of this policy direction is to provide clarity to the Australian Health Practitioner Regulation Agency (Ahpra) and the National Boards on the application of the guiding principle for the National Registration and Accreditation Scheme provided in section 3(3)(c) of the National Law [and to provide] a clear mandate [to AHPRA and the National Boards] to prioritise public protection.
42	The paragraphs of the Policy Direction referred to in the Board’s submissions are:
1.	The Council supports that regulatory decision making by Ahpra and National Boards within the National Registration and Accreditation Scheme must act in the interests of public protection, patient safety and support the safety and quality of health services.
2.	In applying the guiding principle contained in section 3(3)(c) of the National Law, when determining whether it is necessary for regulatory action to be taken, National Boards and Ahpra must:
a.	take into account the potential impact of the practitioner’s conduct on the public, including vulnerable people within the community such as children, the aged, those living with disability and people who are the potential targets of family and domestic violence; and
b.	consider the extent to which deterring other practitioners from participating in similar conduct would support the protection of the public and engender confidence in the regulated profession.
43	The date of the Policy Direction is 3 January 2020.  The Board states in its recent submissions that it was published on the AHPRA website on 8 January 2020 and was the subject of a media release on 22 January 2020.
National Law provisions about Ministerial Council Policy Directions
44	Under s 11(1) of the National Law, the Ministerial Council may give directions to AHPRA (as the National Agency) about the policies to be applied by AHPRA in exercising its functions under the National Law.  Under s 11(2), the Ministerial Council may also give directions to a National Board about the policies to be applied by the National Board in exercising its functions under the National Law. 
45	Section 11(6) provides that a National Board must comply with such a direction.
46	Section 11(3) provides relevant (non-exclusive) guidance about what may be the subject matter of a policy direction:
Without limiting subsections (1) and (2), a direction under this section may relate to—
(a)	a matter relevant to the policies of the National Agency or a National Board; or
(b)	an administrative process of the National Agency or a National Board; or
(c)	a procedure of the National Agency or a National Board; or
(d)	a particular proposed accreditation standard, or a particular proposed amendment of an accreditation standard, for a health profession.
VCAT Act provisions
47	Sections 51 and 57 of the Victorian Civil and Administrative Act 1998 (VCAT Act) are also relevant to an analysis of this question.
48	Section 51(1) provides:
Functions of Tribunal on review
(1)	In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a)	has all the functions of the decision-maker; and
(b)	has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)	has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
49	Section 57 of the VCAT Act provides:
Application of statements of policy
(1)	The relevant Minister may certify in writing that there was, at the time a decision the subject of a proceeding for review was made, a statement of policy applying to decisions of that kind.
(2)	If a certificate is given under subsection (1), the Tribunal in conducting the proceeding must apply the statement of policy if—
(a)	the Tribunal is satisfied that, at the time the decision was made—
(i)	the applicant was aware of the statement of policy; or
(ii)	persons entitled to apply for review of a decision under the enabling enactment could reasonably have been expected to be aware of the statement of policy; or
(iii)	the statement of policy had been published in the Government Gazette; and
(b)	the decision-maker states in the material lodged with the Tribunal under section 49 that the decision-maker relied on the statement of policy in making the decision.
(3)	Subsection (2) does not apply to the extent that the statement of policy is outside power.
(4)	In this section—
relevant Minister means the Minister administering the enactment under which the decision the subject of the proceeding for review was made.
50	The Board concedes that the requirements of s 57 have not been met in this case.  It is nevertheless relevant to analysis of this issue as it is the only specific reference to statements of policy in the VCAT Act, and the National Law does not expressly say that a responsible tribunal is bound by a policy statement such as the Policy Direction.
The parties’ submissions
51	The parties made submissions about the issue at the hearing after it was raised in outline submissions filed ahead of time.  We invited further submissions to be made in writing in response to specific questions after the hearing concluded.
52	The Board submitted, in summary, that:
•	This is a review application.  The Tribunal is re-exercising the Board’s functions in its review jurisdiction.  It is therefore required to determine whether (and if so, what) immediate action should be taken against Dr Gerstman.
•	Relying on Kracke v Mental Health Review Board [2009] VCAT 646 (Kracke) at [323], in re-exercising the functions of the Board it must apply the same principles and policies as the decision-maker.
•	The Board concedes that the Policy Direction does not expressly apply to the Tribunal and the Tribunal is not expressly required by law to apply it.  The Board also concedes that s 57 of the VCAT Act does not apply here as the requirements of s 57 have not been met.
•	The Tribunal is bound, however, to apply the Policy Direction in the circumstances here where the original decision-maker is bound to apply the policy when exercising its function and the Tribunal is required to re-exercise that same function on review.
•	The Board concedes that the aspect of the Policy Direction which is directed towards general deterrence is not strictly relevant to this decision.
•	The Policy Direction does not seek to modify the National Law but instead provides context.
53	The submissions on behalf of Dr Gerstman were, in summary, that:
•	The Policy Direction does not bind the Tribunal.
•	It does not and cannot modify the legislated principle in s 3(3)(c) of the National Law or established case law relating to the legislated principle.
•	There is no legal power for COAG to give policy directions to VCAT as a responsible tribunal:
o	Section 11 of the National Law provides no mechanism for COAG to give policy directions to a responsible tribunal; and
o	No similar provision to s 11 appears in the National Law in relation to responsible tribunals either at large or in relation to appellable decisions under s 199.
•	The component related to general deterrence cannot be carved out of the Policy Direction as being ‘not strictly relevant to this decision’.  If the Policy Direction applies to immediate action decisions, it imparts an ‘entirely alien’ mandatory consideration of general deterrence.  Read as a whole, it is directed towards consideration of unprofessional conduct and professional misconduct rather than immediate action.
Cases 
54	The question of whether VCAT is bound by the Policy Direction was referred to but not decided in two recent VCAT cases: Ellis v Medical Board of Australia (Ellis), and Vo v Medical Board of Australia (Vo).  
55	In Ellis, at [124], the Tribunal expressed the view that it may have regard to the Policy Direction and had done so.  In relation to the Board’s submission that the Tribunal was required to apply the Policy Direction, which did not in the Tribunal’s view affect the outcome, it made the following observations, at [125]-[126]:
125	The first aspect of the policy relied on by the Board, giving priority to protection of the public, is more or less in line with what the Court of Appeal said in Kozanoglu - 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.  The second aspect is similarly in line with the general law, for the relevant words of the Policy Direction are ‘take into account the potential impact of the practitioner’s conduct on the public, including vulnerable people within the community …’ (our emphasis).  The third aspect, concerning deterrence, is not so straightforward.  That is because an immediate action case (in contrast to a referral where determinations are made after findings about the practitioner’s conduct are made) may involve allegations that are never admitted and/or never proved. 
126	A broader observation to make is that a responsible tribunal’s decision in an appeal under s.199 - where the tribunal is reviewing the exercise by the Board of its functions under the National Law - is not the same as the tribunal’s determinations in a referral under s.193.  A direction about the policies to be applied by the Board in exercising its functions may more readily be said to impose a duty on a responsible tribunal in the former case than in the latter case.  (Notably, s.11 of the National Law refers only to directions to the National Agency or a National Boards.  That is, it does not specify responsible tribunals.  That is to be contrasted with s.4 of the National Law which clearly includes responsible tribunals because it provides: ‘An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3’).  Whatever the position about that, in any case that is not governed by s.57 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT may have regard to policy, provided that the policy is lawful: see Drake and Minister for Immigration and Ethnic Affairs (no. 2) [1979] AATA 179.  
56	In Vo, the Tribunal considered the question of whether VCAT, exercising its own functions as a responsible tribunal on an appeal of an immediate action decision (or otherwise), is bound by a direction to a National Board under s 11(2), to be ‘not beyond doubt’ but did not consider it necessary to decide the matter.  The Tribunal made the following incidental observations, at [32]-[36]:
32	On an immediate action appeal, while VCAT has all the powers of the Board under s 156, it is exercising its own functions under s 199.  Unlike a standard review, where VCAT ‘stands in the shoes’ of the original decision maker and makes ‘the correct or preferable decision’, an immediate action appeal is a hybrid process as established by the cases referred to below. 
33	Section 11(2) provides that the Ministerial Council may give directions to a National Board about the policies to be applied by the National Board in exercising the National Board’s functions under the National Law.  It does not refer to responsible tribunals, unlike s 4, which refers to entities exercising functions under the National Law, and therefore includes responsible tribunals.  
34	And to the extent the 2019 Policy Direction seeks to broaden the meaning of s 3(3)(c) by requiring additional factors to be taken into account beyond the necessity to ensure health services are provided safely and are of an appropriate quality, it may go beyond the power given to the Ministerial Council by s 11(2) and stray into the territory of legislative amendment.
35	In any event, the legal principles underpinning immediate action decisions by a responsible tribunal, discussed next, already give priority to protection of the public and patient safety.  Public health and safety are express considerations under s 156(1)(a).  Maintaining public confidence in the provision of services by health practitioners is expressly relevant to decisions under s 156(1)(e). 
36	General deterrence, in the interests of protecting the public and maintaining confidence in the health profession, is already a well-established factor taken into account in framing orders under s 196(2) of the National Law, after making formal findings about a practitioner’s conduct.  It is less clear how it would, and whether it should, operate in a proceeding where the tribunal is not deciding whether the practitioner engaged in the conduct alleged (and whether as a consequence others need to be deterred from that conduct).  
57	In Kracke, relied on by the Board, Bell J considered the functions of the tribunal on a review under s 120(1) of the Mental Health Act 1986, in the context of a decision as to whether the tribunal was acting in an administrative or a judicial capacity, and whether it was therefore bound by the Charter of Human Rights as a public authority.
58	The passage relied on by the Board, at [323], is:
323	Mr Kracke’s application for review enlivened the tribunal’s jurisdiction under s 42(1) of the Victorian Civil and Administrative Tribunal Act.  In exercising that review jurisdiction, the tribunal has all the functions of the board under the Mental Health Act.  We know the tribunal’s function is to stand in the shoes of the board and to make the correct or preferable decision on the merits on the facts and circumstances before it.  In doing so, the tribunal applies the same statutory provisions, legal principles and appropriate policies as does the original decision-maker, subject to the provisions of the Victorian Civil and Administrative Tribunal Act and the tribunal’s fresh consideration of the matter.  In determining a proceeding for review, the tribunal has the powers to affirm, vary, set aside and remit the decision under review for reconsideration.  The decision of the tribunal to affirm, vary or substitute a decision of the decision-maker under review is deemed to be a decision of the decision-maker. [emphasis added, footnotes omitted]
59	Bell J also stated, at [324], that:
324	As I have said, the review jurisdiction of the tribunal is substitutionary, not appellate.
Decision on the issue
60	We have carefully considered the submissions made on this question, respectful of the role given to the Ministerial Council and to AHPRA and the National Boards by the National Law.
61	For the reasons set out below, however, we do not agree that VCAT is bound by the Policy Direction.  
62	Neither Ellis nor Vo support the Board’s submission to this effect, in our view.  In both, the Tribunal expressed reservations about the submission, noting the contrast between s 4 and s 11 of the National Law.  
63	In Ellis, the Tribunal said only that the Tribunal may have regard to the Policy Direction.  We agree that the Tribunal may do so.  In Vo, the Tribunal said the question was ‘not beyond doubt’.  Without seeking to rephrase what the Tribunal said, we take that to mean that, contrary to the Board’s submission, it was not clear that the Tribunal would be so bound.
64	Nor does Kracke determine the matter, in our view.  His Honour’s observations:
•	relate to the Tribunal’s review jurisdiction under the Mental Health Act 1986, rather than the ‘hybrid’ jurisdiction under s 199 of the National Law; 
•	refer to the Tribunal applying ‘appropriate’ policies, without explaining what that might mean; and
•	qualifies the statement as being subject to the provisions of the VCAT Act and the Tribunal’s fresh consideration of the matter.
65	As conceded by the Board, the decision in Kracke was overturned by the Court of Appeal in R v Momcilovic. As submitted, the Court of Appeal did not expressly disagree with the paragraphs quoted in the Board’s submissions, but nor did the Court of Appeal approve the statements made, which were in any event incidental to Bell J’s analysis of whether the Charter applied.  
66	In the circumstances, we do not consider Kracke to be authority for the submission that the Tribunal is bound by the Policy Direction.
67	In our view:
•	It is well established that a hearing of an appeal against an immediate action is not a hearing de novo, as in a standard review, nor is the Tribunal confined to the material that was before the Board at the time it made its decision.  The ‘hybrid’ nature of the proceedings was described in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 (Kozanoglu) at [95]-[96] and referred to further in the next section. 
•	The powers exercised by the Tribunal on a hearing of an appeal under s 199 include the powers of the original decision-maker, but the Tribunal is doing more than ‘re-exercising’ the functions of a National Board.  The Tribunal is exercising its own functions under the National Law, which makes express provision for what it may do on such an appeal, in s 202, and what it must do when exercising its functions generally, in s 4.
•	Even if the Tribunal, exercising its functions under s 199 and s 202, can be said to be ‘standing in the shoes’ of the National Board as in a standard review, it does not follow that it is bound by a policy direction given by the Ministerial Council to a National Board under s 11, in the absence of a clear statement in the National Law that it should be bound. 
•	We say this for the following reasons: 
o	We agree with the applicant’s submission that s 11 provides no mechanism for COAG to give policy directions to a responsible tribunal, its application is expressly limited to AHPRA and the National Boards. 
o	No similar provision to s 11 appears in the National Law in relation to responsible tribunals either at large or in relation to appellable decisions under s 199.  
o	In contrast to the express application of s 11 to AHPRA and the National Boards and the express statement in s 11(6) that AHPRA and the National Boards ‘must comply’ with a direction given to them by the Ministerial Council, s 4 legislates a requirement for all entities exercising functions under the National Law, which includes responsible tribunals.  Further, it is a requirement to ‘have regard’ to the objectives and guiding principles set out in s 3.
o	Section 4 is a legislative requirement that a responsible tribunal, as an entity exercising functions under the National Law, is to have regard to certain matters.  The Policy Direction is a direction from government ministers to have regard to other matters when applying that legislative requirement.  For a responsible tribunal to be bound to do so, a clear statement in the National Law would be required in our view.
•	Section 57 of the VCAT Act expressly provides for the circumstances in which the Tribunal must apply a statement of policy.  The requirements are not met here.
68	Finally, we agree with and repeat the observations made in Ellis and Vo, that the Policy Direction does not add to the already well-established principles in the case law applied by the Tribunal, save that in the case of an immediate action decision, general deterrence is not and cannot be a relevant consideration, for the reasons stated in Ellis and Vo. 
69	We turn now to that case law.
Immediate action under s 156: legal principles 
The purpose of immediate action
70	Action under s 156 is interim action, taken urgently to prevent harm or preserve public confidence until an investigation can be completed.  As observed in Syme v Medical Board of Australia [2016] VCAT 2150 (Syme) at [22], in the context of s 156(1)(a):
22	The intent of the section is to provide a mechanism for urgent action, to protect public health or safety, while investigation and/or performance assessment of the relevant medical practitioner are conducted. [emphasis added]
71	Action under s 156 is not a substitute nor is it a short cut for the action that a Board or the Tribunal may take after an investigation of allegations of professional misconduct or unprofessional conduct. 
72	In Kozanoglu at [126], the Victorian Court of Appeal made important general observations about cases of this nature: 
126	The IAC [Immediate Action Committee of a Board] 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. 
73	On the importance of a timely referral, the Court of Appeal went on to say, at [127]:
127	It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined to take immediate action, the matter should ordinarily proceed, forthwith, to a panel or tribunal.  The entire legislative scheme breaks down if there is a lengthy delay between an IAC decision and a complete hearing on the merits.
74	On an appeal of an immediate action decision, the Board bears the persuasive burden of establishing that the preconditions for the taking of immediate action are met.
The task of the Tribunal 
75	As noted earlier, a hearing of an appeal against an immediate action is not a hearing de novo, as in a standard review, nor is the Tribunal confined to the material that was before the Board at the time it made its decision.  The ‘hybrid’ nature of the proceedings was described in Kozanoglu at [95]-[96]:
95	In our opinion, the appeal to VCAT, under the National Law, was not, as Senior Counsel for the respondent at one point submitted, a rehearing de novo in the widest sense of that term.  It would not have been permissible, for example, for the respondent to adduce evidence of facts and matters that had occurred after the notification had been provided to the IAC to justify, retrospectively, the decision to take immediate action.  
96	Nonetheless, VCAT was entitled, in our view, to receive any evidence that bore upon the decision that was actually taken by the IAC at the time that decision was taken.  
And at [119]:
119	It is not ‘open slather’, but nor is it an appeal confined to error.  
The requirement of a reasonable belief
76	The forming of a ‘reasonable belief’ is a requirement of both subsections 1(a) and 1(e) of s 156.
77	In George v Rockett [1990] HCA 26 at [14], the High Court of Australia described ‘belief’ as:
an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
78	The High Court also observed, at [8], that when a statute prescribes that there must be ‘reasonable grounds’ for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.  
79	As the High Court observed at [14], this is not a requirement for proof of the subject matter on the balance of probabilities, but it does require objective circumstances that are sufficient to found the belief. 
The components of s 156(1)(a)
80	The principles in relation to s 156(1)(a) are well-established.  In Syme, VCAT summarised the relevant principles at [32]-[36]: 
32	The analysis to be undertaken when looking at the ‘reasonable belief’ requirement in s.156(1)(a) was considered by the Court of Appeal of the Supreme Court of Western Australia in Bernadt v Medical Board of Australia.
33	In Bernadt the Court said there were three components:
•	Because of the practitioner’s conduct, performance or health (‘the factual substratum’)
•	the practitioner poses a serious risk to persons (‘the first evaluative assessment’) and
•	it is necessary to take immediate action to protect public health or safety (‘the second evaluative assessment’).
34	The facts do not need to be proved on the balance of probabilities but there must be proven objective circumstances sufficient to justify the belief.
35	In WD v Medical Board of Australia [[2013] QCAT 614 [WD] at [8]] Horneman-Wren J Deputy President of the Queensland Civil and Administrative Tribunal (QCAT) summarized the approach generally relevant to the merits of an IAC decision as follows:
1.	an immediate action order does not entail a detailed enquiry;
2.	it requires action on an urgent basis because of the need to protect public health and safety;
3.	the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.	an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.	the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.	the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.	a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.	the nature of the allegations will be highly relevant to the issue of whether the order is justified.
36	In Oglesby v Nursing & Midwifery Board of Australia Horneman-Wren J elaborated as follows: 
[20]…I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons.  In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future.  In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons.  If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons. [emphasis added]
81	The use of the present tense – ‘poses’ a serious risk – means that the perceived risk must be contemporaneous with the decision.  As the Tribunal observed in Syme, at [122]: 
The focus of section 156 is at a level of serious and immediate risk to persons which cannot await the usual processes of investigation and hearing.
82	As the Tribunal also observed, there are many cases where no immediate action against practitioners is taken even though they are later found to have engaged in unprofessional conduct or professional misconduct and consequently have had their registration suspended or cancelled.  ‘Serious risk’ means something more substantial than a concern that a practitioner may be engaging in unprofessional conduct or professional misconduct.
83	The decision-maker must also form a reasonable belief that it is necessary to take immediate action to protect public health or safety – described as the second evaluative assessment in Bernadt. 
84	The decision-maker ought also keep in mind the second of the safeguards against error, referred to by the Court of Appeal in Kozanoglu:
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. 
Summary of the materials
85	We had before us the materials that the Board took into consideration in its 2020 decision including:
•	The nine notifications and notifier statements;
•	Dr Gerstman’s responses to the notifications and submissions to the Board;
•	The Tribunal’s 2019 decision;
•	Report of Professor Eisenbruch dated 19 January 2020;
•	Further documents provided by Dr Gerstman’s legal representatives including:
o	Schedule of further education;
o	Clinical records regarding one patient;
o	Form of undertaking; and
o	Report of Professor Eisenbruch dated 19 January 2020.
86	We also had additional materials before us that were not before the Board at the time of the 2020 decision:
•	The previous notifications, notifier statements and records of interview;
•	Witness statements of three of the recent notifiers, and a statement of the mother of one;
•	Further notification received after the Board’s 2020 decision;
•	Various clinical records;
•	Dr Gerstman’s responses to the earlier notifications and submissions to the Board on 2019;
•	Letter of instruction to and independent expert opinion of Dr Glynis Ross dated 15 June 2020;
•	Psychiatric report from Professor Maurice Eisenbruch dated 16 May 2019;
•	Further report of Professor Eisenbruch dated 7 August 2020;
•	Letter of instructions to and opinion of Dr Peter Greenburg dated 15 August 2020.  Dr Greenburg was asked a single question relevant to one of the complaints, whether it is reasonable to assess for proximal myopathy by asking a patient to squat with their outer clothing (not their underwear) removed;
•	Details of an education program undertaken by Dr Gerstman – report dated 10 May 2019 and Dr Gerstman’s reflective report;
•	Material relating to financial impact of the restriction including report of Mr Stephen McLennan 23 April 2020; and
•	Witness statements filed on behalf of Dr Gerstman
•	Character references.
Summary of the allegations
87	In summarising the allegations made in the notifications, we underline that we are not making findings of fact.  Dr Gerstman does not accept that he behaved inappropriately or without clinical justification.  The allegations are yet to be tested.  
88	Nevertheless, it is well-established that a notification alone may be a sufficient basis for forming a reasonable belief that conduct has occurred, for the purposes of s 156(1)(a) of the National Law.  In this case, the Board has received 17 notifications, noting that they cover a three-decade period and so include historical notifications.
89	The following are the allegations:
•	Dr Gerstman allegedly conducted breast examinations on 12 patients between 1990 and 2018 that were not clinically justified and without obtaining informed consent, one of those, in 1990, on an 11-year old girl without clinical indication and without her mother present;
•	Dr Gerstman allegedly asked a 17-year old girl in 2000 to remove her top and bra to conduct a routine stethoscope test, but had never asked her to do that when he had performed that test in the presence of her parents;
•	Dr Gerstman allegedly caressed a female patient’s breast in a sexual manner in 2015, having held her breast and given it ‘a wiggle or jiggle for approximately 5 seconds’.  This patient said that she would not describe the touching as being a medical breast examination, and that ‘only one of my breasts was caressed … and not medically checked’.  She also described Dr Gerstman’s actions as ‘sexual misconduct’, and made a complaint to the police of sexual assault, not pursued by the police;
•	Dr Gerstman allegedly stared at a patient’s chest and then pulled her singlet down until her breast was fully exposed, in 2008.  It is also alleged that, when the patient covered her nipple, Dr Gerstman ‘slapped [her] hand away (as you might do to a naughty child) and continued to inspect [her] breast’;
•	Dr Gerstman allegedly insisted in 2016 that a female patient take off her shirt and bra, and the patient was topless for 15 minutes while Dr Gerstman was speaking.  The notifier said: ‘I’m angry at myself for letting it happen and not saying something at the time because I knew what he was doing … I have no doubt, 100% certain that it was sexual in nature’;
•	Dr Gerstman allegedly asked a female patient in 2006 to remove her blouse and undergarment and, shortly after examining her neck, ‘his hands were on [her] breasts through [her] bra and from behind he gently ‘fondled’ [her breasts]; it was like he was manipulating PlayDo’;
•	In late 2018 Dr Gerstman’s left arm allegedly rubbed against a female patient’s breast in a manner that did not feel accidental ‘as it was a long brush’.  That same patient alleges that a ‘few years ago’, when she told Dr Gerstman that she did not have the money to pay him for an appointment, he sniggered and eventually said ‘oh, I was just thinking you could work it [the payment] out in other ways’. 
•	Dr Gerstman allegedly examined a patient’s clitoris in approximately 2004 without obtaining informed consent;
•	Dr Gerstman allegedly told a patient in 2016 that he was being investigated for alleged sexual misconduct, while she was topless and he was performing a cardiac examination.  He persisted with a request to do a breast examination even though she told him her GP had done one the week before;
•	Dr Gerstman allegedly asked a female patient, between 2009 and 2013, to undress down to her bra and underpants and to perform squats while he watched her; and
•	(In the notification received after the Board’s 2020 immediate action decision) Dr Gerstman allegedly asked a female patient in 2008 to remain topless while doing a ‘bunch of arm strength exercises’.  It is then alleged that Dr Gerstman asked that patient to perform leg exercises while she was topless, ‘squatting down and standing up for several minutes’.
Clinical justification?
90	Dr Gerstman submitted that while he may have fallen short in obtaining informed consent, the examinations were clinically justified in most cases.
91	The Board relied on the report of Dr Glynis Ross in support of its submission that separate from the issue of informed consent, a reasonable belief could be formed that Dr Gerstman had engaged in conduct for non-therapeutic purposes.  The Board also relied on the notifications, which in its submission, were sufficient to form a reasonable belief that conduct had occurred that was not only non-therapeutic but also sexual in nature.
Opinion: Dr Glynis Ross
92	Dr Ross is a Fellow of the Royal Australasian College of Physicians, has been a consultant endocrinologist since 1985, and among other current roles has been a Visiting Endocrinologist at Royal Prince Alfred Hospital.  She does not have any personal or professional connection to Dr Gerstman, and we accept her independence and expertise.
93	Dr Ross provided a 74-page report to the Board divided into three parts:
•	Her opinion with respect to 19 general questions, for example in what clinical circumstance would it be reasonably indicated, necessary and appropriate for an endocrinologist to request that a female patient remove her top and remove her bra;
•	Her opinion regarding Dr Gerstman’s alleged conduct with respect to 13 patients; and
•	Her opinion regarding Dr Gerstman’s alleged conduct viewed as a whole in the context of a specialist medical practitioner of his education and experience – an overview of what did or did not appear to meet clinical standards.
94	Dr Ross’ report focused on applicable clinical standards, clinical justification for particular examinations, and whether particular requests made by Dr Gerstman were necessary or appropriate.  
95	Dr Ross did not offer opinions on the concern raised by the Board here that Dr Gerstman engaged in the conduct for sexual gratification or some other non-therapeutic purpose.  In the case of the allegation that Dr Gerstman had made a sexualised comment to a patient, and in answer to the question whether in her opinion it was an appropriate statement for a male endocrinologist to make to a female patient, she wrote:
It is not possible to work out what was exactly said or what the intended meaning was.  Any slight change in the recall of the wording, manner in which it was said or the context could lead to a different interpretation.
96	We observe here that it is our role and responsibility to assess the material, including the patients’ descriptions of what happened and the impact on them, and to consider whether it provides grounds for a reasonable belief that Dr Gerstman has engaged in conduct for sexual gratification or some other non-therapeutic purpose.  
97	Whether or not there may have been clinical justification for the examinations performed by Dr Gerstman is nevertheless relevant to our consideration. 
98	As Dr Ross acknowledged, given that six of the 13 notifications related to consultations conducted 10-29 years earlier, there was a significant limitation regarding the availability of related documentation to either support or refute the allegations.
99	As Dr Ross also acknowledged, some clinical guidelines have changed over time, including recommendations for the removal of clothing for cardiorespiratory examination and conduct of breast examinations in the setting of hormone replacement therapy.  [TB 2181]
100	We have read but not sought to summarise all of Dr Ross’ responses.  Instead we focus first on those general opinions that indicate that in some of the consultations, Dr Gerstman performed particular examinations in settings that would meet standard or accepted practice or were otherwise supported by some current recommendations – but emphasising that informed consent was critical.  
101	We then focus on notifications relating to consultations since 2013 where Dr Ross considered whether there was clinical justification for particular reported conduct.  
102	We have focussed on the period since 2013 because it represents a period when Dr Gerstman was under regulatory scrutiny: after the May 2013 notification (notification no. 00254920), to which Dr Gerstman responded in July 2013, which led to Dr Gerstman’s undertaking in 2014 that he would cease performing routine breast examinations and only perform breast examinations where clinically indicated.  The period also includes before and after the performance review in 2016.  
103	Those notifications are relevant, in our view, to the question of whether Dr Gerstman currently poses a risk, and to the question of what action is required to protect public health or safety.  
104	We note however that in a number of earlier cases, Dr Ross expressed the opinion that examinations performed went well beyond what was clinically indicated. 
General opinions
105	Relevant to the allegation that Dr Gerstman asked patients to undress more than necessary, Dr Ross wrote:
The majority of the allegations regarding ‘undressing more than necessary’ were performed in settings that would meet the standard and accepted practice of Dr Gerstman’s professional peers or of a health professional of equivalent training and experience. The main exceptions were the apparent routine request to remove the bra (however also note the qualifying comment above) and the examination undertaken for proximal myopathy.
106	The identified qualifying comment was:
Of note, with regard to asking a patient to remove a bra for a cardiorespiratory examination, this would not usually be done in practice by an endocrinologist. However it is taught in physical examination technique as being expected and appropriate to ask a women to remove her bra for such an examination as listening through material does not provide reliable auscultation.
107	In the context of a specific patient, Dr Ross made the general observation that:
A detailed physical examination by a physician is not unreasonable, and could be argued as ‘best practice’.  However it should be offered as such, that is a general check up not as being required in the context of the referral.  Any person undergoing a physical examination needs to be aware of why it is being undertaken.  Although the clinical indications for either a specific or detailed physical examination may appear obvious to the clinician, this is often not so to a patient.  A patient will have a preconceived perception of what will be required, and therefore needs to be informed in advance regarding any examination as to why it is being undertaken and what is involved.  The patient should not be made to feel obliged to have the examination especially if it is beyond that which is clinically indicated.
108	Dr Ross repeated this observation in her opinions in relation to a number of specific notifications.
109	Dr Ross noted that there is also some inconsistency in the recommendations to do with regular breast checks noting that:
Since 2001 the usual recommendation has been for women to undertake self-examination of the breast and have regular mammograms, while routine breast examinations should only be offered/performed if women present with breast complaints or abnormalities…Yet the 2018 Australasian Menopause Society Guideline states: ‘Regular breast checks and screening mammograms should be performed in women over 50 whether they are taking MHT (Menopausal Hormone Treatment) or not.’  [TB 2182-3]
110	In relation to genital examination in the setting of Polycystic Ovary Syndrome, Dr Ross wrote that:
Genital examination by an endocrinologist in the setting of polycystic ovary syndrome would generally be undertaken only if there were other definite clinical signs of significant hirsutism or laboratory tests showed severe hyperandrogenaemia.  The intention of the examination would be to look for signs of virilisation including pubic hair distribution and/or clitoromegaly.  [TB 2189]
111	Dr Ross repeatedly emphasised, however, the importance of informed consent – consent informed by a proper explanation of what was required, why it was required, what the examination would involve, and attention to issues of anxiety and embarrassment, and appropriate privacy and coverings.  
112	In relation to all ‘sensitive’ examinations, Dr Ross emphasised the importance of providing an explanation for the reasons for the examination, what it will involve, obtain consent, provide covering for modesty and comfort and point out the covering.  In relation to genital examinations, Dr Ross wrote that:
Ideally a male endocrinologist should have a female chaperone present.  It is advisable that a patient be asked whether she would prefer to have a chaperone present and her request be obliged.  [TB 2195-6]
113	In relation to examination for proximal myopathy – the asserted reason for Dr Gerstman to ask a patient to perform squats in her underwear, Dr Ross wrote ‘Examination for proximal myopathy does not require removal of Patient’s clothing’.  [TB 2187]  We note here that Professor Greenburg, whose evidence is discussed below, disagreed with this statement.
114	We pause to refer here to one matter that has struck us in reading the notifications to do with breast examinations, and that is that what some of the patients described Dr Gerstman as doing would not appear to accord with the accepted method of examining breasts as described by Dr Ross at [TB 2193], including that each breast should be palpated individually in a systematic way and in the manner described by Dr Ross.  
115	We consider that this raises a question as to whether Dr Gerstman was in fact carrying out a clinical breast examination. This would suggest an issue that goes beyond informed consent to a breast examination.
116	This question was raised, for example, by Dr Ross’ opinion in relation to notification no. 0043025 at [TB 2244] – alleged conduct 1999-2004.
Notification no. 00338631
117	The notification, made in October 2016, related to a consultation in May 2015.  The patient stated that while she lay on the bed topless, Dr Gerstman placed his ungloved whole open hand on her right breast and gave it a caress and ‘wiggle’ in a sexual manner.  The patient stated that there was no medical reason for Dr Gerstman to be holding her breast.  The allegation was also reported to police, who decided to take no action. 
118	Dr Gerstman denied the allegation.  
119	Dr Ross’ opinion was that there would be no reason for Dr Gerstman to touch the patient’s breast in this way.
120	We note there is an issue as to reliability of the patient’s recall of what happened, in that the patient refers to Dr Gerstman conducting an ECG.  He has provided evidence that he did not perform ECGs in his rooms as he did not have a machine, or access to it. 
Notification no. 00421507 consultation early 2016, notification July 2019
121	The notification and notifier statement [TB 50-54] raises several issues.  
•	Dr Gerstman allegedly insisted she take her shorts and bra off for a physical examination without offering a cover, and talked to her after the examination while she remained topless.
•	After listening to her heart, he placed his stethoscope in three or four places around her left breast.
•	While he was feeling around the patient’s breast, Dr Gerstman allegedly told her that one of his patients was accusing him of sexual misconduct and he was being investigated.
•	He was persistent in saying that he wanted to do a breast examination after she told him her GP had done one the week before.
122	 The patient’s description of what happened is as follows:
Dr Gerstman then said that he wanted to do a physical exam. I don’t specifically remember what he said, but I remember he asked me to take the top half of my clothes off. I asked him if he needed my bra off, and he responded that he did as it is better to listen to the heart.
There was a little room off to the side of the consultation room for the examination. I lay on the bed in the side room and Dr Gerstman came back in. I was completely topless. With a stethoscope, he listened to my heart. He then told me it is better to listen in one place than others and proceeded to show me where on my chest where better to listen to. After having already listened to my heart, he felt around my left breast and showed me various places to listen to my heart, using his stethoscope. He explained if you do it ‘here’ you get a different sound when he placed the stethoscope on a different area, but didn’t listen in other places he was placing the stethoscope. He put his stethoscope on my breast in three or four places on the side of by left breast away from the centre of my chest, opposite to where my heart is, on the outer side of my breast.
I felt uncomfortable with this. I have had my heart listened to so many times, I’m familiar with where you listen to it. And while he was doing this, he proceeded to tell me that one of his patients was accusing him of sexual misconduct with her and he was being investigated and we had a conversation about that while he was feeling around my heart. He said that she was misinterpreting things. I don’t remember his exact words.
After this, Dr Gerstman then said he would like to do a breast exam. I said no, that I had had one done the week before by my GP and he said, well GP’s often don’t do it properly and get it wrong, that he thought he should do one because they often miss things and it would be better if he did it. I again said no, that I was perfectly happy with how she had performed a breast exam, and he pushed the issue a little bit more and I said no.
At that stage, I was discomforted by his examination of my heart, because I though that was unusual and unnecessary. It was a bit ‘handsy’ and it was just wrong and then he was insistent on a breast exam. Maybe if I hadn’t just had one, I would have let him, not thinking. Thankfully, I had just had one and he still tried to get me to agree to it, which I didn’t because by that stage I was very disquieted by him.
After I had said no to the breast exam, he stood talking to me. I sat up on the edge of the bed and he stood near the door. It was quite a small room, so there wasn’t much space. I then stood up, so we were face to face, with me completely topless and feeling very uncomfortable and my clothes weren’t within reach. I can’t remember what we discussed, but it wasn’t health issues, it was just chatter for five minutes while I [was] completely topless. We might have chatted about this woman that was accusing him of sexual misconduct. My clothes were at the far end of the bed (marked with circle on my diagram) and he was between me and my clothes and also between me and the door.
At the end of the exam, he said `oh I should’ve offered you a gown’, then said I can get dressed and he left the room. I didn’t think to ask for a gown.
123	Dr Ross’ opinion, in summary, was that: [TB 2227 – 2231]
•	In the context of Graves’ disease, it was clinically appropriate to perform a cardiac examination but overall the conduct of the cardiac examination, as described, did not meet the expected process.  In relation to the statement that he touched her chest several times with his stethoscope after he had listened to her heart, any unnecessary physical examination, and particularly any unnecessary contact, even with a stethoscope, should not be undertaken.
•	Making a disclosure that another patient was accusing him of sexual misconduct while she was topless and he was undertaking a chest examination was ‘very inappropriate’.  If there was a reason he felt he should make that disclosure, it should have been done prior to telling her he wished to do a physical examination and asking her to remove her top and bra.  This would have enabled her to make an informed decision about whether she would agree to be examined at all.
•	There did not appear to be a reasonable clinical indication or necessity for Dr Gerstman to have requested to perform a breast examination at all in the context of Graves’ disease but especially after the patient advised she had had a recent breast examination.
•	There was no reasonable clinical indication or necessity for Dr Gerstman to speak to the patient for approximately 5 minutes while she was topless – this was ‘very inappropriate’.
124	We note that Dr Ross refers to Dr Gerstman’s response to the notification, and that Dr Gerstman said:
•	The reason for the breast examination was the risk of cancer.
•	He would not have said to a patient that GPs do not do breast examinations properly and that he should do one because they often miss things.
•	A gown and sheet were available.
•	He does not make any comment about the additional description of touching her breast in several places with his stethoscope.
•	He does not respond to the statement that he raised the issue of having been accused of sexual misconduct. 
125	Dr Ross stated that overall Dr Gerstman’s responses do not alter her opinion.
Notification no. 00403587 April June 2018
126	The notification, made in December 2018, concerned alleged conduct in April-June 2018.  It concerns a late-night breast examination performed after a young woman had been admitted for newly-diagnosed diabetes and a subsequent consultation where Dr Gerstman allegedly asked her to sit where his hand was to check the thickness of the skin where she had been injecting insulin.
127	It is referred to in the Tribunal’s 2019 decision.  Dr Ross has, however, given a more extended opinion in this case
128	In her opinion, in the context, there was no clinical indication for a breast examination to be conducted and it was unnecessary and inappropriate to have done so.  The timing was ‘very inappropriate’.
129	Although there was a clinical indication to have a discussion regarding insulin injection technique and sites, asking the patient to sit on his hand was neither necessary nor appropriate.
130	As Dr Ross noted, Dr Gerstman now acknowledges that an examination for diabetic mastopathy was in retrospect not appropriate. 
Notification no. 00409886 2009-2019
131	This notification was made in February 2019 after the patient found out Dr Gerstman was under a gender-based restriction.  It concerned regular breast examinations over a 10-year period, 2009-2019, while Dr Gerstman was prescribing hormone replacement therapy.  
132	Although the notification in part appears to be in the nature of the patient checking with AHPRA whether the breast examinations were appropriate, the patient also alleges the following.
133	Dr Gerstman told her on many occasions that he was required by law to do a breast examination when he prescribed HRT.
134	She stated the breast examinations were ‘not fondling’.  On the last appointment she had with him, however, in late 2018, she alleges the following occurred:
I was lying on the treatment table and Dr Gerstman was on my right side, standing. He did the exam, poking around my breasts. I was laying there looking at the ceiling, when I felt his arm rub against by breast. It would have been his left arm, and if felt like a long brush along his forearm to his elbow against my breast. It felt strange, so I looked at him, and he said ‘oh sorry’ like he had slipped. It did not feel like an accidental touch, as it was a long brush.
135	She also alleges the following took place on an unspecified date:
Dr Gerstman also once said something inappropriate to me, that at the time I took as a boy joke. This was a few years ago, when Dr Gerstman had been bulkbilling me for several years, however, this was stopped. During the appointment I said that I did not have the money for the appointment, and would need to send a cheque or pay later. He said that that was ok, that he didn't want me running short, and so since then, he has been bulkbilling me. On this occasion, after we left his rooms and were walking in the corridor towards reception, he had a snigger. I asked him what, and he said ‘nah'. We were bantering and I said tell me. He then said ‘oh, I was just thinking you could work it out in other ways'. I thought, ‘ew yuk!’, but I thought this was just boy talk. It was not appropriate for a doctor to say anything like that. 
136	In Dr Ross’ opinion:
•	Most but not all guidelines regarding HRT and women over 50 are that clinical breast examinations are only required if there are reported breast complaints and that regular self-examination and regular mammograms are recommended.  Regular breast examinations on the patient are supported, however, by the Australasian Menopause Society Guideline. 
•	There is no law requiring regular breast examinations.
•	Consent to breast examination is expected and there should be presentation of any findings, even if negative, during and/or after the examination, as well as allowing the opportunity for any questions.
•	In relation to the alleged suggestion, the patient’s report is that Dr Gerstman’s suggestion made her feel very uncomfortable.  More details would assist in assessing the comment.  If the comment was ‘suggestive’, it would be quite inappropriate from a male endocrinologist to a female patient.
137	In Dr Gerstman’s response to the notification, he stated that he performed and recorded regular breast examinations because he considered it important where a patient was taking HRT.  She also had mammograms during the period.  He would not have said it was a legal requirement but may have mentioned his responsibility for managing the risk in a medico-legal way.  He said he was horrified at the allegation that his arm rubbed against her breast and is deeply upset the patient has this perception.  He said that nothing was intentional.  He does not recall any such occasion and is sorry for how she feels.
Relevance of Dr Ross’ report
138	While Dr Ross’ report will be of more relevance at a hearing and determination of any allegations referred to the Tribunal, we consider that it provides grounds for a belief that there was an absence of clinical justification in at least some of the examinations as reported by the patients, and that there were problems with Dr Gerstman’s reported conduct in the period after he gave an undertaking to the Board in 2014 that he would only perform breast examinations if there was clinical justification.  It is also relevant, as we discuss below, that the concerns reported by female patients in relation to consultations in the more recent period have features in common with those relating to consultations in the past.
Professor Greenburg’s opinion and evidence
139	Professor Greenburg has been in clinical practice as a consultant in general internal medicine but also in endocrinology at the Royal Melbourne Hospital, and in practice between 1974 and 2011.  He has not been engaged in clinical practice since 2012 but has continued working part-time as a consultant physician in non-clinical areas, including teaching medical students the principles of ethical and professional practice.
140	Dr Gerstman’s representatives sought Professor Greenburg’s written opinion on the sole question of whether it is reasonable to assess for proximal myopathy by asking a patient to squat with their outer clothing but not their underwear removed.  They advised that ‘Dr Gerstman instructs that this also provides an opportunity to visualise the muscle mass and bulk, and assess for skin changes and pathology’.
141	In his letter dated 15 August 2020 Professor Greenburg states, in summary, that:
•	He first recalls meeting Dr Gerstman about five months previously after they were introduced by a mutual friend.  Dr Gerstman told him about his involvement with the Board.
•	He has restricted his comments to assessment of leg proximal myopathy.
•	Assessment can be undertaken by one or more of three methods including by requesting a patient to squat as low as is comfortable and safe, with assistance readily available to prevent falls, and then to slowly stand upright, without using their upper limbs (the squat assessment).  This procedure, albeit probably the best way to confirm or exclude significant proximal myopathy, is often difficult or impossible to undertake in patients with hip and/or knee disease, and in the elderly.
•	As Dr Gerstman states, removal of the outer clothing and examination in underwear in a consenting patient provides an opportunity to visualise the muscle mass and bulk, and assess for skin changes and pathology.  Visualising muscle mass and bulk provides additional information about the likelihood and degree of proximal myopathy.  And there may be specific reasons to fully assess the skin in patients both with and without possible or established myopathy.
•	In clinical practice the squat procedure can be undertaken either dressed or in underclothes, the latter after confirming that undressing is acceptable, if and when undressing is deemed to contribute significantly more information of potential benefit to that patient’s care.
•	In addition to taking the history, physical examination is undertaken by consultant physicians and other practitioners to more precisely estimate, for example, the likelihood of a ‘diagnosis’ (and/or to better quantify the risks and benefits of interventions, for example, with medications or by surgical procedures.
•	In his opinion it is ‘reasonable’ for Dr Gerstman to examine a consenting patient in this way in order to raise the possibility, especially in a patient he deems to be at risk of proximal leg myopathy, or to increase or reduce its probability or to confirm or exclude it.
142	In cross-examination, Professor Greenburg stated that:
•	When he met Dr Gerstman, Dr Gerstman told him about the issues with the Board and breast examinations, and that he had been involved in counselling.  He offered to support him if he needed that.
•	He had not seen the notifications and written statements in this matter and had not been asked to give an opinion about a particular patient.
•	There were two conditions to carrying out the assessment via the squat procedure with the patient in their underwear: first, the patient had confirmed their agreement and secondly, more information would be contributed.
•	He accepted that it would depend on the circumstances at the time. 
•	He agreed that it was good practice in a physical examination to provide covering and not to allow the patient to remain undressed for any longer than needed.
•	[When taken to the February 2020 notification about a 2008 consultation, at [TB 2256] onwards, where the patient described being asked to take her gown off for a muscle test which included arm strength leg exercises and squats even though she was not wearing a bra] he stated that on reflection there were no circumstances he could think of that would make that a reasonable request.
143	We consider that Professor Greenburg’s opinion is not of assistance to Dr Gerstman.  The circumstances in which support was offered, and the fact that the letter asking the general question provided an answer in the form of Dr Gerstman’s statement, reduces its independence.  
144	Further, as Professor Greenburg conceded, and as the notification to which he was taken shows, whether asking a patient to perform squats in their underwear is reasonable, will very much depend on the circumstances.
145	Relevantly, when he read the 2020 notification, Professor Greenburg’s opinion, on reflection, was that there are no circumstances he could think of that would make the request reasonable.
146	Context is also important.  In the same notification, the patient described her second consultation with Dr Gerstman in the following terms.  She was sunburned and wearing a singlet.  Dr Gerstman said, ‘you are really sunburned’, started inspecting her chest and then pulled her singlet down a bit, staring at the skin.  He then pulled it down further until her breast was fully exposed.  She was shocked, covered her nipple.  He slapped her hand away and continued to inspect her breast. 
147	We consider later the evidence of Professor Eisenbruch as to whether Dr Gerstman is likely to have engaged in ‘predatory’ conduct, and whether Dr Gerstman currently poses a risk.  We turn first to the question of whether we hold a reasonable belief that conduct causing harm occurred. 
Reasonable belief that conduct causing harm occurred?
148	We acknowledge that Dr Gerstman denies any improper conduct in this case and that the allegations are yet to be tested.
149	For the following reasons, however, we hold the reasonable belief that conduct as alleged has occurred in most cases.
150	There is a notably high number of notifications in this case with features in common, relating to consultations over three decades.  The notifiers cumulatively represent a wide range of ages, backgrounds, medical histories and experience of medical examinations including breast examinations.  One patient was herself a doctor.  For some they were young at the time, and it was their first such examination.  For others, they were older and accustomed to breast examinations but reported that the examination by Dr Gerstman was of a different quality. 
151	Most made their notifications years after the alleged conduct, some closer in time.  Most of the more recent notifications came after the notifiers saw the media reporting of the 2019 Tribunal decision.  Two of the notifiers were related but there was otherwise no evidence that any others knew each other.  
152	For all of them, there was something about one or more interactions with Dr Gerstman that stood out as not right (or worse) at the time and that stayed with them.  Harm was evident in most, if not all, cases.
153	This was expressed in different ways, but the following extracts illustrate that feature:
•	[Consultation 1990 – age 11 presenting with new onset hyperglycaemia]: I remember feeling very confused and uncomfortable…  When something traumatises you, it doesn’t leave your memory.  This is something that has always stuck with me.  It was a very overwhelming day.  [TB 70 and 301]
•	[Consultation in the early 1990s, young woman who had been diagnosed with diabetes as a child]: I was scared, distressed and confused…The inappropriate, unjustified, unexplained topless examination that I endured under the ‘care’ of Dr Murray Gerstman many years ago had a dramatic and detrimental effect on my mental and physical health and it still haunts me today. ...The manner in which Dr Gerstman carried out the physical examination at my first consultation disgusted me and still does today…this was unlike any appointment I have ever had.  [TB 43 and 39] 
•	[Consultation 1995]: I was 24-25 years old back then and this has sat uncomfortably with me from that time on, such that I requested referral to a different endocrinologist.  [TB 253]
•	 [Consultation in the period 1995-2001]: I felt very uncomfortable and have reflected on this at times over the years and it seemed odd that I was embarrassed that I had been so compliant about why I needed to be given I was there for a bone issue.  [TB 30]
•	[Consultation in the period 1999-2004, patient with a diagnosis of  hypothyroidism in 1996 and PCOS 2001]: ‘During the exam, I was ‘dying a thousand deaths’…I remember staring at the ceiling, staring at the wall, thinking I can’t believe I have to go through with this.  I just felt it was wrong…but I remember leaving there just feeling violated, and it never sat right with me…It has always been right there in my mind, never leaving me…I have never seen another endocrinologist.  [TB 296-297]
•	[Consultation approx. 2000]: ‘I remember at the time not feeling comfortable and I knew that it was completely different to every other appointment…I don’t know why I didn’t tell my mum straight away.  Obviously there are feelings of embarrassment, it was highly uncomfortable and I can still remember it so clearly.  And it’s not even outrageously bad but you know when you have been violated.  I know what every other interaction is like with every other specialist or doctor or nurse and I know that one was not normal’.  [TB 24-25]
•	[Consultation 2008, woman newly diagnosed with Graves’ disease]: ‘I have felt uneasy for 12 years now …  I didn’t really think it had had an impact on me and then I realised that every time I go to the doctors now I get really anxious to the point where from the time I am in the waiting room to the time I am in the room, I feel completely out of breath…it has for sure made me feel different.’  [TB 2256 and 2264]
•	[Consultation 2009-2010] I thought it was weird and felt extremely uncomfortable about the appointment…he made me feel uncomfortable, he made me take my clothes off with me not knowing why.  I don’t want anyone else to feel uncomfortable like he made me feel.  [TB 59-60]  
•	[Consultation 2013]: After I left, I couldn’t stop thinking about what had happened…in the hours after the appointment I felt more and more upset by what happened.  I started to feel very taken advantage of, and I felt sick to the stomach … I have no idea if what he did was intentional, as in whether he was actually getting some sort of sexual gratification, or whether he just didn’t realise that it was inappropriate (although, to be honest, how could one not realise that touching someone’s breast without her consent is not appropriate?)  [TB 241]  
•	[Consultation 2015]: I was shocked, embarrassed, felt wronged and angry that a doctor in a trusted position would treat me so unprofessionally.
•	[Consultation 2016]:  At the time I knew it was wrong.  I was uncomfortable.  I am au fait enough to know that it was not standard.  It’s never happened before, it has never happened since.  [TB 51-53]
•	[Consultation 2018, young woman newly diagnosed with diabetes]: my mother, who had attended both appointments with me, asked how I had found the consultations.  I said I found Dr Gerstman a bit weird.  We also discussed that I felt concerned over his touching, and we decided that I would not see Dr Gerstman alone.  I then tried to find another endocrinologist.  [TB 290]
154	The statements above, together with the content of the notifications and Dr Ross’ opinion, provide grounds for a reasonable belief, which we hold, that Dr Gerstman has engaged in conduct over a long period of time which not only posed a serious risk of harm, but which actually caused harm.
155	It is a separate question whether Dr Gerstman currently poses a serious risk of harm, which we turn to now. 
Current risk?
Professor Eisenbruch’s reports and evidence
156	Professor Eisenbruch provided reports dated 16 May 2019 (which was before the Tribunal in 2019 and is described in detail in the Tribunal’s 2019 decision), 19 January 2020 (before the Board in its 2020 immediate action decision) and 7 August 2020.  Professor Eisenbruch gave evidence, including in cross-examination at the hearing before us.
157	We have carefully considered the reports and additional evidence.
158	It is evident from Professor Eisenbruch’s latest report that since March 2019, Dr Gerstman has engaged in extensive psychotherapy, both individual and, since June 2019, group psychotherapy.  As at the date of the report, Dr Gerstman had attended approximately 50 group sessions. 
159	These involve a structured setting with half a dozen other women and men, with identified boundary issues.  Professor Eisenbruch describes how the other participants ‘feedback and at times confront Dr Gerstman with their counter-reactions to the way he sees his conduct and to the ways in which he affects them’.  This included being confronted by the responses of a number of women in the group to his manner and demeanour.
160	Professor Eisenbruch’s latest report describes Dr Gerstman’s progress in a number of areas:
•	After some months of group psychotherapy, Dr Gerstman was still somewhat perplexed why the patients decided to lodge notifications, but began to accept that, in his interactions with patients, he must always be guided by their view of the world rather than his
•	Since my earlier report Dr Gerstman has made further significant progress in mentalising and understanding how the perspective of female patients is different to his.  He has made further inroads into grasping the difference between intent and impact
•	Dr Gerstman struggled at first to understand the default position of informed consent.  At first, he thought that he had to learn how better to listen to the patient declining his request to carry out an examination.  It has not occurred to him that the patient has not necessarily given her informed consent simply by saying ‘yes, that’s ok’.  The female group members confronted him about this from time to time, until by early 2020 Dr Gerstman grasped that, as he put it, ‘the default position is the other way’.
•	Initially Dr Gerstman started with a posture of feeling hardly done by.  He had done so much to help these women and now they had turned against him. [Interactions with group members] promoted Dr Gerstman to think of what he was doing in the group to elicit this reaction, and to extrapolate to the unanticipated reactions of his female patients who lodged notifications.  He gained the insight that this communication error might have happened with some of his patients.
•	[In relation to his perfectionist clinical style], ‘[t]his zeal and perfectionism had led him into misunderstandings with some of his patients.  Dr Gerstman recalled the case of the 19-year-old student nurse with diabetes who, to her perplexity and confusion, he had insisted on examining at 2300 one night.  He said, ‘I did not properly elicit informed consent.  I did it at 2300 because I did not want to miss any bit’.  He now saw that his zeal did not justify his conduct.
•	In a recent individual session, Dr Gerstman said, ‘Do I have an understanding of the impact of my conduct on the people who complained.  I have learnt that I – and no-one else – caused the stress and the guilt they feel.  These women feel embarrassed.  And now they have difficulty understanding what happened to them.  Perhaps it makes them feel threatened, unable to refuse a request by a big male coming and asking their permission to examine them in an intimate way.  Maybe they felt I had bulldozed them.’ This reflection prompted Dr Gerstman to gain insight into how a patient might feel a sexual boundary had been transgressed when, in his view, it hadn’t.
161	Professor Eisenbruch remains of the opinion that there has been a disconnect between Dr Gerstman’s intention in examinations – to help his patients without any sexual gratification for himself – and the impact on patients, including feeling sexually violated.  
162	In his opinion, the issue was primarily a defect in Dr Gerstman’s understanding of informed consent and high-level communication.  These defects have been addressed, in his opinion, through the psychotherapy, and Dr Gerstman has gained genuine and substantial insight into the importance of high-level communication, and the need to maintain professional boundaries and obtain patients’ informed consent.  In Professor Eisenbruch’s opinion, Dr Gerstman does not need further treatment to enable the gender restrictions to be lifted, but his motivation to continue his therapy has been strengthened.
163	We acknowledge that Professor Eisenbruch has experience in treating health practitioners who have boundary violation issues. 
164	We accept that his opinion is given in good faith, based on his assessment that Dr Gerstman is not a sexual predator, and his observations of Dr Gerstman’s progress in overcoming consent and communication issues. 
165	We nevertheless have some reservations about the weight that can be given to Professor Eisenbruch’s opinion that Dr Gerstman does not pose a risk, for the purposes of an immediate action decision.
166	First, as Professor Eisenbruch acknowledged, he might be wrong.
167	Second, Professor Eisenbruch is Dr Gerstman’s treating psychiatrist and is not independent of either the patient or the treatment method. 
168	Third, he concluded that ‘there is no evidence that Dr Gerstman has engaged in predatory behaviour or in sexual gratification with his patients’.  We consider that, to the contrary, there is evidence in the recent notifications that the issue goes well beyond a defect in communication or a ‘blind spot’ about informed consent.  
169	Fourth, as Professor Eisenbruch concedes in his report, patients have felt sexually violated.  While he has concluded that ‘Dr Gerstman’s conduct and performance would not pose a serious risk to women or any other patient group’, there is a body of evidence, also relevant to current risk, that Dr Gerstman has caused serious harm over a long period, and to an unusually large number of women of all ages and circumstances.  
170	Fifth, although we respect Professor Eisenbruch’s expertise, we did not have the opportunity to make our own evaluation of Dr Gerstman’s insight and understanding as he did not give evidence before us.  Nor was there any real explanation, in our view, as to why a problem with understanding the concept of informed consent had persisted for over three decades and why, despite intensive therapy, it was so slow in coming.  
171	In cross-examination, Professor Eisenbruch said that even if Dr Gerstman had engaged in conduct in the past for sexual gratification, it would not mean now that he was a serious risk, and if successfully treated Dr Gerstman would not be a serious risk. 
172	We consider this statement to be important as it recognises the possibility that Dr Gerstman may have engaged in conduct in the past for sexual gratification.  If so, the question of whether Dr Gerstman now poses a serious risk may depend not only on whether Professor Eisenbruch’s treatment has been successful, but also on whether it appropriately recognised the nature of the conduct in the first place.  
173	In all the circumstances, Professor Eisenbruch’s evidence is not sufficient to ameliorate our concerns in this case.  We hold the reasonable belief that Dr Gerstman continues to pose a risk to women patients, and that some form of immediate action is necessary in this case.
174	Before considering the question of whether immediate action beyond the previous condition, that Dr Gerstman does not conduct breast examinations, is required, we refer next to the other material filed on behalf of Dr Gerstman.
Other material
175	Dr Gerstman’s representatives filed a report by Stephen McLennan of Elite Taxation Advisory Services.  Mr McLennan was asked to provide an opinion on:
1.	The decline in the profitability of the practice since 5 February 2019.
2.	Drawing on the financial information and extrapolating, if you can, from the profit in the limited period from 5 February 2019 to 28 May 2019 when Dr Gerstman was originally the subject of gender restrictions, and the period since 21 January 2020, when the restrictions have operated again, as well as financial records, what is your opinion regarding the likely profitability of the practice into the future?
176	Mr McLennan concluded that the practice has incurred a substantial decline in turnover during the gender restriction periods.  The decline initially became evident in the 2019 financial year where practice income reduced by $185,000 compared to the 2018 financial year.  In earlier years, by comparison, the practice fees remained relatively constant and in the vicinity of $800,000.
177	Given the actual and projected results to date, he would expect a further decline in the practice income and a substantial trading loss in the 2020/2021 financial year without taking into consideration the effects of COVID-19.
178	The Board did not seek to cross-examine Mr McLennan.  We accept that the gender-based restrictions would have had a significant financial impact on Dr Gerstman.  In particular, the broad definition of ‘patient’ in the restriction imposed has prevented Dr Gerstman from working in public or private hospitals where female patients of other doctors would fall within the definition.
179	Dr Gerstman’s representatives also filed character references from 18 people including Dr Gerstman’s wife and daughter, family friends, GPs who have been referring patients to Dr Gerstman for decades, other medical colleagues, employees of the practice, and patients.
180	We accept that the experience of Dr Gerstman described by the referees has been positive, and that all who provided references hold him in high regard.  We accept that, based on their experience, they would not expect that Dr Gerstman would engage in the reported conduct.  
181	We also had regard to the Education Report dated 10 May 2019 by Carramar Education [P 346 of the supplementary materials].  The purpose of the education was summarised as: 
Dr Gerstman requested Carramar Education to provide him with an education program which addressed the topics of:
•	Communication
•	Professional Boundaries
•	Clinical Management: Breast Examination Technique
He also sought to enhance his knowledge of the relevant legislation, codes, guidelines and standards relevant to the medical profession.
182	We set out here Dr Gerstman’s reflective report [TB 140-141]:
Reflection Report on Education and Communication Review
To whom it may concern,
I was deeply distressed to find out that several of my patients felt the need to lodge a complaint about me with AHPRA. I’ve always endeavoured to provide patients not only with the best medical care, but also a caring and supportive environment where I assess medical concerns holistically and tailer my treatments to the needs of each individual.
Whilst I initially felt that the complaints against me were unfair, as I never intended for the patient to feel uncomfortable, I have learnt that it is not intent that matters, but rather the impact my actions may have on patients.
On 2 May 2019 I undertook and completed an AHPRA approved program of education through Carramar Education. The topics covered by this ‘Enhancing Professional Practice’ framework were:
•	Communication;
•	Professional Boundaries; and
•	Clinical Management: Clinical Breast Examination Technique Module.
The Carramar Education program was held in Brisbane, and involved extensive review, education and discussion with an experienced obstetrician gynaecologist clinician, who is involved with education review. The education took place over the course of a day. I estimate there was an additional 40 hours I spent in preparation for the program.
I found the program to be incredibly useful and thorough. It has caused me to look at my own practice and reflect on my medical care in general as well as specific and differing management. Several issues have been raised and highlighted. I gained a number of valuable insights from the program, particularly regarding the importance of communication. The education has reinforced for me, the critical need for excellent communication. I am now more mindful of the need for me to ensure that I provide my patients with the relevant information to allow them to make informed decisions. I have learnt that I need to slow down my process of communication and check the patients understand the information that I am providing. A practice I wish to make a habit of mine is to ask patients to repeat key information, and to stop along the way of my information giving, to ask patients if they have any questions. I have been reminded of the importance to give patients time, to respond. I fully understand that there is a difference between permission for treatment and informed consent and that the latter requires me to have informed patients fully of matters such as the reason for my assessment, any risks and benefits and what is involved in the examination or assessment.
I feel that I have benefited greatly from the formal education program but also, from my discussions with Professor Maurice Eisenbruch. I have been seeing Professor Eisenbruch for support and mentoring. He has helped me to reflect on the issues and how I may have caused patients to feel. These sessions have helped me to develop insight.
Apart from the formal education program I have also completed 2 online education sessions offered by the Royal Australian College of General Practitioners in the area of informed consent. These have been useful to provide me with the framework for understanding more fully, informed consent, and my responsibilities. It was helpful to have completed this education prior to the formal education program provided by Carramar on 2 May 2019.
183	We consider the education program to be relevant, and an indication of Dr Gerstman’s willingness to undertake education in the topics covered.  We note however that the report states that ‘Carramar Education can offer no assurance that the knowledge demonstrated in these responses would translate into changed behaviour.’
What immediate Action is necessary in this case?
184	We are mindful that the notifications have not yet been translated into formal allegations.  As we also observed at the hearing, some of the allegations may not be able to be proved to the required standard under the Briginshaw principles.  
185	We consider, however, that there is a risk evident in the recent notifications that goes beyond communication issues between practitioner and patient, and the conduct of breast examinations, and that an interim gender-based restriction is warranted until the matter can come before the Tribunal as a referral of allegations.  The following, together with our observations above, summarises our reasons.
186	As at June 2019, over the preceding 12 years, seven patients had reported concerns to the Board or its predecessor.  The reports related to examinations conducted over two decades and seemed centred on breast examinations: not knowing why Dr Gerstman had conducted a breast examination and why they were required to undress for it.  
187	As the Tribunal in its 2019 decision noted, the former patients reported feelings of discomfort, in some cases distress, and in most cases a decision to change practitioner. 
188	In the material before the Tribunal in 2019, however, there was no suggestion that Dr Gerstman’s conduct was predatory or for sexual gratification. There was a question mark about clinical justification but evidence of over-zealousness as a possible contributing factor.  None of the notifiers identified the touching as sexual in nature, although some were confused about why it had happened.  For the purposes of immediate action, the risk appeared to be that breast examinations had 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 – causing harm and posing a risk.  
189	As the Tribunal observed in the 2019 decision, there is a serious enough risk of harm in any medical practitioner conducting breast examinations without informed consent, but it considered that risk could be ameliorated in the short term by education, by Dr Gerstman continuing the therapy with Professor Eisenbruch to address apparent issues of personality, behaviour and communication, and by a prohibition on breast examinations.
190	The more recent notifications extend the period covered to almost three decades.  With the additional notification received after the Board’s 2020 decision, there are now 17 notifications.  This is an unusually high number of notifications to see.
191	As the Board submitted, a number of the more recent notifications expressly refer to a perception, in one case a ‘certainty’, that there was something sexual about the conduct.  
192	As also submitted, the conduct that concerned the notifiers went beyond breast examinations to include requiring patients to be topless to listen to their heart, asking a patient to do squats when she was topless, another to do squats in her bra and pants, another to undergo a genital examination that at the very least was poorly explained.  In a different category was the report that Dr Gerstman had told a patient that he was being investigated for sexual misconduct while she was topless on the table.
193	The more recent notifications indicate a greater level and breadth of harm than was indicated in the material before the Tribunal in 2019.
194	We take into account Professor Eisenbruch’s opinion that while patients may have felt sexually violated, Dr Gerstman’s intentions were otherwise, and he was not a sexual predator.  We acknowledge that Professor Eisenbruch has experience in treating health practitioners who have boundary violation issues.  We accept that his opinion is given in good faith. We take into account, however, that Professor Eisenbruch is Dr Gerstman’s treating psychiatrist and is not independent of either the patient or the treatment method.  And, as he acknowledged, he might be wrong.
195	In assessing the nature of the conduct and the risk of harm posed by Dr Gerstman’s conduct for the purposes of immediate action, we have given weight to the individual and collective experiences of the patients themselves.  
196	The sense of violation described and the degree to which the experience stayed in the minds of so many of the notifiers is not, in our view, easily explained by a communication issue.  Contrary to Professor Eisenbruch’s opinion, at [TB 2577], there is evidence that Dr Gerstman may have engaged in predatory behaviour.  That evidence is in the recent notifications.  There is also evidence that Dr Gerstman may have engaged in examinations for non-therapeutic purposes.
197	Whether, in those particular consultations described, Dr Gerstman was engaging in conduct for some sexual gratification (as submitted by the Board), for some other non-therapeutic purpose such as a demonstration of power (suggested by the Board as an alternative explanation), or because of a defect in his attitude towards and understanding of the experience of those patients (suggested in Professor Eisenbruch’s reports of some of the confrontations in group therapy), we agreed with the Board’s submission that the conduct was an abuse of the trust placed him as a medical practitioner, and we are in the territory of serious risk.
198	We have considered whether reinstatement of the prohibition on breast examinations, together with an additional prohibition on genital examinations – as offered on behalf of Dr Gerstman, would ameliorate the risk.  The notifications are broader, however, than those two areas.  Further, in our view, if a medical practitioner is not regarded as safe to carry out breast examinations and genital examinations, there is a real question as to whether he should be seeing female patients at all.
199	Ultimately, we agree with the Board that a gender-based restriction is necessary and appropriate in this case, although we recognise that the Tribunal panel that will hear and determine the allegations that are brought by the Board at a later date, may take the view that it is by then no longer necessary.  Our view is confined to what is required in the short-term.
200	We take a different view to the Board, however, on the scope of the restriction required, taking into account the imperative to go no further than is necessary to protect public safety when allegations have not been proven.
201	The restriction currently in place has a definition of ‘patient’ that goes beyond any patients Dr Gerstman himself might see for the purposes of consultation or treatment.  It includes patients of other practitioners, which effectively prevents Dr Gerstman being co-located with other medical practitioners who have female patients or working in a hospital setting.  It also includes within the definition of patient, those who might accompany male patients of Dr Gerstman for necessary reasons, which imposes an additional restriction and financial impact on Dr Gerstman.  There is no evidence that Dr Gerstman poses a risk to the patients of other practitioners, or to the women who accompany male patients to see him.
202	We appreciate, as submitted by the Board, that the protocol has been carefully drafted and considered but the question for us is what is necessary in this case.  As drafted, it goes beyond what is necessary, in our view.  We are also mindful that immediate action restrictions have now been in place for Dr Gerstman for almost two years, making it even more important that any continuation of a gender-based restriction be appropriately limited.
203	Finally, we observe that, given the nature of the restriction and its impact on Dr Gerstman, it is essential that there be a timely referral of allegations under s 193 of the National Law.  

E Wentworth
Senior Member and Presiding Member	Dr A Reddy
Health Practitioner Member	Dr Y Phang
Health Practitioner Member