1. The respondent's counsel submitted that the evidence of the practitioner's conduct given by Patient AC, Ms Bower-Williams, Patient AC's daughter and Patient AC's friend support the allegation that the practitioner kissed Patient AC at a consultation several years ago. Ms Bower-William's affidavit dated 13 September 2019 also details that Patient AC had disclosed to her a number of other concerning behaviours in which the practitioner allegedly engaged. In her statement, Patient AC's friend said Patient AC had also recounted her exchanges with the practitioner including about his personal life and his marriage.
2. Patient AC's daughter also gave evidence of the practitioner engaging in communication of a personal nature including after recently administering a lip filler to her and commenting: "Look how beautiful it looks on you. Your mother, however, is getting old and will need a lot more."
3. In relation to the practitioner's affidavit evidence that at his last consultation with Patient AC she had demanded Oxycontin and the submission that his contemporaneous and detailed notes of this appointment should be given greater weight than Patient AC's evidence, the Board's counsel submitted that the practitioner had a clear motive to make self-serving clinical notes because during the consultation Patient AC had specifically raised the issue about him kissing her previously and her not receiving appropriate care from him. Patient AC in her statement asserted that the practitioner had taken this as a threat and advised that he would no longer treat her.
4. The Board's counsel drew the Tribunal's attention to the fact that the practitioner's notes of this consultation were far more detailed than any of his other entries which are a couple of lines or less.
5. She also submitted that if the Tribunal found there was a need for immediate action, that chaperone conditions proposed by the practitioner as an alternative condition, should not be considered on the basis of earlier authorities and the review undertaken by Professor Ron Paterson in 2017 into "The use of chaperones to protect patients in Australia" (Chaperone Review).[13]
6. The Board's counsel noted that since 2008 three other medical practitioners working at the practitioner's practice locations have been subject of complaints of misconduct, including boundary violations with patients. She submitted in these circumstances, even if the imposition of a chaperone condition was sufficient to mitigate against the serious risk to public safety posed by the practitioner, it would be inappropriate for the nominated chaperone to be an employee of the practitioner or another practitioner working at one of his practice locations.
7. In terms of prior notifications, the Board submitted that the Tribunal may take the practitioner's prior history into account and nothing limits this consideration to findings only, as asserted by the practitioner.

1. As noted by the South Australian Health Practitioner Tribunal in I v Medical Board of Australia, "[t]he Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed inquiry by the Board or by the Tribunal. It requires action on an urgent basis because of the need to protect the public."[14]
2. After examining the totality of the evidence, the Tribunal has formed a reasonable belief that the practitioner poses a serious risk to persons. It considers there is objective evidence of the practitioner's boundary violations with Patient AC in various consultations over an extended period. While other than Patient AC, the evidence supporting this allegation comes from those whom she has told of the practitioner's alleged conduct, this is invariably going to be the case where only a health practitioner and patient were present during the consultations. The Tribunal agrees with the Board's submission that it would be an "insurmountable barrier"[15] if a patient's evidence in sexual misconduct cases had to be supported by attending corroborating witnesses to form part of its consideration.
3. Further, the Tribunal does not consider that Patient AC's account of the practitioner's conduct towards her at multiple consultations should be doubted simply because his medical records do not detail such interactions. It is highly unlikely that such encounters would form part of any health record.
4. The practitioner's counsel drew the Tribunal's attention to described inconsistencies in Patient AC, Ms Bower-Williams, Patient AC's daughter and Patient AC's friend's evidence. The Tribunal does not find these described inconsistencies material, particularly given the length of time covered by the allegations and the fact that Patient AC described initially that she considered that the practitioner "was treating [her] like a friend and there was a grey area between him being friendly and professional."[16] Given, this "grey area", it is not surprising that Patient AC found her interactions with the practitioner confusing and did not raise any issues with her daughter or friend at the time they occurred.
5. Later in the same document, Patient AC described becoming "dependent on [the practitioner] and as his conduct towards me started to change I felt betrayed and shame...and started to have anxiety around appointments."[17]
6. The voluminous medical records for Patient AC contained in the T-Documents and her summary of health complaints detailed in her affidavit dated 13 September 2019, leads the Tribunal to accept the Board's submission that she was "a high frequency patient with several layers of vulnerability"[18] who had significant medical issues.
7. The reasoning by ACAT in an earlier case involving the practitioner, equally applies to this case that "an investigation into the practitioner arising from the notification[s] is ongoing, [and] if that results in a disciplinary hearing, that will be a separate proceeding subject to a different standard of proof." [19]
8. At that time the practitioner has the opportunity to test the evidence of Patient AC and the witnesses supportive of the allegations made.
9. The Tribunal has also carefully considered the practitioner's treatment records of Patient AC, particularly the detailed record he made on the date of his last appointment with her. This entry differs from earlier records made due to its detail. In 2012 the practitioner was found to have kept inadequate records by a Performance and Professional Standards Panel.[20] Hence, the need for adequate notes is an issue of which the practitioner is aware.
10. However, the content of this record and the reasons for why he made a very detailed note and did not do so for the overwhelming majority of the others is an issue which may be further considered in AHPRA's investigation and in any subsequent action. The Tribunal does not find it surprising that the practitioner's notes of what was discussed at that consultation conflict with Patient AC's evidence.
11. The Tribunal also considered the practitioner's previous notification history in making its decision. Section 151(2) of the National Law empowers a National Board or adjudication body to take an earlier notification into account as part of a pattern of conduct or practice by a health practitioner. It agrees with the practitioner's counsel's submission that many of the previous notifications raise different issues as they pertain to the practitioner's performance as a medical practitioner.
12. The Tribunal also notes that the Board decided to take no further action under section 151 in one case. However, the Tribunal did consider the notification in 2017, where the Board cautioned the practitioner for failing to maintain appropriate professional boundaries with a patient whom he also employed and provided misleading information to Centrelink. So too was the notification in 2013, which resulted in a referral to this tribunal and a decision from the former General President made under section 55 of the ACAT Act.[21] As noted, in that matter the practitioner failed to notify the Board as required under section 141 of the National Law about another colleague's intimate relationship with a patient.
13. The Consent decision made has a statement of agreed facts which includes:

In the course of providing treatment to the patient, the Respondent engaged in physical contact with the patient and made comments of a personal nature regarding the patient's youthfulness, her looks and her similarity to a former girlfriend of the Respondent. The comments were made in a way which the Respondent thought reflected the context of counselling consultations, however, they were inappropriate, particularly in circumstances where the patient was a victim of a sexual misconduct boundary violation.[22]

1. The Tribunal has decided that conditions should be imposed in accordance with section 155(a) of the National Law. It imposes the same conditions on the practitioner made by the Board earlier this year with one exception. This is that the Tribunal approves Belconnen Medical Centre as a practice location from which the practitioner can practise as a medical practitioner, subject to the same gender restrictions. This is subject to Julia Al-Naser only working when the practice manager is working at Belconnen Medical Centre, at which time Ms Al-Naser must work under the practice manager's supervision. It is also subject to Ms Al-Naser not undertaking patient bookings as was offered by the practitioner in his communication with AHPRA.
2. The Tribunal notes the Board's view that an "unavoidable and inherent power imbalance between a health practitioner and a booking staff member in circumstances where an employer/employee relationship exists which in this instance is exacerbated by the ... paternal relationship."[23]
3. It considers that the risk of the practitioner seeing female patients can be averted by the measures detailed in paragraph 59 above. The Tribunal also considers that this measure should secure safety "with as little damage to the practitioner as is consistent with its maintenance."[24]
4. The Tribunal does not consider that chaperone conditions would be appropriate as submitted by the practitioner. The Board and AHPRA commissioned the Chaperone Review[25] after a neurologist, subject to criminal charges following allegations of indecent assault on a patient, had been able to continue practising subject to a condition that an approved chaperone was present for consultations with male patients. During this time, a further notification was received from a second patient who alleged the practitioner had indecently assaulted him behind a curtain while a chaperone was present.
5. The Chaperone Review's key findings are detailed from page 8. They include that chaperones are of limited effectiveness in protecting patients. Professor Paterson notes: "the system relied on inadequately informed and trained chaperones, many in a conflicted situation by being employed by the practitioner they are to observe and report on. There are many reported examples of practitioners breaching chaperone conditions..."
6. The Chaperone Review also observes: "Improvements are needed to inform and protect patients, if chaperone conditions are retained" and that "more restrictive regulatory measures should be used to protect patients while allegations of sexual misconduct are investigated."
7. Under the heading "Overall Conclusion", Professor Paterson recommends:

It is time to abandon chaperone conditions as an interim restriction, given their dubious appropriateness and the evident holes in the safety net they are meant to provide. Predatory practitioners can evade chaperone conditions, causing harm to patients and loss of public confidence in health professions and their regulators.

1. Earlier this year the Victorian Civil and Administrative Tribunal[26] referred to the Chaperone Review and commented "while chaperone conditions might have been considered in the past, their use has been limited following the February 2017 report by Professor Ron Paterson."
2. In that case the tribunal did not impose gender-based restrictions but rather a condition that the medical practitioner must not perform breast examinations of female patients. The tribunal noted that there was no evidence from the notifying patients that the practitioner had behaved in a predatory manner or had undertaken examinations for sexual gratification. Rather, the issue was informed consent.
3. The tribunal observed that "if there were any suggestion that Dr Gerstman's conduct was predatory or for sexual gratification, we would have affirmed the decision to impose a 'blanket' restriction on treating female patients."[27]
4. This Tribunal considers this reasoning is very sound and hence its confirmation of the Board's decision, subject to one amendment regarding the practice locations from which the practitioner may practise.

[1] [2015] ACAT 22 at [37]

[2] [2015] ACAT 22

[4] Exhibit NAN 12 to Dr Al-Naser's affidavit of 19 August 2019

[5] Exhibit NAN 15 to Dr Al-Naser's affidavit of 19 August 2019

[6] Reeve v Aqualast Pty Ltd [2012] FCA 679 at [65(g)]

[7] [2012] VSCA 295 at [107]

[8] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 at [126]

[12] Applicant's submissions dated 16 August 2019 at [69]

[13] Professor Ron Paterson, The use of chaperones to protect patients in Australia (February 2017). Commissioned by the Medical Board of Australia and AHPRA, available on AHPRA's website.

[14] [2011] SAHPT 18 at [26]

[15] Respondent's submissions dated 13 September 2019 at [41]

[16] Statement of Patient AC dated 15 April 2019 at [6]

[17] Statement of Patient AC dated 15 April 2019 at [11]

[18] Respondent's submissions dated 13 September 2019 at [36]

[19] Al-Naser v Medical Board of Australia [2019] ACAT 71 at [31]

[21] The Medical Board of Australia v Al-Naser [2015] ACAT 15

[22] The Medical Board of Australia v Al-Naser [2015] ACAT 15 at [2.7]

[23] Exhibit NAN 15 to Dr Al-Naser's affidavit of 19 August 2019

[24] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 at [126]

[25] This review can be found on the AHPRA website

[26] Gerstman v Medical Board of Australia [2019] VCAT 830 at [61]

[27] Gerstman v Medical Board of Australia [2019] VCAT 830 at [62]