1. A Tribunal book of documents containing 39 documents was tendered to the Tribunal and marked "C1".
2. Documents 4 through to 30 relate to the criminal proceedings and include the police incident report, the statement of the victim, the District Court documents and transcript of evidence, the sentencing remarks of Judge Costello delivered on 18 September 2018, a copy of the record of the District Court in matter number DCCRM-17-1243, the transcript of video recording of interview with Mr Zhou and the victim impact statement. Documents 34 through to 38 are character references provided by the respondent and the Response, dated 12 September 2019.
3. Document 39 is the Chinese Medicine Board of Australia Code of Conduct.
4. In addition, an 'agreed statement of facts and findings' was filed by the complainant and an outline of submissions as to sanctions.
5. Mr Zhou also filed a submission in writing, which had been redacted following a preliminary hearing and discussions between the complainant and the respondent.
6. No further oral or documentary evidence was adduced at the full hearing. The complainant was content to rely upon the documents contained in the Tribunal book.
7. Mr Zhou did not adduce any evidence at the hearing. However, he reiterated that he continues to maintain his innocence of any criminal conduct. He continues to deny that he raped the patient known as UDM.
8. Whilst wishing to make it known that he continues to deny the rape allegation, Mr Zhou was content for this matter to proceed to an expeditious outcome. He indicated right from the outset that he did not intend to ever practise the profession of Chinese medicine again and that he is prepared to permanently relinquish his registration to finalise the matter.
9. Mr Zhou also conceded that the conduct for which he has been convicted (but which he denies) and the fact of his conviction and sentence of imprisonment amounts to conduct which would constitute professional misconduct under the Health Practitioner National Law.

1. The respondent graduated in December 1994 from Guangxiu University of Chinese Medicine with a Bachelor of Traditional Chinese Medicine. This qualification was recognised by the South Australian Department of Further Education Employment Science and Technology on 22 June 2011 as being comparable to an Australian Bachelor's Degree.
2. The respondent acquired Australian citizenship on 21 July 2009. He has obtained further qualifications in Australia including a Diploma of Nursing (Enrolled/Division 2 Nursing) from TAFE South Australia which he obtained on 29 March 2010. He is also qualified to provide acupuncture and remedial therapy by the Australian Natural Therapists Association.
3. Mr Zhou first obtained general registration as a Chinese Medicine practitioner with the Chinese Medicine Board of Australia (the Board) on 1 July 2012. This was the date that the profession of Chinese Medicine became part of the national registration and accreditation scheme for health practitioners set out in the National Law.
4. By virtue of his Chinese Medicine qualifications and membership of the Australian Natural Therapists Association Mr Zhou was able to provide acupuncture and remedial massage services funded by private health insurers through HICAPS.

1. On 20 May 2016 a patient, UDM, of Mr Zhou's reported an incident to South Australia Police. She then provided a statement to police.
2. In her statement she stated that she had attended MD Body Care at the Bayside Village shopping centre, Glenelg for a remedial massage. She was seen by Mr Zhou.
3. She alleged that she was sexually assaulted by Mr Zhou during the course of the massage. She stated, when leaving the room, that she video recorded her interactions with the massage therapist on her mobile telephone.
4. The Australian Health Practitioner Regulation Agency ('AHPRA') received a notification about this conduct from South Australia Police on 30 May 2016. Subsequently Mr Zhou was charged by SAPOL with one count of rape in relation to the allegations made by UDM. One of his bail conditions at that time was that he was not to engage in remedial massage or acupuncture therapy unless lawfully registered with the AHPRA or any other medical registration agency.
5. On 16 September 2016 the immediate action committee of the Board took immediate action under s 156(1)(a) of the National Law and suspended the respondent's registration.
6. On 22 September 2016 the respondent provided a submission indicating that he denied the allegations but offered an undertaking to the Board that he would not practise the profession of Chinese medicine with female patients, that he would practise under direct supervision for other patients and that he would only practise in places approved by the Board. Those undertakings were accepted.
7. On 9 September 2016 Mr Zhou was charged on information that on 20 May 2016 at Glenelg he committed rape by engaging in sexual intercourse with UDM without consent and was recklessly indifferent to the fact that she did not consent, contrary to s 148(1)(a) of the Criminal Law Consolidation Act.
8. Mr Zhou pleaded not guilty on 18 August 2017 and the matter proceeded to a trial before a jury.
9. The evidence from the victim, which was accepted by the jury, was that during the course of the remedial massage Mr Zhou had moved her legs apart at the ankles, used his fingertips to separate the lips of her genitals and had then touched her vigorously, on her clitoris and towards the opening of her vagina, with his fingertips (in a rubbing circular motion).
10. The victim's evidence was that this sequence of touching to the inside of her genitals was without her consent, and was repeated over an extended period of time whilst she was lying still and naked on the massage table (the victim having removed her underwear for the purposes of the massage, although a towel was covering part of her body).
11. The evidence before the jury was that the victim then recorded an exchange on her mobile phone with the respondent after the massage and whilst she was paying for the massage.
12. She told the massage therapist that the massage was 'very different' and 'too intimate' and the suspect would not look at her but did say 'I'm sorry' without looking at her. She paid $90 for the massage using her savings card. She called her sister XGF when she returned to her car and told her sister what had happened.
13. On 1 August 2018 the respondent was found guilty of raping the patient.
14. On 18 September 2018 the respondent was sentenced by His Honour Judge Costello in the District Court to a sentence of imprisonment of three years with a non-parole period of one year and two months.
15. During sentencing Judge Costello had the benefit of considering the victim impact statement of UDM whose evidence regarding the impact on her of the offence is as follows:

1. Her self-worth and confidence crumbled; 2. She experienced a negative outlook towards study during her first year of university that she attributes to the offence and her grades dropped. She eventually failed an entire topic;

1. She experienced trauma and felt forced to move house, as she was living down the road from a massage parlour that 'dominated [her] every day thoughts and movements';

1. As a result of the offence, she became overly cautious, saw the Respondent's face and started obsessing over her safety to the point of paranoia; 2. She experienced disturbed sleeping patterns as a result of vivid nightmares; 3. Her appetite was diminished; 4. She became increasingly uncomfortable cutting men's hair or touching them; 5. She experienced difficulty regulating anger, distress and shame; 6. She has experienced bouts of depression and constant anxiety; 7. She has not been able to work at times which led to financial consequences; 8. She could not go out and have fun the way she had been able to prior to the offence;

1. Her hobbies of skateboarding and bike riding ended immediately because she could not stomach being around so many males;

1. She experienced anger and was distrusting of everyone; 2. While she was as at 28 August 2018 no longer experiencing nightmares, the emotional and psychological damage still lingers; 3. She found going to Court extremely difficult, although she felt that the process 'gave [her] voice back and allowed [her] to talk without feeling ashamed, and gave [her] a new sense of pride'; 4. She faced the future with fear of her inability to control anxiety and anger, constant feelings of being unsafe; 5. The Respondent's conduct 'ruined [her] life in every way possible ... [and] broke [her] and destroyed [her] chance of becoming a doctor'.

1. The sentencing remarks of His Honour Judge Costello[1] reveal that Mr Zhou was sentenced on the basis that the offence involved 'touching the patient with his fingertips to separate the lips of her genitals and touching her clitoris over an extended period of time, perhaps as long as some minutes.'
2. Judge Costello found that Mr Zhou's conduct was 'not an accidental brushing of his hand against the outside of the victim's genitals but rather a deliberate, repeated and concerted effort to touch her inside her vagina.'
3. In his sentencing remarks, Judge Costello considered Mr Zhou's personal circumstances and noted that he was, at the time of sentencing, 48 years of age and had been married for 13 years. It was noted that Mr Zhou had the benefit of ongoing support from his wife who was present during the trial and supported him throughout the trial and the sentencing process. Mr Zhou has a daughter who was, at the time of sentencing, 10 years of age.
4. It had been submitted by defence counsel and accepted by the Judge that Mr Zhou was the sole breadwinner for the family and that effectively, as a result of the charge, he had lost his job with the significant financial ramifications that followed.
5. Judge Costello noted that it was probable that as a result of the conviction Mr Zhou would be deregistered by AHPRA and the Chinese Medicine Board of Australia.
6. His Honour went on to consider the respondent's background. He accepted that Mr Zhou had suffered some considerable trauma in China given that he was an adherent of Falun Gong (a spiritual practice whose adherents have been treated poorly in China). The Judge accepted that Mr Zhou had been arrested in China and imprisoned without trial for seven years during which time he had apparently been tortured and subjected to forms of hard labour. The Sentencing Court also accepted that Mr Zhou's health had deteriorated as a result of his incarceration and torture and that he had suffered an injury to his back and subsequently Tuberculosis.
7. As a result of his treatment in China, on release from custody, he had sought asylum in Australia and came out in 2005 as a refugee. Judge Costello noted that Mr Zhou had been unemployed since being charged by police in 2016.
8. Judge Costello proceeded to sentence on the basis that Mr Zhou had no previous convictions for this or any other type of offence.
9. Judge Costello noted that in terms of general deterrence the offence comprised "a gross breach of trust committed against a vulnerable young woman who was otherwise entitled to expect that (Mr Zhou) would behave in a respectful and professional manner towards her".[2]
10. The Judge found that Mr Zhou's conduct was opportunistic, committed for purposes of his own sexual gratification and it had had a significant impact on the complainant.
11. The Court also had regard to various references tendered on Mr Zhou's behalf. Those references, which are also before the Tribunal, indicate that Mr Zhou is a hardworking, caring, family man who is and has been a positive contributor to the life of his local community. Judge Costello regarded the offence to be very much out of character.
12. The Judge stated that he had no hesitation in concluding that Mr Zhou was highly unlikely to reoffend, even though Mr Zhou did not accept or admit his guilt.
13. The Judge observed that in terms of offences of rape this offence was "far less serious than many other offences of rape" and that Mr Zhou was likely to suffer significant financial ramifications as a result of the offending and the conviction. Judge Costello also observed that it was likely that in the future he would lose his ability to practice as a Chinese massage therapist.
14. In terms of rehabilitation Judge Costello took into account the strong network of family and friends who would be providing support to Mr Zhou. He therefore set what he described as a "somewhat merciful non-parole period of one year and two months" on a head sentence of three years. The sentence was not suspended "given the seriousness of the offence and the importance of general deterrence".[3]

1. On 22 May 2019 the Board filed a complaint with the SAHPT alleging that the conviction for rape amounts to 'professional misconduct'; in particular, that it is conduct that is inconsistent with Mr Zhou being a fit and proper person to hold registration in the profession of Chinese medicine.[4]
2. The Tribunal has jurisdiction to hear and determine this matter despite the fact that Mr Zhou's registration has lapsed.[5]
3. The respondent admits that he has been convicted of the offence of rape and that he was sentenced to a term of imprisonment by the District Court, although we note that the respondent continues to maintain his innocence.
4. Even though Mr Zhou did not dispute any of the allegations on the disciplinary complaint we observe that he is unrepresented and has English as a second language. Out of an abundance of caution we have proceeded to make findings irrespective of his position of not contesting the disciplinary complaint, as he continues to deny the conduct underpinning the criminal conviction.
5. As to the particulars of the conduct, the Tribunal is entitled to rely upon a finding of guilt in a criminal court and is not able to review the essential factual basis of the conviction.[6]
6. The Tribunal notes the finding of guilt by the jury, the certificate of conviction of the District Court and the sentence imposed. On the basis of all of the evidence before us the Tribunal accepts the evidence of the victim detailed above at paragraphs 31-35, and set out it in the transcript of the criminal proceedings,[7] which supports the findings of the jury, the sentencing remarks as to the characterisation of the criminal conduct. We accept the impact the offence had on the victim.[8]
7. The Tribunal is satisfied as to the particulars of the complaint to the requisite degree taking into account the seriousness of the allegations and the gravity of the consequences to the respondent.[9]

Complainant's submissions as to categorisation of the conduct

1. The complainant's counsel, Mr Allen, submits that the commission of the offence of rape of a patient in the context of a professional consultation is clearly conduct which demonstrates that the respondent is not a fit and proper person to hold registration in the profession of Chinese medicine. The Board urges the Tribunal to make a finding of professional misconduct.

Respondent's submissions as to categorisation of the conduct

1. The respondent admits that the conduct, as pleaded, amounts to professional misconduct, although we express caution about his admission given those factors mentioned at paragraph 56.
2. Further, Mr Zhou continues to deny the behaviour that led to the criminal conviction. As a result of his continued denial of the conduct Mr Zhou has expressed no remorse and has failed to demonstrate any insight, regret or concern at the extreme distress and significant personal consequences that have been suffered by the patient.
3. Mr Zhou's failure to accept responsibility for his conduct, to provide any explanation for it, or to offer any observations of concern for the welfare of the patient is of significant concern to the panel. In the context of disciplinary proceedings, where the focus is at all times upon the protection of the public, this places the conduct into the higher end of the spectrum of unprofessional behaviour and reflects on his fitness to practise.
4. The respondent has not had the benefit of legal advice, but it is of note that in his filed Response he stated that there were a number of reasons why a person would not admit their guilt. He stated that a person who has been convicted may deeply regret the matter but may not wish to admit guilt for a variety of valid reasons some of which are that:

1. He is guilty of some of the allegations but others have been embellished; 2. He wishes to keep his marriage intact and an admission of guilt would destroy it;

1. He wishes to keep his child's love for him or his own parents' love for him intact;

1. He may not regret any offending and not wish to concede guilt because "he is in fact innocent and has been erroneously convicted, examples of which come to light virtually every month in criminal jurisdictions around Australia".[10]
2. Which of the above paragraphs describes the respondent's position in this matter is unclear and is, in the end, irrelevant for the purposes of the Tribunal proceedings, as he does not admit the conduct.
3. Mr Zhou drew the Tribunal's attention to the sentencing remarks of Judge Costello where His Honour had observed that "the offence was far less serious than many other offences of rape that come before this court".[11] We take those observations into account.
4. The respondent's former solicitors submitted[12] that the offending was at the "lower end of the spectrum" regarding professional conduct. This is based on a submission that there was no allegation of overt violence and no physical harm involved in the offending conduct.

1. State courts and tribunals dealing with complaints against health practitioners have consistently found practitioners to have engaged in professional misconduct under the National Law when convicted of criminal offences, particularly those offences punishable by terms of imprisonment.
2. The Tribunal panel accepts the submission of the complainant that the offence of rape is, by its very nature, a serious offence and an offence of violence. Whether or not physical violence causing physical harm was involved in the offending conduct, we observe that a sexual assault is, by its very nature, an aggressive act of physical violation involving elements of power and control over a non-consenting victim. To this extent it can be said that all proven rape cases are offences of violence.
3. We do not accept the submission that the circumstances of the offending (the lack of overt violence or physical harm experienced by the victim) places the conduct at the lower end of the range of seriousness in a professional disciplinary context.
4. Mr Zhou preyed upon a patient who was, at the time, in a position of physical vulnerability and who was entitled to trust that the respondent would exercise professional behaviour in providing a remedial massage service to her.
5. We find that Mr Zhou failed to comply with his professional responsibility to treat his patient with respect. The circumstances here indicate a clear disregard for his patient's dignity, rights and self-respect, or for her psychological and emotional welfare.
6. The offending involved a serious abuse of trust of a vulnerable patient in the course of a professional consultation which aggravates the conduct in a professional disciplinary context and reflects on Mr Zhou's character and his fitness to practice.
7. By his conduct Mr Zhou has shown complete disregard for his professional and ethical responsibilities, or for the welfare of his patient, and has acted in a manner which brings his chosen profession into disrespect. All of this reflects adversely on Mr Zhou's character and his fitness and propriety to practise as a registered Chinese Health Practitioner.
8. We are well satisfied to the requisite standard,[13] taking into account the nature of the proceedings and the seriousness of the consequences of these proceedings to the respondent, to make a finding of professional misconduct in that the conduct as alleged on the complaint amounts to conduct that is inconsistent with the practitioner being a fit and proper person to hold registration as a Chinese Medicine Practitioner.

1. The purpose of disciplinary action is entirely to protect the public; there is no element of punishment involved in this process.[14] Such protection extends to the public and to the profession.
2. The following principles (relevant to the conduct in this matter) listed by the West Australian State Administrative Tribunal in Medical Board of Australia v Myers[15] provide a useful guide to the correct approach to the imposition of disciplinary sanction under the National Law.
3. The relevant principles in this matter are:

1. The need to protect the public against further misconduct by the practitioner; 2. The need to protect the public through general deterrence of other practitioners from similar conduct;

1. The need to protect the public and maintain public confidence in the profession by reinforcing higher professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession and, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;

1. Whether the practitioner has breached any: 1. Act; 2. Regulations; 3. Guidelines or code of conduct issued by the relevant professional body; and 4. Whether the practitioner has done so knowingly 2. Whether or not the incident was isolated such that the Tribunal can be satisfied of the practitioner's worthiness or reliability for the future;

1. The practitioner's disciplinary history;
2. Whether or not the practitioner understands the error of his ways including an assessment of any remorse and insight (or lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance of consequences of misconduct is a risk to the community;
3. The desirability of making available to the public any special skills possessed by the practitioner;
4. The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of practitioners and in the maintenance of proper standards of practice; and
5. The Tribunal may consider any other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors (such as no previous misconduct or service to the profession) are of considerably less significance here than in the criminal process, because the jurisdiction is protective not punitive.

1. As to sanction, the Tribunal may caution or reprimand the respondent under s 196(2) of the National Law or impose a fine.
2. Otherwise the Tribunal observes that, as the respondent is no longer registered, it is only open to the Tribunal under s 196(4) of the National Law to:
   1. Disqualify the person from applying for registration as a registered health practitioner for a specified period, or;
   2. Prohibit the person, either permanently or for a stated period, from providing any health service or a specified health service, or using any title or a specified title.[16]
3. The parties put forward an 'agreed position' as to sanction (although, given that Mr Zhou is unrepresented, it would perhaps be more accurate to describe this as Mr Zhou not opposing the sanctions suggested by the Board).
4. It is submitted that an appropriate sanction would be one which would permanently prohibit Mr Zhou from providing any health service in the profession of Chinese Medicine and, further, that he be permanently prohibited from providing any other health service. It was also submitted that Mr Zhou be disqualified from applying for registration as a Chinese Medicine Practitioner for a period of 15 years.
5. Given the nature of the proceedings the Tribunal is not bound by any agreed position of the parties as to sanction. We are also conscious that Mr Zhou is unrepresented, so we are mindful to ensure that we reach our own conclusion as to the appropriate sanction in this case. It is important that the sanction imposed be proportional to the conduct and in such a range as to be correct and appropriate when judged against comparable cases.
6. We note that the respondent has had a significantly difficult life, particularly following his period of incarceration in China. He has now lost his career and has spent a period of time in jail.
7. The criminal proceedings, with the consequent public criticism and scrutiny, have no doubt affected his health and his reputation, and will undoubtedly impact on his marriage and his close relationships. We have taken these matters into account, however, in the context of disciplinary proceedings they hold far less significance in the process of determining the appropriate sanction.
8. As Mr Zhou is unrepresented his submission as to sanction does not directly address the sanctions set out in the National Law, but he indicated that he is "prepared to forego any resumption of his career in Chinese Medicine or any related field".
9. He submitted that, in order to "avoid such situations again", he had already voluntarily allowed his registration to lapse. He emphasised that he had no desire to resume his career in his chosen field in the future.
10. Nevertheless, Mr Zhou submitted that the Tribunal should take into account the following factors as to sanction:

1. the deterrent effect of a term of imprisonment; 2. the shame occasioned by the conviction;

1. the loss of friends and finances occasioned as a result;

1. the fact that imprisonment is regarded as "corrective" and not merely penal; and 2. the fact that he has voluntarily undertaken a five month intensive sexual behaviour course.
2. Mr Zhou directed the Tribunal's attention to the comments of Judge Costello in sentencing that the conduct was "very much out of character", that the respondent was "highly unlikely to reoffend" and that he regarded the offence as "far less serious than many other offences of rape that come before this court".
3. The respondent was particularly opposed to any costs order being made and noted that he has spent all of his available income in defending the criminal charges and paying the $30,000 Criminal Injuries Compensation that he has agreed to pay.
4. We have taken all of those factors into account. We have also considered the character references put forward by the respondent.
5. The National Board invites the Tribunal to impose a permanent prohibition from providing any health services, including, but not limited to, health services provided as a Chinese Medical Practitioner.
6. The complainant submits that this is an appropriate sanction as the factual circumstances of the offending demonstrate that this was not a momentary or fleeting infraction and that the offending took place over a period of up to 15 minutes during which the victim was frozen with fear.
7. The complainant also submits that the offending was made more serious because of the position of trust that the respondent was in and the vulnerability of the patient.
8. The respondent's continued lack of insight into the wrongfulness of his behaviour is suggested as a significantly aggravating factor. The complainant observes that Mr Zhou has qualifications in other health services fields but notes that the respondent had indicated his preparedness to agree to a prohibition from renewal of "any form of licence for life".
9. In addition, the complainant submits that the Tribunal should disqualify the respondent from applying for registration for a period of 15 years.
10. The Tribunal was referred to similar matters dealt with by other Tribunals regarding practitioners in similar types of professions.
11. We are mindful that other decisions regarding similar disciplinary action and sanctions are of some guidance but we should be careful, when determining the appropriate sanction in this matter, to consider the specific conduct of the respondent in the circumstances of this case.
12. In the recent matter of Medical Board of Australia v Sze-Tho,[17] a medical practitioner was found to have behaved in a manner amounting to professional misconduct. The conduct in that matter included (in addition to other serious conduct) the rape of two patients. There the sexual allegations were of a historical nature, occurring some 35 years before the matter was dealt with by the Tribunal. The practitioner was 74 years of age at the time of the disciplinary hearing and had ceased to practise.
13. The practitioner was reprimanded, his registration was cancelled and he was disqualified from making an application for registration for a period of 10 years for the conduct alleging rape convictions (a period of 15 years in total). No order prohibiting the practitioner from providing health services was made.
14. Mr Allen, for the Board, noted that the sanction in that matter was less severe than that proposed by the complainant Board in this matter, but he submitted that the matter should be distinguished from the circumstances here due to the age of that practitioner. Given his age, there was no suggestion that Mr Sze-Tho would be able to return to any form of health practice. In effect, the public was protected by the fact of the practitioner's age, meaning that there was also no need to impose a blanket prohibition from practising in related fields.
15. In Health Care Complaints Commission v Choi,[18] a chiropractor was the subject of disciplinary proceedings in relation to two counts of rape and failing to notify AHPRA of a relevant event. The offences had occurred in the context of professional consultations and were denied by the practitioner at both the criminal trial and before the Tribunal.
16. The practitioner's registration was cancelled; he was prohibited, pursuant to s 149C(5) of the New South Wales National Law, from providing any health service (whether private, public or volunteer services). The respondent was prevented from seeking a review of all of the orders for a period of five years (this would essentially equate to a prohibition until reviewed after 5 years and a disqualification from seeking registration for a period of at least five years).[19]
17. Finally, the Tribunal was referred to the factually analogous decision of Physiotherapy Board of Australia v Devadas [2014] SAHPT 14.
18. That matter related to a physiotherapist who was convicted after a criminal trial of the digital rape of a patient. The Tribunal imposed a reprimand in the strongest terms, an order disqualifying the respondent from applying for registration as a registered physiotherapist on a permanent basis, and an order prohibiting the respondent from providing physiotherapy services on a permanent basis.
19. At the time that the matter had advanced to the SAHPT the respondent had departed from South Australia and was residing in India. Some of the observations of the Tribunal in that matter included the following (at para 22):

It is difficult to imagine a more serious breach of conduct by a physiotherapist than to rape a patient whilst treating them. It falls so far below the standards that it is one of the most serious examples of professional misconduct. The respondent is not of good character and he is not a fit and proper person to be registered as a physiotherapist.

1. There is a considerable difference in approach to sanction taken by the Tribunals in each of the three cases referred to above.
2. We are mindful that the submission from the complainant that we impose a blanket permanent prohibition from providing any health services involves the imposition of a significant and far-reaching disciplinary sanction.
3. We note that subsequent to the decision in Devadas, the case of Marin v The Chiropractic Board of Australia [20] was determined in the District Court on appeal from the SAHPT. The District Court found that the sanction imposed by the SAHPT of permanent disqualification from applying for registration is not an available disciplinary sanction under the National Law. The Court found that the Tribunal had acted beyond power in imposing such a sanction.[21] This is because of the wording in s 196(4)(a) which states that the Tribunal may disqualify a person from registration as a registered health practitioner "for a specified period".
4. At a subsequent hearing the District Court was requested by the parties to fix a specified period of disqualification. The Court fixed a period of disqualification from seeking registration of 10 years (backdated to the date of his initial suspension from practice).[22] However, the remaining order imposed by the Tribunal in Marin remained, including the order that the practitioner's registration be cancelled and that he 'be prohibited from providing any health services ... that utilise his skills and knowledge gained as a chiropractor'.
5. We note that the prohibition order in Marin does not state whether it is permanent, nor does it specify a period as required by s 196(4)(b) of the National Law which states, the Tribunal may:

(b) prohibit the person either permanently or for a stated period from -

(i) providing any health service or a specified health service; or

(ii) using any title or a specified title.

1. Mr Allen conceded that permanent disqualification was not available as a sanction under the National Law; he submitted that disqualification from seeking registration for 15 years would be appropriate in this matter. However, he still urged the Tribunal to make an order for permanent prohibition from practice in the field of Chinese Medicine and all other health services.
2. We take the view that there is an obvious inconsistency in imposing permanent prohibition from practice in the field of Chinese Medicine together with an order that Mr Zhou be disqualified from seeking registration for 15 years. The practitioner might be re-registered in 15 years' time (having established to the Board's satisfaction that he is rehabilitated and is then fit and proper to practise) but he would still effectively never be able to practise due to the permanent prohibition order.
3. Further such an approach to disciplinary sanction is, in our view, an excessive sanction (as it fails to recognise or encourage any chance of rehabilitation).
4. We have considered VCAT's approach to sanction in the recent decision of Psychology Board of Australia v Ferrero.[23] In that case a practitioner was found to have engaged in professional misconduct by taking part in an indecent act with a person who he was training, who had a cognitive impairment. The practitioner was reprimanded, his registration cancelled, he was disqualified from registration for a period of 2 years and he was prohibited from providing any health service, "until such time as he is once again granted registration as a health practitioner".
5. We consider VCAT's approach in Ferrero to be a more logical approach to the imposition of concurrent disciplinary sanctions than that advanced by the complainant in submissions in this matter. However, we are concerned that the lack of specificity of the period of time involved in that approach would likely offend against the clear language of s 196(4)(b) and result in the same error of approach to sanction which was identified by the District Court in Marin. We consider that "prohibition for a stated period" needs to be for a finite period and not of indefinite or open-ended duration.
6. As to the length of the disqualification and prohibition, we observe that there are significant aggravating aspects to the conduct as detailed in our findings, namely:

1. The offence for which the practitioner has been convicted is a serious offence, which carries a maximum penalty of life imprisonment; 2. Mr Zhou continues to deny any impropriety, notwithstanding the jury verdict. He demonstrates a significant lack of remorse, insight, or personal integrity and as such poses a considerable risk to the community. There is currently no prospect for rehabilitation in the face of his denials. It is important that the sanction therefore reflects the Tribunal's significant concern for the ongoing safety of the public;

1. The fact that the offending appears to have been isolated (a factor which was taken into account by the sentencing judge) has much less relevance when the conduct is as serious in a professional context as it is in this case. We observe that he was in fact sentenced to an immediate period of imprisonment.
2. It is necessary for the sanction to provide deterrence, not only to Mr Zhou but to other practitioners, and to maintain public confidence in registered health practitioners by reinforcing the need for high standards of ethical and personal conduct.
3. The Tribunal considers that the conduct requires a severe disciplinary response, both to ensure the protection of the public and to make it very clear to the respondent and other practitioners and members of the public the seriousness with which the Tribunal views such conduct towards vulnerable persons in a professional consultation, and that the standards of the Chinese Medicine profession be upheld.
4. We are persuaded to impose a significant period of disqualification (15 years) and a prohibition from practising in Chinese Medicine and all other health services for 15 years, or of using the title of Chinese Medicine Practitioner until re-registered.
5. This order will mean that the practitioner will not be able to provide any health services, even services that are not regulated.[24]
6. We note that even if Mr Zhou is re-registered it will then be up to any potential employer to assess the respondent's suitability for employment in the light of his history and his conviction for this serious offence.
7. Given his age, we appreciate that the outcome of our decision is that it is unlikely that the respondent will ever return to practise as a Chinese Medicine Practitioner, or in any allied field. The prohibition from providing any health service for a similar period is to ensure that members of the public, particularly those seeking health services (such as a massage), who are placed in a situation of vulnerability in any health services consultation will be protected.

1. The respondent is reprimanded.
2. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 15 years, backdated to the date of the hearing on 11 December 2019.
3. The respondent is prohibited from providing any health service for a period of 15 years backdated to the date of the hearing on 11 December 2019. To be clear, that will include, but is not limited to, a prohibition on providing massage services, professional advice, muscular manipulation, or any services that utilise his skills and knowledge gained as a Chinese Medicine Practitioner.
4. The respondent is prohibited from using the title of 'Chinese Medicine Practitioner' until such time as he is once again granted registration as a Chinese Medicine Practitioner under the National Law.
5. The respondent is to pay the complainant's costs of and incidental to the proceedings to be agreed with the Board, or failing agreement, as determined by the Tribunal.
6. Pursuant to s 60 of the SACAT Act the Tribunal prohibits the publication of the name of the patient, and of the patient's sister, or of any information tending to identify the patient.

[2] Sentencing remarks; Book of documents p 330.

[4] Definition of Professional Misconduct, National Law s 5.

[6] Section 39(1)(b) of the South Australian Civil and Administrative Tribunal Act 2013; s 34A Evidence Act 1929; Psychology Board of Australia v Ferrero [2019] VCAT 1648; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 at [42]; Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276, 281 - 3 per Spender, Gummow and Lee JJ.

[7] And we rely on District Court transcript of proceedings DCCRM-17-1243 R v Dong Zhou, Book of Documents p 210- 253.

[8] Victim Impact Statement, Book of Documents p 341 - 342.

[9] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[10] Respondent's filed Response pages 2 and 3.

[11] Sentencing remarks; Book of documents p 330.

[12] In correspondence with AHPRA: Book of documents p 116.

[13] Rajagopalan v Medical Board of South Australia (1998) SASC S6667; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[14] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41]- [57]; Medical Board of Australia v Myers [2014] WASAT 137(S) [8].

[16] We observe that whilst those sanctions are expressed in the alternative it has been held that "or" should be read as "and" in s 196(4) of the National Law so the Tribunal is empowered to both disqualify and prohibit; See Psychology Board v King [2016] QCAT 140.

[17] [2019] VCAT 244.

[18] [2017] NSWCATOD 82.

[19] The National Law in NSW is not identical to that which applies in SA. Notably the available sanctions are not identical.

[20] [2019] SADC 17.

[22] Marin v The Chiropractic Board of Australia (No 2) [2019] SADC 31.

[23] [2019] VCAT 1648.

[24] See the definition of 'health service' in s 5 of the National Law.