Chinese Medicine Registration Board v Antoniades (Occupational and Business Regulation) [2010] VCAT 2132

1. The respondent has engaged in unprofessional conduct of a serious nature within the meaning of s 48(1)(a) of the Chinese Medicine Registration Act 2000 (the Act), namely unprofessional conduct within the meaning of paragraph (c) of s 3 of the Act. The unprofessional conduct relates to:

(a) transgression of professional boundaries by allowing a sexual relationship to develop between the respondent and his patient;

(b) transgression of professional boundaries by allowing an inappropriate personal and social relationship to develop between the respondent and his patient;

(c) failing to refer the patient to another practitioner; and

(ii) the respondent is suspended from practising as a Chinese Medicine practitioner for a period of two years to commence on 19 October 2010;

(iii) the respondent shall undertake and complete further education in ethics at his own expense, at the direction of and to the satisfaction of the applicant;

(iv) upon the respondent resuming practice, he shall be supervised at his own expense by a person nominated by the applicant for a period of twelve months.

1. The respondent has engaged in unprofessional conduct not of a serious nature within the meaning of s 48(1)(b) of the Act, within the meaning of paragraph (a) of s 3 of the Act. The unprofessional conduct relates to:

(a) failing to communicate adequately with his patient prior to rendering craniosacral treatment or therapy to her mouth;

(b) failing to maintain adequate patient records for his patient;

(c) failing to issue receipts for treatment rendered and paid for;

(ii) before the expiration of the period of suspension imposed in respect of the findings of unprofessional conduct of a serious nature the respondent shall undertake and complete further education in maintaining proper patient records and communicating sufficiently with a patient in order to obtain informed consent to any procedures or treatments undertaken, at his own expense and at the direction of and to the satisfaction of the applicant.

1. The respondent has engaged in unprofessional conduct not of a serious nature within the meaning of s 48(1)(b) of the Act, within the meaning of paragraph (a) of s 3 of the Act. The unprofessional conduct relates to:

(a) failing to issue receipts for treatment rendered and paid for;

1. Spyridon Antoniades is a registered Chinese Medicine practitioner. He first obtained registration with the Chinese Medicine Registration Board of Victoria (the Board) in the division of acupuncture in 2003. In addition to practising Chinese Medicine, he provides a number of other therapies or services including remedial massage therapy and craniosacral therapy. In 2005, after the events which give rise to the hearing before the tribunal, he also obtained registration from the Board in the Chinese Herbal Medicine division.
2. On 10 occasions between 11 September 2003 and 24 May 2004, whilst practising and holding himself out as a registered Chinese Medicine practitioner, he was consulted by and treated the complainant Ms N.
3. In early 2009, Ms N complained to the Chinese Medicine Registration Board about Mr Antoniades' conduct. As a result, an inquiry was conducted.
4. In 2003 and 2004, the Chinese Medicine Registration Act 2000 (Vic) (CMRA) governed the regulation of the conduct of Chinese Medicine practitioners. By the time this complaint was made that Act had been repealed, and replaced by the Health Professions Regulation Act 2005 (Vic). By s 169 of that Act the Board investigates complaints in respect of the conduct of a registered Chinese Medicine practitioner relating to events occurring before 1 July 2007. By s 59(2)(g) of the Health Professions Regulation Act, the Board has the power to refer allegations concerning the conduct of a registered Chinese Medicine practitioner in respect of conduct occurring before 1 July 2007 to VCAT for a tribunal hearing.
5. By a notice of allegations dated 19 January 2010, the Board alleged that Mr Antoniades had engaged in unprofessional conduct in three ways:

(a) by allowing an inappropriate personal or social relationship to develop with Ms N;

(b) by allowing a sexual relationship to develop with Ms N; and

(c) by failing to refer Ms N to an independent Chinese Medicine practitioner when the reality or likelihood of the inappropriate personal, social or sexual relationship with Ms N became or should have become apparent.

1. The notice also alleged Mr Antoniades had engaged in unprofessional conduct, not of a serious nature in three ways:

(a) by failing to obtain properly informed consent from Ms N before rendering craniosacral treatment or therapy on one occasion, to her mouth and on another occasion to her pelvis;

(b) by failing to maintain adequate patient records in respect of his consultations with Ms N; and

(c) by failing to issue receipts to Ms N for payments made by her in respect of treatments rendered by him.

1. The notice of allegations was supported by:
   • (a) a statement from Ms N, which detailed Ms N's account of a personal, social and sexual relationship which developed, at Mr Antoniades' instigation between them during the course of their practitioner/patient relationship, and his failure or refusal to refer her to another practitioner. It also detailed the conduct giving rise to the allegations of failure to obtain informed consent and failure to issue receipts;
   • (b) the responses provided by Mr Antoniades to Ms Gillick, the Board investigator, in response to Ms N's allegations concerning the personal, social and sexual relationship, and the further concerns identified by the Board in the course of its investigation into the adequacy of the patient records, whether fully informed consent was obtained to the craniosacral treatments to the mouth and pelvis, and the issuing of receipts;
   • (c) statements from two expert witnesses, Dr Danforth Lim and Ms Vivienne Williams which addressed the ethical obligations of a Chinese Medicine practitioner in respect of personal, social and sexual contact with patients, record-keeping and the issuing of receipts; and
   • (d) the 2009 Chinese Medicine Registration Board Code of Ethics, the 2004 Code of Ethics for the Australian National Therapies Association, the Code of Ethics for the Craniosacral Association of Australia and the 2007 Chinese Medicine Registration Board Guidelines on Patient Records.
2. Mr Antoniades filed a notice of defence, which was supported in its factual detail by a statement from him. Consistently with what he had said to Ms Gillick, he denied any sexual contact with Ms N, apart from one kiss which he said was initiated by her on a social occasion, but immediately rebuffed by him. He acknowledged some limited social contact, but denied it was inappropriate. He denied that there had been any cause for, or refusal or failure to refer Ms N to another Chinese Medicine practitioner. He said that the treatments that he had provided to Ms N were not Chinese Medicine and so his conduct did not involve a transgression of the professional boundaries between a Chinese Medicine practitioner and patient. He denied failing to obtain fully informed consent in respect of the craniosacral treatments to the mouth and pelvis. He maintained that his patient records were adequate. He acknowledged that he had not issued receipts to Ms N, but denied that constituted unprofessional conduct. He said he was not aware that it was necessary to issue a receipt if, as was the case with Ms N, he was paid in cash, and no health fund claim was sought to be made by the patient. He noted he was now issuing receipts for all services, following his discussions with Ms Gillick.
3. Mr Antoniades maintained his denial of unprofessional conduct in all grounds alleged until the first morning of the hearing. On that morning, an amended notice of allegations was filed. In respect of the allegations of unprofessional conduct relating to the personal social and sexual relationship, and the refusal or failure to refer to another practitioner, the amended notice characterised the conduct as professional misconduct, that is, unprofessional conduct of a serious nature, contrary to s 48(1)(a) of the CMRA.
4. In respect of the three allegations of unprofessional conduct not of a serious nature, the amended notice particularised the conduct by reference to s 48(1)(b) of the CMRA that is, professional conduct which was of a lesser standard than that which the public might reasonably expect of a registered practitioner. The allegation of failure to obtain fully informed consent in respect of the craniosacral treatments to the mouth and pelvis was amended to exclude reference to the treatment involving the pelvis, and to limit the complaint in respect of the craniosacral treatment to the mouth to failing to communicate adequately with Ms N before rendering the treatment. The allegation in respect of failure to maintain adequate patient records was amended to allege inadequate, rather than no records of history, diagnosis and treatment.
5. On the filing of the amended notice of allegations, Mr Antoniades, through his counsel, admitted the allegations contained in the amended notice. He also acknowledged, through his counsel, that Ms N's account was to be accepted in its entirety. He specifically acknowledged that where there was a conflict between Ms N's version of events, as contained in her amended statement filed on 30 August 2010, and Mr Antoniades' accounts, in what he or his lawyers on his behalf had said to Ms Gillick, and in his witness statement, that her statement was to be accepted.
6. These, then are the relevant circumstances. A relative of Ms N was a professional colleague of Mr Antoniades. She was recommended to Mr Antoniades by her relative. Ms N initially consulted him for back and neck pain, and residual fatigue from glandular fever and consequent viral hepatitis from which she had suffered the previous year. Mr Antoniades recommended craniosacral therapy, and somato emotional release rather than what he described as energetic work, such as acupuncture, as the preferred treatment for Ms N. Ms N accepted his recommendation, and found the treatments he administered assisted her.
7. Mr Antoniades said craniosacral therapy is an alternative medicine therapy used by a range of practitioners including osteopaths, massage therapists and naturopaths. It is used to treat mental stress and chronic pain such as neck and back pain. It involves the therapist placing their hands on the patient in order to tune the craniosacral system by easing the nerve passages, optimising the movement of cerebrospinal fluid through the spinal cord and restoring misaligned bones to their proper position. Somato emotional release is a manual therapeutic procedure that uses the concepts of craniosacral therapy to free the body and mind of the negative side-effects of trauma. The therapy focuses on establishing a mind/body connection in order for the release of emotional trauma and the resolution of physical symptoms. Mr Antoniades said somato emotional release can cause emotional outbursts in certain patients, believed to be the result of triggering or releasing emotional energy, often triggering a long-forgotten incident which had caused an alteration to the state of the body.
8. According to Mr Antoniades, at Ms N's sixth appointment, on 14 November 2003, (before any personal social or sexual contact between them), she had been through a somato emotional release and had revealed to him matters of emotional significance to her, namely, her mother's abandonment at an early age, and the effect that had on her subsequent relationships. The clinical notes also refer to other matters of intimate personal history and emotional significance to Ms N which she had disclosed in the course of treatment. This, in addition to the circumstances of her referral to Mr Antoniades, made her particularly vulnerable.
9. It was against this background that Mr Antoniades commenced the sexual, personal and social relationship with Ms N. After the 6th consultation, Ms N became concerned about whether Mr Antoniades was developing a sexual attraction to her. She said she felt confused and concerned. She raised it with him, and he reassured her he had an emotional wall between him and his patients. Despite that reassurance, she asked to be referred to another practitioner. He told her he did not know who he could refer her to, as he did not know anyone who conducted treatments in the same way he did. Ms N did not return to see Mr Antoniades for 3 months after that, but when the symptoms for which she had initially sought treatment returned in February 2004, she made another appointment to see him. On that occasion, in the course of treating Ms N, Mr Antoniades kissed her. She did not stop him, and eventually responded. He asked her to perform oral sex on him, but she refused.
10. A few days later, at Mr Antoniades' instigation, they spoke by phone, and agreed to meet at a cafe. When they met, he acknowledged the inappropriateness of their having a social and sexual relationship. This appears to have been, at least in part, because of the relationship of practitioner and client. In addition, Mr Antoniades knew Ms N had a boyfriend, and Ms N knew he was married and his wife was pregnant. Despite his explicit acknowledgement it was inappropriate to do so, over the next two weeks they met at a number of places, and on two occasions engaged in various sexual acts together.
11. It was Ms N who took steps to sever the relationship. She told Mr Antoniades that she could not see him in any capacity. He appeared to accept that he could no longer treat her, but asked her if they could still be friends. She said she told him it would not work. In other words, he was pursuing a continued personal relationship, and she was the one who had to rebuff him.
12. There was no contact between them, professional or personal, for the next three months. Then, in May 2004, Ms N made an appointment for a further consultation, and Mr Antoniades again treated her. Six weeks later Ms N made another appointment to see Mr Antoniades and again he treated her. During this last treatment he hugged her, made reference to his attraction to her and again suggested they catch up socially.
13. Some weeks later they did meet up again. On that occasion, and again a short time later, there was sexual intimacy. On the second occasion, the sexual activity took place at the clinic where he had treated her, at a time when it was not open for business.
14. That was the last occasion of sexual activity. Within days Ms N told her boyfriend something of the relationship she had had with Mr Antoniades. She rang him, to warn him her boyfriend was angry. He remonstrated with her for telling her boyfriend about it. There were two, short, inconclusive calls between them after that, and by October 2004 all contact had ceased.
15. There the matter rested until Ms N complained to the Board in early 2009.
16. When questioned by the Board's investigator, Ms Gillick, Mr Antoniades vehemently denied engaging in any sexual activity with Ms N. He denied all allegations of improper or unprofessional conduct. Mr Antoniades was asked to produce his patient records to the Board. It was after examination of them that the Board also raised concerns about the adequacy of his patient records, whether he had obtained informed consent to parts of his craniosacral treatments, in particular, before doing a procedure which involved putting his fingers in Ms N's mouth, and before performing a procedure which involved rocking her pelvis, and his failure to issue receipts for the services provided to Ms N. The defence and statement to which we have already referred are largely consistent with what Mr Antoniades said in response to the Board's investigation.
17. The craniosacral and somato emotional release therapies are not themselves Chinese Medicine treatments or therapies. Although Mr Antoniades had initially maintained the Board and Tribunal did not have jurisdiction because these treatments were not Chinese Medicine, the patient records reveal he did perform some Chinese Medicine treatments or therapies on Ms N. In any event, he acknowledges he was holding himself out as a registered Chinese Medicine practitioner. By his admission of the allegations in the amended notice, he accepts his conduct, in respect of his patient Ms N, is conduct of a registered Chinese Medicine practitioner which the Board is empowered to investigate and refer to this Tribunal, and which the Tribunal has jurisdiction to consider. That acknowledgement is soundly made. We are satisfied his conduct, in respect of Ms N, is conduct of a registered Chinese Medicine practitioner in respect of a patient which the Board and Tribunal have jurisdiction to deal with in accordance with the Chinese Medicine Registration Act and the Health Professions Regulation Act.

Professional misconduct, being unprofessional conduct of a serious nature

1. We were taken to a number of definitions of professional misconduct. Those definitions were:

such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence,[1]

conduct which would reasonably be regarded as disgraceful or dishonourable by [practitioners] of good repute and competency,[2]

conduct [that] violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competence'[3]

1. The three separate allegations of professional misconduct are interlinked. We consider the following features are relevant to an assessment of the seriousness of the conduct:

(a) The nature of the treatment provided by Mr Antoniades to Ms N involved disclosure by her of intimate details of matters of emotional significance to her. That can create an emotional vulnerability. The treatment involved touching Ms N's body when she was lying down. That, too, can make a patient vulnerable, both emotionally and physically.

(b) Ms N detected, in the course of treatment, that Mr Antoniades was sexually attracted to her. She raised with him the propriety of continued treatment. He reassured her, telling her in effect she was safe.

(c) Despite his reassurances, and before any sexual or personal or social relationship developed, she asked to be referred to an independent practitioner. He did not do so. This reinforced the assurance he had given her that he could maintain a professional barrier between himself and his patients. Also, by telling her there was no other practitioner who could treat her in the same fashion, he created a situation which made it more likely she would have to return to him if she wanted further craniosacral or somato emotional release therapy.

(d) Ms N did not return for three months after this discussion. There was ample time for Mr Antoniades to consider the risk of a sexual and personal relationship developing, and to take steps to avoid that risk if Ms N did return. Instead, on her very first visit after his reassurance, in the course of a craniosacral treatment, he initiated sexual contact with her, by kissing her. He then asked her to perform acts on him directed to his sexual gratification.

(e) After the first sexual advance, Mr Antoniades pursued Ms N outside treatment in order to continue the sexual relationship. It was in that context that the personal and social relationship developed.

(f) At their first personal or social meeting, Mr Antoniades expressly acknowledged the inappropriateness of the relationship which was developing between them. We are satisfied Mr Antoniades' recognition of inappropriateness related in part to the breach of his professional obligations, as well as the impact on the personal lives of each of himself and Ms N.

(g) Despite that acknowledgement, Mr Antoniades continued the sexual and personal and social relationship with Ms N. It was Ms N who acted to end it. When she told him she could not see him in any capacity, he asked if the personal relationship could continue. That indicates he acknowledged it was inappropriate to continue treating her whilst the personal relationship continued, but showed no insight into the inappropriateness of maintaining a sexual and personal and social relationship with a patient.

(h) Despite the earlier acknowledgement of the inappropriateness of continuing to treat Ms N, Mr Antoniades did not refuse to treat her, or refer her to another practitioner when, three months later, Ms N made an appointment for a further treatment.

(i) After treatment resumed, it was Mr Antoniades again who initiated further sexual and personal contact. Again the first advance occurred during a consultation, this time at the end of the treatment. Again he acknowledged that he knew it was inappropriate to treat Ms N in the circumstances of a continued sexual involvement, and to have a personal and sexual relationship with her when he was treating her.

(j) Despite that acknowledgement, Mr Antoniades met Ms N again, and then made arrangements for her to come to the rooms where he had treated her at a time when there would not be anyone else there. That was where their final sexual encounter took place.

(k) The personal social and sexual relationship again came to an end in circumstances which indicate it was driven by external, personal events.

(l) The conduct in pursuing the sexual relationship, and the personal and social relationship which accompanied it was selfish, opportunistic, and persistent. It put Mr Antoniades' interests in sexual gratification ahead of his professional responsibilities and obligations.

1. Some, but not all of the circumstances we have identified were referred to by the Tribunal in Wilks v The Medical Practitioners Board of Victoria (Occupational and Business Regulation)[3] when explaining why sexual relationships between practitioners and patients were always inappropriate. The tribunal said:

Medical practitioners are placed in a position of trust in the community and have available to them intimate knowledge of their patients' physical and psychological wellbeing. This places the practitioner in a position to exploit the trust that has been given to them. The community expects that when they attend a medical practitioner, they will not be regarded as potential sexual parties nor that their relationship with the doctor will be sexualised. Likewise the profession expects its members to refrain from using the consulting room as a means of establishing sexual relationships with patients. To do otherwise brings the profession into disrepute by reducing the trust that the community has in the profession.

1. Dr Freckleton also referred us to the endorsement, by the Canadian Supreme Court in Norberg v Wynrib[4] of what was said in the final report of the independent taskforce on sexual abuse of patients commissioned by the College of Physicians and Surgeons of Ontario in 1991:

Patients seek the help of doctors when they are in a vulnerable state - when they are sick, when they are needy, when they are uncertain about what needs to be done.

The unequal distribution of power in the physician patient relationship makes opportunities for sexual exploitation more possible than in other relationships.

1. Although these observations were made in the context of misconduct by a medical practitioner, they are equally apposite to the conduct of a Chinese Medicine practitioner.[5]
2. In his report, Dr Lim said:

good healthcare practice depends on trust between Chinese Medicine practitioners and patients and their families. Patients are often vulnerable, especially when their medical care makes it necessary for them to reveal themselves intimately to their Chinese Medicine practitioner, physically or emotionally ... any form of sexual advance to a person with whom the Chinese Medicine practitioner has a professional relationship is professional misconduct. It is a serious matter for a Chinese Medicine practitioner to use his professional position to pursue a personal relationship of a sexual nature with his patient.

It should be understood that the relationship between a practitioner and his patient is not an equal one. The practitioner has authority because of his knowledge of the modality they are trained in ... this in itself gives the practitioner great power over a patient and it is essential that this power is not abused. Patients often feel very vulnerable when disclosing this array of information and as such become susceptible to suggestions made by practitioners. It is paramount that this vulnerability is not abused or misused in the treatment of a patient. ... It is important for a practitioner not to transgress professional boundaries by allowing inappropriate personal or social relationships to develop because there is a differentiation of power.

1. The codes of conduct for Chinese Medicine practitioners, natural therapists, and practitioners of craniosacral therapy all made it clear sexual relationships between practitioners and patients were inappropriate. The code of conduct for Chinese Medicine practitioners also made it clear that inappropriate social or personal relationships were inappropriate. Although these codes, or most of them were published after the event we are dealing with, we are satisfied they did no more than codify, or restate what was already the clearly understood and accepted position in 2003 and 2004.
2. The social and personal relationship between Ms N and Mr Antoniades developed in response to, and as an adjunct to the sexual relationship. They met alone, often in secrecy, and often when sexual contact took place as well. There may be circumstances where a practitioner may have a pre-existing, or concurrent social or personal relationship with a patient, and yet may be able to treat or continue to treat a patient. In such cases, it is incumbent on the practitioner to set clear boundaries between the social and professional contact, to ensure that the confidentiality of communications made in the course of treatment is maintained, and that no advantage is taken in the social contact of the trust reposed in the practitioner by reason of the professional relationship. In this case, there was an open acknowledgement by Mr Antoniades the personal and social contact was inappropriate. He made no attempt to differentiate between social, sexual or professional contact. He demonstrated no awareness of the importance of maintaining any boundary between the professional and social contact.
3. We are satisfied the conduct of Mr Antoniades in establishing and maintaining the sexual relationship, in the manner in which he did, and the consequent personal and social relationship which developed is a clear breach of the rules of the profession of Chinese Medicine. We are satisfied the features we have identified are such a breach of the rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence. We accept the evidence of Dr Lim and Ms Williams in that regard. We are also satisfied that Mr Antoniades' conduct would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competency, and that it violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.
4. The circumstances of the refusal or failure to refer Ms N to another practitioner are also deserving of strong reprobation. They fall well short of the standard expected of practitioners of good repute. The refusal to refer occurred after Ms N confronted Mr Antoniades with her suspicion he was sexually attracted to her, and he had assured her she was not at risk of a sexual advance by him. Her vulnerability was increased by the physical and emotional nature of the treatment and the resultant disclosure by her of matters of emotional significance to her, and by her suspicions (well founded as it turned out) of his sexual attraction to her. The seriousness of the misconduct in this regard is also compounded by the assertion that there was no other practitioner who could perform the treatments Mr Antoniades was performing, and which Ms N had found efficacious. The continued treatment of Ms N, and failure at that stage to refer her to another practitioner after the sexual relationship commenced compounded the seriousness of this aspect of the misconduct.
5. We are therefore satisfied that Mr Antoniades' conduct in establishing and maintaining a sexual personal and social relationship with Ms N, and the refusal or failure to refer her to another practitioner in the circumstances constitutes a serious instance of professional misconduct of a serious nature.

1. Mr Antoniades has acknowledged that his patient records in respect of Ms N was inadequate. Whilst there was some detail of the presenting problems in Ms N's history, we consider that the detail in the records is insufficient to permit another practitioner reading the record, to understand the presenting problems, diagnosis, treatment and results, relevant personal and family history and any other medications or treatments necessary in order to ascertain what has happened in the past and what is to be done in the future. Of most concern is that there was insufficient detail in Ms N's patient records to permit an understanding from a reading of them of the history provided by Ms N, of the diagnosis and treatment plan, of the advice given and treatments performed. On the first day of the hearing, Mr Antoniades produced a copy of 'New Client Form' which contained some detail of Ms N's history. This record was not produced to Ms Gillick in response to her request for Ms N's patient records, and was not made available to Dr Lim and Ms Williams. Their opinions as to the inadequacy of the patient records must be tempered by the fact that this document provides some of the detail they considered should have been in the record, and the absence of which was in part, the reason for their criticism of the adequacy of the record-keeping. However, the failure to produce it to Ms Gillick in response to her request for the patient records is also of concern. If the information on the new client form is not accessible to the treater at the time of treatment, it fails to meet the need to properly inform the treater of all relevant information.
2. Mr Antoniades has also acknowledged the inappropriateness of not issuing receipts for all treatments, regardless of the mode of payment or the prospect of the patient applying for a rebate.
3. He has also now acknowledged that he provided inadequate information to Ms N when, in the course of craniosacral therapy, he performed a procedure which involved putting his (gloved) fingers in her mouth. He maintained his usual practice when performing this particular procedure was to explain to the patient in advance what the treatment involved. Having considered Ms N's account of the manner in which the mouth procedure occurred, namely that it was without warning and caused her distress and discomfort, he acknowledged through his counsel, Mr Gipp, that his advice must have been inadequate in this instance.
4. We are satisfied that these matters, whilst being of a lesser standard than that which the public might reasonably expect of a registered practitioner, do not constitute unprofessional conduct of a serious nature. These are errors of inadequacy, rather than total omission. They appear to spring from ignorance or a failure to properly inform himself as to what is required, rather than a wilful or flagrant disregard for known standards.
5. So far as the failure to issue receipts is concerned, we are satisfied that, although it is, as Dr Freckleton said, a basic feature of proper professional service to issue receipts for professional services, that the failure to issue receipts was confined to non-rebatable cash payments, and that Mr Antoniades has now rectified that. We accept Mr Gipp's submission that there is no evidence to suggest that the failure to issue receipts was for any purpose connected with concealing or understating income from professional practice.
6. We consider these three matters to be properly characterised as relatively low level examples of unprofessional conduct, not of a serious nature.

Determination: unprofessional conduct of a serious nature

1. Having found that in respect of the allegations concerning the sexual relationship, the personal or social relationship and the failure to refer Ms N to an independent practitioner to be unprofessional conduct of a serious nature pursuant to s 48(1)(a), s 48(2) of the Act requires us to make one or more of the following determinations:

(a) Require the practitioner to undergo counselling;

(d) require the practitioner to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;

(e) impose conditions, limitations or restrictions on the registration or endorsement of the registration of the practitioner;

(f) impose a fine on the practitioner of not more than $10,000;

(g) suspend the registration of the practitioner for the period specified in the determination;

(h) cancel the registration or an endorsement of the registration of the practitioner.

1. The Board submitted that in respect of the unprofessional conduct of a serious nature, the tribunal should suspend the practitioner's registration for a period of at least two years. Mr Gipp acknowledged that suspension was an appropriate determination, but submitted the period should be in the order of 12 months. Whilst the submission of the parties was helpful, they both acknowledged that ultimately it was for the tribunal to decide the appropriate determination.
2. In considering the appropriate determination, it is important to bear in mind that a determination following a finding of unprofessional conduct is not punitive or retributive. The purpose of a determination in disciplinary matters is to protect the public. That has two aspects to it. The first is to protect the public by preventing persons who are unfit to practise from practising, or by making orders designed to ensure that the proper professional standards are maintained by the individual practitioner.[6] The second is to maintain the professional standards of the profession in the eyes of the public.[7]
3. When considering whether there is a need to protect the public from Mr Antoniades engaging in like conduct in the future, we take into account the following matters:

(a) The events, the subject of the allegations, occurred nearly five years ago. There is no evidence before us that Mr Antoniades has engaged in like conduct with any other patient.

(b) Mr Antoniades vehemently and repeatedly denied the allegations. He maintained his denials until the morning of the hearing. The denials were not bare denials. He gave an alternative account of events which contradicted Ms N's account in the material particulars. He portrayed himself as the victim of an unsolicited and unwelcome advance from her, and claimed he had had limited social contact with her in order to try to allay her concerns after that. This account was first advanced to Ms Gillick in her initial interview with him in March 2009. It was maintained in the responses he, and his solicitors on his behalf later provided. And it was asserted, in considerable detail in his witness statement filed in June 2010. His admissions on the morning of hearing make it clear the denials, and the detailed account he gave was false, and knowingly so.

(c) His explanation for maintaining his denial of any sexual, social or personal impropriety, and advancing a false account, was said to be his concern for the consequences for himself, both personally, that is in respect of his marriage, and professionally, that is in respect of his ability to practise had he told the truth. Whilst denial may be an understandable human response, when a person is confronted with the realisation that their previously concealed misconduct has been discovered, it is of real concern that Mr Antoniades sought to justify denying the allegations and giving a false account by reference to these matters. It shows that he then and now continues to put his personal interests ahead of his professional obligations.

(d) In his witness statement, Mr Antoniades maintained he did not recall ever reading any communication from the Board or any other relevant body which stated that a practitioner was prohibited from seeing a patient socially. Mr Gipp sought to support that by pointing out that the codes of ethics produced for the hearing all post-dated the conduct we are considering. When pressed, Mr Gipp acknowledged that these codes were restatements of pre-existing statements to like effect, and that Mr Antoniades knew at the time that sexual activity with a patient and personal or social contact connected with it was prohibited. This in our view indicates an attempt, even after his acknowledgement of misconduct, to avoid accepting full responsibility for his conduct.

(e) Similarly, Mr Gipp's submission that Mr Antoniades was able to rationalise treating Ms N differently from other patients in terms of a social relationship, because he already knew her socially is of concern. First, the evidence before us indicates the previous social contact was extremely limited. It was confined to Mr Antoniades having been introduced to Ms N by her relative, his work colleague, and having seen her at the consulting rooms on occasions when she was visiting her relative. Secondly, the attempt to separate social contact from the sexual relationship is artificial in the extreme, as the social and personal relationship occurred after the first sexual advance, and was inextricably linked with the sexual relationship. This indicates Mr Antoniades was still attempting to minimise or rationalise his misconduct.

(f) Mr Gipp also submitted we should be confident Mr Antoniades was unlikely to act in such a way again. He relied on the absence of other, like complaints or adverse findings, and the significant personal and professional and financial consequences now visited on Mr Antoniades as a result of his acknowledgement before us of his misconduct. Not surprisingly, his marriage has been placed under strain, although his wife remains supportive of him. He accepts that he will be facing a period of suspension, or cancellation of his registration. He has expended considerable sums in his defence, and restrictions on practice are likely to cause him future financial detriment. These are clearly matters counting in favour of the unlikelihood of conducting himself in this way again. On the other hand, apart from an apology proffered to Ms N through Mr Gipp in the course of the hearing, there was nothing put to us to indicate any appreciation of the harm which can be caused to a vulnerable patient in Ms N's position by misconduct of the sort he has now admitted. His denials to the time of hearing, and attempts to minimise and rationalise his conduct give us concern he has limited insight into the reasons why such conduct is prohibited, and the circumstances which led him to flout his professional obligations in the manner he did.

1. When considering how best to ensure that proper professional standards are maintained by an individual practitioner, and the professional standards of the profession are maintained in the eyes of the public, we must bear in mind the public interest in permitting a conscientious practitioner to return to practice so long as this can be achieved consistently with the maintenance of the standards of the profession.[8] We consider the following matters are relevant to our consideration.

(a) There was no suggestion in this case that the treatments themselves were inappropriate for the symptoms Ms N presented with, that they were not efficacious, or that, save for the inadequacy of the information in respect of the craniosacral treatment to the mouth, they were not performed to an appropriate professional standard.

(b) We were told, and accept, that although the craniosacral therapy and massage therapy which Mr Antoniades performs can continue to be performed by him if he does not have registration as a Chinese Medicine practitioner, he wishes to practise Chinese Medicine and to maintain his registration.

(c) We were told, and accept, that Mr Antoniades is prepared to undergo any further education the Board considers appropriate during any period of suspension, and to submit to supervision or mentoring on his return to practice.

1. Mr Antoniades has admitted his misconduct. He has indicated his desire to maintain his registration and to practise as a registered Chinese Medicine practitioner. He has indicated his preparedness to undergo further education to the satisfaction of the Board during a period of suspension. He has agreed to submit to supervision and mentoring on his return to practice. These factors indicate a belated, but nonetheless genuine desire to adhere to the standards expected of a Chinese Medicine practitioner of good repute. They indicate a degree of acceptance of responsibility. These matters indicate we should have some confidence that he would be unlikely to engage in like misconduct.
2. We consider the salutary experience of these proceedings, and the personal consequences for Mr Antoniades should serve as a sufficient reminder to him, and a lesson to other practitioners minded to put their sexual gratification and personal interests ahead of their professional obligations to their patients that they, not their profession, will suffer the consequent loss of reputation.
3. For these reasons, we consider therefore that the need to protect the public will best be served, not by cancellation of registration, but by a period of suspension, accompanied by a reprimand, a requirement during the period of suspension to undertake further education in a suitable course of ethics directed, amongst other things, to maintenance of boundaries with patients, and supervision upon return to practice. Having regard to the gravity of the conduct, and the concerns we have expressed about Mr Antoniades' attempts to minimise or rationalise his behaviour, and his limited insight we consider that suspension for a substantial period, two years, is warranted.

Determination: unprofessional conduct not of a serious nature

1. In respect of the failure to keep adequate patient records, failure to issue receipts and failure to fully inform Ms N of the nature of the treatment involved in the craniosacral treatment involving the mouth, we are satisfied that the practitioner has, pursuant to s 48(1)(b) of the Act, engaged in unprofessional conduct which is not of a serious nature. By s 48(3) of theAct, such a finding permits us to make any determination which a panel at an informal hearing is able to make upon making such a finding.
2. Section 41 of the Act sets out the powers of a panel to make findings and determinations at an informal hearing. By subs (2), a panel may make one or more of the following determinations if it finds that the practitioner has engaged in unprofessional conduct which is not of a serious nature:

(d) that the practitioner undertake further education of the kind stated in the determination and complete it within the period specified in the determination.

1. Mr Antoniades' explanations for these failures all indicate an inadequate understanding of his professional obligations, an inadequate understanding of his obligation to inform himself about his professional obligations and an inadequate understanding of how to inform himself about his professional obligations in these respects.
2. He initially said he considered he was a good communicator who fully explained procedures to patients before they were performed, that his records were adequate, and that he was not aware he was required to issue receipts for non-rebatable cash payments. He suggested he had not been taught about the standards required by the Board in respect of fully informing patients, the content of patient records or the requirement to issue receipts for all services. He said he was unaware of any communications from the Board about these matters.
3. We are concerned about the professed ignorance of his obligations in these respects. These are not highly technical requirements. They are basics of professional practice. Information about these requirements is easily accessible. It is incumbent on a practitioner to inform himself or herself of their obligations in these respects.
4. On the other hand, we note that Mr Antoniades has already accepted Ms Gillick's advice and now, we are told, issues receipts for all consultations. He has shown himself in this regard amenable to instruction and advice. He must, however, be more active in informing himself and taking positive steps to satisfy himself the information he gives a patient is sufficient, and properly understood, and that his patient record-keeping is adequate.
5. The failure to inform himself of his obligations in these regards warrants a reprimand in our view. The explanations advanced by Mr Antoniades for these deficiencies indicate a need for him to undergo further training. He has indicated his willingness to do so.
6. The determination of the tribunal is that Mr Antoniades be reprimanded and that he undertake further education, at his own expense, and in respect of a course approved by the Chinese Medicine Registration Board in maintaining proper patient records and communicating sufficiently with a patient in order to obtain their informed consent to any procedures or treatments undertaken.
7. On the finding of unprofessional conduct not of a serious nature in respect of the failure to issue receipts**,** our determination is that the practitioner be reprimanded**.**

[1] Quidway v Brown (1984) 1 NSWLR 100 at 105.

[2] (1940) AC 282 at 288-9, (Myers and Elman), approved in Re a solicitor [1960] VicRp 96; (1960) VR 617 at 622.

Campbell v The Dental Board of Victoria (1999) VSC 11[3] at 23-24, adopting Adamson v Queensland Law Society Inc (1990) 1 QDR 498 at 507.

[3] (2007) VCAT 2439 at 156-157.

[4] (1992) 2 SCR 226.

[5] Chinese Medicine Registration Board v Schulte (Occupational and Business Regulation) (2010) VCAT 457.

[6] Craig v The Medical Practitioners' Board (2001) SASC 169 at 41.

[7] Ha v Pharmacy Board of Victoria (2002) VSC 322 at 97.

[8] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 414.