1. The respondent says that the following characterisations and sanctions are appropriate:

(a) The respondent engaged in unprofessional conduct within the meaning of s 5 of the National Law.

(b) The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.

(c) A condition is placed on the respondent's registration that he does not supervise students for a period of 12 months from the date of the Tribunal's order pursuant to s 196(2)(b) of the National Law.

The applicant's position about characterisation and sanction

1. The applicant refers to the respondent's admitted conduct.
2. The applicant also refers to the respondent's acknowledgement that his conduct on 7 March 2020:
   • Amounted to a serious breach of his professional duty;
   • Constituted a boundary violation; and
   • Was in breach of the Code.
3. In relation to the respondent's conduct on 7 March after he asked for Ms X's permission for him to kiss her, the applicant says:
   • Irrespective of his belief that he had consent, the respondent's behaviour was inappropriate given the inherent power imbalance between the respondent and the applicant (which is acknowledged by the respondent).
   • Ought also to be viewed in the context of the respondent's knowledge about Ms X's concerns regarding passing her placement and he was aware of her lack of confidence.
4. The Board submits that there was a failure by the respondent to maintain appropriate boundaries between himself and Ms X which caused significant psychological or emotional harm to her, and that the respondent's conduct breached the Code and the guidelines in that the respondent:
   • Failed to observe and maintain ethical and professional boundaries in a teacher/student relationship.
   • Exploited the inherent power differential in his relationship with his student; and
   • Engaged in intimate actions with his student.
5. The respondent says the Tribunal must ascertain the degree of seriousness of the admitted conduct by the respondent and the extent to which the respondent's behaviour departs from the proper standards of professional conduct of a registered medical practitioner in the context of the guidelines and the Code and the definition of 'professional misconduct' in s 5 of the National Law.
6. The Board says that the Tribunal ought to make a finding that the respondent's conduct constituted professional misconduct because of the abuse of the power imbalance between the respondent and Ms X, the particular circumstances surrounding Ms X's failure in previous placements and that the admitted conduct is a substantial departure from professional standards.
7. The Board also refers to a number of cases that it says are comparable authorities where findings about the existence of professional misconduct were made.

The respondent's submissions in relation to characterisation

1. The respondent says that his conduct for the purposes of this matter ought to be characterised as unprofessional conduct within the meaning of the National Law, specifically in relation to his conduct on 7 March 2020 when he kissed Ms X twice - once without her permission and once with her permission.
2. The respondent acknowledges that his conduct towards Ms X on 7 March 2020 was inappropriate conduct given the power imbalance between himself and Ms X. He acknowledges that his conduct did constitute a professional boundary violation and was inappropriate conduct, although he says the context of that conduct ought to be taken into account.
3. In relation to the other incidents of the respondent's conduct prior to 7 March 2020 that have been raised by the applicant, the respondent strongly disputes that his contact with Ms X had any sexual motive or was inappropriate. He notes that there was no complaint about him touching Ms X's head, shoulders and hands prior to 7 March 2020, and he says that it is clear from her interview as part of the investigation that she did not perceive the touching prior to 7 March 2020 as sexual conduct or felt that it made her uncomfortable. The respondent particularly refers to parts of the transcript of Ms X's interview where Ms X described that she viewed the respondent putting his hand on hers as a form of reassurance, and that she "didn't have a problem" with the respondent holding her hand.
4. The respondent says that he is a person who expresses himself physically and that any touching of Ms X was done to reassure her or to express his thanks or support of her.
5. The respondent says that the Board has adopted a hindsight bias now in characterising his friendly gestures and gestures of reassurance towards Ms X as inappropriate touching, and that the incidents (other than 7 March 2020), included as part of the referral, should be considered to be part of normal every day friendly interactions, consistent with the respondent's nonverbal communication adopted with patients, friends and colleagues.
6. Counsel for the respondent referred to a number of articles outlining the importance of "expressive touch" in general practice consultations.

1. I determine that the respondent's conduct amounts to professional misconduct within the meaning of both paragraphs (a) and (b) of the definition of that term under s 5 of the National Law.
2. In particular, I determine that the actions of the respondent towards Ms X on 7 March 2020 that have been particularised above amounted to professional misconduct. They were clearly in breach of the Code (as admitted by the respondent). They were substantially below the standard that would reasonably be expected of a medical practitioner of an equivalent level of training and experience as the respondent.
3. In relation to the actions of the respondent towards Ms X prior to 7 March 2020 that have been particularised above, I determine that they are instances of unprofessional conduct that, when considered together amount to conduct that is substantially below the standard that would reasonably be expected of a medical practitioner of an equivalent level of training and experience as the respondent.
4. In making these findings, I accept that there was a power imbalance between Ms X and the respondent, simply by virtue of the nature of their relationship of teacher and student, and by virtue of the fact that the respondent would be required to sign off on Ms X's placement, which had potential ramifications for Ms X academically. I also accept that the imbalance was greater particularly because of the respondent's knowledge of Ms X's past academic history, and her anxiety about graduating.
5. I accept the evidence of the respondent that he is a person who is, to an extent, physically expressive in his communication. This is supported by a statement by a female colleague who says she has, over a number of years, never felt uncomfortable being alone with the respondent, and that the respondent "is not really a 'touchy' person but will occasionally pat people (including herself, colleagues and patients) on the hand or shoulder in an affectionate way (as in 'there there')".
6. The conduct of the respondent was not, however, an occasional pat on the shoulder or hand. It was a number of instances of physical contact over a period of about three weeks, involving a medical student who was there to learn from the respondent, including by the respondent modelling a high standard of professional behaviour.
7. The respondent's conduct overall involved a breach of trust and a violation of professional boundaries between the respondent and Ms X in circumstances where there was a power imbalance between the respective parties.

1. The principles to be applied by the Tribunal in considering an appropriate determination were summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311 at [20]:
   • the purpose of the imposition of determinations is to protect the public;
   • determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;
   • determinations should in no way be punitive;
   • the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner;
   • personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
   • the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;
   • the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
   • insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and
   • any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a 'slap over the wrist'.

The applicant's position about appropriate sanctions

1. In considering what sanctions it would be appropriate to impose, the applicant says that the Tribunal ought to have regard to the need for both general and specific deterrents.
2. The applicant says that the vulnerability of Ms X, the respondent's knowledge of her past history of failing placements and her anxiety about graduation, the power imbalance between Ms X and the respondent and the impact felt by Ms X all go to the seriousness of the respondent's actions.
3. In particular, the applicant says that it is of concern that, even after having undertaken further education in respect to boundaries, the sum of the applicant's submissions was that his physical contact prior to 7 March 2020 did not constitute boundary violations, and that at least one instance of his conduct on 7 March 2020 occurred with the express consent of Ms X.
4. Although Ms X was not a patient, the Board says that the respondent was required to act in an ethical way towards Ms X, as required by the Code, s 1.5. The Board says that the respondent not only was in a position of power, but that part of his role was meant to be teaching students the ethics of general practice, and that it remains a matter of concern that he appears to still consider that it is appropriate for someone in the position of a teacher to be touching students.
5. The Board says that the position taken by the respondent in relation to his physical contact with Ms X prior to 7 March 2020, and his reliance upon the verbal consent she gave on 7 March 2020 reflect a lack of insight into the seriousness of the respondent's conduct and the significance of the breach of professional boundaries.
6. Relying on Medical Board of Australia v Cukier [2017] VCAT 109 at [89] and Medical Board of Australia and Woolard [2012] WASAT 209(S) at [18] the Board says that the extent of insight displayed by a respondent is relevant to considerations of specific deterrents and the penalty required for the protection of the public.
7. In Cukier the Tribunal observed:

in relation to specific deterrence regard is had to the extent to which the practitioner displayed insight into his wrongdoing, which is relevant to the continuing risk posed by practitioner. In relation to general deterrence, regard is had to the extent to which it is important to send a clear signal to other practitioners that engaging in such conduct will have serious consequences.

The respondent's position in relation to sanction

1. The respondent's position is that if the Tribunal accepts that the boundary violation which is admitted to have occurred on 7 March 2020 is the only conduct which was inappropriate and a boundary violation breach, then the respondent's conduct, when considered in context of the circumstances of 7 March 2020 amount only to one instance of unprofessional conduct, and do not satisfy the definition of professional misconduct under the National Law.
2. The respondent says there is no risk to the public that would support a suspension of his registration for any period, particularly as he has sought appropriate medical care and is now aware of his mental health and has taken steps to address his work life balance by making significant changes to his working arrangements.
3. The respondent also notes that the opinion of the treating medical practitioner's which has been provided to the Tribunal is that he does not pose any risk to current or future patients nor to any future students.
4. The respondent notes that he has completed training in relation to:
   • Maintenance of professional and sexual boundaries;
   • Ethical professional behaviour;
   • Self-care.
5. The RACGP educator with whom the one to one training was completed, and whose report was before the Tribunal, was of the view that the objectives of the educational program had been achieved.
6. In respect to comparative cases, the respondent says that cases relating to boundary violations between health practitioners and patients are not relevant to the Tribunal's consideration in the present instance. The respondent referred to cases that he says are relevant to present considerations including:
   • Cases which discussed a practitioner suffering an isolated or occasional lapse which did not form a course of conduct.[1]
   • A case where a nurse made sexualised comments to two graduate nurse colleagues who were under his supervision on numerous occasions. Individually the comments were characterised as unprofessional conduct, and the Tribunal did not accept it as analogous cases concerning patient-doctor relationships and physical contact.[2]
   • Allegations including a doctor engaging in an appropriate sexual relationship with a former patient. Emphasis was placed on the friendship and ultimately sexual relationship developing in a workplace context rather than as a result of doctor patient relationship.[3]
   • A nurse engaged in an inappropriate relationship with a patient was categorised as professional misconduct because the nurse was suffering from a mental illness which affected his judgment and severely impaired his insight. His mental illness was taken into account as mitigation. He was found to have no longer pose a risk to the public because of education and psychological counselling.[4]

1. The parties are not agreed as to whether there ought to be a period of suspension placed on the respondent's registration. The respondent says that there ought to be no period of suspension. The Board says that suspension of registration for three months is appropriate.
2. General deterrence is a relevant factor. The profession, the public and medical students in particular should be confident that students who undertake placements to learn about medical practice will be treated with respect and have the opportunity to learn from doctors who demonstrate ethical and appropriate behaviour, including an awareness of personal and professional boundaries.
3. I accept that the respondent has done much to address the circumstances in relation to his personal and professional situation that existed in early 2020. I accept that at that time, the respondent had poor self-care, and was suffering from a mental health condition, which has now been treated. The evidence before the Tribunal from the respondent's treating psychiatrist and general practitioner confirm the respondent's engagement with treatment and a positive outcome. I also accept that the respondent has taken steps to free himself from what was, by any measure, a burdensome work situation that left very little time for family contact or personal care.
4. I also note the respondent has pro-actively undertaken relevant further education.
5. In assessing whether there is a need for specific deterrence a practitioner's level of insight is highly relevant. Having regard to the circumstances surrounding the conduct in question, including particularly the relative positions of the respondent and Ms X, I accept the Board's submission that there remains a lack of insight by the respondent in relation to his conduct in relation to touching Ms X before 7 March 2020, and his references to Ms X giving consent to being kissed on 7 March 2020 (particularly where her witness statement in the investigation was to the effect that she thought that was how she could extricate herself from the situation that had developed). It was the respondent's ultimate responsibility not to engage in conduct that breached professional boundaries.
6. The protection of the public is paramount. Because I have some level of concern about the degree of insight shown by the respondent, I consider that a brief period of suspension of the respondent's registration will reinforce the need for him to be mindful of maintaining appropriate professional boundaries at all times, and particularly to have regard to his actions where a power imbalance may exist.
7. I have had regard to the matters put to me by the respondent in relation to positive changes in his personal and professional life. I consider a suspension of the respondent's registration for one calendar month from the date of this decision will address general and specific deterrence, and the protection of the public and public confidence in the medical profession.
8. The parties are agreed that a reprimand is an appropriate sanction. A reprimand ought not to be considered to be a mere "slap on the wrist". It is a formal denunciation of a practitioner's conduct.
9. I agree that it is appropriate the respondent be reprimanded.
10. The parties are also agreed that there ought to be a condition placed upon the respondent's registration that he does not supervise students for a period of 12 months from the date of this decision.
11. I agree that it is appropriate to place a condition in those terms on the respondent's registration in accordance with s 196(2)(b) of the National Law.

(a) Dr Latt is reprimanded.

(b) A condition is placed on Dr Latt's registration that he does not supervise students for a period of 12 months from the date of this decision.

(c) Dr Latt's registration is suspended for one month from the date of this decision.

[1] Vicassenga v Medical Practitioner's Board of Victoria [2004] VCAT 1044 and Medical Board of Australia v Khara [2018] NTCAT 1048.

[2] Nursing and Midwifery Board of Australia v Lakicevic [2020] VCAT 2.

[3] Medical Board of Australia v Petrovic [2011] VCAT 795.

[4] Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77.