1. This is the decision as to the determinations to be made following the making of findings[1] against Dr Conway Lee, a 39 year old general practitioner. Four allegations were brought against Dr Lee, all of which he contested. After a four day hearing, the Tribunal found each of the allegations proved against him.
2. Dr Lee was found to have engaged in professional misconduct in relation to events which occurred in his consulting room at the clinic where he worked from 2015. This clinic has as a major focus, men's sexual health and HIV medicine. Until the events that are the subject of this case, he saw almost entirely male patients.
3. The four allegations brought by the Medical Board of Australia (Board) against Dr Lee concerned two different male patients. They were brought under s 193 of the Health Practitioner National Law (National Law).[2]
4. Allegations 1 and 3 relate to sexualised and/or inappropriate examinations of his patients' genitals in 2017. In relation to both Complainant 1 (on two occasions) and Complainant 2 (on one occasion), it was found that he stroked, or massaged, or masturbated his patient's penis in a manner which had no clinical justification.
5. Allegation 4 relates to sexualised language used by Dr Lee during the course of the above consultation with Complainant 2.
6. These findings on allegations 1, 3 and 4 were of professional misconduct (within the meaning in (c) of the definition of that term in the National Law). That is, the conduct was inconsistent with Dr Lee being a fit and proper person to hold registration as a medical practitioner.
7. Allegation 2 relates to inappropriate flirtatious and sexualised conversations with Complainant 1 on the social media platform Grindr. Those conversations occurred after the first relevant consultation with Complainant 1, but before the second relevant consultation. Allegation 2 alleged unprofessional conduct. Dr Lee admitted the text of the Grindr conversations, but he said they were just casual conversations, no more. However, this allegation was also found proved against him.
8. At the hearing, each of the two complainants gave oral evidence, as did Dr Lee. On 20 December 2019, the Tribunal handed down its decision that all four allegations were proved against Dr Lee.
9. With the agreement of the parties, the hearing in relation to determinations was conducted on the papers. Extensive written submissions were received from the Board (dated 7 and 23 April 2020) and from Dr Lee (dated 14 and 24 April, including a number of personal references).
10. In their submissions, both parties accepted that the conduct was very serious, and warrants cancellation of Dr Lee's registration, and a prohibition from re-applying for registration for a significant period. For Dr Lee, it was submitted this period should be five years. For the Board it was submitted this period should be seven years.
11. The parties both submitted that a global penalty covering all four proved allegations, is appropriate. The Tribunal agrees. They were all part of a single course of conduct.
12. The Board also sought an order under s 196(4)(b) of the National Law, broadly, prohibiting Dr Lee from providing any health service for the same period. This was opposed by Dr Lee.

The conduct found to have been engaged in by Dr Lee

1. Complainant 1 (like Complainant 2) is a member of Melbourne's gay community. Complainant 1 regularly attended Dr Lee for sexual health check-ups, as well as general health-related needs. There were 18 consultations by Dr Lee between 12 January 2016 and 24 June 2017.
2. In a number of consultations, while taking Complainant 1's blood pressure, Dr Lee placed his hand high up on Complainant 1's inner thigh in a flirtatious and inappropriate manner.
3. During the consultation on 15 March 2017, Dr Lee told Complainant 1 he needed to check his seminal fluid. He stood over Complainant 1 and touched, and/or stroked, and/or massaged Complainant 1's penis in a sexualised manner to the point that it was erect. He proceeded to extract 'seminal fluid' from Complainant 1's penis by masturbating him using a 'milking' motion. This went on for about five minutes. Dr Lee stood over Complainant 1, closely within his personal space.
4. Complainant 1 and Dr Lee both used the male dating application Grindr. Allegation 2 relates to a Grindr conversation between them which started on the evening of Sunday 11 June 2017, and then resumed on the morning of Thursday, 15 June 2017, and continued into the afternoon. It comprised 67 messages in total (counting messages immediately sequential to each other from the same person as a single message). The first part of the conversation, on the Sunday evening, was when Dr Lee was at a party at a venue in the city. The second part, the following Thursday, occurred when Complainant 1 was at home with 'man flu' and Dr Lee was at work. The details are set out in the Tribunal's earlier decision.
5. This was a flirtatious and sexualised exchange. During the second episode of the conversation, Dr Lee became aware that the person he was conversing with was Complainant 1, his patient. Nevertheless he continued with the conversation. His statements in evidence that the exchanges were not sexual, and that he was acting out of concern for his patient's well-being, were rejected. The conversation involved a clear crossing of professional boundaries - the intertwining of Dr Lee's personal life with his professional life.
6. Of most concern was the offer which Dr Lee twice made to Complainant 1 over Grindr to conduct a 'home visit'. Had this occurred it would have been fraught with ambiguity. Dr Lee was privy to intimate details about Complainant 1's health and lifestyle from the 17 prior medical consultations he had had with him. There was the potential for exploitation by Dr Lee of the power imbalance between doctor and patient, for his own personal gratification.
7. Allegation 3 concerns the consultation between Dr Lee and Complainant 2 on 16 June 2017. Dr Lee asked Complainant 2 to masturbate in front of him and/or said he should pull himself. Dr Lee touched and/or stroked and/or massaged Complainant 2's penis and testicles, in a sexualised manner. He touched Complainant 2's pre-ejaculatory fluid with his un-gloved hands. During the consultation he said to Complainant 2 words to the effect of:

(B) 'I am trying to see you erect to see your blood flow';

(C) that he wanted to see Complainant 2 ejaculate and that it was okay for him to do so;

(D) that he wanted to see Complainant 2's erection at full capacity; and/or

(E) that Complainant 2 should consider using a 'cock-ring'.

1. Complainant 2 felt vulnerable and uncomfortable while this was happening. He was standing in the consulting room with his pants down, masturbating at the doctor's direction, and with the doctor at times masturbating him. His semi-erect penis was close to, or at or around the level of Dr Lee's face. Dr Lee had removed at least one glove to touch pre-ejaculate fluid.
2. But he trusted his doctor, and this was sufficient to overcome his inclination to put a halt to what was going on. He said he felt 'cornered in a doctor's office'. This was both physically (standing with his back against the bed, and with Dr Lee in front of him) and psychologically (he felt 'frozen').
3. Complainant 2 reported Dr Lee's conduct soon after the consultation. This led to an investigation by the Board and on 17 July 2017, the Board made an order by way of immediate action. Dr Lee was prohibited from having contact with any male patients. This order remained in place up to, and during, the Tribunal hearing process.
4. On 24 June 2017 there was another consultation with Complainant 1. This was nine days after the second part of his Grindr conversation with Complainant 1. Once again, Dr Lee stroked Complainant 1's penis with a milking-like technique, similarly to what occurred on 15 March 2017. He requested that Complainant 1 masturbate himself, and collected 'seminal fluid', purportedly for medical purposes.
5. Complainant 1 did not immediately feel that the things Dr Lee had done during the consultations on 15 March and 24 June 2017 were unacceptable and a breach of professional ethics. His evidence was that he left both consultations thinking nothing of the examinations that had occurred. In retrospect however, he saw that Dr Lee's conduct was sexualised and then felt extremely uncomfortable about what happened. He came to this conclusion after discussing the matter with his psychologist in October 2017, seven and four months, respectively, after the two relevant consultations occurred. The conduct came to the Board's attention when the psychologist notified AHPRA, pursuant to his mandatory notification obligations.
6. There was no clinical justification for Dr Lee's conduct during the consultations with Complainant 1 and Complainant 2.

1. The Board summarised the principles applicable to determinations, in particular by reference to Medical Board of Australia v Jansz [2011] VCAT 1026 at [358] - [373] and Medical Board of Australia v Naik [2009] VCAT 755 at [60]- [61] as follows:

(a) the purpose of the imposition of determinations is to protect the public;

(b) 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;

(d) the objectives of determinations can be achieved by specific deterrence, ie the deterrence of the person concerned from further inappropriate conduct..., by general deterrence, ie the deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner;

(e) 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;

(f) 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;

(g) 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;

(h) 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

(i) any form of official censure is of consequence. It has been held that 'a reprimand should not be considered 'a slap over the wrist'".

1. The Board went on to make a number of general submissions, including the following:
   • Inherent in Dr Lee's conduct was the prioritisation of his own sexual gratification above the will of his patient. This is at odds with the values expressed throughout Good Medical Practice: A Code of Conduct the Doctors in Australia (Code) which specifically states,

Never use your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care

• The patients, Complainant 1 and Complaint 2, were seeking medical assistance in respect of their sexual health, which is an inherently intimate matter.
• Both patients were involved in the PrEPX Program: to assess the effectiveness of expanding the use of PrEP HIV anti-viral medication.
• The offending reflects gravely on Dr Lee's character and demonstrates a wholesale absence of insight into his compliance with standards and expectations of the profession.
• The Tribunal found that Dr Lee's conduct was a 'gross boundary violation and a gross abuse of patient trust'.

1. In relation to the Grindr conversations, the submissions made by the Board drew attention to the following findings by the Tribunal:
   • Professional boundaries - Dr Lee blurred the boundary which existed between himself and Complainant 1. He should have ceased the Grindr conversation as soon as he became aware that he was in fact communicating with his patient. He was privy to intimate details about Complainant 1's health and sexual history. Nevertheless, he continued to engage in inappropriate communications on Grindr, which were consistent with paving the way for a potential sexual encounter, or at least a social encounter. This blurring of boundaries was aggravated by the offer to conduct a 'home visit'.
   • Power imbalance - Dr Lee's possession of intimate knowledge about Complainant 1's health and sexual history created a power imbalance in any non-professional dealings with Complainant 1
   • Insight - Self-evidently, continuing with the Grindr conversation after he became aware of Complainant 1's identity as his patient demonstrated a lack of insight into his professional responsibilities.
   • Dr Lee's conduct was contrary to the express requirements of the Sexual Boundaries: Guidelines for Doctors (the Guidelines) and the Code.
2. In relation to allegations 1 and 3, involving stroking, or massaging, or masturbating his patients' penis, the Board made submissions including the following:
   • As a direct result of Dr Lee's conduct, Complainant 2 left the clinic and ceased participation in the PrEP HIV anti-viral medication trial. This interrupted the continuity of Complainant 2's care, and reduced the number of participants in the PrEP trial.[3]
   • Dr Lee's conduct was not clinically justified, even though he purported to his patients that it was.
   • It was a breach of professional boundaries.
   • It involved exploiting a power imbalance between himself and his patients, who were in a vulnerable position. They are routinely required to undergo intimate physical examinations and procedures, including physical contact, and to discuss their personal sexual history with their general practitioner. Consequently there is a high level of trust and dependency by the patient on the practitioner. Here, in effect, that was abused. This was exemplified by Complainant 2's statements that he 'did not feel in control', he felt 'frozen', 'cornered in the doctor's office' that he 'just wanted to get out' and being in 'shock' when he left.
   • The conduct was not isolated. It occurred on two occasions in relation to Complainant 1, and one occasion in relation to Complain 2.
   • The conduct is plainly at odds with the maintenance of the public's confidence in the profession. In this instance, it has particular potential to cause harm, since the clinic where he practised services a specific and vulnerable segment of the community, namely, the LGBTI community.
   • In denying the allegations, Dr Lee required his two former patients to submit to cross-examination at the Tribunal hearing. This was inherently difficult and stressful, and had the potential to retraumatize Complainant 1 and/or Complainant 2.
   • Dr Lee has made no attempt to apologise to either of his patients for his conduct.
   • To date, Dr Lee has not participated in any professional programs aimed at addressing his inappropriate conduct.
   • Again, the conduct was contrary to the Guidelines and Code
3. Allegation 4 concerns using sexualised language during the relevant consultation with Complainant 2. In relation to this allegation, the Board reiterated its submissions earlier made concerning professional boundaries, the vulnerability of the patient, lack of insight and the potential to erode confidence in the profession. It also submitted the sexualised language used comprised a breach of the provisions in the Code concerning effective communication.

1. Dr Lee obtained his basic medical degree in 2005. After that, he worked in a number of different roles and fields, and in different Australian States. In 2015, he commenced working part-time at the clinic where the conduct occurred. In May 2016, he went full-time. The conduct the subject of the allegations occurred between March and June 2017.
2. The submissions by Dr Lee accepted as accurate the matters put by the Board in relation to determinations generally.
3. They emphasised, however, statements made in relevant authorities[4] that the time fixed for a period of disqualification is not intended to be punitive. It should be referenced to the minimum period of time the Tribunal considers is required for the person to overcome the deficits identified.
4. In terms of the gravity of the conduct, Dr Lee acknowledged that:

Allegations 1, 3 and 4 concern undoubtedly unscrupulous behaviour. Dr Lee accepts that to engage in sexual conduct with two patients separately and during multiple consultations, in the form of having them in effect masturbate in front of him, including himself participating in that by stroking or massaging their penises without any clinical justification, is completely inconsistent with the ethical standards applicable to doctors. Such conduct amounts to a gross violation and a gross abuse of patient trust.

1. It was submitted that the impact of the conduct upon the complainants does not appear to have been as profound as in other cases. While Complainant 2 was significantly troubled by what Dr Lee had done, Complainant 1 said he left the consultations 'thinking nothing of the examinations that had occurred'.
2. Other matters raised by Dr Lee, and responded to by the Board, are dealt with in the following sections.

1. It was also submitted by Dr Lee that he had never been the subject of any complaint or notification in relation to his professional performance, and has never been the subject of any criminal proceedings.
2. In its Reply Submission of 23 April 2020, the Board took issue with this. It referred to a notification received on 11 November 2017. This notification was from a psychologist, pursuant to his mandatory reporting obligations. He stated that on 1 February 2016 his client disclosed to him that he had a sexual experience with Dr Lee in his consulting room during a medical consultation. However, the client was very reluctant to talk about what happened, in case Dr Lee got into trouble. The sexual contact was consensual. There was some degree of overlap between the client's personal life and that Dr Lee, and the client was attracted to Dr Lee and had an interest in having sex with Dr Lee.
3. Dr Lee was informed of this notification on 23 November 2017. However, it was not able to be fully investigated, as the patient in question declined to cooperate with the Board. Accordingly, the Board decided to take no further action.
4. In response to this submission by the Board, Dr Lee submitted that no weight should be placed on this additional notification because the complainant did not confirm the subject matter, it was not fully investigated, there was no evidence provided to the Tribunal about it, and so the subject matter of the notification has not been proved.
5. The Tribunal accepts those submissions by Dr Lee. In considering what determinations should be ordered in this case, it takes no account of the conduct referred to in this additional referral. However, in the synthesis of determinations to be ordered in this case, Dr Lee is not entitled to any benefit which might be derived from a contention that there has never been any other complaint made against him.

Submission concerning non-prosecution for criminal conduct

1. It was submitted that had Dr Lee been found guilty of criminal offence(s) comprised by the conduct the subject of these disciplinary allegations, there would have been a greater need to impose a sanction in order to preserve the maintenance of the standards and reputation of the profession.
2. We understand no criminal proceedings have been commenced, and in the circumstances, the inference from the parties' submissions is that this is unlikely.
3. Not infrequently, when disciplinary proceedings against practitioners involve serious ethical breaches, a court process has already been carried out, and convictions or findings of guilt for particular criminal offences have been made, with particular sentences then imposed. This refines the context in which the disciplinary process is carried out.
4. But the presumption here that there will be no criminal process does not mean that the conduct should for disciplinary purposes automatically be regarded as less serious. In the disciplinary proceeding, the conduct, and surrounding circumstances must be examined on their merits.
5. The situation where there is no criminal conviction, or finding of guilt, might arise in a number of ways. The victims might not want to press charges. Or, as occurred in one case referred to us by the Board, there might have been acquittals on criminal charges, but the conduct is nevertheless proved for the purposes of the disciplinary process.[5] This draws attention to some of the key differences between criminal and disciplinary processes, namely, the extent to which evidence (such as tendency and coincidence evidence) is allowed in, or excluded, the extent to which separate 'trials' may be ordered concerning different complainants, and the burden of proof.
6. Disciplinary and criminal processes serve different functions. Disciplinary processes are sui generis (in a category of their own).[6] For disciplinary purposes, the conduct needs to be considered particularly in terms of the nature of the ethical breach involved, the effect on the reputation of the profession, and the protection of the public.

1. Dr Lee should receive a reprimand, which is a formal statement which will appear on his registration record, of denunciation of his conduct.

1. The parties both submitted, and we agree, that cancellation of Dr Lee's registration, not suspension, is required here.
2. In the decision on liability, we said, at [268] and [269]:

Having found allegations 1, 3 and 4 proved, we are in no doubt that they constitute professional misconduct under sub-clause (c) of that definition in s 5 of the National Law. That is, they each comprise conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

In our view, this finding requires little explanation. To engage in sexual conduct, in the form of having a patient masturbate in front of him during a consultation, including himself participating in that by stroking or massaging his patient's penis without any clinical justification for this, is completely inconsistent with the ethical standards applicable to doctors. It is a gross boundary violation, and a gross abuse of patient trust.

1. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [42] to [44], the Tribunal said:
   1. The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration set out in section 7 of the Medical Practice Act.
   2. Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.
   3. There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.
2. This is clearly one of those cases where cancellation of registration is required.
3. We now move to consideration of the period for which Dr Lee should be prevented from re-applying for registration.

1. Genital examinations are amongst the most sensitive medical procedures a practitioner may be called upon to carry out. Hence the very highest level of trust is required from patients to submit to these, and the highest level of responsibility is associated with them. Correspondingly, the extent of the breach of trust which was entailed by carrying out these acts, and the extent of the failure to act in accordance with the responsibility conferred on Dr Lee, is very significant.
2. The conduct was carried out under the guise of medical treatment by a general practitioner, with his patients in his private consulting room. It was not in a hospital, where numerous other health professionals are generally present, and the chances of detection are generally likely to be higher. It was in an environment which Dr Lee largely controlled, and in which, as the medical practitioner, he had full authority.
3. Patients attending with particular needs relating to sexual health, including preventing and treating sexually transmitted diseases (including HIV) are a particularly vulnerable cohort.
4. In terms of the effect of Dr Lee's conduct on his two patients, there was no evidence that they suffered a deterioration in their physical or mental health as a result of his actions. Complainant 2 found his experience in the 16 June 2017 consultation extremely uncomfortable. He was immediately very troubled by what Dr Lee had done.
5. While Complainant 1 was not initially perturbed by the conduct of Dr Lee, in our view, a significant aspect of this is that it demonstrated the high level of trust which Complainant 1 placed in Dr Lee.
6. So the seriousness of Dr Lee's conduct lies not so much in the direct effect it had on his two patients, but on the corrosive effect on the trust which patients have in their doctors, particularly patients from the LGBTI community, and particularly patients concerned about sensitive personal sexual issues. Such patients may be more hesitant to raise such issues, to their own detriment, where they feel there might be some risk that they could not place total trust in their practitioner.
7. The sexualised Grindr conversations with Complainant 1 form part of the narrative concerning Dr Lee's conduct the subject of allegations 1, 3 and 4. As noted in the decision on liability, they occurred 13 days and nine days respectively before the second consultation with Complainant 1, the subject of allegation 1. The second part of the Grindr conversation also occurred the evening before the 9.07 am consultation the following day with Complainant 2 (which is the subject of allegations 3 and 4).
8. Turning to allegation 2, in conducting the Grindr exchanges themselves, Dr Lee was found to have engaged in unprofessional conduct. This clearly entailed a completely inappropriate blurring of Dr Lee's private and professional life. From the 17 prior consultations he had had with Complainant 1, Dr Lee was familiar with Complainant 1, and intimately familiar with his mental and physical health, including his sexual history. There was a power imbalance between them which could potentially have been exploited by Dr Lee in any personal encounters, including if his offers to conduct a 'home visit' had been accepted.

1. As noted above, Dr Lee has no previous disciplinary findings against him.
2. We were provided with references given for Dr Lee in 2017 by two other doctors working at the same clinic. One was the senior clinician, who said he had not had any reason to question Dr Lee's integrity or his ethical approach to medicine.
3. Positive references dated March 2020 were also received from another doctor at the clinic, from the past and present practice managers of the clinic, and from a physician from the Austin Hospital where Dr Lee had previously worked. The references generally described him as dedicated, hardworking, keen to increase his knowledge in sexual health medicine, friendly, sincere, non-judgemental, empathetic, patient, knowledgeable and as attracting loyalty from his patients.
4. These positive attributes are accepted. In the decision on liability, when dealing with the allegations concerning Complainant 1, we said:
   1. We accept the evidence to the effect that Dr Lee is a devoted, keen young[7] doctor, who has been eager to learn, and increase his expertise in sexual health medicine. He has inspired confidence in his colleagues at the clinic where he worked for the past four years, who have never become aware of any reason to question his integrity or ethical approach to medicine.
   2. We also accept that many of his patients have expressed their regard for him and have been grateful for the particular care he has shown them. Complainant 1, at least, felt he had a great professional doctor- patient relationship, prior to the conduct being considered.
   3. The effect of allegation 1, however, is that in amongst this apparently exemplary conduct, Dr Lee has succumbed to the temptation to engage in sexualised dialogue and conduct with his patient for his own gratification.
5. We cannot regard the fact that a number of Dr Lee's colleagues have indicated they, and patients, have a high regard for him as being a significant mitigating factor. In one sense, the higher the regard, the higher the level of responsibility. The significance of the conduct here is that it was such a stark departure from the professional and ethical standard of care which is expected of any medical practitioner.

Dr Lee shouldn't be regarded as having reduced insight on the basis that he disputed the allegations. He can't be said to lack insight if, as a matter of fact, he maintains that the conduct didn't occur.

1. In response, the Board submitted that the allegations were ventilated during a four-day hearing, at which both Complainants and Dr Lee gave evidence and were cross-examined. On the basis of the evidence, the Tribunal then made findings of fact. It found the allegations proved against Dr Lee, despite his denial of them.
2. The Board submitted that Dr Lee's ongoing denial of the allegations is a matter directly relevant to the Tribunal's assessment of his insight. The Board said one may expect that following the Tribunal's findings, Dr Lee may have come to terms with the findings and gained some insight into his conduct, but this does not appear to be the case.
3. The Board also referred to a statement in the reference given by Dr Lee's colleague, Dr Hsin-Hua, that Dr Lee 'stands by his innocence'.
4. Dr Lee denied the allegations throughout. That stance has not changed. Thus, the position is that there is a dissonance within Dr Lee - on an intellectual level, he understands that the conduct proved against him is unscrupulous and completely contrary to the ethical requirements of his profession. Yet he was not able to resist the temptation to engage in such conduct on three occasions, once in March 2017, and twice in June 2017.
5. We have not been presented with any information which suggests that Dr Lee has taken any steps at all towards rehabilitation. There is, simply, nothing available to us about this. The first step would be accepting that he engaged in this conduct. That would pave the way for addressing the causes. Amongst the reference material provided, there is the suggestion that this is a very difficult step for Dr Lee. But as matters stand at present, we cannot state that he would not do the same thing again.
6. Given that there is no material at all running in Dr Lee's favour concerning insight or remorse, he is not entitled to any credit in that regard, in determining the length of prohibition from practising.
7. In relation to the Grindr conversations, Dr Lee maintained that even after he became aware that it was his patient, Complainant 1, with whom he was conversing, continuing the dialogue was not unethical, it was no more than just friendly banter, or a casual conversation. We found to the contrary. Again, this indicates a lack of insight. So once again, Dr Lee is not entitled to any credit in this regard.
8. We take into account the fact that at 39, Dr Lee is still relatively young, and if rehabilitated, may have the prospect of returning to serve the public as a medical practitioner again in the future. But as stated, he would need to deal with the implications of the findings against him first, and to satisfy the Board at the time of any future registration application, that he does not present a danger to the public.

Other disciplinary decisions referred to by the parties

1. The Board's submissions referred to the following decisions in other health disciplinary matters:
   • Health Care Complaints Commission v Tan [2016] NSWCATOD 115
   • Medical Board of Australia v Myers [2014] WASAT 137
   • Health Ombudsman v Arora [2019] QCAT 200
   • Pharmacy Board of Australia v Tan [2016] VCAT 1653
   • Nursing and Midwifery Board of Australia v Caroll [2011] QCAT 264
   • Nursing and Midwifery Board of Australia v Augustine [2018] VCAT 1526 (liability); [2018] VCAT 1164 (determinations)
   • Psychology Board of Australia v Asher [2019] VCAT 1957.
2. In Tan, a male psychiatrist engaged in sexualised touching of four female patients (but not penile or digital penetration). Few other details are apparent from the decision. The psychiatrist was charged with aggravated subsequent disciplinary allegations. He suffered from Bipolar type 1 and narcissistic personality disorder. His registration was cancelled, and he was disqualified from reapplying for registration for five years.
3. In Myers, the same period of disqualification applied, five years. But Dr Myers was fined $10,000 as well. He had 'indecently assaulted'[8] a patient (fondling her breasts and hugging her) and made numerous sexualised remarks and approaches to her. This occurred in Geraldton, Western Australia. There were four prior findings against him in Victoria, concerning a range of matters. Since the conduct in Geraldton, his registration had been cancelled in Victoria for forming a personal relationship with a patient.
4. In Aurora, a male nurse had engaged in opportunistic indecent assaults on three young women late at night in a hospital ward. This included rubbing their breasts and placing his fingers in their vaginas. Separate criminal trials were held and he was acquitted of all charges. However, in the disciplinary proceeding all allegations were dealt with together, and denied, but found proved. The nurse's registration was cancelled and he was disqualified for six years. This was in addition to six years' suspension which had already been served by the time of the hearing, making a total of 12 years altogether.
5. The case of Pharmacy Board of Australia v Tan involved a young pharmacy intern who digitally raped a 22-year-old female client in the context of dispensing medication for a skin rash. Mr Tan had been criminally prosecuted and sentenced to six months' jail. He accepted the disciplinary allegations against him. His registration was cancelled and he was disqualified for four years.
6. Caroll was an extremely serious case. A nurse administered morphine to a female patient, then raped her by placing his penis in her mouth and ejaculating. Following criminal conviction (and being sentenced to five years' jail), he accepted the disciplinary allegations against him, and was disqualified for eight years (in addition to four years already out of practice). He suffered from Bipolar affective disorder, but was still responsible for his own actions.
7. Mr Augustine was found guilty of rape and sexual assault of patients. He was imprisoned, and did not participate in the VCAT hearing. He was disqualified from applying for registration for 10 years.
8. In Asher, a psychologist conducted late-night consultations with a female client. This included massages and sex with the client. He contested the disciplinary allegations, but was found to have engaged in the conduct. He demonstrated no insight. His registration was cancelled, and he was disqualified from reapplying for five years. The Tribunal took into account that in that case, the allegations had been hanging over his head for almost five years. He suffered a significant personal impact from the allegations, was shunned by his former colleagues and suffered the intrusion of the media into his life. He was also newly registered as a psychologist at the time of the conduct (although experienced as a counsellor prior to that). The major mitigating factor was the lengthy period without any further allegations of sexual impropriety (seven years).
9. Dr Lee's submissions referred to two additional cases. The first was the decision in Medical Board of Australia v Naim (Review and Regulation) [2013] VCAT 1006.[9] the submission said that this case

concerned a general medical practitioner who, inter alia, conducted an internal vaginal examination in the absence of clinical justification, for his own sexual gratification without the proper consent of the patient. VCAT ordered that the practitioner be reprimanded, cancelled his registration and disqualify him from applying for registration for 12 months.

1. The second was the decision in Nursing and Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1627. The submission said that this case

concerned a registered nurse [in a mental health ward] who, inter alia, hugged two complainants 1 and 3, placed his hands on complainant 2's waist, kissed complainant's 2 and 3 on the lips and the neck and touched their breasts, requested complainant 2 to go to her room with him, and the like. VCAT ordered that the practitioner's registration be cancelled and that he be disqualified from applying for registration for a period of 20 months from the date of the decision.

1. There is no such thing as a 'tariff' in disciplinary matters. Each case is to be determined according to its own unique facts and circumstances. Nevertheless, as the Tribunal said in Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, dispositions imposed in other cases involving similar or analogous conduct will be a useful guide to proportionality and to ensuring that the disposition imposed in the particular case is not outside the range of dispositions imposed in the relevant jurisdiction. The Tribunal does look at other comparable cases for the purpose of seeking to ensure that the determination imposed is not out of proportion with other cases, which are more or less serious, but always bearing in mind that the extent to which conduct is serious, constitutes a breach of trust, or where mitigating or aggravating factors exist or not, for example, varies infinitely, with the circumstances of each case.
2. The above decisions referred to by the parties demonstrate the wide variety of circumstances in which disciplinary proceedings come to be brought before tribunals. In our view, none of these prior decisions referred to by the parties are closely analogous to the present, when the particular combination of circumstances relevant to the synthesis of the period of prohibition is considered.
3. We have had regard to these decisions in general terms, and consider the decision reached here to be proportionate to those decisions.

1. In terms of specific deterrence, we take into account the toll which the disciplinary process has, not surprisingly, taken on Dr Lee since it commenced 34 months ago. We were provided with a report by his psychologist which indicates a diagnosis of 'Adjustment Disorder - with mixed anxiety and depressed mood'.
2. There is, however, no mitigating health factor reducing Dr Lee's culpability. That is, there is nothing equivalent to the Bipolar diagnoses of several of the practitioners in the cases referred to by the Board.
3. It was also submitted on behalf of Dr Lee, that there is less of a need to deter him from engaging in such conduct again, because he will not have the opportunity to do so, given that he will inevitably be disqualified from applying for registration for a lengthy period. To the extent that this argument is based on the notion that a practitioner who has engaged in conduct warranting a lengthy disqualification, but who has demonstrated genuine insight and remorse, should receive the same period of disqualification as another practitioner who has engaged in the same conduct, but not demonstrated genuine insight and remorse, that submission must be rejected. Specific deterrence does have a role to play here.
4. In terms of general deterrence, the seriousness of the conduct and the extent of the boundary violations, and gross breaches of trust, carried out for his own sexual gratification, needs to be taken into account.
5. The Board submitted:

The conduct engaged in by the Respondent is liable to seriously shake the community's confidence in the profession and its ability to care for inherently vulnerable patients. This is of particular concern as the respondent worked at a clinic which had a specific focus on the sexual health of the LGBTQ community. It goes without saying that this conduct has the real potential to tarnish the profession and that clinic's reputation within the community. Consequently, general deterrence is important as it serves the purpose of sending a clear message to practitioners that adverse consequences will follow, including that doctors who engage in such conduct will put at risk their ability to remain within the profession.

1. We accept that submission. We note in Stirling v Legal Services Commissioner [2013] VSCA 374 at [57], the Court of Appeal said:

As was observed by the Tribunal, the primary aim of an order of this kind is to protect the public and to protect the reputation of the profession. In order to achieve this aim, the Court may also act in a punitive fashion. As Maxwell P noted in Quinn v Law Institute of Victoria ([2007] VSCA 122), the orders available to a court in these proceedings are 'punitive as well as protective' and the Tribunal's jurisdiction 'is inescapably - indeed, intentionally - punitive, in the service of protecting the public'.

1. As stated above, the lack of any remorse or insight means that the period of disqualification which the conduct merits will not be subject to any reduction due to those factors.
2. Weighing up the above matters, specific and general deterrence, and, associated with those factors, the need to protect the public from potential further breaches of ethical obligations by Dr Lee, and to protect the reputation of the profession, we have reached the conclusion that Dr Lee should be disqualified from applying for registration for six years from the date of this decision.
3. In accordance with the submission made on behalf of Dr Lee, this period takes into account the four-month period which has elapsed since he was suspended by the Board from providing any medical services at all, following our decision of 20 December 2019.

1. The Board sought that an order also be made under s 196(4)(b) of the National Law as follows:

that the Respondent be prohibited from providing, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, any health service involving provision of care, to any male patient and/or person, during the ordered disqualification period.

1. The Board pointed to the fact that Dr Lee had been found to have engaged in professional misconduct under paragraph (c) of the National Law definition in relation to three of the allegations, and that there had been exploitation of the power imbalance between him and his patients. The Board said it is a possibility that he 'may seek to exploit that power imbalance in an alternative position in the health profession, including those not regulated by the National Law'.
2. This was opposed by Dr Lee. The submission made on his behalf on 14 April 2020 said:

In anticipation of his registration being cancelled, he hopes to be able to work in a field of employment where he may put his knowledge and experience of the medical profession to practical use, but in circumstances where he would not be involved in a clinical context. In particular, Dr Lee is interested in pursuing positions in medical management/administration in Telehealth, like the one advertised recently on Seek (see the accompanying job advertisement). Alternatively, Dr Lee is interested to pursue positions that might become available as a medical educator or which would see him employed in a medical advisory role (and which tend to be associated with pharmaceutical companies).

1. It was also submitted that where prohibition orders had been made in the past, it was to protect the public and address perceived risk that practitioner will engage in a sort of conduct at the practitioner has been found to have engaged in.
2. For example, in Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099, a nurse had engaged in financially predatory conduct resulting in her becoming a beneficiary of the estate of a 92-year-old patient with no other family members, securing a financial windfall of over $1.1 million. A prohibition order was made to prevent her from repeating that conduct in the guise of an aged care worker, even after she was deregistered as a nurse.
3. Another example was the case of Psychology Board of Australia v King [2016] QCAT 140. There, the psychologist being disciplined in relation to a sexual relationship with a patient had continued to work as a counsellor during the period of his suspension, and openly acknowledged his intention to continue to do so if his registration was not reinstated. On the evidence, this was seen to create an appreciable risk to the public.
4. By contrast, for Dr Lee it was submitted:

In Dr Lee's circumstances, there is no practical risk that, during his period of disqualification, he will engage in the sort of conduct that he has been that he has been found to have engaged in, were he to work in the fields in which expresses interest...Were he to find work in a medical management/administrative position in Telehealth, or as a medical educator or in a medical advisory capacity, he would not find himself in the same or similar context to that wherein the conduct has been proved to have occurred. He would not have the same opportunity to engage in such conduct. He would not pose a risk at all.

1. In its Reply Submissions the Board also referred to the fact that Dr Lee's Grindr conversation with Complainant 1 included invitations to do a 'house visit' and a 'home visit'. The Board said it is concerned Dr Lee not be put in a position where he is, directly or indirectly, providing health services involving the provision of care to male patients, during the ordered disqualification period.
2. The Board referred to decisions in three different states where such an order was made, namely the decisions of King, Kumar and Dental Board of Australia v Dhillon [2018] WASAT 107.
3. There is some debate as to whether a Tribunal such as VCAT is in fact empowered to make a prohibition order under s 196(4)(b), if it has already made a disqualification order under s 196(4)(a), given that the two are separated by the conjunction 'or' in s 196(4).[10]
4. In this case, however, it is not necessary for us to consider that issue. Prohibition orders are not appropriate in every case. They are the exception rather than the rule. This is not a situation akin to King, or Kumar, where there was a specific basis to form the view that something more than disqualification was required to protect the public. Having been disqualified from being registered as a medical practitioner, Dr Lee is not permitted to engage in any of the activities a medical practitioner engages in.
5. We are also conscious of the uncertainty which could be created by a prohibition order, noting that 'health service' is not exhaustively defined in the National Law. [11]
6. Dr Lee is entitled to seek to earn a living during his disqualification. To the extent that he has a concern that any role he is contemplating taking on might breach his obligations as a disqualified medical practitioner, he would be wise to seek advice. It would seem to us that where a medical practitioner's registration has been cancelled, and he is disqualified from seeking registration again for a specific period, the occasion would not arise where he could properly have contact with patients in an environment and circumstances which are in any way akin to those applicable when a patient attends the private consulting room of a medical practitioner.
7. For these reasons, we will not make a prohibition order under s 196(4)(b).

1. [1] Medical Board of Australia v Lee (Review and Regulation) [2019] VCAT 2036. This decision should be read in conjunction with that earlier decision on liability.

[2] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[3] We note that the PrepX Program ran for 21 months (see [7] of the decision on liability) and Complainant 1 indicated he had been involved in it for approximately one and a half years before he withdrew from the Program (paragraph [28] of his second witness statement).

[4] In particular, Health Care Complaints Commission v Black (No 3) [2015] NSWCATOD 72 at [99] ff.

[5] Health Ombudsman v Arora [2019] QCAT 200.

[6] Stirling v Legal Services Commissioner [2013] VSCA 374 (17 December 2013) at [67].

[7] We note from the submission by Dr Lee of 14 April 2020 that he is in fact 39 years old.

[8] Noting there were no criminal charges laid.

[9] This is in fact the decision by Deputy President Macnamara (as he then was) granting a stay of the Tribunal's determinations order of 5 June 2013 pending the hearing and determination of Dr Naim's application for leave to appeal. (Such leave was ultimately granted, but the appeal was refused - Naim v Medical Board of Australia [2013] VSCA 205 (29 August 2013) per Hansen, Tate JJA). While the 21 March 2013 VCAT decision finding some allegations proved against Dr Naim is at Medical Board of Australia v Naim (Review and Regulation) [2013] VCAT 329, the order of 5 June 2013 itself does not appear to have been subject of published reasons,

[10] In Dental Board of Australia v BYX (Review and Regulation) [2019] VCAT 1739 at [38], the Tribunal took the view that once a cancellation order had been made, there was no power to make a prohibition order. The difference between this view, and that taken in cases such as King, Kumar and Dhillon was acknowledged in Psychology Board of Australia v Asher (No 2) (Review and Regulation) [2019] VCAT 1957 at [129] and following, where the Tribunal declined to express a view, saying that a prohibition order was not appropriate in that case, even if there was power to impose it.

[11] See Dental Board of Australia v BYX (Review and Regulation) [2019] VCAT 1739 at [38].