1. On each occasion that Ms N attended Dr McGrath between 7 May 2009 and 8 September 2009, Dr McGrath had privacy aids available to his patients in the form of a sheet, a curtain and a blanket. On each occasion that Dr McGrath examined Ms N during this period, he sat at his desk while Ms N undressed and hopped up on the examination table. Dr McGrath acknowledges that he failed to afford his patient privacy while she undressed, either by drawing her attention to the existence of these privacy aids and inviting her to use them, and/or leaving the room while she undressed.
2. Dr McGrath accepts that this conduct amounts to unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of "unprofessional conduct" in s 3(1) of the Health Professions Registration Act 2005 (the HPR Act)

1. On or about Thursday 3 September 2009, Ms N attended for a consultation with Dr McGrath for the purposes of discussing her spinal MRI results obtained 28 August 2009, and to obtain a work capacity certificate in light of those MRI results.
2. On that occasion, Dr McGrath conducted a physical examination of Ms N, including palpating her chest area at the top of her breasts, palpating her inner thighs and palpating her lower back/top of her buttocks. Dr McGrath had conducted similar physical examinations of Ms N on four previous occasions for symptoms relating to what he had diagnosed as fibromyalgia. This physical examination, as with all of the others that had occurred, was for the purpose of ascertaining the extent of Ms N's pain, to ensure that her medication and dosage remained appropriate.
3. Dr McGrath acknowledges that on 3 September 2009, by reason of the fact that Ms N had attended to discuss her MRI result and obtain a work capacity certificate, she may not have been expecting to be physically examined on that occasion. In those circumstances, he acknowledges that he failed to obtain informed consent from Ms N prior to examining her on 3 September 2009.
4. Dr McGrath accepts that this conduct amounts to unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of "unprofessional conduct" in s 3(1) of the HPR Act.

1. On or about 3 September 2009 and 8 September 2009, Dr McGrath acknowledges that he failed to make adequate notes of his consultations with Ms N.
2. Dr McGrath accepts that this conduct amounts to unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of "unprofessional conduct" in section 3(1) of the HPR Act.

1. Both counsel provided the Tribunal with written submissions and each spoke to them. Counsel for the Board stated that the first question for us was "whether the admitted conduct, admitted to be unprofessional conduct within the meaning of the HPR Act, which has been agreed to be so between the parties, is unprofessional conduct[1] as defined pursuant to s.77(4) of the HPR Act. The second question is the appropriate sanction to be visited upon Dr McGrath for the alleged and admitted unprofessional conduct pursuant to s 77(4) of the HPR Act.
2. Counsel for the applicant confirmed the accepted practice that has developed in this Tribunal in relation to agreed statements of facts and suggested determinations. This practice was explained by President Ross in _Muto'_s case,[2] and continues to be adopted in this jurisdiction:

In proceedings in respect of civil penalties there is now a well-established line of authority in support of the proposition that where a regulatory body and respondent have reached a negotiated settlement and the penalty proposed is broadly speaking within the 'permissible range' (having regard to all the circumstances), the Court (or in this case the Tribunal) should not depart from the agreed sanction. I propose to adopt the same approach to the matter before me. The question then becomes whether the sanction proposed is within the permissible range.

1. The applicant's counsel went on to submit that -

It is the duty of the VCAT to determine the level of the conduct alleged and sanctions therefor, and it is submitted that no agreement between a regulator and the professional person under review can supplant that duty. Nevertheless, it is submitted that any agreement between the parties is a highly relevant matter for the VCAT, it certainly governs the manner in which the proceeding is conducted, and is an extremely important matter for the VCAT to take into account. This principle is applicable both with respect to the primary finding of the level of conduct as well as sanction.

1. We accept that submission. Such an approach has the benefit of ensuring the Tribunal that it has been apprised of the product of the regulator's years of knowledge and experience, including the development of ethics and principles surrounding the particular area of (in this case) medical practice. Both counsel provided submissions on the law and the agreed statement of facts in a fashion which gave comfort to the Tribunal that what was provided is not some arbitrary "quote" but rather some properly negotiated agreement having regard to all the facts and circumstances. We were provided with, and duly considered, the contents of a comprehensive tribunal book containing all the relevant materials. If more support for the proposition put forward by counsel is needed, Middleton J,[3] in dealing with the recent High Court case of Barbaro,[4] (an appeal involving whether or not submissions should be presented or heard on the range of sentencing options in a criminal matter) summarised the position as follows:

A regulator bringing a civil penalty proceeding stands in a different position than that of a prosecutor in a criminal proceeding. By its very establishment and functions, such a regulator does not have and is not expected to have, the independent role and characteristics of the prosecutor. Unlike the prosecutor, the regulator will generally have conducted the investigation which led to the proceedings, dealt with the respondent in relation to those investigations, and instructed its own lawyers and counsel to represent it in the proceedings. The regulator typically has responsibility for all aspects of the regulatory sphere including administering its statutory regime, investigating breaches, enforcing breaches through non-judicial processes (such as enforceable undertakings) and through judicial processes such as obtaining penalties, injunctions, and remediation orders.

1. Counsel for both parties made submissions about the findings to be made and the penalties that should follow those findings. Each brought appropriate matters to the attention of the Tribunal. Counsel for the Board spoke of the individual allegations, the relative seriousness of those complaints, the relevant matters of special and general deterrence and the need to ensure the maintenance of professional standards for the better maintenance of public confidence. Ultimately of course, it is for the Tribunal to be satisfied that the findings and the proposed sanctions are appropriate.
2. Balancing submissions were made by the respondent's counsel dealing with the doctor's excellent reputation, the fact that five years have elapsed since the conduct occurred, his excellent referees, his type of practice including his educative role and the all-encompassing submission that his conduct was at the lower end of the range of seriousness that might fall within the definition of "unprofessional conduct" in the HPR Act.
3. The satisfactory element of this process is exemplified, for instance, in the submission by counsel for the applicant that, having regard to the respondent's teaching role, his failure to keep proper notes was particularly serious, but at the same time drawing the Tribunal's attention to the comprehensive history and notes normally made by him, thereby suggesting the particular omissions complained of represented a departure from his usual practice.
4. We are persuaded that the findings accepted by the respondent and the suite of determinations submitted are sufficient to ensure that the public and this Tribunal can have confidence in Dr McGrath's future practice of medicine.
5. The Tribunal finds that Dr McGrath's conduct in relation to allegations 1, 3 and 5 amounts to unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of "unprofessional conduct" in s3(1) of the HPR Act.
6. The determinations pursuant to ss. 77(4)(a),(b), (c) and (e) are that Dr McGrath is to:
   • be cautioned;
   • be reprimanded;
   • be required to undertake and complete, within 6 months, and at his own expense (including in relation to the preparation by the counsellor of a report of the counselling for the Board), 3 sessions of counselling in relation to:

(b) appropriate note-taking and record keeping; and

(c) obtaining informed consent from, and appropriate communication with, patients in relation to examinations of intimate areas of the body; and

(d) the counsellor is to provide a written report to the Australian Health Profession Registration Agency (AHPRA) providing details of the matters that have been addressed in the counselling and the counsellor's opinion in relation to what Dr McGrath has learned from the counselling. The written report is to be provided to AHPRA within 3 months of the date of the third counselling session; and

(e) Dr McGrath is to provide a written report to AHPRA providing details of the matters that have been addressed in the counselling and his opinion in relation to what he has learned from the counselling. The written report is to be provided to AHPRA within 3 months of the date of the third counselling session; and

• have a condition placed on his registration that he agrees to AHPRA conducting audits on his practice to cover his medical record keeping, to occur on or about dates 6, 12 and 24 months after the date of the determination, such audit to be completed by an auditor selected by AHPRA..

[1] S 77(1) Health Professions Registration Act 2005 (Vic) and definition in s 3.

[2] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16].

[3] ACCC v Energy Australia [2014] FCA 336 [140].

[4] Barbaro v the Queen; Zirilli v the Queen [2014] HCA 2.