1. Attachment A to these Reasons contains the full terms of the Allegations and particulars.
2. In broad terms, the Board alleged, and Nguyen agreed, that he had engaged in professional misconduct in that:
   • He failed to maintain the boundaries that were required to be maintained by a medical practitioner, as he engaged in uninvited contact of a sexual nature during his consultation with Patient A on 1 May 2021 (Allegation 1);
   • He failed to comply with the Restricted Activity Directions by providing cosmetic lip fillers to Patients A and B at Clinic 1 in October 2020 when that service was not permitted due to COVID-19 pandemic Chief Health Officer Directions (Allegation 2);
   • He failed to record and maintain adequate clinical records regarding his consultation with Patient A on 1 May 2021 (Allegation 3); and
   • He recklessly provided false and misleading information to the Medical Board of Australia and/or the Australian Health Practitioner Regulation Authority (Ahpra) during an interview with Ahpra investigators on 27 August 2021 (Interview and Allegation 4).
3. As is apparent, we have not named the relevant patients or locations where Nguyen practised at relevant times. In circumstances where the patients were not required to give evidence and the facts involve very personal information about one of them, we were satisfied there was no need to name either patient or include other information which might identify them.

1. On 1 May 2021, Nguyen provided treatment to Patient A. While she attended the appointment they scheduled (via text message) for Botox treatment, she also raised concerns about a stomach infection and a sore back. No one else was at Clinic 1 when she arrived or throughout the appointment.
2. During the appointment, Nguyen offered to massage Patient A's back and instructed her to lie face down on the treatment bed.
3. He lifted the back of her top and commenced massaging her back. He then pulled her jogging pants down to expose the top of her buttocks. He massaged the top of Patient A's buttocks and back without her consent. Nguyen sat on top of Patient A and whispered in her ear 'can I hug you'. Patient A ignored him. He offered to massage her thighs and, despite her clearly saying 'no thank you', Nguyen attempted to pull her pants down. She again said 'no' but he continued, pulling her pants down exposing her buttocks fully. Nguyen touched Patient A's thighs without consent. He then massaged her entire legs and buttocks without consent. He parted Patient A's buttocks and massaged near her anus and vulva (without touching those areas) without her consent. Nguyen again asked Patient A if he could hug her. She got up and off the treatment table as she was saying 'no' and pulled her pants up.
4. Nguyen then administered the Botox while Patient A was seated. Patient A went along with that because she wanted to pretend nothing had happened. At some stage, Nguyen attempted to kiss her and then asked if he could kiss her. He asked about whether she was seeing someone.
5. When the Botox treatment had been finished, Nguyen asked if she had somewhere to be. Patient A answered that and his follow up questions to the effect that 'a guy' was waiting for her at home. That was not true, but Patient A was feeling unsafe. Before she left, Nguyen gave her some Panadol for her back and Maxolon tablets for her stomach condition.
6. When Patient A left, she called her housemate. She began to cry and was shaking as she described what had happened. She managed to drive home but felt 'disgusted and violated'
7. She made a complaint to police the same day but, ultimately, decided not to proceed with their proposed investigation 'as they advised it would be my word against his and a horrible lengthy process to go through the courts'.[2]
8. Three weeks later, Patient A made a notification about Nguyen to the Board. The Board commenced an investigation and notified Nguyen it intended to take immediate action to suspend his registration. Although Nguyen signed an undertaking not to practise on 25 June 2021, an Immediate Action Committee (IAC) met on 5 July 2021 and decided to suspend Nguyen's registration with effect from 6 July 2021. Nguyen's registration has been suspended since that date.
9. The Board's investigation continued.
10. It reviewed Nguyen's notes of the appointment he had with Patient A on 1 May 2021. They were virtually non-existent, including as to Patient A's back pain, his decision to give her Panadol and to give her Maxolon (without a prescription) for her stomach condition.
11. Ahpra representatives conducted the Interview with Nguyen on 27 August 2021 and he was asked if he was 'ever practising during covid lockdown?'.[3] He said he had not worked in the 'cosmetic industry' but had worked at two other clinics (Clinics 2 and 3) as a medical practitioner. We record that the practise at Clinics 2 and 3 was not the subject of any allegation.
12. The Board received information which indicated that Nguyen had provided 'cosmetic' treatment to Patient A and her friend, Patient B, during October 2020 when Melbourne was in lockdown and restrictions applied to the provision of medical treatment. The cosmetic treatment Nguyen provided did not fall within the terms of the applicable Directions.
13. After the above information came to light, Nguyen was asked to respond and he promptly confirmed he had provided the specified treatment to Patients A and B in October 2020.

1. The Board had the onus of proving all alleged facts.
2. We were required to make our findings of fact on the balance of probabilities, comfortably satisfied they are open on the evidence, taking into account the seriousness of the allegations and the consequences of findings such as these.[4]
3. Having regard to the Agreed Statement, the materials in the TB and Nguyen's admissions, we were comfortably satisfied that all of the facts alleged in Allegations 1 to 4 were proven.

1. The following comes from the Board's Written Submissions on characterisation dated 9 September 2024[5] which Nguyen's counsel agreed accurately summarised the relevant principles.
2. Professional misconduct is defined in section 5 of the National Law as including:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. In relation to a finding under paragraphs (a) or (b) of the definition, the Tribunal must assess the degree of seriousness of the practitioner's conduct having regard to the extent to which the conduct departs from the proper standards of professional conduct of a registered medical practitioner.
2. In assessing whether conduct is inconsistent with being a fit and proper person under paragraph (c) of the definition of professional misconduct, the focus is whether the conduct of the practitioner is inconsistent with the practitioner being a fit and proper person to hold registration, as opposed to the practitioner's current suitability to hold registration.
3. In the 2022 decision of Dental Board of Australia v Hussain,[6] the Tribunal stated that:

a finding that a person is not a 'fit and proper person' does not necessarily involve a finding that the person is not of good character. The finding may simply be that there is an element of what is required for a person to be a 'fit and proper person' that is lacking.

1. The Tribunal further stated that 'it is to be emphasised that in the context of the National Law, we are considering conduct, not character'.
2. The gravity of professional misconduct is not measured by reference to the worst cases but by the extent to which it departs from the proper standards.

1. The parties proposed that the conduct in the Allegations be characterised as follows:

(a) Allegation 1: professional misconduct under paragraphs (a) and (c) of the definition; and

(b) Allegations 2, 3 and 4: professional misconduct under paragraph (a) of the definition.

1. The Board relied in part on an expert report written by Dr Gillian Gardner on 12 October 2022.[7] No issue was taken with Gardner's expertise or the content of her report. In writing her report, Gardner had regard to Patient A's two statements (made to Ahpra), Nguyen's clinical notes, the notes from the Interview with Nguyen in August 2021 and a submission Nguyen made in respect of the proposed IAC suspension.
2. In respect of Allegation 1 and the boundaries Nguyen ought to have maintained, Gardner described the events of 1 May 2021 and said (referring to clauses in 'Good medical practice: a code for doctors in Australia' October 2020 (Code of Conduct)):

This is a significant failure on [Nguyen's] conduct to uphold the [Code] in regards to:

10.2 Professional boundaries

Professional boundaries in medicine are the limits that define the relationship between a doctor and their patient. Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves:

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

4.2 Doctor-patient partnership.

A good doctor-patient partnership requires high standards of professional conduct. It involves: 4.2.1 Being courteous, respectful, compassionate and honest. Of particular note, section 4.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially.

4.5 Informed consent

Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. Good medical practice involves: 4.5.1 Providing information to patients in a way they can understand before asking for their consent.

10.5 Medical records

Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 10.5.1 Keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral and other management in a form that can be understood by other health practitioners.

. . .

According to the evidence-based resource, National Prescriber Service's article on Managing acute non-specific low back pain . . . the first line treatment is providing advice - keep active, reassurance, simple analgesia and review in 1-2 weeks. Second line treatment for low back pain is increased analgesia, physical therapies - exercise program, acupuncture, and spinal manipulative therapy (conflicting evidence) and hot packs/heat wraps.

Massage is not part of standard medical training or specialist general practice training and to conduct a massage on a patient would be highly unusual. If a doctor feels a patient would benefit from a massage, it would be standard practice to ask the patient to see a massage therapist or physiotherapist for this treatment.

[Nguyen] states in [the Interview] that 'doing the massage was inappropriate'. He also states that 'he has no qualifications in massage'. As well as this non-standard offer of massage, more concerning was, that it involved body lotion, climbing on top of the patient and lowering her pants. This is a significant departure from the standard one would expect of a practitioner with his level of training and experience and breaches professional boundaries and doctor-patient partnership . . .

there was also a lack of informed consent and [Nguyen's] behaviour in asking for a hug and kiss on two occasions was breaching his professional boundaries by attempting to pursue an inappropriate relationship with this patient.

1. Patient A wrote a statement on 3 September 2024 in which she described the impact Nguyen's actions on 1 May 2021 have had on her since:

Since the incident I have had to seek professional help both physically and mentally as an outcome of [Nguyen's] actions.

[Patient A described a physical condition which caused her to experience] a lot of pain. Sometimes the only thing that could help was getting a massage. A massage would help both physically and mentally owing to the fact that I stored a lot of emotional tension in my body.

I used to heavily rely on massage as a therapy (as well as physical therapy such as osteo and physio) but since the incident I started getting panic attacks any time anyone would touch my lower back. This has now extended to going to the appointments at all, which has led to me avoiding getting treatments and help when needed. A couple [of] weeks back I was in incredible amounts of pain and eventually agreed to go to the osteo but only on the basis that my fiancé came with me and even then, I was sat outside in the car wanting to cancel trembling and crying I was so nervous about going in.

The impact on me, no matter how minor the assault may be considered, has affected my day to day life and made me feel unsafe and violated.

I'm working with professionals to overcome this but felt it was necessary information to be known.

1. Allegation 1:
2. The Board submitted that the conduct involved a very serious instance of professional misconduct. It further submitted that the conduct 'speaks for itself' and that there is no room for 'uninvited contact of a sexual nature' in the course of a medical consultation. That was regardless of whether, as Nguyen suggested, the practitioner had come to see his patient 'more as a friend than a patient'. The Board contended that, if Nguyen had come to believe that, it ought to have been a clear sign that he was failing to observe professional boundaries. In any event, the evidence showed that Nguyen knew Patient A only through the doctor patient relationship.
3. Reference was made to comments in Medical Board of Australia v Lee[9] to the effect that 'little explanation' is required for a finding that a practitioner's conduct is inconsistent with being a fit and proper person where it involves conduct of a sexual nature in a consultation. Such behaviour involves 'a gross boundary violation, and a gross abuse of patient trust'.[10]
4. The Board submitted that there is no room for asking to kiss and hug a patient in a medical consultation, particularly in a consultation that involved 'massage' and moving items of clothing.
5. Reference was made to the power imbalance inherent in the treating relationship and in circumstances where there was no-one else in Clinic 1 at the time.
6. Reliance was placed on Gardner's report as set out above.
7. The Board noted that, through the Agreed Statement, Nguyen had admitted that the conduct was inconsistent with both the Code of Conduct and the 'Sexual Boundaries: Guidelines for doctors, 2018' (Sexual Boundaries Guidelines). Specifically he had admitted that his conduct was inconsistent with paragraph [1.1] of the Sexual Boundaries Guidelines, which is in terms that illustrate the seriousness of the conduct:

Trust in the relationship between doctors and patients is a cornerstone of good medical practice. Sexual misconduct is a serious abuse of that trust. Patients have a right to feel safe when they are consulting a doctor.

Patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care.

1. Allegation 2:
2. Allegation 2 concerned two instances of failing to comply with COVID-19 restrictions by, on separate dates, providing cosmetic lip fillers to Patient A and her friend, Patient B.
3. The Board's Written Submissions noted that it was common ground that, at the time of the relevant conduct, it was prohibited by public health restrictions. Those restrictions were intended to prevent the spread of COVID-19.
4. Our attention was drawn to other examples of where failure to comply with restrictions of that kind has been found to be professional misconduct.
5. First, the decision in Nursing and Midwifery Board of Australia v Tut.[11] In that case, the nurse practitioner practised at two health services during August 2020 when applicable COVID-19 Commonwealth principles prevented her from working at multiple sites. That conduct had the potential to put other staff and patients at increased risk of COVID-19 infection. In addition, the practitioner failed to provide sufficient information about the nature of her employment with one employer to the other. The practitioner practised on certain dates before being tested for COVID-19, after being informed that there was a COVID-19 outbreak at one of her places of employment. The Tribunal concluded that the above conduct constituted professional misconduct under paragraph (a) of the definition.
6. Second, the decision in Nursing and Midwifery Board of Australia v Anni.[12] That decision concerned three nurses who were all employed at the same aged care facility and who all attended a baby shower at the facility. That gathering was contrary to Chief Health Officer directions in force at the time and occurred before vaccines for COVID-19 were available. The Tribunal concluded that each of the practitioner's conduct constituted professional misconduct under paragraph (a) of the definition.
7. Third, the decision in Dental Board of Australia v Nairn.[13] The practitioner in that case was charged with eight offences under the Emergency Management Act 2005 (WA). The practitioner was sentenced to seven months imprisonment, serving two months of that sentence. The conduct included the practitioner leaving her home and, contrary to applicable health directions, providing treatment to patients at her clinic. The Tribunal concluded that each instance of the practitioner's conduct constituted professional conduct under paragraph (a) of the definition.
8. The Board's Written Submissions contended that, had Nguyen's conduct the subject of Allegation 1 not been notified, it is unlikely the conduct the subject of Allegation 2 would ever have come to light.
9. Nguyen's conduct was said to be inconsistent with the Code of Conduct. The Board submitted that medical practitioners have an obligation to contribute to public health measures. The Board contended that, to provide cosmetic treatments at a time when significant quarantine measures were in place, was 'an abuse of the trust reposed in medical practitioners' and was 'conduct likely to undermine public confidence in the profession'. It noted that the seriousness of the conduct was illustrated by the potential fines for contraventions, being a maximum penalty of 120 penalty units for a natural person ($19,826) and 600 penalty units for a body corporate ($99,132).[14]
10. Allegation 3:
11. The Board referred us to the following description of the importance of accurate and complete clinical notes:[15]

Inadequate records significantly limit the ability of other practitioners to provide continuity of care, including in emergencies. Poor documentation contributes to delays in recognising, managing, and providing urgent care to deteriorating patients.

1. In June 2021, Ahpra sent Nguyen a request to disclose all clinical records with Patient A from January 2021. Nguyen responded with the clinical records which comprised a standard form apparently produced by the manufacturer of a product called 'Restylane'. The form had an image of a woman's face and sketches of a face, neck and two hands. The form had room for the patient's name to be added, a treatment date, information about consent, whether they were pregnant, contraindications and other medications. There was a comments section.
2. The record for Patient A had her name and then the dates of six appointments.[16] The other spaces for a history and the other clinical matters referred to above had not been completed. The notes for the individual appointments, including 1 May 2021, indicated the product which had been used on each occasion and, in some cases, information about the batch number and the like. The woman's face was marked to indicate products had been applied to the lips.
3. In his covering email to Aphra, Nguyen said:[17]

She see me mainly for cosmetic injection however she also ask advice for her medical condition such as severe back pain, Migraine, bowel parasite infection.

1. The Board noted that none of those matters appeared to be recorded in the notes. It submitted that the notes were 'not consistent with even an attempt to make an accurate and contemporaneous record of the relevant consultation'. There was no mention of any presenting issue, despite Nguyen's claim that she presented with severe back pain.
2. As set out above, Gardner was critical of Nguyen's notes for the 1 May 2021 consultation with Patient A.
3. The Board submitted that the records were 'manifestly deficient' and that their 'primary vice' was that 'they did not record the "massage" provided to' Patient A.
4. It submitted that, as a result, 'the records had the potential to frustrate the discovery or proof of the serious wrongdoing' the subject of Allegation 1.
5. In oral submissions at the hearing, the Board's counsel added that the paucity of detail in the notes was not as a consequence of inexperience: Nguyen had been registered as a medical practitioner for 16 years.
6. Allegation 4:
7. The Board's submissions provided the context for the alleged reckless provision of false and misleading information as follows.
8. As noted earlier, the Interview was conducted on 27 August 2021. At the commencement of the Interview Nguyen was cautioned that it was important to answer truthfully and to the best of his knowledge and that it was an offence to state anything to an investigator if it is false and misleading. He was accompanied by a legal practitioner.
9. The relevant exchange was as follows:

[Interviewer]: Were you ever practising during covid lockdown?

[Nguyen]: No I didn't. In lockdown I did not work in the cosmetic industry. I did work for [Clinic 3] and other clinic. Work from 10-1 on Sat. Then work on [Clinic 3].

1. Soon after the Interview, Ahpra made contact with Patient B to discuss this issue.[18] When asked whether she recalled Nguyen practicing during the relevant time, she said 'we both went to see him during this time' and that he used a product called 'princess filler'.
2. About a week later, Nguyen was invited to respond to that information. In response Nguyen stated that he had seen two cosmetic clients at the relevant time.[19] The Board gave him credit for his timely response and correction of the false and misleading information.
3. The Board referred us to two extracts from Tribunal decisions as to the seriousness of giving false or misleading information to Aphra and the Board:

In addition to their obligations to be ethical and trustworthy, and to display qualities such as integrity and truthfulness, doctors are required to cooperate with any legitimate enquiry into the treatment of a patient and with any complaints procedure that applies to their work.[20]

and

The Board is charged with regulating the medical profession to ensure the protection of the public and can only do so properly where practitioners provide frank and honest information in response to matters concerning performance and conduct. Deliberately attempting to mislead the Board undermines the Board's ability to achieve its purposes. The Respondent's conduct did not demonstrate the necessary honesty, moral integrity and rectitude of character consistent with registration as a medical practitioner. It was conduct liable to reduce community confidence in the medical profession and therefore inconsistent with the Respondent being a fit and proper person to hold registration.

The Code requires medical practitioners to cooperate with any legitimate inquiry into the treatment of a patient. Dr Soffer did not do so. His conduct in this respect fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise.[21]

1. The Board submitted that those comments apply with similar force, whether the false or misleading conduct was deliberate or reckless as to the truth.

1. At the hearing, Nguyen's counsel took no issue with the Board's Written Submissions. In his own written submissions dated 9 September 2024 (Nguyen's Written Submissions), Nguyen's counsel said the following in respect of the nature of the conduct in Allegations 1 to 4.[22]
2. Allegation 1:
3. Nguyen's Written Submissions described professional boundaries as being integral to a good doctor patient relationship. It was conceded that, by engaging in the conduct in Allegation 1, Nguyen engaged in unethical and unprofessional conduct.
4. Nguyen was said to have accepted that his conduct exploited the doctor patient relationship and undermined Patient A's trust and confidence in him as a doctor and 'possibly' her impression of the medical profession more generally. It was accepted that the conduct can be seen more broadly to impact the communities trust in the medical profession.
5. It was accepted that the conduct was unwelcome and placed Patient A in a vulnerable position as described in her statements.
6. It was submitted that Nguyen 'failed to correctly assess, act and respond to the circumstances before him'. That was described as a serious departure from the standards of conduct and professionalism expected of him. It was submitted that, in proceeding as he did:

he believed that there was a level of familiarity and connection between them - arising from a good prior clinical relationship - that allowed him to offer [Patient A] the massage. He believed he was helping and preventing the use of Diazepam to treat it. He viewed her more as a friend than a patient. He believed incorrectly that there was a continuing consent to conduct the massage when the objective and reasonable circumstances of the unfolding appointment should have alerted him otherwise. Likewise offers to hug and kiss a patient should never occur.

1. Nguyen's Written Submissions said that, in engaging in the conduct, Nguyen 'placed his own priorities ahead of' Patient A's. Further, he:
   • Failed to comply with professional boundaries;
   • Failed to recognise that he should not have asked for hugs and kisses; and
   • Failed more generally to recognise that, as a doctor, it should never have happened.
2. Nguyen's Written Submissions explained it was for those reasons that the parties jointly put to the Tribunal that the conduct for Allegation 1 could be characterised as professional misconduct as defined at paragraph (a) and (c) of the National Law definition.
3. Nguyen's counsel noted that, in accepting the above submissions, it should also be recognised that his client had made substantial admissions to the conduct. The Submissions said there had only been discrete areas of dispute between the parties, which were resolved by discussions.
4. Allegation 2:
5. Nguyen's Written Submissions confirmed that he admitted he had failed to comply with the Directions by providing two cosmetic lip fillers to Patients A and B between 16 and 18 October 2020. It was conceded that the performance of those procedures did not fit within a permitted work practice under the then applicable Direction.
6. As a consequence the parties jointly proposed that the conduct could be characterised as professional misconduct as defined in paragraph (a) of the National Law definition.
7. Allegation 3:
8. Nguyen's Written Submissions referred to the purposes of medical records as including:
   • Helping general practitioner's make decisions about patient care by providing information about the particular presentation, providing a structure for thoughts and decision making and a record of previous consultations;
   • Recording consultations provided by other health professionals so as to facilitate safe and effective care for patients;
   • Providing a source of information to be shared appropriately with other health professionals to facilitate safe and effective care; and
   • Providing a source of information to be shared with patients to facilitate a partnership in healthcare based on trust and respect.
9. Nguyen's Written Submissions stated that Nguyen accepted 'without reservation' that he failed to maintain adequate records of the consultation on 1 May 2021 and further that the keeping of adequate clinical notes in accordance with the standards set out in Code of Conduct is a non-negotiable part of practice.
10. The Submissions described the notes as lacking any substantive detail in relation to the massage performed, reasons for performance of same and further in relation to dispensing of medications (Panadol and Maxolon). The notes also failed to provide the clinical indication for the basis of the medications issued and reasons for same.
11. Nguyen specifically accepted that he failed to record his dispensing of Panadol and Maxolon and that he should have.
12. As a result, the parties jointly proposed that the conduct could be characterised as professional misconduct as defined at paragraph (a) of the National Law definition.

1. Allegation 4:
2. Nguyen's Written Submissions admitted that he had recklessly provided false/misleading information to the Board as alleged. Reference was made to the specific question asked and Nguyen's answer as well as his correction when asked about it by the Board.
3. As a result, the parties jointly proposed that the conduct could be characterised as professional misconduct as defined at paragraph (a) of the National Law definition.

1. Allegation 1:
2. We agreed with the submissions from both parties: it scarcely needs saying that engaging in touching and other conduct of a sexual nature during a medical consultation is a serious breach of trust and of the standards which apply to medical practitioners.
3. As shown by Patient A's statement, the consequences for a patient as described in the Sexual Boundaries Guidelines are not theoretical but very much real. Any person who finds a medical practitioner sitting astride them, pulling their clothing down to expose and 'massage' their thighs and buttocks without express informed consent would feel disempowered, disrespected and unsafe.
4. At the hearing, the Board's counsel made submissions about Nguyen, in broad terms, failing to recognise what he was doing and continuing to do wrong, referring to him initially being 'blind' to what was occurring. Nguyen's counsel suggested that his client had not engaged in 'opportunistic' conduct as seen in another case[23] and suggested the conduct was not 'the very worst'. Nguyen's counsel suggested his client's breach related to the fact he had not stopped when Patient A objected.
5. Those submissions did not assist us: from the moment Nguyen pulled Patient A's pants down without first obtaining her informed consent, he breached boundaries and engaged in inappropriate conduct. Whispering in a patient's ear about giving hugs was a bizarre way for a medical practitioner to behave while treating his patient's painful back. Despite Patient A saying 'no' to the offer to massage her thighs, Nguyen carried on while sitting on top of her and so limiting her capacity to resist his actions. Despite a further vocal objection, Nguyen pulled Patient A's pants down further and massaged near her genital area. It is not difficult to imagine how distressing that would have been.
6. It seemed to us that Nguyen could not fairly be described as 'blind' or somehow mistaken about what Patient A wanted given he sought no consent for his actions and disregarded Patient A saying no to him twice.
7. As we saw it, the origins of the conduct were to be found in the casual way in which Nguyen had communicated with Patient A in the past, using direct text messages to make appointments. We agreed with the Board's submission that the basis for the eventual disgraceful breach of professional boundaries was Nguyen perceiving Patient A to be some sort of friend.
8. We agreed that it was appropriate to characterise Nguyen's conduct in Allegation 1 as substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (paragraph (a) of the definition) and inconsistent with the practitioner being a fit and proper person to hold registration in the profession (paragraph (c) of the definition).
9. Allegation 2:
10. During August 2020, Melbourne was under lockdown. Particular 2.3 of Allegation 2 sets the scene:

As at 16 October 2020 and 18 October 2020 the [Directions] were in force, a State of Emergency had been declared in Victoria due to the serious risk to public health presented by COVID-19, and Melbourne was in lockdown. Unless an exception applied, individuals were required to stay at home and wear a face mask every time they left their home.

1. Strict directions applied as to the circumstances in which health services could be provided. Particular 2.5 of Allegation 2 describe the applicable threshold for providing such services as follows:

The Permitted Work Premises List, in force on 16 October 2020 and 18 October 2020, provided that under the 'health care and social assistance category', Ahpra registered workers could provide face to face services to:

(a) prevent a significant change/deterioration in functional independence which would result in the escalation of care needs;

(b) provide assessment and diagnostic services to clients or patients whose care has been delayed due to stage 4 restrictions, with any further delay likely to result in deterioration of functional independence or adverse health outcomes;

(c) provide services that are part of a conservative management plan, to plan to avoid or delay elective surgery; and

(d) provide services immediately following elective surgery that prevent secondary complications or aid functional recovery.

1. It is perfectly obvious that providing 'cosmetic lip fillers' did not fall within the Directions in any way.
2. There is a particular seriousness attached to medical practitioners breaching the Directions, and indeed, any other public health measures. Medical practitioners have a significant influence on their patients and, generally speaking, hold a privileged position in society. For a medical practitioner to engage in conduct in breach of the Directions, at a time when vaccines were not available, was especially reprehensible. That is because medical practitioners have the training to know the risks of doing so and are expected to act in the best interests of their patients. At that point in time in 2020, all Victorians were being exhorted to protect the vulnerable and each other. Nguyen's conduct disrespected the efforts of so many in the community.
3. It was a substantial departure from the standards expected of a medical practitioner of Nguyen's experience to provide unnecessary 'cosmetic treatment' to anyone and so the conduct constituted professional misconduct under paragraph (a) of the definition.
4. Allegation 3:
5. We agree with the Board's submissions as summarised above and specifically agreed that the notes were 'manifestly deficient' and failed to record any reason for providing the massage or for giving Patient A medication for her stomach condition.
6. As described above, the pro forma Nguyen used had space for some clinical information (focussed on the cosmetic treatment) however none of those parts were completed. It was barely more than a record of attendances.
7. We agree with and adopt the descriptions of the purposes for good clinical notes in the parties' submissions. It was apparent that Nguyen's notes did not meet those purposes and, importantly, were incapable of assisting other health professionals to understand Patient A's presentation, symptoms and assessment or treatment in respect of her back pain and stomach condition. Thet could not allow others to facilitate safe and effective care for Patient A.
8. We were satisfied that Nguyen's failure to record and maintain adequate clinical records regarding his consultation with Patient A constituted professional misconduct under paragraph (a) of the definition as it was substantially below the standards expected of a medical practitioner of Nguyen's experience.
9. Allegation 4:
10. In circumstances where Nguyen accepted he provided false and misleading information to the Board during the Interview and the parties agreed that was recklessly done (as opposed to knowingly), we agreed that the conduct constituted professional misconduct under paragraph (a) of the definition as it was substantially below the standards expected of a medical practitioner of Nguyen's experience.
11. We agreed with previous Tribunal statements as to the obligations on health practitioners to cooperate with and answer legitimate questions about their conduct and patients with care and honesty. That is one of the means by which the Board (and other health boards) undertakes its regulatory role which has at its heart the protection of the public.

1. As summarised above, a further hearing will be held into the determinations to be made under the National Law.

The following allegations are referred to the Victorian Civil and Administrative Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Victoria) Act 2009.

In the allegations, the following defined terms are used:

• Ahpra - Australian Health Practitioner Regulation Agency.
• Area Directions - the Chief Health Officer's Area Directions (No.9), made under the PHW Act (in force from 11.59 PM on 11 October 2020 to 11.59 PM on 8 November 2020).
• Board - Medical Board of Australia.
• Code of Conduct - Good Medical Practice: Code of Conduct for Doctors in Australia, 2020 (in effect from 1 October 2020).
• National Law - Health Practitioner Regulation National Law (Victoria) Act 2009_._[24]
• Permitted Work Premises List - the Permitted Work Premises List (version 12) for the purposes of the Restricted Activity Directions (Restricted Areas), effective from 11.59 PM on 11 October 2020.
• PHW Act - Public Health and Wellbeing Act 2008 (Vic).
• Restricted Activity Directions - the Chief Health Officer's Restricted Activity Directions (Restricted Areas) (No 12) made under the PHW Act (in force from 11.59 PM on 11 October 2020 to 11.59 PM on 18 October 2020).
• Sexual Boundaries Guidelines - Sexual Boundaries: Guidelines for doctors, 2018.

(c) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(d) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or

(e) unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,

in that he failed to maintain the boundaries that were required to be maintained by a medical practitioner, as he engaged in uninvited contact of a sexual nature during his consultation with [Patient A] on 1 May 2021.

• 1.1 On 7 December 2004, [Nguyen] was first registered as a medical practitioner.
• 1.2 From the commencement of the National Law on 1 July 2010, [Nguyen] was registered as a medical practitioner with the Board.
• 1.3 At all material times, [Nguyen]:

(a) was a registered health practitioner within the meaning of the National Law;

(b) was registered with the Board as a medical practitioner with general and specialist registration (general practice), registration number MED0001210343, under the National Law; and

(c) practised as a:

(i) sole medical practitioner providing cosmetic treatment at [Clinic 1];

(ii) general practitioner at [Clinic 2]; and

(iii) locum at [Clinic 3].

• 1.4 On 1 May 2021, [Patient A] attended [Clinic 1] for an appointment with [Nguyen] to obtain Botox injections in her forehead. During [Patient A's] appointment, [Nguyen]:

(a) felt her back, said her back was tense and that she needed a massage;

(b) instructed [Patient A] to lie face down on the bed, lifted the back of her top and started massaging her back;

(c) pulled down [Patient A's] elastic jogging pants exposing the top of her buttocks, without her consent. He then massaged the top of her buttocks and back;

(d) sat on top of [Patient A] and whispered in her ear "can I hug you", which [Patient A] ignored;

(e) offered to massage [Patient A's] thighs, to which [Patient A] replied "no thank you";

(f) attempted to pull [Patient A's] elastic jogging pants below the top of her buttocks, to which [Patient A] said "no! I don't have underwear on";

(g) pulled [Patient A's] elastic jogging pants down and felt the back of [Patient A's] thighs, without her consent. He then massaged her entire legs and buttocks, without her consent;

(h) parted [Patient A's] buttocks, and massaged near her anus and vulva region (without touching her anus or vulva), without her consent;

(i) failed to offer [Patient A] modesty clothing during the massage;

(j) asked [Patient A] whether he could hug her on more than one occasion;

(k) attempted to kiss [Patient A], and subsequently asked to kiss her; and

(l) asked [Patient A] whether she was seeing someone, and whether she wanted another massage.

1.5 [Nguyen]'s conduct at paragraph 1.4 was inappropriate and not clinically indicated in that:

(a) [Nguyen] had no qualifications in massage;

(b) the first line of treatment for managing low back pain is providing advice - keep active, reassurance, simple analgesia and review in one to two weeks. Second line treatment for low back pain is increased analgesia, and physical therapies;[25]

(c) massage is not part of standard medical training or specialist general practice:

(i) for a medical practitioner to conduct a massage on a patient is highly unusual; and

(ii) [Nguyen]'s massage involved body lotion, he climbed on top of [Patient A] and lowered her elastic jogging pants.

1.6 The Board refers to the following, as set out in the Schedule:

(a) principles 2.1, 3.2.1, 3.4.1, 4.2.1, 4.2.6, 4.5.1, 10.1, 10.2.1 and 10.2.2 of the Code of Conduct; and

(b) principles 1.1, 2, 3, 3.1 and 3.2 of the Sexual Boundaries Guidelines.

1.7 [Nguyen]'s conduct was inconsistent with the principles referred to in paragraph 1.6.

1. Between 16 October 2020 and 18 October 2020, [Nguyen] engaged in:

(a) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or

(c) unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,

in that he failed to comply with the Restricted Activity Directions by providing cosmetic lipfillers to [Patient A] and [Patient B, Patient A's] roommate, at [Clinic 1] when that service was not permitted.

2.2 The Board refers to and repeats paragraphs 1.1 to 1.3.

2.3 As at 16 October 2020 and 18 October 2020 the Restricted Activity Directions were in force, a State of Emergency had been declared in Victoria due to the serious risk to public health presented by COVID-19, and Melbourne was in lockdown. Unless an exception applied, individuals were required to stay at home and wear a face mask every time they left their home.

(a) applied to persons who owned, controlled or operated a 'Permitted Work Premises', which included a public or private health service; and

(b) stated that 'a Permitted Work Premises' could only provide the 'Permitted Services' set out in the 'Permitted Work Premises List'.

2.5 The Permitted Work Premises List, in force on 16 October 2020 and 18 October 2020, provided that under the 'health care and social assistance category', Ahpra registered workers could provide face to face services to:

(a) prevent a significant change/deterioration in functional independence which would result in the escalation of care needs;

(b) provide assessment and diagnostic services to clients or patients whose care has been delayed due to stage 4 restrictions, with any further delay likely to result in deterioration of functional independence or adverse health outcomes;

(c) provide services that are part of a conservative management plan, to plan to avoid or delay elective surgery; and

(d) provide services immediately following elective surgery that prevent secondary complications or aid functional recovery.

(a) for the purposes of the Restricted Activity Directions, 'Restricted Area' means the aggregate area consisting of municipal districts, suburbs, localities and addresses within greater Melbourne' (clause 4); and '

(b) greater Melbourne', means the municipal districts under local government including Yarra City Council (clause 7(4)(dd)).

2.7 The Department of Health's 'Log of Changes to the Permitted Work Premises List', provided that:

(a) prior 11.59 pm on 18 October 2020, the services that Ahpra registered health workers could provide were limited to the most necessary and/or urgent care; and

(b) from 11.59 pm on 18 October 2020, Ahpra registered health workers were able to provide routine and preventative care to individual patients.

2.8 On 16 October 2020, [Nguyen] provided cosmetic lip filler to [Patient A] at [Clinic 1].

2.9 On 18 October 2020, [Nguyen] provided cosmetic lip filler to [Patient B]

2.10 [Nguyen]'s conduct at paragraphs 2.8 and 2.9 was in breach of the Directions as:

(a) [Clinic 1] was in a Restricted Area, pursuant to clause 7(4)(dd) of the Area Directions, as it was located within the municipal district of Yarra City Council;

(b) cosmetic lip fillers were not a specified service that Ahpra registered health workers could provide under the Permitted Work Premises List, while the Restricted Activity Directions were in force; and

(c) the provision of cosmetic lip fillers to [Patient A] and [Patient B] were unnecessary, not urgently and/or medically required, and not a specified service in the Permitted Work Premises List.

(a) a person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under s 199 of the PHW Act; and

(b) an offence against s 203(1) attracted a maximum penalty of 120 penalty units in the case of a natural person ($19,826), or 600 penalty units in the case of a body corporate ($99,132).

2.12 [Nguyen] breached s 203(1) of the PHW Act, through his conduct on 16 October 2020 and 18 October 2020 (referred to in paragraphs 2.8 and 2.9).

2.13 The Board refers to principles 2.1, 2.2, 8.1 and 10.1 of the Code of Conduct, as set out in the Schedule.

2.14 [Nguyen]'s conduct was inconsistent with the principles referred to in paragraph 2.13.

Failure to record and/or maintain adequate clinical records

1. On or around 1 May 2021, [Nguyen] engaged in:

(a) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or

(c) unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,

in that he failed to record and maintain adequate clinical records regarding his consultation with [Patient A].

3.1 The Board refers to and repeats paragraphs 1.1 to 1.4.

3.2 On 1 May 2021, during [Nguyen]'s consultation with [Patient A] at [Clinic 1] , he:

(a) massaged [Patient A]; and

(b) provided her with Panadol and Maxolon, without Maxolon being prescribed.

3.3 [Nguyen] failed to record and/or maintain clinical records of the massage, and the panadol and maxolon tablet/s he provided to [Patient A].

3.4 The Board refers to principles 3.2.3, 8.1, 10.5, 10.5.1, 10.5.4 and 10.5.5 of the Code of Conduct, as set out in the Schedule.

3.5 [Nguyen]'s conduct was inconsistent with the principles referred to in paragraph 3.4.

Provided false and/or misleading information to the Board

(a) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or

(c) unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,

in that he recklessly provided false and misleading information to the Board and/or Ahpra during [the Interview].

4.1 The Board refers to and repeats paragraphs 1.1 to 1.3.

4.2 On 7 July 2021, Ahpra invited [Nguyen] to participate in [the Interview], pursuant to schedule 5 of the National Law.

4.3 On 27 August 2021, [Nguyen] participated in [the Interview] and stated to Ahpra investigators that he did not work in the cosmetic industry during COVID-19 lockdown.

4.4 On 6 September 2021, Ahpra asked [Nguyen] to provide a written response to his conduct at paragraphs 1.4, 2.8, 2.9, 3.2 and 3.3.

4.5 In response to Ahpra's request on 6 September 2021, [Nguyen] informed Ahpra, on 4 October 2021, that he saw two cosmetic clients during COVID-19 lockdown.

4.6 The information provided by [Nguyen] at paragraph 4.3 was false and misleading.

4.7 [Nguyen] recklessly provided the false and misleading information at paragraph 4.3.

4.8 The Board refers to principles 2.1, 10.1, 10.11.1, and 10.11.2 of the Code of Conduct, as set out in the Schedule.

4.9 [Nguyen]'s conduct was inconsistent with the principles referred to in paragraph 4.8.

(a) doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be honest, ethical and trustworthy (principle 2.1);

(b) patients trust their doctors because they believe that, as well as being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion (principle 2.1);

(c) the community trusts the medical profession. Every doctor has a responsibility to behave ethically to justify this trust (principle 2.2);

(d) maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

(i) recognising and working within the limits of your competence and scope of practice (principle 3.2.1);

(ii) maintaining adequate records (principle 3.2.3);

(e) decisions about patients' access to medical care must be free from bias and discrimination. Good medical practice involves treating patients with respect at all times (principle 3.4.1);

(f) a good doctor-patient partnership requires high standards of professional conduct. It involves:

(i) being courteous, respectful, compassionate and honest (principle 4.2.1);

(ii) recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially (principle 4.2.6);

(g) informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. Good medical practice involves:

(i) providing information to patients in a way they can understand before asking for their consent (principle 4.5.1);

(h) good medical practice involves making patient safety your first priority and understanding and applying the key principles of risk minimisation and management in your practice (principle 8.1)

(i) in professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct (principle 10.1);

(j) professional boundaries in medicine are the limits that define the relationship between a doctor and their patient. Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves (principle 10.2):

(i) maintaining professional boundaries (principle 10.2.1);

(ii) never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient. The Board has developed Guidelines: Sexual boundaries in the doctor-patient relationship, which apply to all doctors (principle 10.2.2);

(k) maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves (principle 10.5):

(i) keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral and other management in a form that can be understood by other health practitioners (principle 10.5.1);

(ii) ensuring that the records are sufficient to facilitate continuity of patient care (10.5.4);

(iii) making records at the time of the events, or as soon as possible afterwards (principle 10.5.5);

(l) doctors have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. ... Good medical practice involves:

(i) cooperating with any legitimate inquiry into the treatment of a patient with any complaints procedure that applies to your work (principle 10.11.1);

(ii) disclosing to anyone entitled to ask for it, information relevant to an investigation into your own or a colleague's conduct, performance or health (principle 10.11.2).

1. The Sexual Boundaries Guidelines, which complement the Code of Conduct, relevantly provide:

(a) good medical practice involves 'never using your professional relationship to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient such as their carer, guardian or spouse or the parent of a child patient' (summary);

(b) sexual misconduct is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients (summary);

(c) trust in the relationship between doctors and patients is a cornerstone of good medical practice. Sexual misconduct is a serious abuse of that trust. Patients have a right to feel safe when they are consulting a doctor (principle 1.1);

(d) patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care (principle 1.1);

(e) doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including (principle 2):

(i) power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance;

(ii) trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive;

(iii) safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm;

(iv) quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare;

(v) public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse;

(f) there is a wide range of behaviours that breach sexual boundaries, from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault. Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault. AHPRA will advise and support notifiers to report criminal behaviour to the police (principle 3);

(g) breaches of sexual boundaries include (principle 3.1):

(i) conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse;

(ii) behaviours of a sexual nature including:

• (A) making sexual remarks including sexual humor or innuendo;
• (B) using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire;
• (C) asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters

(h) other behaviours that may breach sexual boundaries include (principle 3.2):

(i) asking a patient to undress more than is necessary or providing inadequate privacy screening or cover for a physical examination.

[1] In these Reasons definitions are shown through the bolding of names or terms. Italics are used to define cases.

[4] Briginshaw v Briginshaw [1938] HCA 34.

[6] [2022] VCAT 467 [41].

[8] Board's Written Submissions [20]-[63].

[9] [2019] VCAT 2036 [269].

[10] Medical Board of Australia v Hmood [2023] VCAT 603 [6].

[11] [2023] VCAT 494.

[12] [2024] VCAT 214.

[13] [2022] WASAT 86.

[14] Public Health and Wellbeing Act 2008 (Vic), section 203.

[15] Nursing and Midwifery Board v Macrae [2018] VCAT 1707 [67].

[20] Medical Board of Australia v Salter [2022] VCAT 1238 [130].

[21] Medical Board of Australia v Soffer [2021] VCAT 364 [37]-[38].

[22] Nguyen's Written Submissions [4]-[24].

[23] Physiotherapy Board of Australia v Espedido [2022] VCAT 1210.

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

[25] National Prescriber Service's article on managing acute non-specific low back pain, accessed at http://www.nps.org.au/australian-prescriber/articles/managing-low-back-pain-in-primary-care.