1. Under section 196(2)(a) of the National Law, the respondent is reprimanded for his professional misconduct when he:

(a) Failed to maintain the boundaries that were required to be maintained by a medical practitioner, when he engaged in uninvited contact of a sexual nature during a consultation with a patient in 2021;

(b) Failed to comply with the Restricted Activity Directions by providing cosmetic lip fillers to two patients in October 2020 when that service was not permitted due to COVID-19 pandemic Chief Health Officer Directions;

(c) Failed to record and maintain adequate clinical records regarding his consultation with a patient in 2021 regarding her back pain and the cosmetic treatment he provided; and

(d) Recklessly provided false and misleading information to the respondent about the matters in (b) above during an interview in August 2021.

1. Under section 196(2)(e) of the National Law, the respondent's registration is cancelled.
2. Under section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration before 3 April 2027.
3. The applicant's application for costs is dismissed.

1. On 10 September 2024, we heard the first part of the Medical Board[1] of Australia's application for disciplinary orders to be made against Dr Tuan Anh Nguyen under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). The application concerned four Allegations.
2. On 4 October 2024, we published our 2024 Reasons for making findings of fact and for characterising Nguyen's proven conduct as professional misconduct under paragraphs (a) and (c) of the National Law definition of that term.[2]
3. These 2025 Reasons concern the next stage of the disciplinary process: making determinations under the National Law.

1. 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).
2. Having had regard to the parties' Agreed Statement of Facts, Findings and Determinations, the materials in the parties' joint Tribunal Book (TB), Nguyen's admissions and the parties' oral submissions, we were comfortably satisfied that all of the facts alleged in Allegations 1 to 4 were proven.
3. The second set of findings concerned how Nguyen's proven conduct was to be characterised under the following National Law definition of 'professional misconduct':

(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. As stated in the 2024 Reasons,[3] we found that Nguyen's conduct was properly characterised as follows:
   • Allegation 1: professional misconduct under paragraphs (a) and (c) of the definition; and
   • Allegations 2, 3 and 4: professional misconduct under paragraph (a) of the definition.

1. The following comes from the Board's description of the applicable law as contained in its written submissions dated 14 February 2025 (Board's Submissions) was correct.[4] Nguyen agreed the following summary was correct in his written submissions dated 3 March 2025 (Nguyen's Submissions).[5]
2. The two primary objectives to the imposition of sanctions following a finding of misconduct by the Tribunal, are to protect the public and to maintain the professional standards of the profession in the eyes of the public.
3. The specific purposes include:
   • Protection against further misconduct by the practitioner, by regulating their performance (specific deterrence);
   • Facilitating rehabilitation of the practitioner;
   • Preventing persons who are unfit to practise from practising as registered health practitioners;
   • General deterrence of other practitioners from similar conduct;
   • Maintaining proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession; and
   • Maintaining public confidence in the profession, including an appropriate acknowledgment and condemnation of misconduct.
4. The usual factors considered by the Tribunal are:
   • The nature and seriousness of the conduct;
   • Whether the practitioner pleaded guilty or there is other evidence of contrition or remorse;
   • Whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct);
   • Whether there have been other disciplinary findings before or since the conduct in question;
   • Evidence of character;
   • Evidence of rehabilitation;
   • Any delay from the time the investigation started to the end of the Tribunal hearing; and
   • Other mitigating factors such as medical or psychological evidence, family or other personal circumstances.

The Board's proposed determinations and submissions

1. The Board proposed that the Tribunal make the following determinations, with effect from the date of the Tribunal's orders:

(a) A reprimand (under section 196(2)(a) of the National Law);

(b) Cancellation of Nguyen's registration (under section 196(2)(e) of the National Law;

(c) Disqualification from applying for registration for four years (under section 196(4)(a) of the National Law); and

(d) Imposition of a prohibition order prohibiting Nguyen from providing any health service unless and until re-registered under the National Law (under section 196(4)(b)(i) of the National Law).

1. The Board also sought an order for costs, in whole or in part, which we address later.

1. The Board submitted the above determinations were appropriate for the following reasons.
2. First, because Nguyen's conduct involved multiple domains of deficient practice and conduct. It drew attention to the following:
   • Allegation 1 'involved a gross breach of professional boundaries, in which [Nguyen] engaged in uninvited sexual contact with a female patient';
   • Allegation 2 'involved a failure to comply with public health orders';
   • Allegation 3 'involved an almost total failure to keep any clinical records of a patient consultation'; and
   • Allegation four 'involved then providing false and misleading information to Ahpra in the course of an investigation into the conduct above'.
3. Second, the finding of professional misconduct, in respect of each Allegation, underlined the extent of the departure from professional standards.
4. Third, the conduct the subject of Allegation 1 was 'especially egregious'. It was described by the Tribunal as a 'disgraceful breach of professional boundaries'.[6] It 'involved a complete failure to observe professional boundaries, in the consulting room, towards a female patient'. The Board referred to our observation that '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.'[7]
5. The Board also referred to our comments as to the serious impact on Patient A as described in her statement. We said:[8]

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.

1. The Board submitted that the conduct was 'persistent and involved a disregard for patient autonomy and consent. It involved a failure to appreciate the vulnerability of a solo female patient in the consulting room. Instead, it exploited that vulnerability.'
2. Fourth, the conduct giving rise to Allegation 2 was said to also represent 'a very serious breach of professional standards'. Reference was made to the following part of our 2024 Reasons:[9]

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.

1. Fifth, the Board submitted that the seriousness of the conduct was illustrated by the impact on Patient A. Reliance was placed on her 'impact statement', referring to the extract included at [34] of our 2024 Reasons.
2. Sixth, the Board submitted that, while there was some evidence of insight and remorse (as reflected in the admissions ultimately made), 'insight and remorse appear to be a work in progress' for Nguyen. It drew our attention to the following aspects of the procedural history of this matter:[10]

(i) During the investigation Nguyen initially provided submissions that denied allegations made by Patient A;

(ii) Nguyen was later interviewed by Ahpra. He changed his position to admit some of the facts alleged by Patient A but he also gave the false answers about his practice that were the subject of Allegation 4. Throughout the investigation he continued to deny massaging Patient A's thighs and buttocks;

(iii) The matter was referred to the Tribunal and a compulsory conference was conducted on 29 January 2024. The matter did not resolve. On the day of the compulsory conference, the final hearing was listed for a two day contested hearing starting on 10 September 2024. Very shortly before the hearing, Nguyen entered into a proposed agreed statement of facts and characterisation (received by the Tribunal on 6 September 2024). He ultimately admitted the allegations against him (with 'some minor amendments' agreed to by the Board). Nguyen said that he was not ready to deal with the issue of determinations at the listed hearing and asked for that question to be adjourned to a later date. That conduct of the proceeding had multiple consequences, including the unnecessary listing of the case for two days, the unnecessary listing of a further date for hearing on determinations as well as exposing Patient A to the open prospect of having to give evidence until a very late stage; and

(iv) At the hearing it was submitted by Nguyen that, with respect to Allegation 1, his conduct was not 'the very worst', was the result of being 'blind' to 'what was occurring' and 'related to the fact that he had not stopped when [Patient A] objected'.[11] It noted that we rejected that explanation saying:[12]

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.

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.

1. As to the specific determinations sought, the Board submitted:[13]
2. Reprimand: Reference was made to the observation that a reprimand will ordinarily follow a finding of professional misconduct. A reprimand was said to be appropriate in the present case.
3. Cancellation and disqualification: By reason of an undertaking not to practice, followed by immediate action, Nguyen's registration has been suspended since 25 June 2021.
4. The Board referred to and relied on the serious features of the conduct as described in the 2024 Reasons (in the characterisation of the conduct) and in the submissions summarised above.
5. The Board sought the cancellation of Nguyen's registration and a disqualification period of four years. The Board's counsel informed us at the hearing that Nguyen's time out of practice had been taken into account in formulating the proposed disqualification period. He later stated that it would be open to us to impose a shorter period taking into account the three years and nine months Nguyen had been out of practice already, noting that a disqualification period of four years from the date of our orders might be regarded as a 'stern outcome'.
6. The Board said there are no directly comparable cases which would assist us to make determinations. However it contended that some of the cases illustrated the significant penalties, including cancellation and a meaningful period of disqualification, may be imposed for breach of sexual boundaries in the course of practice. The determinations proposed by the Board were said to be 'within that range' (we refer to the specific cases below).
7. Specific deterrence was said to be important because of the deliberate nature of the conduct (the subject of Allegation 1 in particular) and the lack of complete insight. There was said to be no persuasive evidence before the Tribunal, that Nguyen 'has the skills and ethical judgment to be a safe and ethical member of the medical profession'. The absence of evidence from Nguyen and any character references was noted. It was suggested that we did not have answers to the 'big questions' about how it was that Nguyen was, at the time he engaged in the conduct, unaware of the issues raised in the Allegations, including in respect of his clinical notes.
8. As to the report about the professional education Nguyen had undertaken (see below from [67]), the Board's counsel suggested it could be described as 'too little, too late'.
9. General deterrence was also said to be important: to reassure the public that there are significant consequences for professional misconduct of the kind proven.
10. Prohibition Order: the Board submitted that 'power imbalance and the opportunity for exploitation of a patient or client can occur when any health service is provided'. This case was said to involve, in part, the ethical fitness of Nguyen relating to, among other things, maintaining professional boundaries and, in those circumstances, a prohibition order was said to be required.
11. The Board submitted that a prohibition order should remain in place unless and until Nguyen is re-registered under the National Law. That was sought because re-registration would provide an opportunity to assess whether he is a fit and proper person. As recognised by the Tribunal in Medical Board of Australia v Piesse:[14]

It is more logical for the permission to provide the health service to be tied, in effect, to a determination of fitness to practise. And it better serves the purpose of protection of the public.

Nguyen's proposed determinations and submissions

1. Nguyen's submissions on determinations were based on his acknowledgment of the seriousness of his conduct and acceptance of the Tribunal's findings and characterisation of the proven conduct as detailed in the 2024 Reasons.
2. Relevant to the Tribunal's current task, Nguyen's Submissions contended that the Tribunal's order ought to be that which, in its opinion, was necessary, and no more than necessary, to maintain professional discipline and high standards of conduct. It was accepted that what is necessary in any particular case to meet the objectives of determinations will depend on all the facts and circumstances.[15]
3. Nguyen agreed that it was appropriate for the Tribunal to reprimand him for his professional misconduct.[16]
4. He otherwise submitted that, if the Tribunal thought it appropriate to do so, it could order that:
   • A further period of suspension be imposed (under section 196(2)(d) of the National Law). At the hearing, his counsel suggested the period could be in the range of three to six months; and
   • Conditions be imposed on his registration on his return to practice including for supervised practice and an audit of his clinical records (under section 196(2)(b) of the National Law). At the hearing his counsel indicated that those conditions (or others) could be imposed for whatever period the Tribunal thought appropriate.

1. Nguyen's Submissions contained a description of his early life, education, training and practicing history. Information about his personal circumstances was included. We summarise those matters below (from [53]), along with material concerning professional education Nguyen had undertaken.
2. Period of prior suspension and further suspension: Nguyen's Submissions noted that, as at the time of the hearing in March 2025, Nguyen had been suspended for three years and nine months (the Immediate Action suspension having commenced on 25 June 2021) and that ought to be taken into account.
3. The submission was that, 'on any view', that was a substantial period of time and should be seen as having protected the public and to have maintained the reputation of the profession, namely that conduct of this type shall very likely involve lengthy suspension prior to the determination of the matter.
4. Nguyen's counsel suggested we consider what period of suspension we would have imposed if determinations had been made in around 2021/2022, closer in time to the conduct.
5. Conditions: at the hearing, Nguyen's counsel stated that his client would accept any conditions the Tribunal considered appropriate, whether by way of supervised practice, auditing of his clinical notes and/or further education. The aim was for Nguyen to return to practice even if a period of supervised practice was imposed. Such a condition was referred to as one which would allow Nguyen to 'earn the necessary trust' for unsupervised practice.
6. Cancellation and disqualification not appropriate: Nguyen submitted that seeking cancellation and a disqualification period of four years was inappropriate and potentially punitive against the period of suspension imposed by the Board in July 2021 and his proposal for a further short suspension. They were said to be 'appropriately reflective' of the admitted conduct and the practice domains across which it occurred.
7. Nguyen referred to the decision in Honey v Medical Practitioners Board of Victoria[17](Honey) submitting this was not a case where it was:

abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct or has been shown to be a serial offender.

1. For completeness, we record that the paragraphs from Honey precede the above quote were as follows:[18]

The major difference between a 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 ...

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.

1. In submissions in reply, the Board's counsel noted that section 196 of the National Law does not include a test which requires determinations for cancellation (or 'deregistration') to be made when it is found to be 'the only available option'.
2. Factors relevant to specific deterrence:[19] emphasis was placed on the following matters in support of the submission that specific deterrence had been addressed by the suspension in place since 25 June 2021:

(a) That Nguyen 'pleaded guilty' (that is, made admissions to the facts as contained in the Allegations) and that was of itself indicative of contrition or remorse;

(b) Having regard to the lengthy period of suspension, Nguyen had been made fully aware of the consequences that follow from engaging in the type of conduct. He was said to understand that the conduct imperilled his ability to work in his chosen profession. Additionally, his preparedness to be subject to conditions upon his return to practice was said to be evidence of that understanding;

(c) There had been no prior disciplinary findings before or after the conduct before us;

(d) Having regard to Nguyen's personal history and circumstances, the conduct could be seen to be out of character;

(e) The completion of the further education (referred to below) coupled with the preparedness to be subject to conditions upon a return to work was 'evidence of rehabilitation'; and

(f) There had been some delay from the start of the investigation to the Tribunal hearing (conceding that some of that delay was as a result of the late resolution of the matter).

1. Specific deterrence was said to have application by communicating to Nguyen the consequences for him of engaging in the proven conduct. The factors that were said to go some way to ameliorating that were his admissions, his acceptance of responsibility for the referral, the conduct being the exception to his decades of prior high levels of practice, the completion of education and the engagement of psychological assistance.[20] We note we had no information about the nature of any psychological assistance Nguyen had received.
2. Nguyen's counsel asked us to proceed on the basis that the conduct before us was the exception to the way in which his client had practised medicine over his career. It was submitted that Nguyen's practice in service of his patients 'had to count for something'.
3. Reference was made to the many ways in which Nguyen was diminished - personally and professionally - due to his conduct and the personal humiliation that had accompanied that.
4. General deterrence: it was accepted that general deterrence may require consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. It was submitted that general deterrence applies to this matter but that the lengthy period of prior suspension had 'gone to considerably address this issue'.
5. Protection of the public and maintenance of standards: Nguyen submitted that a further period of suspension and conditions would achieve these objectives. We were referred to the proposition that the purpose of determinations is not to punish and instead their objective is to protect the public and maintain professional standards in the eyes of the public.[21]

1. Nguyen did not make a statement, provide a reflective document or give evidence before us. The following summary comes from Nguyen's Submissions.[22]
2. Nguyen was born in Vietnam in 1963, living first in Hanoi and then moving to Saigon (Ho Chi Minh City) in his mid-teens (1978). Nguyen recalled his family life in Vietnam as having been 'poor but happy'. His father worked as an engineer and his mother as a designer. His early life was free from serious conflict and he believes he was fortunate to have had the upbringing that he did.
3. Nguyen migrated to Australia with his parents in 1999, joining his brother who had arrived earlier. His father is now very elderly and lives in residential aged care in Melbourne. While suspended Nguyen has been able to increase the contact with his father and Nguyen plays an active role in his father's care: visiting him several times a week, assisting with his general care, and ensuring that he is healthy and happy.
4. Nguyen completed his schooling in Vietnam and believes himself to have been a very good student. Upon secondary school graduation, Nguyen studied medicine in Saigon, with a period of study in Strasbourg on a French government scholarship.
5. Nguyen worked as a general surgeon at a teaching hospital in Vietnam for about ten years, focusing on bowel and stomach cancers and thyroid procedures.
6. After migrating to Australia in 1999, Nguyen passed the Australian Medical Council exams in 2004. He worked for approximately two years each for Austin Health as a hospital medical officer and then Monash Health as a surgical registrar.
7. From 2008, Nguyen moved into general practice. As a GP, Nguyen continued to perform minor surgical procedures for his patients. He believes that his focus has always been on 'contributing to the community through [his] medical work' including through providing services at low cost to those in need.
8. This was an ethos he had developed while in Vietnam where as a doctor he had undertaken voluntary work with burns victims in Vietnam and worked with Médecins sans Frontières.
9. With the exception of the matters before us, Nguyen's work history has been positive and stable. While accepting the 2024 Reasons in their entirety, it was submitted that the Tribunal should treat the conduct the subject of the hearing as 'the exception to years of quiet service and contribution to the practice of medicine'.
10. The suspension period was said to have been more difficult for Nguyen given his age and cultural background. Since being suspended from medical practice Nguyen was said to have applied for 'hundreds of jobs' outside the medical field, without success. Nguyen remains unemployed and reliant on the income of his wife. Indeed any significant further period of suspension will be felt disproportionately for Nguyen given he is closer to the end of his professional career than the beginning.
11. Nguyen has had two main relationships as an adult. He and his first wife, were married in Vietnam when he was aged 27. There is one child to the relationship: a daughter, now aged in her early thirties. Nguyen's first wife is a medical practitioner and they divorced when he was in his mid-thirties in the context of differing plans for their respective careers. Nguyen and his current wife (also a medical practitioner) have been together since 2010. They have one child.
12. Nguyen's wife is a GP, however due to her poor health she is able to work only part-time at present. Prior to his suspension from medical practice in 2021, Nguyen was the main income earner for the family. He believes his marriage had been happy and close for the most part prior to the incident which led to his suspension. He has made his wife fully aware of what occurred. This has placed considerable strain on their relationship however Nguyen is confident the marriage will survive.
13. The Submissions stated:

What the above background shows is a substantial history of contribution to the practice of medicine in two countries, an ability to maintain professional standards across all domains and the heavy toll paid by [Nguyen] for the admitted conduct engaged in.

1. At the hearing, we were informed that Nguyen and his wife had decided to sell the family home to free up funds to 'make ends meet'. That was said to have been one of several matters which had brought home to Nguyen the consequences of his conduct.

1. Nguyen relied on a letter dated 9 February 2025 written by Dr George Zaharias. The letter detailed an educational Program Zaharias prepared and supervised completion of by Nguyen in the period 29 October 2024 and January 2025.
2. At the hearing, we were informed that, due to limited financial resources, Nguyen had not been able to engage in education earlier in time.
3. The Program commenced 25 days after we gave our 2024 Reasons. Zaharias' letter stated that he had been given the Agreed Statement and the final version of the Allegations. There was no express reference to Zaharias having been given the 2024 Reasons and so, in the absence of anything to the contrary, we proceeded on the understanding that Zaharias had not been aware of the content of those when he designed the Program.
4. The Program topics and time allowance were as follows:
   • Professional and sexual boundaries ethical practice and legal responsibilities - eight hours over four sessions;
   • Informed consent - two hours; and
   • Medical records - two hours.
5. The aims of the Program were:
   1. Professional and sexual boundaries
      • To be able to recognize and observe professional and sexual boundaries.
      • To recognize and better understand the power imbalance that exists between doctors and patients.
      • To be able to identify and protect patients' interests at all times and especially patients that are more likely to be vulnerable or have particular needs.
      • To be able to adopt measures for appropriately managing patient interactions.
   2. Ethical practice and legal responsibilities.
      • To reflect on one's professional beliefs, values and attitudes and to examine how they:
        • shape one's identity as a doctor; and
        • influence decision making.
      • To understand what constitutes appropriate professional behaviour.
      • To behave professionally at all times.
      • To adhere to one's legal and regulatory obligations at all times.
      • To have an understanding of and be compliant with the requirements of Good Medical Practice: A Code of Conduct for Doctors in Australia (The Medical Board of Australia).
   3. Obtaining informed consent
      • To better understand what constitutes informed consent and how it should be obtained.
      • To recognize:
        • The importance of informed consent.
        • When patient consent is required.
      • To be able to obtain informed consent appropriately and particularly when conducting intimate examinations.
   4. Record keeping
      • To be able to create and maintain appropriate medical records.
6. Zaharias' letter included a description of Nguyen's reflections after undertaking various activities and their one-on-one discussions. We set them out below starting with what appeared to be an overview and then by reference to the topics covered. For completeness, we record that we did not have copies of any of the written work Nguyen completed as part of the Program.
7. Overview:

To commence the session, [Nguyen] spoke about the AHPRA investigation and the concerns that arose from it. Regarding the notification case, [Nguyen] said that he was under a lot of stress at the time. He said that the night before the patient in question consulted him, he had not slept at all because of the stress and when he went to work, all the worry was still in his mind. [Nguyen] said that he had seen the patient in question patient previously, for cosmetic treatment, and he had prescribed Mobic for her when she had complained about back pain. On this occasion, the patient attended for cosmetic treatment and, he said, she also requested a script for Valium for her backpain. [Nguyen] said that he was uncomfortable prescribing Valium. He therefore recommended massage as being more helpful and in fact offered to massage her back. [Nguyen] said that she accepted and that he massaged her whole back down to the sacral region. He said that the patient asked for Valium again, but he refused. [Nguyen] added that, this occasion aside, he never performs massage on his patients and that he prefers to keep the medical and cosmetic treatment separate, conducting the former at the . . . practice and the latter at the . . . practice.

1. Appropriate conduct: Nguyen was asked to view the film 'Love Actually', described as 'a romantic comedy which explores the notion of love by looking at several different relationships'. Despite that descriptor, the activity called for attention to be paid to 'some serious moments' in that exploration. Nguyen was asked to pay close attention to the interactions between various characters and then answer questions about the appropriateness or otherwise of the behaviour in specific parts of the film, how some characters behaved as compared to others and inappropriate conduct by one character (involving sexual harassment in the work place where there was a significant power imbalance) and behaviour that arguably constituted stalking.
2. Zaharias stated:

For the remainder of the session, we discussed ethical practice, legal responsibilities and professional and sexual boundaries. [Nguyen] understood all this quite well. We also viewed several videos from the RACGP Face to Face DVD (Sexual misconduct, Bending the rules, Blurring of boundaries, Gifts, Language communication and cross-cultural issues). These scenarios demonstrate various inappropriate behaviours towards patients. [Nguyen] was able to identify clearly the inappropriate behaviour, state why it was inappropriate and describe, without difficulty, what the appropriate behaviour should have been.

1. Managing inappropriate patient requests: there was a discussion of three examples from Nguyen's practice:
   • A request for antibiotics to take overseas to give to relatives;
   • A request for Endone (restricted drug) for acute low back pain sustained from simple gardening; and
   • A request for Alprazolam (restricted drug) to sleep.
2. Zaharias stated that it was 'evident' from the discussion that Nguyen had 'a very good sense of what is right and wrong'. He was said to have had no difficulty with the role-plays, 'appropriately conducting them in a calm manner, being assertive and being clear with his messages as regards what was and wasn't appropriate'. Zaharias noted that, even though he is very clear when he speaks, Nguyen 'is a man of few words'. He recommended that Nguyen provide a little more information and explanations to patients so that they have a better understanding of why their requests have been denied and the reasoning behind the alternate options that he offers.
3. Informed consent: Nguyen was tasked with answering the following questions in writing:
   • What have you learnt as regards professional behaviour and particularly with respect to the doctor-patient relationship? and
   • In what way does effective communication assist in maintaining professional boundaries?
4. Nguyen was said to have provided a written response which was 'well considered, but brief, in keeping with his style of communication'. His response was said to have confirmed his commitment to ethical practice, behaving professionally and abiding by laws and regulations. The session focussed on informed consent and Nguyen was said to have 'provided a good overview of what constitutes informed consent, why it is important and how it should be obtained'. The case discussion was said to demonstrate that 'consent is a topic he knows well and obtains appropriately'.
5. Good medical record keeping: Nguyen was said to have understood the principles of good medical record keeping 'quite well'. Nguyn reported to Zaharias that, based on what was discussed, he believed his record keeping was appropriate. Nguyen also conceded that, as regards 'the notification case', his documentation was 'incomplete in that he did not record details of the medical treatment that was provided'.
6. Zaharias' summary and opinion was:

[Nguyen] attended on time for all sessions and participated actively throughout the whole program. He completed both activities satisfactorily. [Nguyen] recognised the inappropriateness of his behaviour with respect to the patient in question and accepted responsibility for his actions. He did not try to justify or excuse his behaviour in any way. Several times, over the course of the educational program, he said that he had acted without thinking and that his actions were entirely out of character for him. He said that the significant amount of stress that he was experiencing at the time caused him 'not to think' and consequently act in the way that he did.

It was evident from our discussions in the very first session that [Nguyen] is fully cognisant of what constitutes professional behaviour and ethical practice and that he is mindful of boundaries. In discussing the film ['Love Actually', Nguyen] demonstrated good insight as regards the characters, their behaviour and their motivations. In all instances he responded appropriately and didn't have to stop and think before answering. His estimation of the behaviour of the characters indicated that he is a moral person. It was the same for the case discussion in the first two sessions. Discussion in the third session demonstrated clearly that, as a trained surgeon, he understands well what constitutes informed consent and knows how to obtain it.

As regards medical record keeping, it had been my intention, to appraise [Nguyen's] current documentation, however, this wasn't possible because Dr Nguyen has not been in practice for the past 3-4 years and access to past documentation is also not possible.

In view of all of the above, I believe that the aims of the educational program have been fully achieved.

1. In addition to describing the professional education as 'too little, too late, the Board queried the relevance of the movie 'Love Actually' to the facts involved in Allegation 1. It described the paragraph quoted above at [73] as a 'sanitised version' of what occurred in respect of Patient A and our findings. The Board's counsel submitted the letter was a 'desultory' education report based on 'the wrong evidence'. He suggested it offered no comfort for the future.

1. We were referred to the following cases by the parties.

Cases concerning sexual touching, informed consent and inappropriate examinations

1. Physiotherapy Board v Espedido[23] (Espedido): the practitioner was found to have failed to obtain consent to remain in the room while his client removed her clothing, requested that she remove her underwear in circumstances where that was not justified or reasonably required, exposed the client's genitals while providing physiotherapy and touched her vulva in circumstances where there was no clinical indication to do so and where the touching was found to be sexual, inappropriate and for a non-clinical purpose. While the practitioner gave evidence on the facts, he did not participate in the proceeding beyond that point in time.
2. The Tribunal found the conduct constituted professional misconduct under paragraph (c) of the definition.
3. It reprimanded the practitioner and, where he was not registered, imposed a six year disqualification period and a prohibition order preventing the practitioner from providing a health service. As a result of an undertaking, and later the surrender of his registration, the practitioner had been out of practice for four and a half years before the determinations were made. The Tribunal stated that, the 'headline' disqualification period was eight years but it had been reduced to six to account (to some extent) for the prior time out of practice.[24]
4. Medical Board of Australia v Hmood[25] (Hmood): the practitioner faced disciplinary proceedings which alleged that he had, in respect of nine patients, undertaken a chest auscultation without obtaining informed consent, in a manner that involved inappropriate and unnecessary physical contact and was for a sexual and/or inappropriate and/or non-clinical purpose. The allegations were found proven in respect of five of the patients. The practitioner was found to have engaged in professional misconduct under paragraph (c) of the definition. The parties agreed that the practitioner's registration was to be cancelled but differed as to the period of the disqualification period. The Tribunal found the practitioner had not shown insight or remorse but accepted he had made changes to his practice.[26]
5. The Tribunal cancelled the practitioner's registration (which had been suspended for around nine months) and imposed an eight year disqualification period after taking into account 10 year's delay in the disciplinary proceedings being finalised (in part due to criminal proceedings being dealt with).
6. Nursing and Midwifery Board of Australia v Crocetti[27] (Crocetti): the practitioner touched a student on the breast and groin area while demonstrating how to conduct 'head to toe' assessments on a patient. He also made sexually suggestive statements to the student including 'you can sit on my face if you like'. He removed his upper body clothing to permit the student to perform assessments on him. A further allegation concerned the practitioner touching his patient on the breast in a manner which was inappropriate and/or not clinically justified. The practitioner made full admissions to the facts. The Tribunal found the proven conduct constituted professional misconduct under paragraph (a) of the definition (as had been proposed by the parties).
7. The practitioner was not suspended while the allegations were investigated and referred to the Tribunal, however, he offered, and the relevant board accepted, an undertaking not to practice. As a consequence, the practitioner was out of practice for around three and a half years. The parties proposed joint findings of fact, on characterisation and determinations. The practitioner did not give evidence.
8. The Tribunal decided to impose the parties' agreed determinations which included a reprimand. After having regard to his time out of practice and the specifics of agreed proposed conditions (which in effect meant he could not have unsupervised face to face contact with patients for six months), the Tribunal ordered that his registration be suspended for two months.
9. Nursing and Midwifery Board of Australia v Dinglasan[28] (Dinglasan): while working as an enrolled nurse at a nursing home, the practitioner was responsible for orienting nurse students and demonstrating practices and procedures in their workplace. While doing so, he made a series of inappropriate remarks and made physical contact with a nurse student by touching her thigh in an inappropriate manner and touching her genital area with his fingers. More instances of physical contact occurred in the following days. The practitioner made full admissions on the facts and the parties agreed his conduct constituted professional misconduct (without specifying the paragraph of the definition). The practitioner appeared not to have given evidence but he did provide character references (and he may have written a response).[29]
10. The practitioner was the subject of immediate action by way of suspension and had been suspended for nearly two years at the time the tribunal made its decision. The applicant board did not seek a suspension (or cancellation).
11. Having regard to that fact no suspension was imposed (and other matters), the tribunal reprimanded the practitioner (as agreed by the parties) and required him to undertake education and mentoring. The Tribunal said that, had the conduct occurred shortly before the hearing, it would have imposed a suspension for several months.

1. In the 2024 Reasons, we summarised a number of cases where health practitioners had failed to comply with various COVID-19 directives and been found to have engaged in professional misconduct. We refer to them again, as well as other cases the parties' referred us to.
2. Nursing and Midwifery Board of Australia v Tut[30] (Tut): the 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 conduct constituted professional misconduct under paragraph (a) of the definition.
3. The Tribunal ordered that the practitioner be reprimanded after taking into account (amongst other things), the fact she had been suspended for approximately two years. We note that the relevant board did not seek a suspension and that, while the practitioner had signed an agreed statement agreeing to the reprimand, she stepped away from the agreement at the hearing.[31]
4. Nursing and Midwifery Board of Australia v Anni[32] (Anni): three nurses who were all employed at the same aged care facility and who all attended a baby shower at the facility were the subject of allegations before the Tribunal. The cases remained separate but were heard and determined together. The baby shower 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.
5. Each practitioner was reprimanded and their registrations were suspended for three months (as agreed by the parties). In setting that period of time, the Tribunal had regard to the fact that none of them had been suspended previously (although one had been required to comply with conditions). A further relevant fact was that none of the three practitioners had planned the gathering - they only attended.
6. Dental Board of Australia v Nairn[33] (Nairn): the practitioner 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 six patients at her clinic. The Tribunal concluded that each instance of the practitioner's conduct constituted professional conduct under paragraph (a) of the definition.
7. The practitioner was reprimanded, her registration was suspended for seven months and, on her return to practice, she was subject to conditions relating to mentoring.
8. Nursing and Midwifery Board of Australia v Baniqued[34] (Baniqued): the practitioner was the father of the unborn child for whom the baby shower referred to in Anni was held. He had no role in planning the gathering and was unaware it was happening until he was called into the relevant room. He directed staff he was responsible for to leave and, soon after arriving, he did the same himself. The allegations before the Tribunal concerned the practitioner's failure to disperse the gathering, ensure the staff who were not on shift and other unauthorised visitors left the premises and report the gathering to another registered nurse, the Director of Nursing or management. The parties proposed and the Tribunal agreed that the conduct constituted professional misconduct under paragraph (a) of the definition.
9. The Tribunal imposed the determinations the parties' proposed: namely that the practitioner be reprimanded, that his registration be suspended for one month and that conditions for education be imposed. The determinations took account of an around two and a half year delay in the matter being referred to the Tribunal (after the relevant board had decided to investigate).
10. Medical Board of Australia v YZV[35] (YZV): the practitioner hosted a party at a time when Melbourne was in a COVID-19 lockdown. The practitioner admitted all facts, including to police. The Tribunal agreed with the parties' proposal that his conduct amounted to professional misconduct under paragraphs (a) and (c) of the definition. The practitioner's registration was not suspended as a consequence of the conduct.
11. While the parties proposed that he be reprimanded, his registration be suspended for three months and that he be fined $10,000, the Tribunal decided that a three month suspension was inadequate and instead imposed a six month suspension. The Tribunal did not impose a fine.

1. As indicated by the determinations each party sought, they were global in nature for the whole of the proven conduct.
2. In Legal Services Commissioner v Matthew Stirling[36] (Stirling), a decision concerning a legal practitioner, the Supreme Court of Victoria Court of Appeal considered when global penalties are (and are not) appropriate in disciplinary proceedings.
3. The Court said it was open to make global determinations in cases where there are separate allegations which are constituted by a course of behaviour, rather than a set of separate events.[37]
4. However, the Court found that the common law requirement that a penalty is to be stipulated for each count or charged conduct applies in disciplinary proceedings. The basis for that was explained as follows:[38]

The rule is an important one and should be applied, where applicable, in disciplinary proceedings. First, as Brennan J noted in Ryan, it allows for a sentence on one count to stand where a conviction for another count is quashed. Secondly, it is easier to assess whether a penalty is manifestly excessive or inadequate when each sentence is clearly pronounced on each count. Thirdly, by sentencing for separate offences, the court makes it clear to the public what the penalty for each offence is, thus assisting in the process of general deterrence. Finally, as in this case, adherence to this rule prevents conduct from one charge being used as an aggravating factor in assessing the penalty for another charge.

1. In Stirling, the Court found that, the Tribunal's failure to set out separate penalties for each charged conduct was an error and so its discretion miscarried.
2. We raised the above matters with the parties at the hearing in circumstances where we considered the conduct in Allegation 1 (the uninvited contact of a sexual nature) was quite different from that in Allegation 2 (breaches of the COVID-19 directives). We accepted that the inadequate clinical notes addressed in Allegation 3 was connected to Allegation 1 given they related to the same patient and consultation but the failures were of a different kind. While connected to Allegation 2, Allegation 4 was somewhat different again (reckless provision of false and misleading information to the Board and Ahpra regarding practise during COVID-19 lockdowns).
3. We indicated to the parties that we did not necessarily propose to make cumulative orders for determinations (particularly if they involved suspension or disqualification periods). We were reminded of the need to avoid any double punishment.
4. In the end, and in light of the interrelationships between some of the Allegations and the fact we decided to cancel Nguyen's registration, we concluded that, in this particular case, it was appropriate for us to in our reasons identify the sanction we thought would have been appropriate had only the individual kinds of conduct been before us.
5. We expand on that matter below but for now record we wished to ensure that any 'message' sent by our determinations would not suggest to other medical practitioners that reprimand and cancellation orders would only be made if all of the kinds of conduct were engaged in. Further, our explanation of our approach to each kind of conduct and suitable outcomes will assist to clarify the factors which led to us deciding to cancel rather than suspend Nguyen's registration.
6. Another reason to address the Allegations separately as best we could was to make plain how the determinations related to the kinds of conduct before us. It is usual for parties to refer to determinations made in what are said to be 'comparable cases'. While sometimes the facts in the other cases are sufficiently similar to draw a useful comparison, on other occasions, the facts raise multiple allegations concerning conduct which cannot be fairly described as a course of conduct. For the reasons given, we consider this to be one of the latter kind of cases and, separate from the law as stated in Stirling, we consider it appropriate to provide reasoning which addresses each specific category of conduct.

1. We agreed that it was appropriate for Nguyen to be reprimanded for each aspect of his professional misconduct. That determination is intended to admonish him and serve as a warning to other practitioners that conduct of the kind described in each of the four Allegations is unacceptable and likely to lead to condemnation.

Conditions, suspension, cancellation, disqualification and prohibition

1. We start by addressing the considerations relevant to the making of determinations as raised by the material before us.

1. Although we did not hear from Nguyen, we noted his agreement to all alleged facts and the characterisation of the conduct. Those admissions indicate some insight and remorse for which he is entitled to be given credit.
2. We have little doubt that the Board's disciplinary action and these proceedings have caused him professional humiliation and personal costs, including financially and in respect of his family relationships. We proceed on the basis that he regrets his conduct and that the lengthy period of suspension has been a significant financial burden for him and his family.
3. While in effect 'evidence from the bar table', we have given weight to the content of the submissions as to Nguyen's past history. His positive contribution, including through voluntary work, to members of the Vietnamese and Victorian communities does him credit. Nguyen's professional history indicates that he is a skilled medical practitioner whose past practise means he has much to offer his patients.
4. Even without supportive character evidence, noting Nguyen's lengthy prior practising history and the absence of any other complaints or disciplinary issues, we accept the broad proposition that the conduct the subject of the Allegations was unusual for him. We accept that the conduct in Allegation 1 in respect of Patient A was a 'one off'.
5. We had regard to the suggestions (coming from the Zaharias' letter) that Nguyen had been experiencing stress and had not slept the night before the consultation with Patient A. Because we have not heard directly from Nguyen (orally or in writing), we know no more than that about his circumstances in the moment.
6. However, while we understand Nguyen may have wanted to offer an alternative to medication when patient A complained of back pain and sought a prescription for pain relief, we do not understand how it was that Nguyen decided to give her a massage which involved uninvited contact of a sexual nature. Given Nguyen agreed he had no qualifications to offer massage and (through his legal representatives) stated that he had never before performed massage on a patient, we remain uninformed as to why he did so on that occasion. There is nothing in Zaharias' letter or elsewhere which explains why a massage (which was said to be intended to be a 'more helpful' alternative to prescription medication) included uninvited contact of a sexual nature.
7. We have no insight into why Nguyen decided to undertake a consultation as a medical practitioner contrary to the relevant Directions and to his ethical obligations to follow the law and to protect patients and the community from health risks.
8. We have not been able to understand why Nguyen seemed to draw a distinction between his usual practise as a GP and the provision of cosmetic treatments. Doing the best we can, it appears that he considers the latter does not require diligent clinical note taking.
9. While we could assume that fear led to Nguyen failing to provide complete and accurate information to the regulator (as described in Allegation 4), it would have assisted us to know Nguyen's thinking in that moment and to hear about how he decided to correct the record. The latter might have shown the kind of insight which supports lesser determinations.
10. While Zaharias' letter indicates that Nguyen has undertaken appropriate education on relevant topics, the 'sanitised' version of the events of Allegation 1 which he seemed to have relied on limits the use we can make of Zaharias' positive opinions.
11. While we accept that the topics listed earlier were covered and appear to be appropriate, we cannot be confident that Nguyen has had the benefit of education on boundaries and informed consent that responded to the specifics of his professional misconduct in respect of each of Allegations 1 to 4.
12. In respect of Allegation 1, had we heard from Nguyen (or Zaharias), we might have better understood how the movie 'Love Actually' was intended to help a medical practitioner understand the boundaries between himself and his patient and further to understand how to ensure the sexual boundary is not breached. While we are aware the movie includes what we regard as sexual harassment in the workplace and stalking behaviour, the connection between those storylines and the specific conduct before us is elusive.
13. Having regard to all of the above matters, we are not satisfied that Nguyen understands the nature of his wrong doing and the causes of it. As a consequence, specific deterrence has a role to play in making determinations.

1. In our view, each aspect of Nguyen's conduct calls for determinations directed at general deterrence so as to make plain to other medical practitioners that it may, on its own, lead to disciplinary action and consequences.
2. As described in our 2024 Reasons:
   • It scarcely needs saying that a sole breach of boundaries by engaging in uninvited contact of a sexual nature is a serious breach of trust and of the standards which apply to medical practitioners and constitutes professional misconduct as it is a substantial departure from standards (paragraphs (a) of the definition) and inconsistent with the conduct of a person who is fit and proper to be registered (paragraph (c) of the definition). The circumstances before us which involved Nguyen disregarding Patient A's objections was and can be expected to be an aggravating factor. A further aggravating factor was the harm done to her as reflected in her statement that the events had affected her 'day to day life' and made her 'feel unsafe';[39]
   • Failing to comply with the Directions (or any other similar restriction) is unacceptable for medical practitioners who have a significant influence on their patients and, generally speaking, hold a privileged position in society. For a medical practitioner to have engaged 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. That kind of conduct plainly constitutes professional misconduct under paragraph (a) of the definition;
   • A failure of a medical practitioner to make proper clinical notes is a serious matter because inadequate records significantly limit the ability of other practitioners to provide continuity of care, including in emergencies. Further, poor documentation contributes to delays in recognising, managing, and providing urgent care to deteriorating patients. If a medical practitioner fails to give proper time and attention to making sufficient clinical notes they will have engaged in unprofessional conduct (in the case of a lesser breach) or professional misconduct under paragraph (a) of the definition where the shortcoming are more serious; and
   • It is unacceptable for a medical (or any health) practitioner to recklessly provide false and misleading information to the regulator. Engaging in that conduct breaches the expectation that medical practitioners will display integrity, truthfulness and co-operation when questions are raised about their conduct. The Board (and Ahpra) have responsibilities to investigate notifications in order to achieve the aims of the National Law which include the protection of the public and upholding public confidence in health services.[40] Conduct of that kind is professional misconduct under paragraph (a) of the definition.

The maintenance of standards and public confidence

1. It is necessary for our determinations to ensure that the standards of the profession are maintained and the wider public can have confidence that it is understood that each of the kinds of conduct Nguyen engaged in is unacceptable and will be met with strong disciplinary response.

1. As is apparent from the summary of the history of this matter in the 2024 Reasons,[41] the Allegations have been hanging over Nguyen's head since around late May 2021.
2. Nguyen offered an undertaking not to practice in late June 2021 and then had his registration suspended with effect from 6 July 2021: he has been unable to practice for more than three years and nine months.
3. The course of this proceeding is summarised above at [22]. Leaving aside the question of costs and whether Nguyen took steps to resolve the dispute sufficiently early, the time the proceeding has been on foot and the delay in listing, due to Tribunal resourcing issues, has no doubt added to the uncertainty and personal burdens carried by Nguyen.
4. It is appropriate for us to take the totality of the time that has passed into account when making determinations.

1. In light of the matters we have discussed relevant to specific deterrence, we cannot be satisfied that a further period of suspension would be sufficient to ensure that Nguyen was going to be suitable (in the sense described in Honey) to resume practice, whether after three or six months.
2. We are unable to agree that it would be appropriate for us to formulate and impose conditions on Nguyen, after a further period of suspension. Because of the lack of material which explained why the conduct was engaged in and how Nguyen now viewed that same conduct, we could not specifically identify the conditions which would be required to ensure that Nguyen could resume practice in a manner which complied with his obligations.

Decision on cancellation of registration, disqualification and prohibition order - Allegation 1

1. The above circumstances and the seriousness of the conduct, particularly that in Allegation 1, indicate that cancellation of registration is appropriate.
2. We reached that view after considering the cases the parties relied on.
3. We concluded that the facts and circumstances of Espedido were most similar and relevant to our task. Hmood was of some assistance but, because there were numerous consultations and patients involved, it was not sufficiently comparable to Allegation 1 in this case.
4. As to the other cases, we concluded that:
   • Crocetti involved slightly less serious conduct and involved carefully agreed conditions which took account of the practitioner's time out of practice but also limited his capacity to return to unsupervised practice. In the end the case must be confined to its own facts; and
   • While Dinglasan involved conduct which was more like that of Nguyen, the parties had agreed that no suspension or cancellation was required.
5. As discussed in the 2024 Reasons, Patient A made plain that she objected to the massage but, despite that, Nguyen continued to remove her clothing and touch close to (but not on) her anus and vulva. He then kissed and hugged her without consent. In the circumstances, we considered it necessary to impose a determination that would make plain to other medical practitioners and the public more generally, that uninvited contact of a sexual nature will be met with a severe response. That is especially so given Nguyen was not qualified to undertake massage or like therapy and where his reasons for embarking on that course and then progressing to sexual contact are unexplained despite him making admissions including that the contact was uninvited.
6. We have decided to impose a disqualification period of two years from the date of our orders.
7. To adopt the approach in Espedido, we considered that uninvited sexual contact of the kind involved in this case (which was less serious than in Espedido) called for a 'headline' disqualification period in the order of six years. After allowing for the three years and nine months Nguyen has not been able to practice,[42] we considered the two year period to be appropriate.
8. We have decided against imposing a prohibition order.
9. Despite the findings we have made in respect of Nguyen's interactions with Patient A and the lack of explanation for the specific conduct, we have also had regard to the lack of any other similar conduct in Nguyen's past. We proceeded on the basis that it was possible that Nguyen might provide cosmetic services in future.
10. In our view, the personal burden a prohibition order would place on Nguyen (meaning he is unable to support his family by taking work he may be suitable for in the health services area) outweighs the risk he might again engage in like conduct. Despite the shortcomings in the evidence before us, for the purposes of the application for a prohibition order, we assess that risk as being low, taking into account the professional and personal consequences Nguyen has already and will now face due to our determinations.
11. We are satisfied that the aims of determinations under the National Law are met by the combination of Nguyen's past lengthy suspension and the other determinations we have made.

1. As is apparent from the Board's submissions, the determinations it sought were based on the conduct in Allegation 1. We have separately expressed views on the appropriate determinations for the other Allegations but, given we have decided to cancel Nguyen's registration, separate orders are not required.
2. In respect of Allegation 2, we noted that, in the other COVID-19 cases, cancellations were not sought. In Tut regard was had to time out of practice (around two years) and no suspension was imposed. In Anni, the practitioners had not been suspended through immediate action and suspensions of three months each were imposed with the agreement of the parties. In Baniqued an agreed one month suspension was imposed (where the practitioner had not been suspended). In Nairn the practitioner was suspended for seven months. The conduct which led to a six month suspension in YZV was outside the medical practitioner's practise and so may be viewed as somewhat different.
3. Overall, we considered Nguyen's conduct to be closest to that in Nairn. Nguyen and the practitioner in Nairn took positive steps to hold consultations with patients despite public health orders to the contrary. While the practitioner in YZV instigated the party, the practitioners in Anni and Baniqued were mere attendees at a gathering they did not arrange.
4. Taking the lack of evidence from Nugyen as to how he came to breach the Directions and casual way he used text messages to make contact with Patients A and B to arrange the consultations, we concluded that, had the conduct in Allegation 2 been the only issue for determinations, a reprimand and a suspension of six months would have been appropriate. The 'message' to be sent would have included emphasising the special responsibility medical practitioners have to comply with public health orders and to prioritise the protection of their patients and the community more broadly.
5. As to Allegation 3, while Nguyen's departure from standards was substantial, there was only one set of notes in issue. In the absence of any suggestion Nguyen's notetaking was otherwise inadequate, a reprimand would have been a sufficient determination.
6. As to Allegation 4, the reckless provision of false and misleading information to the regulator is a serious matter which can impede its capacity to undertake its role in investigating notifications and protecting the public. Relevant to the formulation of determinations, within around a week of providing the false and misleading information, Nguyen contacted Ahpra and corrected the record.
7. Because of the way in which the parties approached submissions on determinations (focussing on Allegation 1) and because there was no clear evidence about whether Zaharias' education specifically addressed the facts found proven under Allegation 4, it is difficult to express a final view. We were satisfied that a reprimand would have been required at minimum.
8. Because of our decision to cancel Nguyen's registration (and make the other orders mentioned in the context of Allegation 1), there was no need to make a separate order for suspension in respect of Allegation 2. We have expressed our orders in such a way as to make plain that Nguyen is reprimanded for each substantive aspect of the conduct in the Allegations.

1. The Board's application for costs was made under section 195 of the National Law which says:

The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

1. It sought an order that Nguyen pay the costs of the proceeding, or, that he pay the Board's costs from and after 11 September 2024 (being the day after the hearing on characterisation and determinations). The basis for the alternative submission was that the further hearing would have been avoided had Nguyen resolved the proceeding, as he ultimately did, a reasonable time in advance of the first listed hearing.

1. The Board relied on the conduct of the proceeding for its application.
2. Nguyen was referred to the Tribunal on 14 March 2023.
3. On 29 January 2024, a compulsory conference was conducted. The matter did not resolve. In advance of the compulsory conference the Board sent Nguyen's solicitors all of the material it intended to rely on which included witness statements, an expert report the Board relied on and all clinical records. The materials also included materials from Nguyen, including the admissions he had made in correspondence.
4. On 29 January 2024, orders were made for the two day hearing starting on 10 September 2024. An order was made for the Board to, by 26 February 2024, send the Tribunal and Nguyen a Tribunal Book which was, in effect, a further version of that used for the compulsory conference. Orders were made for the Board to send its written submissions and for Nguyen to send the Tribunal and the Board any further materials he intended to rely on by 27 August 2024.
5. On 6 September 2024, four days before the hearing, the Board filed a Further Amended Notice of Allegations which contained amendments which had been negotiated by the parties. As we understood it, the Board's solicitors were first advised that Nguyen intended to make admissions (subject to negotiations about the terms of the Allegations) around a week before the 10 September 2024 hearing.
6. The Board's Submissions said it relied on the following factors in combination:

(a) the Board had been wholly successful in the proceeding;

(b) the conduct engaged in by Nguyen was 'a gross departure from professional standards and it would be unfair for the whole of the costs of the proceedings concerning that conduct to be borne by the profession'; and

(c) all of the costs incurred after the date of the first hearing on findings and determinations could have been avoided. The matter was unnecessarily listed for a two day hearing on factual findings. The matter could and should have resolved at an earlier time. Nguyen could and should have conducted the proceeding so that he was prepared to argue the issue of determinations at the time set aside for that hearing. The purpose of costs is to indemnify not to punish. It would be unfair for the Board to be responsible for those costs unnecessarily incurred by Nguyen's conduct of the proceeding.

1. The Board submitted that, by not making the admissions sooner and then not being ready to deal with the issue of determinations in September 2024, there was an unnecessary listing of the case for two days, the unnecessary listing of a further date for hearing on determinations and the prospect of Patient A being called to give evidence open until a very late stage.
2. As to the amendments to the Allegations (the final version of which are set out in full in Attachment A to the 2024 Reasons), the Board submitted the amendments were 'minor'. We refer further to aspects of the amendments below.

1. Nguyen submitted there should be no order for costs, referring in particular to two cases relied on by the Board (summarised below). In broad terms, Nguyen's counsel submitted that the features in the cases where costs orders had been made were not present in this case.
2. In respect of the eventual admissions and agreement as to characterisation, Nguyen's Submissions said that Nguyen, via his representatives:

was able to resolve the proceeding with the Board. The Tribunal accepted the basis upon which that resolution was reached. Importantly [Patient A] was not required to give evidence at the hearing. There was a considerable benefit to the resolution notwithstanding the fact a further hearing day was need. Having regard to all the particular circumstances of this proceeding there should be no order as to costs.

1. Nguyen's counsel took issue with the suggestion that his client had somehow drifted along and that the changes made by negotiation were not consequential. He noted the amendment referred to in [192(b)] below and submitted that had it not been made, there may have been uncertainty as to whether there was touching in those areas. He described that as a sensible and appropriate method to resolve the issue.
2. As to the decision to negotiate on the terms of the Allegations and the eventual resolution of the factual and characterisation issues, Nguyen's counsel explained that, when he was briefed, he reviewed the materials and then engaged in discussions with the Board's counsel. He accepted that those discussions and the resolution came regrettably late.
3. Nguyen's counsel informed us that his client was self-funded throughout the disciplinary process and, having been out of work for a lengthy period due to the suspension of his registration, the costs associated with that representation were significant for him.

1. The Board referred us to the Tribunal's decision in Medical Radiation Practice Board of Australia v Lau,[43] (Lau). In that case, the Tribunal summarised the following principles from decided cases which we accept are the starting point for the costs application before us:[44]
   • There is no presumption that each party will bear its own costs;
   • The National Law confers a broad discretion on the Tribunal to award costs against a party;
   • Although the Tribunal's broad discretion is unconstrained by the considerations set out in section 109(3) of the Victorian Civil and Administration Act 1998 (Vic), some or all of those considerations may be relevant in any given case;
   • The discretion is not 'at large' and must be 'exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation';
   • The purpose of an order for costs is to indemnify or compensate the party in whose favour it is made and not to punish the party against whom it is made;
   • The discretion conferred under section 195 of the National Law does not equate to an expectation that costs will follow the event; and
   • There may be cases where very serious allegations are found proven against a practitioner, but where an award of costs will still not be appropriately made, as all the circumstances of the case need to be considered.
2. In our view there are additional considerations which come from the Tribunal's decision in Psychology Board of Australia v Asher[45] (Asher). In its decision on costs, the Tribunal described the way in which disciplinary processes are regulated under the National Law and noted the following:[46]
   • The Board has a statutory obligation to bring proceedings before the Tribunal (under section 193 of the National Law) and it would be undesirable and inappropriate were costs to be an impediment to the bringing of cases;
   • Similarly, a health practitioner should, in the usual course be entitled, in the setting of a Tribunal hearing where costs are not universally awarded nor sought, to have the issues fully canvassed and be entitled to put the relevant board to its proofs[47] without fear of a costs award;
   • If a practitioner facing serious allegations simply tests the evidence, it may well be that it would not be appropriate to award costs against them. A practitioner should not be disenfranchised from appropriately exercising their rights to engage in serious proceedings that have the potential to have devastating consequences for their career and personal life and should not run the risk of a costs award against them for so doing;
   • It will not always be appropriate to award costs where a practitioner does no more than put the Board to its proof; and
   • Conversely but similarly, if a regulatory board on reasonable grounds determined to refer matters to the Tribunal, it may not be appropriate to make an award of costs against the board simply because the allegations were ultimately not proven to the requisite standard.

1. We asked Nguyen's counsel if there were any decisions from other states which administer the National Law which might assist us. He submitted we ought to confine ourselves to the Victorian cases. The Board did not suggest we do otherwise.
2. The first case raised by the parties was Asher. The Tribunal had made findings against the practitioner on allegations concerning (amongst other things) him having had sexual intercourse with a client and having engaged in inappropriate physical contact with the client during the provision of psychological services. The Tribunal made an order for costs against the practitioner referring to:[48]
   • The 'unusually strong and serious findings' it made against the practitioner;
   • The practitioner's conduct being 'so significantly outside the parameters of acceptable conduct within the profession of psychology as to be, in reality, unrelated to the practice of the profession at all'; and
   • His proven conduct falling 'completely outside the parameters of conduct which can ever be engaged in by a registered psychologist'.
3. After referring to the National Law obligations (summarised above) and the practitioner's entitlement to put the relevant board to the proof and test its evidence, the Tribunal said:[49]

Mr Asher did not simply put the Board to the test. We made findings that Mr Asher made gratuitous, unwarranted, unsubstantiated and demeaning sexualised comments about [the client]; Mr Asher did not give frank evidence; Mr Asher did not give plausible evidence; and Mr Asher did not give frank or consistent evidence.

Where it has been established that an individual has been found to have so entirely breached their professional obligations, we consider that it is appropriate that the practitioner bear the cost of the related disciplinary proceedings.

1. Nguyen's counsel drew our attention to the following further paragraph from Asher:[50]

We hasten to note that there may be cases where very serious allegations are found proven against a practitioner, but where an award of costs will still not be appropriately made. All of the circumstances of the case need to be taken into account.

1. The Board relied on Wright v Nursing and Midwifery Board of Australia[51] (Wright). That case concerned an application to review an immediate action suspension which was based on what the Tribunal described as 'a handful of text messages, amongst thousands', the practitioner and another nurse had exchanged five years earlier, in the course of a consensual relationship between them.
2. The relationship started after the other nurse completed a placement at Monash Health as a student nurse, during which the practitioner was her supervisor. The Tribunal noted that there was no prohibition in the relevant code of conduct of relationships between nurses and former students, in contrast to the position in respect of former patients. The Tribunal noted that:[52]

The handful of messages relied on suggested that [the practitioner] may have behaved inappropriately by what he had said to her during the placement. When the messages as a whole were read however, there were other messages from the former student that directly contradicted what she wrote in the messages relied on by the Board. They included 'complaints' that [the practitioner] had always behaved appropriately during the placement, despite the interest she showed in him. Other messages, which were from [the practitioner] and relied on as admissions by him of inappropriate conduct, did not support that view of them when read in the context of preceding or following messages.

1. While the Tribunal accepted the messages raised some matters of concern, it found there was no proper basis for an immediate action suspension being imposed.
2. The practitioner made a costs application. The dispute was as to the quantum of the costs claimed as the relevant board was willing for the Tribunal to make a costs order against it (on the proviso that it should not be taken as having admitted it had not acted in good faith or that its defence of its immediate action decision lacked a reasonable basis).
3. Nguyen's counsel drew our attention to the following statement in Wright:[53]

The discretion to make any order considered appropriate will include no order as to costs.

On its face, the discretion under the National Law is broad and unfettered, but is not unconstrained:

'Appropriate' means 'proper in the circumstances', which of itself operates as a constraint, and also requires consideration of the particular circumstances of the proceeding. Appropriate 'for the proceedings' also suggests that the particular circumstances of the proceeding will be considered. And the guiding principles of the National Law, binding on a responsible tribunal, would also require any order to be fair.

1. We start with some preliminary comments.
2. As to Wright, we note that was an application in the Tribunal's review jurisdiction as to an immediate action decision. The review application was initiated by the practitioner and not the relevant board. We will assume for the moment that a question does not arise as to the onus of proof in such a proceeding that might be relevant to whether costs should be awarded in this disciplinary application which was initiated by the Board and where it carried the onus. We note that in Wright there was no dispute that a costs order ought to be made.
3. We consider the disciplinary context to be highly relevant in this case because Nguyen had no power to resist the application to the Tribunal being made. As described in Towie v Medical Practitioners Board of Victoria (Towie), he was fully entitled to see and hear all of the Board's evidence before deciding how to respond, if at all. While it is desirable for practitioners to make admissions where denial would be futile given the available evidence, they have no legal responsibility to do so.
4. As described in Asher, the prospect of a costs award ought not to disenfranchise a practitioner from appropriately exercising his or her rights to engage in serious proceedings that have the potential to have devastating consequences and should not run the risk of a costs award against them for so doing so.
5. We now make our findings.
6. Having regard to the facts in Asher and the specific comments we have set out at [178] above, we do not consider this is a case where the proven conduct is so extreme or that the manner in which the practitioner ran the case was so inappropriate (for example by failing to comply with orders or vexatiously conducting the proceeding) that an order for costs in whole or in part ought to be made in favour of the Board.
7. In our assessment, the agreed amendments to the Allegations were of significance and may be accepted as a partial explanation as to why admissions were made late. As we understood it, the amendments were not the subject of concluded agreement until close to the hearing. The Tribunal's file shows the Board filed an amended version of the notice of allegations in February 2024 after the compulsory conference but they did not include any of substance to Allegations 1 and 4.
8. Doing the best we can with the information available to us, it seemed to us that at least two of the substantive amendments were significant:

(a) In the introductory words to Allegation 1, the words underlined below were removed:

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

(b) Particular 1.4(h) of Allegation 1 was amended to add the underlined words below:

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

(c) The introductory words of Allegation 4 were amended to remove 'knowingly' and add in its place 'recklessly', so it read:

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

(d) The same amendment as described in (c) above was made to Particular 4.7 of Allegation 4.

1. By clarifying that there was no touching of Patient A's anus or vulva, Nguyen's conduct was distinguishable from that in Espedido. As shown by our reasons above, the difference reduced what we regarded as the 'headline' disqualification period for Allegation 1.
2. Had there been an admission that the false and misleading information was provided to the Board 'knowingly' (in respect of Allegation 4), it may have led to a different assessment of what determinations were required, including the possibility that it would have been a factor to assess in respect of the disqualification period. Deliberate dishonesty in dealings with the regulator is of course of greater concern than recklessness.
3. We do not consider the fact a practitioner could have made admissions earlier in time as sufficient of itself to warrant a costs order. Where Towie applies, it seems to us that the practitioner must make an assessment about whether to make admissions and, if so, when. That assessment can have positive impacts on outcomes as admissions, particularly when made early, are relied on to show insight and remorse. However, a practitioner may wish to put the relevant board to all of or some of its proofs, particularly in respect of facts they strongly deny.
4. Where it is accepted that a costs order does not follow the event, an award of costs for making admissions 'too late' raises two problems. First identifying when the right time is and second whether to make admissions at all given adverse findings will not necessarily result in a costs order where the practitioner puts the relevant board to its proofs.
5. It seemed to us that it would be counterintuitive and counterproductive for costs orders to act as a deterrent to practitioners engaging in negotiations which can ultimately save costs in terms of preparation and hearing time and, importantly, avoid the need for victims of the practitioner's professional misconduct to give evidence.
6. In the circumstances of this case, the appropriate outcome is not to order costs against Nguyen and so the application for costs is dismissed.

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

[2] See Medical Board of Australia v Nguyen [2024] VCAT 891.

[4] Board's Submissions [17]-[20], footnotes and citations omitted.

[10] Footnotes from [15] of the Board's Submissions omitted.

[13] Footnotes from the Board's Submissions omitted except as indicated.

[14] [2022] VCAT 82 at [178].

[15] Referring to Dickens v Law Society [15] (note: this citation could not be confirmed) and Medical Board of Australia v Proctor [2018] VCAT 576.

[17] [2007] VCAT 526 [44]-[45].

[19] With reference to factors identified in Medical Board of Australia v Griffiths [2017] VCAT 822.

[23] (No 2) [2023] VCAT 1056.

[25] [2023] VCAT 603.

[27] [2018] VCAT 1054.

[28] [2019] SACAT 70.

[30] [2023] VCAT 494.

[32] [2024] VCAT 214.

[33] [2022] WASAT 86.

[34] [2024] VCAT 480.

[35] [2024] VCAT 1134.

[36] [2013] VSCA 374.

[38] Stirling [74] citations omitted.

[39] For Patient A's statement, see 2024 Reasons [34].

[42] And also having regard to the fact that the suspension was imposed after the Board had regard to the conduct in Allegation 1 only (see TB 183-188) as, it appeared, the other conduct only emerged during the course of its investigation.

[43] [2025] VCAT 35.

[45] (Costs) [2020] VCAT 1281.

[47] In accordance with Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 (Towie).

[51] [2024] VCAT 692.

[53] Wright [20]-[21] citations omitted.