Important Confidentiality Note - On 10 December 2012, in this proceeding VCAT ordered that the name of the former patient of Dr David Topchian, to which this proceeding relates or any information which would enable the identification of that patient, is not to be published or made available to the public. That order remains in force.

1. VCAT finds, with consent of the parties:
   • (a) Between on or about 11 August 2009 and on or about 31 October 2009, Dr Topchian engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in section 3(1) of the Health Professions Registration Act 2005 (Vic), in that he engaged in a sexual relationship with a patient (the Patient) he was treating in his practice as a cosmetic surgeon.
   • (b) Between on or about 28 July 2010 and on or about 15 September 2010, Dr Topchian behaved in a way which constitutes unprofessional conduct as defined in section 5 of the Health Practitioner Regulation National Law Act 2009 (Vic) in that he participated in negotiations, including his solicitor, whereby he proposed to pay a sum of money to the Patient, on condition that she sign formal documentation that she would refrain from taking action in relation to, or otherwise disclosing, that he had engaged in a sexual relationship with the Patient and on condition that she delete material relevant to that relationship from her laptop computer and mobile telephone.

1. VCAT makes the following determinations under section 77 of the HPR Act and section 196 of the National Law:
   • (a) Dr Topchian's registration is suspended for a period of one year, the suspension commencing on 1 March 2013.
   • (b) Dr Topchian is reprimanded.
   • (c) Dr Topchian is required to consult a mentor, being a medical practitioner who the Medical Board of Australia agrees is appropriate, on a monthly basis during the period of his suspension and for two years thereafter, that mentor having agreed to report in writing to the Board every three months, unless the Board and the mentor agree to a variation of that period.
   • (d) Engagement of the mentor is to be at Dr Topchian's expense.

1. Dr David Topchian admits to having a sexual relationship over three months in 2009 with a 21 year old female patient (the Patient). He provided cosmetic surgery treatment before, during and, to a limited extent, after the relationship. Some time after he ended the relationship, the Patient asked him for money. He negotiated with her, engaging lawyers to assist. The negotiations broke down. Believing she was about to reveal the relationship to his wife and others, in September 2010, he notified the Australian Health Practitioner Regulation Agency (AHPRA) about the relationship and told his wife.
2. The Patient never notified AHPRA. Nor did she contact Dr Topchian's wife, friends or associates.
3. In December 2011, the Medical Board of Australia (the Board) referred the notification to VCAT. When it came to final hearing, the parties produced an agreed statement of facts, provided documentary evidence and agreed VCAT should find he had engaged in professional misconduct and unprofessional conduct. The parties did not agree about appropriate determinations. The Board submitted VCAT should cancel Dr Topchian's licence for at least two years. Dr Topchian submitted a three month suspension was appropriate.
4. Dr Topchian gave evidence and was extensively cross-examined. Dr Cummins provided a psychological report and was cross-examined. The Patient did not participate in the investigation, attend the hearing or give evidence.
5. We reserved our decision.

1. In 1994, the Medical Practitioners Board of Victoria registered Dr Topchian as a medical practitioner.
2. In 1999, he commenced, but did not complete, training with the Royal Australasian College of Surgeons. In 2006, he acquired a fellowship with the Australasian College of Cosmetic Surgery. For four years, he worked part-time for a cosmetic surgery in Brisbane. Over the same time, he was employed at first part-time and later fulltime at a cosmetic surgery in Melbourne. For a period, including the time of the sexual relationship, he commuted between Brisbane and Melbourne.

1. Dr Topchian treated the Patient from April 2007 to January 2010. He transformed her from a 21 year old woman working in a pet shop to a model whose photographs appeared on the front cover of a popular mens magazine and in other well known such magazines.
2. He performed two breast augmentations (June 2007 and February 2008), the later to address minor asymmetry, a labioplasty (October 2008), three lip fills (March to August 2009), a further breast augmentation (August 2009) and lip fills in September 2009 and January 2010.
3. Before the Patient commenced treatment she researched the pros and cons of cosmetic breast surgery to an extraordinary degree, sending many e-mails to Dr Topchian on the topic. Dr Topchian asked his wife (also a medical practitioner) to assist him in drafting an e-mail to her, setting boundaries as to when she could contact him via e-mail. Nonetheless, over time the e-mails became increasingly personal.
4. After the first treatment, the Patient began to send him nude pictures of herself posing as a model for professional photographers. Dr Topchian made favourable comments. At one level, the photographs were sent to show him the results of his professional work. On another level, they were part of a potentially developing sexual relationship.
5. In July 2009, Dr Topchian invited the Patient to dinner at a Melbourne restaurant. He intended to discover whether she wanted a sexual relationship. After the dinner they began to exchange personal emails and texts and to Skype each other. According to the doctor, it was clear a sexual relationship was about to begin. It did, at a Melbourne Hotel in August 2009, the evening before he performed the third breast augmentation and a lip fill. At this time, Dr Topchian was living with his family in Brisbane and commuting to Melbourne for work. In October 2009, he paid for the Patient to fly to Brisbane, where they stayed together in a hotel over a weekend. He gave her a laptop computer.
6. Dr Topchian says that around the end of October 2009, for the first time he spoke with a colleague and close friend about what was happening. That doctor gave him strong advice to stop all contact with the Patient saying he was jeopardizing his career. He ended the sexual relationship, although he continued in telephone and email contact. He also told her he could no longer be her doctor and referred her to a colleague for lip fills.
7. However, in January 2010 (during the absence of the colleague) he provided a lip fill and in the same month reviewed the Patient's post-operative breast scarring at the apartment of a friend of hers. Dr Topchian agrees that if he had wanted to, he could have referred her to another cosmetic surgeon.

1. As 2010 continued, all communication appeared to have ended. However, in July 2010 the Patient emailed Dr Topchian telling him that her car had been damaged, she had financial problems and that she needed help from him. She closed the email with an apparent threat, "Think very carefully about how you respond."
2. Dr Topchian immediately saw this as a threat that if he did not provide financial assistance she would disclose their relationship. He promptly emailed her, "I will help in any way that I can."
3. Over July and August, they negotiated. He engaged a lawyer to assist. She was to sign an agreement not to disclose the arrangement and be paid by bank cheque. The negotiations went to the extent of including a process by which Dr Topchian could satisfy himself the Patient had deleted all information relating to him from her computer and telephone.
4. However, disagreement arose in early September 2010. The Patient wanted $50,000. Dr Topchian was offering $20,000.
5. On 9 September 2010, the Patient gave an email ultimatum, "You have until 10pm tonight to tell me which way your [sic] going or I'll just forward everything on to the right people."
6. On 15 September 2010, the proposed deal foundered. By an email at 4.12 pm on 15 September 2010, Dr Topchian informed the Board that he had engaged in a sexual relationship with the Patient. By an email minutes later the he told the Patient there would be no meeting or payment and that he had told the Board and his wife about their relationship.
7. She promptly responded by email that she would be contacting the Medical Board to ensure that the "statement/case has been accurately submitted", as well as contacting Dr Topchian's wife, associates, and the Medical Ombudsman. She never did.

1. In February 2011, a Board investigator conducted an extensive interview with Dr Topchian.
2. He cooperated with the Board supplying it with copies of emails and texts between him and the Patient, which required him engaging a data recovery specialist to work on his computer hard drive.
3. Until 13 December 2010, he consulted Dr Devadason, a Brisbane psychiatrist on a weekly basis. Dr Devadason provided supportive psychotherapy and advice on managing boundaries with patients.
4. He then saw Dr Dwyer between January 2011 and June 2011 on a weekly basis for psychotherapy. Since September 2011, he has seen Dr McArdle daily for psychoanalysis. Given the therapeutic relationship, Dr McArdle is not prepared to report to the Tribunal.
5. Dr Topchian says he sought the assistance to better understand why he committed these offences, better understand his feelings and to ensure that the boundary issues between patients and himself are addressed.
6. He implemented more formal practices in his day to day consultations, such as no longer allowing patients to email him directly.

1. As the sexual relationship occurred when the Health Professions Registration Act 2005 (Vic) (HPR Act) was in force, we may find whether, or not, Dr Topchian has engaged in unprofessional conduct or professional misconduct. Sections 77(1) and (2) of the Health Professions Registration Act 2005 (Vic) (HPR Act) says,

(1) After it has completed a hearing under this Division in relation to an application in respect of a health practitioner VCAT may make a finding as to whether or not -

(a) the health practitioner has engaged in unprofessional conduct or professional misconduct; or

(b) the health practitioner's ability to practise as a health practitioner is affected; or

(c) the health practitioner's performance has been unsatisfactory; or

(d) the health practitioner is not of good character.

(2) VCAT may find a practitioner has engaged in unprofessional conduct even though the application alleged professional misconduct.

1. A finding of professional misconduct involves a more serious departure from accepted standards than a finding of unprofessional conduct.
2. Professional misconduct is relevantly defined in section 3 of HPR Act as:
   • (b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and
   • (c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession;
3. The definition (b) is similar to what Mandie J referred to in Campbell v Dental Board of Victoria 1999 VR 617 at 622 where His Honour referred to Adamson v Queensland Law Society 1991 Qd R 498 at 507. It was there stated the test to be applied is whether the conduct violates or falls short to a substantial degree the standard of conduct observed or approved by members of the profession of good repute or competency.
4. We find that, as alleged by the Board and admitted by Dr Topchian, between on or about 11 August 2009 and on or about 31 October 2009, he engaged in professional misconduct as defined in paragraph (b) of the definition of "professional misconduct" in section 3(1) of the HPR Act. He engaged in a sexual relationship with the Patient.
5. His conduct falls far short of that expected from him.
6. While Dr Freckelton provided us with comprehensive helpful submissions as to case law, we first cite Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 para 156, where VCAT said,

Sexual relationships between patients and doctors are always inappropriate. Medical practitioners are placed in a position of trust in the community and have available to them intimate knowledge of their patients' physical and psychological well being. This places the practitioner in a position to exploit the trust that has been given to them.

The community expects that when they attend a medical practitioner, they will not be regarded as potential sexual parties nor that their relationship with the doctor will be sexualised. Likewise, the profession expects its members to refrain from using the consulting room as a means of establishing sexual relationships with patients. To do otherwise brings the profession into disrepute by reducing the trust that the community has in the profession.

1. Further, we note that in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at para 21, VCAT said,

It is particularly pertinent that the medical practitioner involved in this case is a consultant psychiatrist. It has been pointed out that the practice of medicine per se involves the granting by the patient of the right of intimate access to the body of the patient. This may be even more significant in relation to a psychiatrist, who has access to the most intimate secrets of a patient - secrets they may never tell another human being.

1. We see an analogy in that a cosmetic surgeon may, as in this case, also have intimate access to a patient's concerns.
2. We are also struck by Collins J's words in Raschid v General Medical Council: [2006] EWHC 886 at para 17_,_

What Dr Raschid failed properly to appreciate was that his inappropriate behaviour was likely to damage the patient, ...

1. As the demand for money occurred when the Health Practitioner Regulation National Law Act 2009 (Vic) (the National Law) was in force, we may decide whether, or not, Dr Topchian has engaged in unprofessional conduct or professional misconduct.
2. Section 196(1) says,
   1. Decision by responsible tribunal about registered health practitioner

(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(b) one or more of the following -

• (i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
• (ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
• (iii) the practitioner has behaved in a way that constitutes professional misconduct;
• (iv) the practitioner has an impairment;
• (v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or

1. Section 5 of the National Law defines unprofessional conduct, of a registered health practitioner, as professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
2. We decide that, as alleged by the Board and admitted by him, Dr Topchian behaved in a way which constitutes unprofessional conduct as defined in section 5 of the National Law. He participated in negotiations, including his solicitor, whereby he proposed to pay a sum of money to the Patient on condition that she sign formal documentation that she would refrain from taking action in relation to, or otherwise disclosing, that he had engaged in a sexual relationship with her and on condition that she delete material relevant to that relationship from her laptop computer and mobile telephone.
3. His conduct was of a far lesser standard than that expected of him. Following the risk of disclosure of sexual relationship arising, Dr Topchian carefully and systematically attempted to prevent anyone discovering his misconduct. He could have, in the first instance made contact with his insurers and sought their advice. The right thing to do would have been to a far earlier point, self reported to the Board. Purely from the point of self-interest, he may have reduced the severity of determinations.

1. Section 77(4) of the HPR Act provides VCAT's powers to make determinations concerning the sexual relationship including to reprimand, cancel registration and to disqualify from applying for re-registration for a specified time. It says,
   1. Determinations of VCAT

(4) VCAT may make one or more of the following determinations with respect to a health practitioner -

(a) require the health practitioner to undergo counselling;

(b) caution the health practitioner;

(c) reprimand the health practitioner;

(d) require the health practitioner to undertake and complete specified further education or training within a specified period;

(e) impose any condition on the registration or endorsement of registration of the health practitioner;

(f) impose a fine on the health practitioner of not more than $50 000 to be paid to the responsible board;

(g) suspend the registration of the health practitioner for the period specified in the determination;

(h) cancel the registration of the health practitioner;

(i) order that the practitioner undertake a specified period of practice under specified supervision;

(j) order that the practitioner do or refrain from doing something in connection with the practice of his or her health profession;

(k) order that the practitioner's practice be conducted for a specified period in a specified way or subject to specified conditions;

(l) order that the practitioner's practice be subject to periodic inspection by a specified person for a specified period;

(m) order that the practitioner report on the health practice of the practitioner to a specified person at specified intervals;

(n) order that the practitioner not employ, engage or recommend a specified person or class of persons;

(o) disqualify the health practitioner from applying for registration under section 4 within a specified period if the health practitioner's registration is cancelled by the Tribunal or by a health practitioner registration authority of another State or Territory of the Commonwealth or of New Zealand.

1. Section 196(2) of the National Law Act provides VCAT's powers to make determinations relating to the financial negotiations. In substance, it is very similar to section 77(4) of the HPR Act.
2. Turning to how the determination powers should be exercised, in Honey at para 14 VCAT said,

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Honey. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards. .. . Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is still not guaranteed that he will be so 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 for practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served,

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

1. In our view, Dr Topchian made grave errors of ethical judgment in having the relationship and trying to prevent his conduct being exposed. A cosmetic surgeon operates in one of the most sensitive fields in medical practice, akin to psychiatrists and psychologists. They alter people's appearance to which self worth is often inextricably linked, perhaps particularly to the people who consult them.
2. In our view, a one-year suspension, a reprimand and two years professional supervision are appropriate determinations. We seriously considered cancellation. However, we:
   • (a) do not consider there is any significant risk that Dr Topchian will once again enter into a sexual relationship with a patient. This experience has taught him the consequences. He has taken steps to formalise his relationships with his patients. According to Dr Cummins, his insight into the nature of the ramifications of his actions is now significant. He has no wish to cause further suffering to himself or those around him. He appreciates the harm he has done to the profession's reputation;
   • (b) conclude it is in the public interest that Dr Topchian received some benefit for self-reporting. We have no wish to create a situation where a doctor in his position might as well hope the patient will not report him or her, because the doctor perceives that if he or she reports just before it is likely he will be reported, his licence will in any event be cancelled or suspended as it would have been if he had not reported;
   • (c) are not persuaded that Dr Topchian should be given significant credit for the fact he reported. On the evidence before us, in our view, he did so only because he was about to be found out. As he agreed in cross-examination, from the first e-mail asking for money he viewed it as a threat that the patient would disclose the relationship unless he cooperated. The intricate nature of the negotiations with legal advice (for him) make it highly unlikely that he had some personal and ethical awakening exactly the same time the negotiations broke down. We are not persuaded by his counsel's submission that a fair way of analysing the evidence is that while Dr Topchian was under threat, it was that threat that made him realise that the only way forward was to 'come clean' and self-report. With respect, such an analysis flies in the face of common sense;
   • (d) note his full cooperation with the Board following his self reporting, psychological treatment he has undertaken and the frankness of his admissions during a hearing before us; and
   • (e) see our determination as necessary to protect the public. Once again, medical practitioners are warned that it is utterly inappropriate to have any form of sexual relationship with a patient. On the issue of suspension, we reject the submission that it should only be for three months. That may lead some other practitioners to conclude that if one has a sexual relationship with a patient, the consequences will not be so bad. They can arrange some excuse and take self-funded long service leave.
3. Also, while each of the unfortunately too numerous reported Tribunal decisions concerning medical practitioners having sexual relations with a patient is unique in its circumstances, it is important that in a broad sense there be consistency between those decisions. In our view, our decision is consistent with the spectrum of sanctions imposed.
4. The common thread running through the cases where a medical practitioner's registration is cancelled are aggravatings factors such as:
   • (a) lack of admissions about and insight of the practitioner as to the wrong done, leading to concern that the practitioner may repeat the conduct; and

(b) disputing allegations in the face of overwhelming evidence[1].

1. We do not see such factors here. We disagree with Dr Freckelton's submission that Dr Topchian's actions after the patient demanded money until his self reporting is such a factor to the extent that cancellation is appropriate.
2. Perhaps the closest relatively recent comparable case is Honey. The striking parallels between Honey and this case is that in both cases the medical practitioner was in a particular position of power with respect to the patient and that in Honey the doctor under a contract paid the patient $100,000 on the basis that the patient would not disclose the relationship.
3. Dr Honey was an experienced consultant psychiatrist. He entered into an inappropriate personal and/or sexual relationship with a former vulnerable patient, after the termination of his professional relationship with her as her psychiatrist in August 1997. The relationship began in September 1997, and continued for seven years (with one break). In 2000, he paid her $100,000 having signed a contract in which she agreed not to lodge a complaint with the Medical Board. After notification by the patient to the Board, the Applicant continued to see her on an infrequent basis up to March 2006.
4. On the issue of cancellation or suspension and the length of suspension, VCAT decided that the standards of the profession could be maintained and public confidence in the profession protected by a period of suspension, rather than cancellation of his registration to practise.
5. VCAT saw Dr Honey's conduct as reprehensible and calculated. It accepted that the question of whether the conduct is likely to be repeated is a very significant indicator for cancellation. It also saw it as necessary to look at the conduct overall and to ascertain whether the protection of the public requires a strong message to be sent to other medical practitioners that the conduct in question is reprehensible, and to other patients that they will be protected from that conduct, even if there was no risk at all of repetition of the offending conduct. It judged the public not to be at any specific risk from him, given the trauma he has caused to his family and himself, and given that his peer review group is now fully aware of what has occurred
6. Despite having considered the character evidence provided by Dr Honey, the contribution made by him to the practice of psychiatry in the western suburbs, and the other matters advanced by his counsel, because the conduct occurred over such a long period of time, he showed such a lack of understanding of the medical needs of the patient, and attempted to avoid the Board's disciplinary process, a suspension period of 18 months was appropriate.
7. Here we see a shorter suspension period as appropriate given the much shorter period of the relationship, our view about Dr Topchian not posing a risk to future patients, his self reporting, cooperation since reporting and his insight.
8. We are satisfied he has some initial insight into the consequences of his actions for himself, his family and the medical profession.
9. However, given his evidence at hearing, we are not so sure that he has full insight into what seem to be likely negative consequences for his young adult patient. We reject submissions put by his counsel that there is no basis to assume such negative consequences given the forthright attitude of the Patient, the consensual nature of the sexual relationship and the lack of a complaint to the Board. In our view, they are quite likely. Without warning, Dr Topchian ended the relationship. She is likely to have suffered emotional hurt and feelings of rejection. While Dr Topchian says he was not aware of it until after their relationship ended, the Patient had reported to two anaesthetists prior to cosmetic surgery that she was taking antidepressants. It is reasonable to speculate that the experience of being physically transformed, apparently leading to a transformation of life circumstances and experiencing an intense short relationship with the person who transformed her could cause psychological difficulties for her. She comments in her e-mail about the damage to a car, about her life "falling apart. That is not the e-mail of someone whose life is going well.
10. On this issue of insight regarding the Patient, we are not persuaded by Dr Cummins' opinion that Dr Topchian generally has a high level of insight, as stated in his report of 5 December 2012 and discussed during cross examination. Nor are we persuaded on this point by Dr Devadson's opinion that he demonstrates a good level of insight as stated in his report of same date.
11. Also, the publications from the relevant medical boards to doctors (including Dr Topchian) in the last decade have repeatedly emphasized the issue of sexual relationships with patients. Publications often cite cases that came before the boards and the consequences for doctors. Dr Honey started his relationship in 1997 and Dr Topchian his in 2009. His friend (who advised him cease the relationship) was well aware of professional views on this. More recent lapses in spite of the constant reminders deserve significant sanctions
12. We do not agree with Dr Topchian's counsel's submissions that this case is comparable with cases such as:
    • (a) Health Care Complaints Commission v Underwood (NSW Medical Tribunal) No. 40011 of 2011 22 August 2012 and Health Care Complaints Commission v Dr Small [2012] NSWMT 18 (19 July 2012), where the practitioner's registration was not cancelled or suspended and other sanctions were imposed; and
    • (b) Medical Board of Australia v Poon (Occupational and Business Regulation) [2010] VCAT 1840 (16 November 2010) and Dental Board of Australia v Gazelakis (Occupational and Business Regulation) [2011] VCAT 726 (31 March 2011), which resulted in three month suspensions and other sanctions.
13. From 1998 to 2008, Dr Underwood treated a child, then the two children of a couple. He had an intermittent sexual relationship with their mother from 2004 to 2007. The Medical Tribunal of New South Wales found him guilty of unsatisfactory professional conduct and professional misconduct. The tribunal reprimanded him and put conditions on his registration requiring ongoing psychiatric treatment and mentoring.
14. In doing so it noted Dr Underwood's admissions, his remorse for the effect on the woman, her partner and on his own family, counselling he had undertaken, that under the relevant code of conduct he was required to refer the children to another practitioner if it wished to commence such a relationship, expert evidence that Dr Underwood had developed insight and genuinely wished to become a better person and doctor, a low risk of recurrence, the doctor seeking a mentor and ethics training, him changing his practice to become more clinical and less involved and that it appeared this was the first such conduct by Dr Underwood.
15. In 2006, Dr Small, a 50 year old general practitioner, was treating a 37 year-old single mother in financial difficulties with a history of alcohol abuse who suffered from depression. Their consensual sexual relationship began on a home visit to the woman's elderly mother and continued until 2006 when it ended, apart from one further contact in 2007. During the time Doctor Small continued to treat the woman.
16. The Medical Tribunal of New South Wales reprimanded Dr Small and placed conditions on his registration. It noted he was suffering from depression in 2006, he was remorseful, he had developed insight into the wrongness of his actions, he changed his medical practice to minimise the risk of recurrence, he was committed to provide services to a deprived community, he was continuing with treatment and relevant training and psychiatric evidence supported in continuing in practice.
17. Dr Gazelakis and a patient had known each other prior to them commencing a sexual relationship (2005 to 2009), while for some of the time providing dental treatment to her. The woman was a professional who was not vulnerable to Dr Gazelakis. The start of the relationship was not accompanied by exploitative or predatory behaviour. The treatment (whitening, restorations and remedying of wisdom tooth pain) was not compromised by the relationship. Dr Gazelakis had attended monthly treatments sessions with a psychiatrist. He has been compliant with psychiatric treatment and has discussed at length issues related to professional boundaries and sexual relationships with patients and also the deleterious impact such relationships may have upon patients. He had become acutely aware of issues of power differential and of the effect that the behaviour has had upon both his professional work and psychological wellbeing. He posed no risk to any current or future patients.
18. VCAT found he had engaged in unprofessional conduct of a serious nature, suspended him for three months, reprimanded and cautioned him, imposed a $5,000 fine and directed that he continue with counselling from a psychiatrist for a further year.
19. In 2005, Dr Poon met a man at an Alcoholics Anonymous meeting. The man was staying in Melbourne, recovering from a cardiac arrest. Their relationship commenced as a friendship and developed into an emotionally and physically intimate relationship. In February 2006, they were engaged to be married. From January 2006 until May 2006 when the relationship ended, Dr Poon provided continuing medical care to her then fiancée.
20. VCAT regarded Dr Poon's conduct in continuing to treat the notifier over such a long period without referral elsewhere, prescribing benzodiazpenes and Cialis and conducting home visits without keeping notes as being particularly serious and found she had engaged in unprofessional conduct of a serious nature. Having noted personal difficulties she had experienced and that expert evidence supporting her limited return continuing in practice, VCAT reprimanded her and placed a condition on her registration that for a year she was not to work more than 24 hours a week. This limit was to support her gradual return to full time work.
21. These cases have similarities to the current case in terms of a doctor who is remorseful, unlikely to repeat the conduct, under treatment and has gained insight (subject to our reservation concerning Dr Topchian's insight). We note the vulnerability of the patients in Small and Poon.
22. However, the differentiating factors are stark. We have discussed above the particular power imbalance between a cosmetic surgeon (compared to a general practitioner, dentist or paediatrician) and patient (or patients' mother). In this case we note the particular vulnerability of the Patient in terms of the transformation she was undergoing at Dr Topchian's hands and the difference in their ages. In context, we see the vulnerability as significantly more pronounced compared to Small and Poon. Also, those cases did not see the practitioners negotiating to avoid discovery. These are the principal reasons that for general deterrence we suspend Dr Topchian for a year.
23. We note Dr Topchian's evidence as to the significant loss of income he will experience over the time. While that is a relevant matter, as noted by Gillard J in Ha v Pharmacy Board of Victoria [2002] VSC 322 (14 August 2002), in our view the need for general deterrence arsing from our decision outweighs it. Also, we note Mandie J's observation in Varnavides v Dental Board of Victoria, that financial implications are not highly relevant compared to the need for general deterrence[2].

1. In reprimanding Dr Topchian we note Marks J's comments in Peeke v Medical Board of Victoria[3] that a reprimand, being a serious form of censure and condemnation, "certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner." [4]

1. Finally, we see value in requiring Dr Topchian to engage a mentor for two years.
2. While it is a matter for the Board, we see merit in that person not being a person who practices in cosmetic surgery. We assume the mentor and Dr Topchian would address issues such as boundary violations, note taking, communication with patients, etc. While certainly not wishing to and not judging other cosmetic surgeons on the basis of Dr Topchian's practice procedures, it is concerning that apparently none of his peers in that area of practice intervened early in the piece on the basis that he was entirely too familiar with his patients in issues such as allowing them to e-mail him directly.
3. We intend that enaging a mentor will be an ongoing reminder to him as he returns to practise which will help him cement his changed pattern of behaviour in relation to patient interactions.

[1] Eg. Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439 (17 December 2007), Medical Board of Australia v Young (Occupational and Business Regulation) [2010] VCAT 1542 (21 September 2010), Medical Board of Australia v Skehan (Occupational and Business Regulation List) (No 2) [2011] VCAT 1935 (12 October 2011).

[2] Unreported, Vic Sup Ct, 1 May 1998 per Mandie J.

[3] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p6.

[4] As quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].