1. The allegations which the Tribunal has found proven involve sexual intercourse conducted with a female patient on 8 June 2011, 15 June 2011 and one further date, approximate to that time, which cannot be precisely established.
2. The proven allegations also involve inappropriate text messaging with the same patient in the period June to September 2011. At the time of the occurrence of these events Dr Yeo was 54 years of age and his patient 19. He had treated the patient for many years and had also treated her mother. She was at the time of these events a single mother with an infant daughter. She had been treated by Dr Yeo for depressive episodes and self-esteem issues.
3. We do not accept the submissions made on behalf of Dr Yeo that these events were nothing beyond consensual sex between adults.
4. The Tribunal accepts the submissions on behalf of the Board that Dr Yeo at all relevant times was aware of the personal and medical history of the patient and was aware of her vulnerability. That vulnerability was exacerbated by the relationship of trust which existed as a result of Dr Yeo having been her family doctor for a lengthy period of time and the significant age difference between them.
5. The Tribunal also accepts that the sexual relationship was inextricably linked with the professional relationship to the extent that at least one instance of proven sexual intercourse occurred within one of the pathology rooms at the clinic during a consultation.
6. The Tribunal is also satisfied that Dr Yeo has failed to demonstrate any insight into the inappropriate nature of his conduct in repeatedly denying any sexual relationship or other wrong doing to the Board and to the Tribunal.
7. The Tribunal further notes Dr Yeo's regulatory history which we find to be of particular relevance to the determination we have made. The synopsis of complaints against Dr Yeo was set out in the supplementary tribunal book.[1]
8. Following a notification received by the Board in March 2010, a finding was made that Dr Yeo had engaged in unprofessional conduct with respect to transgressing the patient/doctor boundary with another female patient.
9. On 13 January 2011 a determination was made that Dr Yeo was to undergo counselling with a GP medical educator regarding the recognition and management of professional boundaries, areas of personal conflict in clinical practice and the provision of appropriate support to patients without transgressing professional boundaries.
10. The Tribunal notes the findings of the Professional Standards Panel in that matter recording as follows:

"While Dr Yeo's intention was to assist (Ms [AA]) in her difficult domestic circumstance, he seriously transgressed the doctor/patient boundary by entering into a fiscal arrangement with her, while continuing to treat her. Dr Yeo himself regrets this action and told the panel that if he had his time again he would certainly not do so." [2]

1. The Tribunal finds that the temporal proximity between this earlier action and the conduct in the present proceeding constitutes a clear aggravating factor.
2. The Tribunal must conclude that the conduct which we have found proven concerning Allegation 1 is properly described as predatory, being similar to conduct described in Medical Board of Australia v Holten[3]:

"Indicators that the conduct was predatory include exploitation of a physical examination, or a significant age difference; or psychological vulnerability of the patient."

1. Whilst the present case does not significantly involve the exploitation of a physical examination, the Tribunal views the very significant age difference, the psychological vulnerability of the patient, and in the present case the doctor's detailed knowledge of that psychological vulnerability, as plainly constituting a substantial departure from the standard of conduct expected of doctors of his experience. It warrants a finding of professional misconduct under paragraph (a) of the definition.
2. Dr Halley, who appeared on behalf of Dr Yeo, did not oppose a finding of professional misconduct under paragraph (a). He did however oppose a finding under paragraph (c) of the definition, that is the conduct of the practitioner "is inconsistent with the practitioner being a fit and proper person to hold registration in the profession."[4] In Dr Halley's submissions the conduct proven against Dr Yeo involved three incidents of consensual sex over a short period of probably less than one month, and inappropriate text messaging over a four month period between June and September 2011.
3. Dr Halley referred to the very significant delay, noting that Dr Yeo was 54 years of age when these events occurred, and is now approaching his 63rd birthday. He had been a partner at the particular clinic for 30 years and a registered medical practitioner for 39 years. The findings in the present proceeding represent the only episode of sexual misconduct over a very long period of professional practise.
4. In Dr Halley's submissions it would be punitive and unjust to make a finding in 2019 that Dr Yeo was not a fit and proper person to practise based upon three episodes occurring in 2011. There had been no further allegation of improper sexual conduct over the last six and a half years.
5. The Tribunal considers such a submission to be an overly simplistic characterisation of the conduct of Dr Yeo.
6. The Tribunal must conclude in the present case that the delay in the finalisation of this matter has been significantly contributed to by Dr Yeo's lack of frankness with the Board and subsequently in this application before the Tribunal. The Tribunal does accept, as a matter of general principle, that the ongoing stresses of having such matters unresolved for a lengthy period of time, will warrant some degree of moderation in terms of final determination of this matter.
7. The Tribunal has taken into account the character references provided to it by Dr Halley. These are from:
   • Dr Yeo's wife, Mrs Jenny Yeo, who has been, for many years, the practice Manager of the Swansea Road Clinic;
   • Ms Betina Binkert, a medical technician and former receptionist to Dr Yeo at the Swansea Road Clinic;
   • Ms Shae Mankey, the senior receptionist at the clinic who has been employed by Dr Yeo for some 18 years; and
   • Dr Gregory Fox, a specialist obstetrician and gynaecologist, who has known Dr Yeo for more than 30 years, and also a personal friend for the greater part of that period.
8. These references speak highly of Dr Yeo's competence, diligence and general good character. The referees also describe the valuable contribution which has been made by Dr Yeo to the clinic over many years.
9. The Tribunal accepts that the positive comments made by each of the referees does entitle Dr Yeo to a degree of moderation of the sanctions we would otherwise impose on the basis that his past service to the community and the medical profession must be given some weight in arriving at a just and appropriate disposition.
10. Both counsel referred to a number of authorities in terms of the characterisation of Dr Yeo's conduct and the determination which should follow.
11. The Tribunal has noted the comments made by the High Court in Australian Broadcasting Tribunal v Bond:[5]

"The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur."

1. The Tribunal is unable to accept the characterisation of Dr Yeo's conduct as simply amounting to three incidents of consensual sexual conduct between adults as submitted by Dr Halley. In the Tribunal's view the characterisation of the conduct was more appropriately described in the submissions made on behalf of the Board by Mr Stoller. The Tribunal regards the conduct we have found amounted to taking advantage of a vulnerable patient which constituted not only a significant breach of trust, but also concerning conduct by way of the text messaging and the circumstances of the sexual activity. In the Tribunal's view this constituted grooming of a young and vulnerable patient who had been known to Dr Yeo since she was a child.
2. When this conduct is considered in light of the ongoing vigorous denials and attacks made upon the credit, not only of the victim, but of other medical colleagues, the Tribunal must conclude that this conduct is inconsistent with Dr Yeo being a fit and proper person to hold registration in the profession, and a finding under paragraph (c) of the definition of professional misconduct is warranted.
3. The Tribunal accepts that the primary purpose of a determination is to give protection to the public and not to punish the practitioner. The principle of parsimony is also applicable in disciplinary matters in that any sanction imposed should be of the minimum force necessary to achieve a degree of protection of the public which the Tribunal believes necessary.
4. During the course of submissions the Tribunal was referred to the recent case of Medical Board of Australia v Holten[6] where such an approach was endorsed:

"The primary purpose of determinations is to protect the public and not to punish the practitioner. That primary purpose, together with the protection of the reputation of the medical profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained."[7]

1. Reference was also made to Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation)[8] where it was stated:

"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 ... 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."[9]

1. Mr Stoller on behalf of the Medical Board submitted that the appropriate determination to be made in this case would be the cancellation of registration and a disqualification from re-applying for registration for a period of at least five years.
2. Dr Halley on behalf of Dr Yeo submitted suspension of registration for a period of three months. Dr Halley also invited the Tribunal to consider a determination involving the appointment of a chaperone.
3. The Tribunal was referred to Medical Board of Australia v Cukier[10] which affirmed an earlier decision in Medical Board of Australia v Wong[11] where a finding of professional misconduct under paragraph (c) of the definition meant that:

"... cancellation of registration will be almost inevitable, although not, we add automatic. There is a distinction between a finding of professional misconduct under paragraph (c) and a finding for the purpose of determinations that a person is not at the time of hearing fit and proper to practise."[12]

1. In Honey v Medical Practitioners Board of Victoria[13] the essential difference between cancellation of registration and suspension was stated as follows:

"Cancellation of registration sends a clear message of unsuitability to practise. Suspension may be thought to indicate confidence in the doctor's future ability to practise once the period of suspension is served."[14]

1. The Court of Appeal considered the issue of whether the cancellation of registration, coupled with a period of disqualification, was outside the permissible range of determinations in Skehan v Medical Board of Australia.[15] In that case the court stated:

"As we have said the finding that Dr Skehan's conduct amounted to professional misconduct was well open to it. The determination reflected the need to deter other practitioners from pursuing inappropriate emotional relationships with patients. The order disqualifying Dr Skehan from practise for 18 months from 9 November 2011 was not disproportionate to the professional misconduct which the Tribunal found had occurred. In our view, it is not reasonably arguable that the Tribunal's decision was unreasonable or fell outside the range of dispositions open to it."[16]

1. Mr Stoller also referred in submission to a more recent case in Medical Board of Australia v Alkazali[17] where registration had been cancelled. The Tribunal notes that the departure from professional standards in that case had been breached by matters of deception and clinical competence in addition to professional boundary violations, including sexualised conduct with a patient.
2. Dr Halley referred to a number of decisions in support of the proposition that an appropriate determination would involve suspension from practice for a limited period rather than cancellation and disqualification. In particular, the Tribunal was referred to Medical Board of Australia v Holten[18] where such a determination was made. The Tribunal is not persuaded that Holten can be seen as a comparable case as the Tribunal there noted:

"Specific deterrence is of low importance here. We are satisfied that Dr Holten is at low or no risk of repeating a conduct. He has practised safely not only for the last five years, but also for decades prior to that. He is otherwise of good character. His early admissions and cooperation are to his credit. There has already been a considerable personal impact on him."[19]

1. The Tribunal also found in Holten's case that the conduct was not predatory, repeated, nor did it arise from the professional relationship that had pre-dated it.
2. The Tribunal was also referred to Medical Board of Australia v Topchian (Occupational and Business Regulation),[20] where a one year suspension reprimand and a period of professional supervision was the determination imposed. The Tribunal notes the comments made concerning cancellation of a medical practitioner in that case to include 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."[21]

1. The Tribunal also notes that the practitioner had self-reported in that case, albeit in circumstances where he was about to be found out.
2. Dr Halley also referred to Medical Board of Australia v Skehan (Occupational and Business Regulation List)(No 2),[22] where the Tribunal made findings of an inappropriate personal and emotional relationship with a patient, combined with an ongoing sexual relationship with a former patient, incompetent clinical management and dishonest record-keeping in clinical practice, warranted cancellation of the practitioner's registration but disqualification for a period of 18 months.
3. The Tribunal accepts that the finding of the medical practitioner's professional misconduct and unprofessional conduct in that case encompass a broader range of inappropriate activities than have been found against Dr Yeo.
4. The Tribunal cannot directly equate the particular conduct found in other cases as an exact comparator for the determination which should be made in the present case. It is clear from the variance, both in the characterisation of conduct and the different determinations imposed, that the particular factual scenario underpinning each case must provide the strongest guidance to the Tribunal in reaching a determination.
5. The Tribunal accepts that the seriousness of the conduct in the present case, coupled with Dr Yeo's lack of insight and ongoing denials to the Board and the Tribunal, leads to the conclusion that the achievement of the aim of protecting the public must involve a determination of sufficient severity to deter Dr Yeo from any similar misconduct in the future.
6. The Tribunal also accepts the submissions concerning the need for general deterrence involving the maintenance of standards of the profession and public confidence in those standards to be reflected in the determination to be imposed.
7. The Tribunal does accept, by way of mitigation, that there have been no subsequent allegations of a like nature in the six and a half year period prior to this matter being determined.
8. The Tribunal does not accept that cancellation of Dr Yeo's registration would, as submitted by Dr Halley, effectively result in him never returning to medical practice in the future.
9. The Tribunal concludes that the following determinations are appropriate:

(i) Dr Yeo will be reprimanded in accordance with s196(2)(a) of the National Law;

(ii) Dr Yeo's registration as a medical practitioner will be cancelled in accordance with s196(2)(e) of the National Law; and

(iii) Dr Yeo will be disqualified in accordance with s196(4) of the National Law from applying for registration for a period of two years from the date of cancellation of his registration

[1] Supplementary Tribunal Book ("STB") pp 23-28

[3] [2019] VCAT 837

[4] Section of the National Law Act 2009

[5] [1990] HCA 33; (1990) 170 CLR 321 at 380

[6] (Review and Regulation) [2019] VCAT 837

[8] [2007] VCAT 526

[10] [2017] VCAT 109 at [41]

[11] [2015] QCAT 439

[13] [2007] VCAT 526

[15] 2012] VSCA 9

[17] [2017] VCAT 286

[18] [2019] VCAT 837

[20] [2013] VCAT 86

[22] [2011] VCAT 1935