1. The Tribunal finds that the conduct in the allegation constitutes professional misconduct within the meaning of paragraphs (a) and (c) of the definition in section 5 of the Heath Practitioner Regulation National Law (Victoria) Act 2009 ('National Law').

Having found that YZV engaged in professional misconduct, the Tribunal orders:

1 Under section 196(2)(a) of the National Law, YZV is reprimanded.

1. Under section 196(2)(d) of the National Law, YZV's registration as a medical practitioner is suspended, with effect from 2 December 2024, for a period of six months, expiring on 2 June 2025.[2]
2. Application for costs refused.

1. This is a case regarding a medical practitioner who hosted a party at a time when Melbourne was in lockdown. At the time the public expressed their outrage at his conduct and he was the subject of significant publicity and threatening behaviour. We have agreed with the parties that his conduct amounted to professional misconduct. The parties agreed that he should be reprimanded, his registration suspended for three months and that he be fined $10,000. For the reasons set out below we are of the view that a period of three months suspension is inadequate in the circumstances and we impose a period of suspension of six months. We do not impose a fine.

1. YZV (also referred to as the respondent in these reasons) obtained general registration as a medical practitioner on 8 December 1995. At all material times he was practising as a general practitioner with special interest in skin cancer. He is currently registered without any conditions on his registration.
2. Between 15 and 19 August 2021, the Australian Health Practitioner Regulation Agency ('Ahpra') received a total of 55 notifications about the respondent from members of the public. The notifications related to him hosting a gathering at his private residence in contravention of the applicable COVID-19 public health orders in force at the time.
3. On 20 August 2021, the Medical Board of Australia ('the Board') consolidated the 55 notifications regarding his conduct into one 'own motion' notification for administrative purposes, as they related to the same alleged conduct.

1. On 20 December 2022, the Board referred one allegation to the Tribunal under section 193(1)(a)(i) of the National Law:

1. That YZV engaged in:

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

and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 11 August 2021, YZV contravened public health directions (namely the Stay at Home Directions (Metropolitan Melbourne) (No. 2) (Stay at Home Directions)) by organising and hosting a [gathering] at his home during the Covid-19 pandemic.

PARTICULARS

(i) at all material times, YZV was a registered medical practitioner;

(ii) on or about 10 August 2021, under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), the Victorian Government implemented the Stay at Home Directions;

(iii) on or about 11 August 2021, YZV organised and hosted a private gathering at his home in ..., which was attended by approximately 65 persons;

(iv) YZV conduct set out at paragraph (iii) was in contravention of the Stay at Home Directions, in that:

(A) clause 11(2) of those directions restricted private gatherings and prohibited a person who ordinarily resided in Metropolitan Melbourne from permitting another person to enter the premises at which they ordinarily reside;

(B) YZV organised and hosted a private gathering, in circumstances where gatherings were restricted under clause 11 of the Stay at Home Directions;

(C) YZV permitted multiple people to enter his private residence, in circumstances where they did not ordinarily reside there; and

(v) at least one person at the party subsequently tested positive for Covid-19;

(vi) on or about 18 August 2021, YZV was issued with an infringement notice with a penalty in the amount of $5,452 by Victoria Police in relation to the private gathering; and

(vii) the conduct of YZV set out at particulars (i) to (vi) is of a lesser standard than that which might reasonably be expected of YZV by the public or by YZV 's professional peers - and is inconsistent with:

(A) the Board's 'Good medical practice: a code of conduct for doctors in Australia' (in effect since October 2020), which provides that:

...

2.2 Public comment and trust in the profession

The community trusts the medical profession. Every doctor has a responsibility to behave ethically to justify this trust.

... As a doctor, you need to consider the effect of your public comments and your actions outside work, including online, related to medical and clinical issues, and how they reflect on your role as a doctor and on the reputation of the profession.

...

7.4 Public health

Doctors have a responsibility to promote the health of the community through disease prevention and control, education and screening. Good medical practice involves:

7.4.1 Understanding the principles of public health, including health education, health promotion, disease prevention and control and screening.

7.4.2 Participating in efforts to promote the health of the community and being aware of your obligations in disease prevention, screening and reporting notifiable diseases.

...

10.1 Introduction

In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.

...

(B) the Australian Medical Association 'Code of ethics' (revised 2016) (applicable to all medical practitioners in Australia, in effect since March 2017), which provides that:

...

3 The Doctor and the Profession

3.1 Professional conduct

...

3.1.3 Recognise that your personal conduct may affect your reputation and that of your profession.

...

3.1.6 Keep up-to-date on relevant codes of practice and legal responsibilities.

...

4 The Doctor and Society

4.1 Responsibility to society

4.1.1 Participate in activities that contribute to the health of the community and the wider public health. These can include matters relating to health education, environmental protection, public health and legislation impacting on health.

4.3 Health standards, quality and safety

...

4.3.2 Accept a share of the profession's responsibility to society in matters relating to the health and safety of the public, health education and literacy and legislation affecting the health of the community.

1. By the time the matter came before this Tribunal for hearing, the parties had prepared an agreed statement of facts and outcomes. They had also agreed on the characterisation of the conduct under the National Law and the determinations to be made ('Agreed Statement').

1. In relation to the facts of the case YZV had made full admissions in relation to the conduct. He acknowledged that:

While the conduct did not occur in the context of clinical practice, the fact of the Respondent's profession was known to those attending the gathering and he carried particular responsibilities as a health practitioner during a pandemic. He did not live up to those responsibilities. By hosting the gathering, he accepts that he breached both the Board's Good Practice: A Code of Conduct for Doctors in Australia and the Australian Medical Association's Code of Ethics.

1. We had no difficulty being comfortably satisfied based on the material in the Tribunal Book and the admissions of YZV, that he engaged in the conduct particularised in the allegations. We announced our findings at the hearing.

1. The National Law defines 'professional misconduct' in the context of a registered health practitioner, as including:

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

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

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

1. The parties agreed that the conduct amounted to professional misconduct within the meaning of paragraphs (a) and (c) of the definition.
2. The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law.
3. We agreed with the Board that the following factors were relevant in considering how the conduct should be characterised:
   • Seriousness of conduct - the conduct was serious and warranted an infringement notice being issued by Victoria Police. The party involved a large group of people gathering in close proximity, without face masks. It was an egregious and clear breach of the public health orders. By organising the gathering, the respondent was encouraging other members of the community to engage in contravention of the public health orders.
   • Context of the conduct - at the time of the conduct, the state of Victoria was experiencing the unique and devastating impacts of the COVID-19 pandemic. The community was highly anxious, having been subjected to lengthy periods of lockdown and health directions, which were required to ensure the safety of the public. Victoria had been subject to a number of lockdown restrictions since March 2020 and the community was very heightened in terms of its awareness of the public health directions and the risk of transmission of the virus. The respondent should have thoroughly understood what was required of him to model compliance with the public health orders, and appreciated the importance of needing to do so. The respondent demonstrated a complete and conscious disregard for the public health and safety of the community.
   • Nature of the conduct - the respondent was fully aware that his conduct was contrary to public health orders and deliberately acted in a surreptitious manner, in the way the party was organised. This behaviour falls far short of what is expected of a registered health practitioner who has practised for over 20 years.
   • Connection to practice - Although the conduct did not occur in the course of the respondent's work, there is a nexus between the breach of public health orders and the respondent's position as a registered medical practitioner, providing services to the community. He had an ethical and professional obligation to comply with such orders. He ought to have thoroughly understood what was required of him and the need to model compliance of public health orders, being a senior member of the medical profession.
   • Risk to the community - the conduct had the potential to cause harm to the community and create further spread of the COVID-19 virus.
   • Reputation of the profession - the conduct had the potential to undermine the public confidence in the profession and bring it into disrepute. The large number of notifications that were received from the public and their content, indicates that the conduct did in fact undermine the public confidence in the profession.
   • Codified professional standards - the conduct was plainly at odds with the professional standards of the medical profession.
4. We were comfortably satisfied that the conduct in the allegation amounted to professional misconduct within the meaning of paragraph (a) of the definition in the National Law, in that YZV's conduct was substantially below the standard reasonably expected of a practitioner of his level of experience. YZV was a senior member of the profession who is held in high standing by his peers.
5. We agreed with the Board that in relation to a finding under paragraph (c) of the definition of professional misconduct, the focus is on the conduct itself and does not require a determination about whether the person is presently a fit and proper person to hold registration.
6. In relation to the allegation we were also satisfied that the conduct was such a blatant breach of public health and safety measures and had the potential to result in devastating consequences, that the conduct was inconsistent with YZV being a fit and proper person to hold registration in the medical profession and so met paragraph (c) of the definition of professional misconduct in the National Law.
7. We announced our findings at the hearing. We however reserved our decision as to the determinations to be imposed.

1. Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.
2. The parties had agreed that the appropriate determinations were that:

(a) that YZV be reprimanded pursuant to section 196(2)(a) of the National Law; and

(b) that YZV's registration be suspended for a period of three months, pursuant to section 196(2)(d) of the National Law, to commence from the date of the Tribunal's orders or as otherwise agreed; and

(c) that YZV pay a fine of $10,000 to the Board, pursuant to section 196(2)(c) of the National Law

1. We acknowledge that where parties have reached a proposed agreement of the kind presented in this case, it remains the Tribunal's duty to determine the facts, the characterisation of conduct alleged and the determinations to be imposed as no agreement between a regulator and the professional person under review can supplant that duty.[3]
2. It is appropriate for the Tribunal to give weight to, and take into account, the agreement between the parties as a highly relevant and important matter. That is particularly so if it is clear from the face of the agreement that it does not represent an arbitrary outcome, but properly and sufficiently reflects the totality of the evidence and is a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.[4] Subject to the court (or tribunal) being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances, it is highly desirable in practice to accept the parties' proposal.[5]
3. Further we note that in Medical Board of Australia v Duncan[6] VCAT stated:

No agreement between a regulator and an individual can, however, supplant the duty of the Tribunal to determine the level of conduct alleged and the sanctions to be imposed. Nevertheless, any such agreement between the parties is a relevant matter for us to take into account.

The question is not whether the proposed determinations are within 'the permissible range' but whether the Tribunal is persuaded that they are appropriate. The agreement between the parties is a highly relevant matter, particularly where, as here, the respondent is represented by experienced Counsel, but ultimately it is for the Tribunal to be satisfied that the findings and orders are appropriate.

1. The decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate[7] concerned an agreed civil penalty. The penalty was a pecuniary one, but the majority judgment considered the principles broadly. The Court made important observations about the public interest in promoting the resolution of cases by negotiation between a regulator and defendant, noting that it is to be expected that the regulator will be able to offer informed submissions about the agreement. Referring specifically to pecuniary penalties, the Court made clear that the earlier cases it was considering do not suggest that the task of a tribunal is to determine whether the submitted penalty is wholly outside the range of penalties reasonably available. They do not suggest, either, that a tribunal is bound by the figure suggested by the parties. To the contrary, the tribunal is not bound. A tribunal asks whether the proposal can be accepted as fixing an appropriate amount, and for that purpose the tribunal must satisfy itself that the submitted penalty is appropriate.[8]
2. The Board referred to section 3A of the National Law which states that the paramount considerations under the law are protection of the public and public confidence in the safety of services provided by registered health practitioners.
3. YZV submitted the proposed combination of determinations, encompassing a reprimand, a suspension of three months and a significant fine, was a reasonable and proportionate outcome for which there is suitable precedent in cognate circumstances. It was neither overly lenient nor inappropriately harsh. YZV is an experienced practitioner who had not otherwise come to the attention of the regulatory authorities. The Board had acknowledged he was genuinely remorseful and is a person with prior good standing within the community, and the profession. Character references were provided from 24 persons most of whom were health practitioners.
4. YZV submitted he had admitted the matter the following day when spoken to by the police, assisted the public health authorities and had paid the fine imposed.
5. YZV made reference to the public outcry when the matter became public and that he was subject to abuse requiring him to close his practice. He also received death threats directed towards him and his family and he hired security guards. Media representatives gathered at his home.
6. He provided a large number of character references many from fellow practitioners attesting to his good character and high standing in the profession and community more generally.
7. We agree that the primary purpose of determinations is to protect the public. They are also intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public.
8. The degree to which the practitioner has gained insight is relevant. We agree with the Board that insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.

1. We agree that YZV should be reprimanded. We note that in Peeke v The Medical Board of Victoria[9] Marks J expressed the view that a reprimand is not a trivial penalty. His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had a potential for serious adverse implications.
2. We take into account the matters that YZV has raised in relation to his personal circumstances, but these do not explain why he engaged in this conduct. Although all his character witnesses attest to his good character and are sure this type of conduct would never be repeated, we are sure that if they had been asked before this event whether YZV would engage in this type of conduct they would have said he would not. There is no explanation for his conduct other than it was 'spontaneous and an eruption of joy about a family development that had not been expected'.

1. The Board submitted that YZV was genuinely remorseful and is a person with prior good standing in the community. The Board acknowledged that he had cooperated with the investigation and had been subjected to abuse as a result of the publicity the conduct received. The Board submitted that a period of suspension was nevertheless necessary to protect the public, because it would have the effect of deterring other practitioners from engaging in similar conduct in the future. The period sought was not overly onerous and comparable with similar cases.
2. Further the Board submitted a period of suspension is required to send a strong message to the profession that this type of conduct will not be tolerated. The need to uphold public confidence in the profession is also particularly important here as the number of notifications made by the members of the public and the views contained in the notifications reflected the community's strong denunciation of the conduct, and a period of suspension would go some way in demonstrating that a blatant disregard for public health measures by members of the profession will not be tolerated.
3. We note that, when considering general deterrence, it is clear that a period of suspension is warranted to send a message that this type of conduct is not acceptable. The high standing in which the medical profession is held must be protected and maintained. When we examine the material in the Tribunal Book, in particular the large number of referrals from the public and the comments left on YZV practice website, it is clear that the community was outraged at YZV's behaviour. The fact he was a health practitioner was an aggravating factor and brought the profession into disrepute.
4. Some of the referrals were from fellow health practitioners. Below are some edited extracts from three notifications which demonstrates the tone of the referrals:

I'm simply writing to complain about the doctors that have reportedly attended the illegal party in Melbourne. As a Critical Care Nurse, I've been nursing in Emergency and Intensive Care Units throughout Australia for the past 18 years. I am absolutely appalled that doctors, attended this event whilst in lockdown, with complete disregard for the health and well-being of others. They have endangered the lives of Melbournians, as well as people's mental health. Myself and my colleagues, have spent 12 hour shifts in PPE, risking our lives to nurse others, whilst these health professionals put Melbournians' lives in danger. This is not the meaning of being a health professional. This wasn't a mistake, this was a deliberate event that occurred and they blatantly ignored the law. Myself and my colleagues are absolutely disgusted and believe they should be de-registered.

As a health practitioner, he should have been the first person to say that this was wrong and yet, he partook in the festivities ... while millions at home were doing the right thing in hopes that it would help stop transmission. He should be severely punished for this action - we cannot have medical doctors show no concern for the law and get away with it - it sets precedent in the community on what people will choose to do in the future.

[YZV] violated his medical oath when he decided to attend the illegal gathering ... He knowingly did this, despite being a medical professional. The gathering has led to the spread of COVID-19 in Victoria and is likely to be a super spreading event. Blood will be on his hands and it's incredible that a doctor has the lack of awareness and gall to participate in this kind of behaviour. Other health professionals such as myself are trying our best to get through this lockdown the proper way and it's emotionally demoralising when others, especially doctors, have a blatant disregard for the public which they serve. He needs to face severe consequences for his actions.

1. We share some of these concerns, that is, it was such a blatant and egregious breach of the health directives at a time when the community was highly stressed regarding COVID-19 and the effect of the lockdowns that had been imposed. In a nutshell, people were doing it tough. People were denied access to their loved ones in aged care and many had to cancel important personal events such as weddings, and businesses closed down. Although there is no evidence that this event led to the spread of COVID-19 it clearly had the potential to do so at a time when vaccinations were not available to all member of the community.[10]
2. We accept that when it was a discovered that a person who attended the event had tested positive to COVID-19, YZV worked closely with the officials in the Health Department involved in tracing contacts, and provided a full list of those who attended in a very short time frame, but this was the least he could have done in the circumstances and we do not regard it as a mitigating factor.
3. We note the evidence that the invitation to the party was only sent to five to six close members of the family and was not intended to be forwarded to others, however it should have been obvious that it would be shared. Further even a gathering of five to six people was in breach of the public health directives. The invitation also demonstrated that the persons involved knew what they were doing was wrong it stated: 'Please pop in briefly. Please park around the corner ... and walk to the house. The front door will be unlocked, please come in quietly and not congregate outside.'
4. Further the videos of the gathering show that some of those attending, including YZV, laughed at the fact they were breaching public health directives. There was no evidence to suggest he attempted to shut down the gathering as more people arrived.
5. We agree with the Board that it was not as if this was a mistake - that the directives were somehow misunderstood - for example that the limit of the number of guests was breached. This was a time when no private gatherings at home were allowed. No one involved was under any misapprehension that the health directives were being breached by attending the gathering. No one at that time could be under any misapprehension for the reasons for the health directives.
6. We accept that YZV was not against the public health measures and that this was not a protest against them (as was occurring at the time). He has maintained that he 'was an advocate for government-sponsored health measures and has otherwise been compliant with them and urged his patients to be so, generally and during the pandemic. He is an advocate for vaccination and prudent behaviour when there is a risk of transmission of any infection, including COVID-19'. This in some respects makes his conduct more inexplicable.
7. Although YZV has shown insight into the fact the conduct was wrong, there does not seem to be an appreciation of why he engaged in that conduct.
8. The Board referred to a list of comparative cases. No two cases ever turn on the same facts, but similar cases can provide some guidance.
9. Nursing and Midwifery Board of Australia v Anni & Ors ('Anni')[11] - this matter involved three nurses being referred to the Tribunal in relation to their attendance at a baby shower at an aged care facility, in contravention of COVID-19 public health directions. The conduct occurred in July 2020 and involved each practitioner attending their workplace, when they were not rostered, for the purposes of celebrating a baby shower. After the gathering there was an outbreak of COVID-19 at the aged care centre, however the Board did not allege that the social gathering caused the outbreak and no such finding was made. The nurses were each reprimanded and suspended for a period of three months.
10. The Board submitted that the conduct in Anni was of a similar nature. However in Anni the practitioners were junior members of the profession (having been registered between one and three years) and the nature of the event organised was different being a brief gathering with 5 people. Thus the Board submitted that YZV's conduct was more serious as it involved an senior experienced practitioner and a much larger gathering.
11. Nursing and Midwifery Board of Australia v Tut ('Tut')[12] - the practitioner worked at more than one aged care facility during the COVID-19 pandemic. This conduct contravened the Commonwealth Government's 'Guiding principles for residential aged care - keeping Victoria residents and workers safe'. The practitioner also failed to provide sufficient information to one of her employers about the nature of her employment at the other aged care facility and went on to practice at an aged care facility, before testing herself for COVID-19, after being informed that there had been an outbreak of the virus at her other workplace. The practitioner was reprimanded. The Tribunal did not impose any period of suspension, in circumstances where the practitioner had already been suspended through immediate action for a period of two years, but it observed that a period of suspension would likely have been ordered had the practitioner not already served this period of time out of practice.
12. The Board submitted that whilst the matter of Tut was more serious, there were some similarities given the breach of public health orders involved. Further, in circumstances where the respondent has not had any time out of practice by way of immediate action, the Board considers that the Tribunal's comments in Tut are particularly relevant.
13. Dental Board of Australia v Nairn ('Nairn')[13] - A dentist failed to self-quarantine during the COVID-19 pandemic, when required to, after travelling interstate. The practitioner was criminally prosecuted for leaving her home at a time when she was required to quarantine, to treat patients and further engaged in dishonest conduct by providing misleading information to police about her conduct. The Tribunal reprimanded the practitioner, suspended her registration for a period of seven months, imposed conditions on her registration for a period of 12 months and ordered her to pay $7,500 costs.
14. The Board submitted that the conduct in Nairn was more serious but also noted that the practitioner's registration had been suspended through immediate action for a period of 25 months by the time of the Tribunal decision.
15. Nursing and Midwifery Board of Australia v Brar ('Brar')[14] - A practitioner tested positive for COVID-19, failed to follow public health advice to self-isolate, and proceeded to attend for work at an aged care facility on 11 occasions. The practitioner also provided misleading information to the Department of Health and Human Services as to her movements during her infectious period. The Tribunal reprimanded the practitioner, cancelled her registration, disqualified her from applying for registration for a period of four years (at the time of the hearing, the practitioner had been suspended by way of immediate action for about three years), and prohibited her from providing any health service until she was registered again as a health practitioner.
16. The Board submitted that YZV's conduct was less serious than that engaged in by the practitioner in Brar. However, he nonetheless acted in clear disregard of the COVID-19 public health orders.
17. The Tribunal queried with the Board that, if it submitted YZV's conduct was more serious than that of the nurses in Anni, why had they agreed to the same period of suspension. The Board responded that it was part of the negotiated agreement and the addition of the fine in this case reflected the additional seriousness. During negotiations it was agreed to impose a fine rather than a greater period of suspension to reflect the greater seriousness of the conduct.
18. We agree with the Board that a period of suspension was necessary because the conduct was serious in nature and undermined the professional standards and general deterrence had a large role to play.
19. The Board submitted that specific deterrence had little role to play as YZV had acknowledged that his conduct was wrong at the earliest opportunity and had cooperated fully with the Board's investigation. They were confident that YZV would not commit a similar breach of standards. We also agree with YZV that the aftermath of the event, in the form of the publicity and public outrage, also reinforced the seriousness of the conduct. We do not condone the threatening behaviour, but many of the posts on his practice website were expressions of outrage that the behaviour occurred. The media interest was intrusive, but reflected the community's level of interest and concern.
20. When considering similar cases and the degree to which YZV's conduct undermined the standing of the profession, we are of the view that a period of suspension agreed by the parties is inadequate and therefore not appropriate. It does not reflect the seriousness of the conduct, nor send a message that this conduct undermined the standing of the profession and would not be tolerated. We consider a greater period of suspension is warranted to send a message that a blatant disregard for public health measures and the law by members of the profession will not be tolerated. We consider a six month period of suspension is appropriate and necessary to adequately reflect the seriousness of the conduct.
21. In making this decision we take into account the letters from Assoc Professor Dicker and A/Prof Jonathan Levy regarding the availability of general practitioners who specialise in skin cancer.
22. YZV requested that there be a delay in the suspension taking effect so that he could make arrangements for the continuing care of his patients. In subsequent correspondence he advised that he had arranged for a locum doctor to take care of his patients from 2 December 2024. Accordingly, we propose that the suspension period commence on 2 December 2024.

1. We agree that, in imposing determinations in this case, the main focus is on general deterrence and maintaining the reputation of the profession. For this reason we conclude that a fine is not an appropriate outcome and in our view a fine is directed more to specific deterrence. We also had some concerns that a fine could be regarded as in lieu of the period of suspension. In our view they serve a different purpose. A suspension reflects the gravity of the conduct and re-assures the public that the matter is taken seriously and acknowledges the harm to the reputation of the profession by the conduct and also addresses general deterrence. In our view a fine does not serve these functions and is more directed to specific deterrence. Thus we decided not to impose a fine.

1. The Board applied for costs in this matter under section 195 of the National Law. We agree with the Board's submission that section 195 of the National Law provides the Tribunal with broad discretion. The only criteria imposed on the Tribunal is whether it is 'appropriate for the proceedings' and we agree that considerations of costs ought to be made on a case-by-case basis.
2. The Board submitted:

that an order for costs is appropriate because if a costs order were not made, the Board's costs will effectively be borne by other registered members of the profession (as the Board is primarily funded by the annual registration fees paid by practitioners) instead of the practitioner who engaged in the misconduct.

In circumstances where the Board functions to promote the public interest and relies on registration fees of members, costs should appropriately be borne by the Respondent.

1. The Board referred to Quinlivan v Legal Profession Complaints Committee,[15] where the West Australian Court of Appeal approved the analysis of the State Administrative Tribunal in Medical Board of Western Australia and Roberman,[16] which stated that in relation to costs under the National Law:

the policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented

1. It was discussed with the Board at the hearing that given the Tribunal had a broad discretion whether to award costs, were there any factors the Board could point to that would indicate that the discretion should be exercised in its favour in this particular case. The Tribunal noted that the fact the proceeding was brought by a vocational regulatory body was the situation in all cases brought by the Board. The practice had been not to award costs in these cases unless a party's conduct in running the case in some way warranted an award of costs. The Board could point to no other factors in this case that would bear on the Tribunal's discretion to award costs.
2. YZV submitted that he had admitted the conduct at the earliest opportunity and co-operated fully with the Board's investigation. He referred to Psychology Board v Asher[17] where the Tribunal found that the rule that costs should follow the event does not apply in these matters. Referring to Asher, YZV submitted that:

For it to be "appropriate" to award costs in a particular case, this being the criterion, "There must ... be something in the particular proceeding that makes it appropriate for an award of costs to be made." This may be "factors such as the number of allegations and/or the repetitive nature of same of the plausibility or implausibility of the evidence before the Tribunal." An example of this is where a practitioner has "entirely breached their professional obligations" such as by not just putting the Board to the test (which has not occurred in this case) but giving "gratuitous, unwarranted, unsubstantiated and demeaning sexualised comments" about a complainant; not giving "frank evidence"; not giving "plausible evidence" and "not giving frank or consistent evidence"

1. YZV outlined other scenarios where costs may be relevant and concluded:

The respondent made one serious error, which constitutes professional misconduct and he has admitted it; he has not attacked witnesses for the applicant; he has not given implausible or inconsistent evidence; he has not pursued any defence, let alone one which is misconceived or spurious; and he has not unjustifiably prolonged proceedings. On the contrary, as the Board concedes, "The Respondent has also been cooperative with the Board's investigation and has made admissions at an early stage".

1. As noted above the Tribunal has a broad discretion to award costs and we agree that in matters under the National Law it is not the rule that costs follow the event. This means there must be some particular aspect of the case that would warrant the Tribunal making a costs order against a party. We acknowledge that the Board is a regulatory body with an obligation to perform functions that promote the public interest, but this is applicable to all cases brought by the Board and if this was the only factor relied on for an award of costs it would mean that costs would inevitably follow the event. The Board was unable to identify any additional aspect of this case that would make an award of costs appropriate. Accordingly, the application for costs is refused.

1. In relation the allegation we find that YZV engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition in section 5 of the National Law in that the conduct was:
   • substantially below the standard reasonably expected of a practitioner of his level of experience
   • inconsistent with him being a fit and proper person to hold registration in the profession.
2. The following determinations are imposed:
   • Under section 196(2)(a) of the National Law, YZV is reprimanded.
   • (Under section 196(2)(d) of the National Law, YZV's registration as a medical practitioner is suspended, with effect from 2 December 2024, for a period of six months, expiring on 2 June 2025.[18]
3. The application for costs is refused.

[1] In a separate decision VCAT has made a pseudonym order under section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[2] This order has been corrected by an order made 5 December 2024 to amend a typographical error in the date the suspension period expires.

1. [3] Medical Board of Victoria v McGrath [2014] VCAT 641 at [19]-[20].
2. [4] Medical Board of Australia v Fox [2016] VCAT 408 at [6] as confirmed in Medical Board of Australia v Willcourt [2018] VCAT 1032 at [13]; and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [46]-[49].
3. [5] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476.
4. [6] [2017] VCAT 912 at [32]-[33].

[7] [2015] HCA 46.

1. [9] (unreported, Supreme Court of Victoria, 19 January 1994).

[10] Stage 2b of the vaccine roll out extending to those aged 16-39 commenced on 30 August 2021 https://www.9news.com.au/national/coronavirus-update-pfizer-vaccine-to-be-available-for-australians-aged-16-39-by-august-30-covid-19-news-update/0bb30448-268f-410b-be0c-2537cf1e18f6

[11] [2024] VCAT 214.

[12] [2023] VCAT 494.

[13] [2022] WASAT 86.

[14] [2023] VCAT 1371.

[15] [2012] WASCA 263.

[16] [2005] WASAT 81.

[17] Psychology Board of Australia v Asher (Costs) [2020] VCAT 1281 at [36].

[18] This order has been corrected by an order made 5 December 2024 to amend a typographical error in the date the suspension period expires