1 The decision of the respondent dated 3 May 2021 to take immediate action under section 156 of the Health Practitioner Regulation National Law Act 2009 is set aside.

2 The application for a stay, under section 50 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), of the respondent's decision is withdrawn.

1 On 3 May 2021 the Sexual Boundaries Notification Committee ("the SBNC") of the Medical Board of Australia ("the Board") formed the reasonable belief that Dr Molodov, a medical practitioner, posed a serious risk to persons and that it was necessary to take immediate action to protect public health or safety. It imposed gender-based restrictions on his registration as a general medical practitioner pursuant to section 156(1)(a) of the Health Practitioner Regulation National Law Act 2009 ("the National Law").

2 On 21 May 2021 Dr Molodov applied to this Tribunal for a stay and review of the Board's decision to take immediate action.

3 On 27 July 2021 the parties came before the Tribunal for a hearing of the stay application. The parties agreed to the stay hearing being adjourned to 13 August 2021 provided the Tribunal could hear the substantive review on that date.

4 On 13 August 2021 the substantive matter proceeded to hearing before us such that the stay application was accordingly withdrawn.

5 Section 156(1)(a) gives the Board power to take 'immediate action' if the National Board reasonably believes that -

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety ...

3 Section 3(3)(c) of the National Law requires that restrictions on the practise of a health professional are to be imposed under the national registration and accreditation scheme only if necessary to ensure health services are provided safely and are of an appropriate quality.

6 The parties agree that the principles are well established when considering whether to take immediate action, as discussed in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; Gerstman v Medical Board of Australia [2020] VCAT 1367; and Medical Board of Australia v Liang Joo Leow [2019] VSC 532.

7 Immediate action is not a substitute for action that a Board may take after a full investigation into the relevant conduct. It is not akin to a referral under section 193 of the National Law. Immediate action is not disciplinary in nature. Its purpose is to protect the public, but to do so with as little damage to the practitioner as is consistent with maintaining public safety and engendering confidence in the medical profession.

8 Immediate action is interim action, urgently taken to prevent harm or preserve public confidence in the profession until an investigation can be completed.

9 Immediate action takes place on an urgent basis to protect the public. Immediate action is taken on an urgent basis in relation to serious identified risks.

10 The Tribunal is required to undertake an analysis of the material, as it exists at the time of the hearing, to determine whether it can form a reasonable belief that the practitioner poses a serious risk - in other words, whether the Tribunal can form an inclination of the mind toward assenting to rather than rejecting the proposition that the allegations have substance.

11 The allegations do not have to be proven. In these circumstances, actual proof of the conduct is not required as a pre-requisite for the proper exercise of the power. There must however be a factual matrix sufficient to induce a reasonable belief, albeit that the factual matrix may not necessarily yet have a strong body of evidentiary material.

12 The Tribunal must consider whether there is a real possibility that the practitioner will engage in conduct detrimental to public health and safety if immediate action is not taken. The role of general deterrence is a more nuanced one in these types of proceedings - serving to alert other practitioners to the knowledge that immediate action can take effect.

13 The Board contends that we should affirm the decision of the Board to impose immediate action because the notified conduct, if true, puts women who come into clinical contact with Dr Molodov at serious risk of emotional or psychological harm. It contends that the notified conduct also puts women at risk of physical harm if Dr Molodov proceeds to undertake intimate examinations that are not clinically indicated. The Board contends that the decision to impose gender-based restrictions is a necessary control for this risk, pending the completion of the investigation.

14 Dr Molodov contends that the need for immediate action has not been established.

16 He denies having ever behaved inappropriately with any patient.

17 He points to having held general registration as a medical practitioner in Australia since 13 June 2008 with a mixed practice of all ages and genders and has not otherwise been the subject of any disciplinary process, notifications or complaints.

18 He reminds us that the conduct is alleged to have occurred some 4-5 years ago and that he has continued to practise during this time without further allegations. He contends that, where some six years have passed since the alleged events with no complaints or notifications, there can be no reasonable belief in a current and immediate serious risk.

19 He points to supportive evidence of his general reputation in relation to his treatment of female patients over many years.

20 He submits that he is largely left in the wilderness in relation to Patient A. He has no idea who she is and never will - she has not been named; the notification about words alleged to have been spoken by him has not been contextualised; and she has disengaged with the Board. He denies that he would ever, in any professional context, use the words attributed to him.

21 Patient B does not contend that Dr Molodov made any sexualised comments about her appearance, but queries various other aspects of Dr Molodov's conduct. Dr Molodov contends that his medical records are of assistance in understanding the nature of examinations undertaken by him.

22 He contends that there is no basis for imposing gender-based restrictions on his practise. He submits that the gender-based restrictions are unworkable in circumstances where it cannot be known how long it will be before these matters are able to be fully heard and determined.

23 For the reasons which follow, we have decided to set aside the decision of the Board. In essence we are not satisfied that, because of his conduct, performance or health, Dr Molodov poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

24 We are further not satisfied that immediate action is required in order to engender public confidence in the profession by deterring other practitioners from engaging in similar conduct.

25 We turn then to discuss the factual matrix before us.

26 A confidential notification was made to the Australian Health Practitioner Regulation Agency on 21 March 2021 relating to two of Dr Molodov's previous patients.

27 The notifier advised that a female patient - Patient A - had reported that when she was under the care of Dr Molodov, Dr Molodov told her she had "nice tits" and that he could give her "the best sex she ever had".

28 Dr Molodov categorically denies having ever made such remarks to any patient. The conduct attributed to him is not admitted by Dr Molodov.

29 Although no further particularity has been given, such as dates or circumstances of the alleged comments, if the statements attributed to Dr Molodov were made, it is impossible to see how they could have been appropriately made in the context of the doctor-patient relationship. If the words were spoken, there could be little or no room for misinterpretation. If the words were spoken, it would bring into question Dr Molodov's suitability to practise medicine.

30 However, whilst immediate action does not always entail a detailed enquiry, in this case we know alarmingly little.

31 All we know is that an unidentified patient is alleged to have said to an unidentified notifier that Dr Molodov made the statements described above at some time during the period April 2013 to September 2016 (5-8 years ago).

32 We also know that it is more likely than not, based on the current circumstances, that no statement will be obtained from Patient A. It appears that Patient A will not, at this stage, provide any further evidence because Patient A has disengaged with the Board.

33 We do not consider this to be a sufficient basis upon which to form a reasonable belief that Dr Molodov poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety.

34 At best, we consider that this would present a basis for the Board to commence an investigation into whether the notification could or should form the basis of an appropriate investigation into Dr Molodov's conduct. We observe that if Patient A does not engage with the Board, it will, realistically, be very difficult for the Board to substantiate any allegation of unprofessional conduct/professional misconduct based on the paucity of material available.

35 We agree with the submissions made on behalf of Dr Molodov that we cannot and should not in these circumstances ignore the voluminous character material presented on his behalf to the effect that such sexualised language would be out of keeping with both his manner of speech and the manner in which he conducts himself generally.

36 The notifier in relation to Patient A is also the notifier in relation to Patient B.

37 Patient B has been identified and made a statement dated 21 July 2021.

38 We know from the medical records hat Patient B's first consultation with Dr Molodov was on 31 January 2012 and her final consultation was on 13 January 2017. The treating relationship spanned five years.

39 The Board contends, based on that statement, that Dr Molodov made inappropriate comments to Patient B in the form of suggesting intimate examinations; discussing non-clinical matters; making inappropriate physical contact with her; and making inappropriate comments. The Board submitted that women who come into contact with Dr Molodov are at serious risk of emotional or psychological harm, or physical harm, if Dr Molodov proceeds to undertake intimate examinations that are not clinically indicated.

40 In making its submissions, the Board emphasised various lines taken from Patient B's statement.

41 Rather than attempting to summarise what Patient B appears to be saying or suggesting, we consider it to be a worthwhile and necessary exercise to examine the whole of Patient B's statement.

42 We further consider that it is necessary to do so in the context of the contemporaneous medical notes made by Dr Molodov.

I am providing this statement to Laura Bulfon who is an employee of the Australian Health Practitioner Regulation Agency at about 12:00PM AEDT on 29 March 2021 via telephone call. I also spoke with Ms Bulfon on 20 July 2021 at about 4:30PM AEDT my statement.

44 There is nothing noteworthy about this paragraph.

Dr Boris Molodov was my previous treating general practitioner at [Health Care Clinic]. I agree that my first consultation with Dr Molodov was 31 January 2012 and my final consultation was on 13 January 2017.

46 We note that the last consultation took place in early 2017, some 4 1/2 years ago.

The treating relationship with Dr Molodov was professional at the beginning. Dr Molodov was easy to speak to and I felt comfortable. Within about a year, the consultations became more personable and I began to open up more. The consultations became super friendly and the appointments would sometimes be much longer than the 10 minutes that had been allocated. During the consultations, Dr Molodov and I would just sit and have a chat. I felt like Dr Molodov and I developed a friendship and he felt like a mate to me. We would have a laugh and talk about what we did on our weekends. We would also talk about travel, other personal topics and general things about our lives. I am an easy going person and did not feel anything sexual towards Dr Molodov. He was just my doctor.

48 The clinical records span some 23 pages. Each year, Patient B saw Dr Molodov at least 15 times but she usually saw him between 19-23 times each year. Whilst at the start of the first year the duration of the appointments is not recorded in the notes, thereafter it always is.

49 It is clear from the notes that many of the appointments did indeed exceed 10 minutes. It is also clear that when they did, there was an associated documented clinical need necessitating the longer appointment.

50 It is further clear from the notes that there were significant and ongoing medical and social issues of concern in Patient B's life.

51 The clinical notes document both the medical and social issues and the need sometimes for there to be lengthy discussion in relation to each.

52 There is nothing in this paragraph upon which we could form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [4] During consultations with Dr Molodov, I had expressed that I had pain in the area in my stomach around where my ovaries would be. I thought I was going through menopause. Dr Molodov referred me to a specialist, but he also conducted his own examinations including touching my stomach to feel for pain and at least one internal vaginal examination. These examinations were conducted prior to him referring me to a specialist. I cannot recall if there was more than one internal vaginal examination. When Dr Molodov conducted the internal vaginal examination I recall there was a female chaperone present, but Dr Molodov pulled the curtain around so the chaperone was not able to see what was happening. The chaperone could have heard me if I made any comments about the examination. I did not feel pressured to have the internal vaginal examination but during the examination I felt uncomfortable and I wanted it to be over. I think the entire examination went for about 5 minutes. It was definitely not 10 minutes but it was longer than 2 minutes. I think this vaginal examination must have been on 6 November 2013 because I am aware that my clinical records say that Dr Molodov did a vaginal examination on that day. I have not had an internal vaginal examination due to having pain around my ovaries before, so I am not sure whether the examination took too long. I have had pap smears, all my life but this was not a pap smear. I have always had female practitioners perform my pap smears. I have also had vaginal examinations due to pregnancy. During the vaginal examinations with Dr Molodov, I thought to myself 'I am not going to get an internal from a male again'. I was relieved when the examination was over.

54 Six November 2013 was Patient B's 19th consultation with Dr Molodov during that year.

55 The notes of Dr Molodov are consistent with Patient B's recollection of the consultation.

56 Dr Molodov records an examination taking place, including an internal vaginal examination.

57 Dr Molodov's notes record that Patient B was complaining of lower abdominal pain. It is recorded in the notes that discussion took place in relation to relaxation techniques and any psychological basis for that pain.

58 The notes also record the ordering by Dr Molodov of various scans and the referral by Dr Molodov of Patient B to a gynaecologist.

abdomen is still tender in lower part but no peritonism

62 Dr Molodov notes arrangements for a repeat ultrasound in three months and a referral to a specialist gynaecologist is noted as being booked for 7 September 2012.

65 We agree with the submissions made on behalf of Dr Molodov that the notes demonstrate a medically and clinically justifiable reason for a physical examination of Patient B to have taken place. We further note that Patient B did not say in her statement that she harboured concerns that the examination was not clinically justified.

66 We could not make a finding on the material before us that the examination was not clinically justified. There was a clear reason recorded in the notes for the intimate examination.

67 Only one internal examination is recalled by Patient B over a 5-year period. There is not a repeat examination. There is no suggestion of multiple internal examinations taking place.

68 There is no suggestion that the examination took longer than necessary.

69 It is clear that Patient B was on-referred for scans.

70 It is also clear that Patient B was referred to a gynaecologist.

71 We consider that the weight of evidence, as it currently stands, goes against the contention that Dr Molodov was seeking to gain access to Patient B's body under the pretext of clinical need.

72 We observe that there were multiple opportunities for this to have taken place over the many consultations if this is what Dr Molodov sought to do.

73 We further observe that, just because Patient B may have felt uncomfortable during an intimate examination, this cannot lead to the conclusion that the examination was unnecessary, unjustified or inappropriate.

74 We further observe that it is clear from the notes that a great deal was taking place in Patient B's life. She was complaining of ongoing assaults from a neighbour, coupled with both back and neurological pain.

75 There is nothing in this paragraph upon which we could form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [5] Dr Molodov has also conducted a breast examination on me. I believe it was before the vaginal examination, but I cannot be certain. I was having a lot of pain across my body including my lower back, my legs and the area where my ovaries are. Dr Molodov was trying to eliminate where the soreness was on my body so he suggested that he conduct a breast examination. During the examination, my breasts were exposed. I cannot recall whether I was sitting or laying down for the examination. I recall Dr Molodov looking at my breasts and then conducting the examination. I cannot recall whether he conducted a breast examination more than once.

77 There is nothing in Patient B's statement, when read in the context of the notes, that could lead to the conclusion that the breast examination was unnecessary, unjustified or inappropriate.

78 It is clear from the clinical notes that Dr Molodov did conduct and record at least one breast examination of Patient B. It is noteworthy in this respect that Patient B only recalls one such examination taking place.

79 Although Patient B makes no reference to mammograms in her statement, it is also clear that she was referred for mammograms on several occasions.

80 On 22 August 2012, the clinical notes read "needs mammogram" and a referral is made.

81 On 5 September 2014, a further referral for "a mammogram and bloods" is noted.

tender spot in left breast - repeat mamogrammm + us (declined chaperone) ...

83 The clinical notes dated 6 November 2015 show that the mammogram took place with no abnormalities detected.

84 Once again, we consider that the weight of evidence goes against the contention made in submissions by the Board that Dr Molodov was seeking to gain access to Patient B's body under the pretext of clinical need.

85 There is nothing in the wording of this paragraph that is not consistent with an appropriate and necessary clinical examination taking place.

86 The ongoing referrals for mammograms recorded in the notes also suggest that there was a therapeutic need.

87 There is nothing in this paragraph upon which we could form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

88 We turn then to examine paragraph 6 of the statement:

• [6] Subsequent to the breast and vaginal examinations I referred to earlier in my statement, Dr Molodov suggested further breast examinations, but I refused as it just didn't feel right to me. Dr Molodov would often say 'how are your breasts? Are they still sore? Would you like another breast exam?' and I said I was okay and did not need an examination. Dr Molodov would also ask how I am doing 'down there', meaning my vagina, and would ask if I wanted him to look into it more and also asked whether I wanted him to have another look. He would also just generally ask me how I am feeling, and I would tell him I am still sore, and he would respond by stating things like 'do you want me to have another look'. I understood this to mean he wanted to conduct further breast and vaginal examinations. When he would suggest conducting these examinations, I would give him a firm 'no' and he wouldn't ask again during the consultation. I am not certain, but I think Dr Molodov would ask me about conducting vaginal and breast examinations every time I attended a consultation. He would ask me these things when I attended appointments for things like a prescription for medications.

89 Whilst the suggestion is made in Patient B's statement that Dr Molodov frequently asked such questions, it is also clear from the notes that there were ongoing gynaecological concerns with the patient.

90 It is of course perfectly appropriate for a health practitioner to undertake appropriate examinations. It is perfectly appropriate for a medical practitioner to on-refer. Dr Molodov appears to have done each of these things.

91 It is also perfectly appropriate for a medical practitioner to ask follow-up questions when there has been a history of such medical conditions, even if a patient attends in relation to a different matter.

92 It is perfectly appropriate for a medical practitioner to enquire as to whether further examinations are necessary. Follow-up referrals did in fact take place.

93 We are mindful that even if there was a discussion about further examinations, internal vaginal examinations were not repeated. Patient B also does not suggest that multiple breast examinations took place.

94 We consider that it is stretching any interpretation of the current material to submit that we could or should find that the examinations that did take place or any consultations were opportunistic.

95 Further, we do not consider that the terminology alleged to have been used by Dr Molodov - such as "down there" - is in and of itself inappropriate in the circumstances.

96 There is nothing in this paragraph upon which we could form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [7] When he would suggest further breast and vaginal examinations, I thought that maybe as a doctor, he had an obligation to ask me about these things even if I was only attending the consultation to ask for a prescription but at the same time, I would have asked him if I needed a vaginal or breast examination. It made me feel very uncomfortable. Dr Molodov never forced me to have an examination I did not feel comfortable having.

98 We repeat our comments made in relation to paragraph [6] above.

99 We consider that, when considering the statement of Patient B in combination with the contemporaneous notes made by Dr Molodov at the time of his examination, there are very plausible reasons for why Dr Molodov may have raised the possibility of further examinations.

100 We further observe that many women do feel uncomfortable in relation to personal examinations, but that this does not in and of itself make the examination inappropriate.

• [8] I am not exactly sure when, but I think after about a year or so of attending consultations with Dr Molodov, he would lean in and give me a cuddle and a kiss to say goodbye. This would occur after we stood up at his desk. He would kiss me on the cheek only. I thought it was strange, but I was not forced by Dr Molodov to do this. When I first began attending consultations with Dr Molodov we would shake hands and it eventually progressed into a kiss and a cuddle. It did not feel right but at the same time we did build up this friendship over the years. I never told Dr Molodov that I thought it was strange that we would say goodbye by giving each other a kiss on the cheek and a hug.

102 Dr Molodov completely denies this aspect of Patient B's statement.

103 Arguably, there is a difference between an allegation that a medical practitioner gave a patient a kiss and a cuddle, and a situation where "we would say goodbye by giving each other a kiss on the cheek and a hug". The former statement would clearly warrant investigation, whilst the latter, given the duration and intensity of the consulting relationship, may not. It is nevertheless of course always the duty of a medical practitioner to maintain appropriate boundaries. It is the medical practitioner who holds full accountability in this respect. We therefore accept that, given the inherent power imbalance between practitioner and patient, the alleged conduct raises questions in relation to boundary violations which warrant further investigation.

104 We agree however with the submissions of Dr Molodov that, although there is potentially a basis for an investigation and referral to the Tribunal, considering the many years of practise after the time of the allegations, there is not an identifiable current risk necessitating immediate action.

105 We are not satisfied that we can form, based on this paragraph, the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [9] When the consultations began to be more friendly, after about a year, Dr Molodov would ask me about my sex life and whether I had a boyfriend. In the beginning he was just making comments and it felt like banter. I like banter. As time went on he would say things like 'What's new? Any boyfriends on the horizon?' and I would respond by stating there wasn't, and he would then state something like 'What do you do for sex then?'. I would brush off comments like this because I am a tough, strong woman. I do not consider myself vulnerable. I have survived homelessness and domestic violence and I believe I am a strong woman today. Part of me thought that these conversations were us having a laugh together, but I also thought the comments made by Dr Molodov about my sex life were not appropriate. I am worried about any vulnerable patients that might attend consultations with Dr Molodov.

107 We accept that this paragraph raises concerning questions that require further investigation and potentially a referral to the Tribunal.

108 The Sexual Boundaries in the Doctor-Patient Relationship Guidelines make it clear that making sexual remarks, including sexual humour or innuendo, constitutes a breach of sexual boundaries. Breaching sexual boundaries is always unethical and usually harmful. There is a power imbalance in the doctor-patient relationship and patients must not be exploited in any way.

109 If Patient B's memory is accurate, the allegations are very serious.

110 Nevertheless, the events the subject of the allegations occurred some years ago - there has been a passage of time without further incident which we consider allays the urgent need for immediate action and the need to protect public safety from Dr Molodov.

111 The Board contends that if immediate action were not taken, the public would be left unprotected - arguably, this has been put to the test over the last 4-5 years and it has been put to the test without further incident.

112 We do not consider that this conduct can now lead us to form the reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

113 The Board contended that the public must have confidence that appropriate action will be taken when credible serious allegations are made.

114 We agree. But public confidence is not undermined when the public is aware that an investigation and possible referral is on foot to enable the appropriate testing of the evidence. There is a public interest in due process, particularly when it can be shown that a practitioner has continued to practise without incident over a period of years since the conduct the subject of allegations were made.

115 There is a public interest in a proportionate and fair response.

116 There is also a public interest in minimising the fiscal and reputational damage of allegations until such time as the allegations can be appropriately tested.

117 Of course, it is also necessary to send a message to other practitioners that allegations of misconduct will be quickly addressed by the Board. It is conversely important that practitioners understand they will receive a fair and impartial hearing in relation to those allegations which can have a lifelong impact on the practise of a health professional.

118 We consider that there are also other safety nets in place - Dr Molodov does not work alone. He works with other colleagues who will be on high alert with respect to his conduct.

119 The mere fact of the ongoing investigation and these proceedings, together with having worked under onerous conditions for a period, all provide a protective layer.

120 We are not satisfied that we can form, based on this paragraph, the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [10] Dr Molodov's prescribing to me was normal. I did wonder about him being very friendly and whether this would mean that Dr Molodov would prescribe inappropriately if [I] ever asked him. I never did this though.

122 This type of speculative observation does not and cannot of course lead us to form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [11] Dr Molodov did not make any inappropriate comments about my appearance. We never met outside of consultations and we never spoke about catching up outside of our consultations. I did see him once when we were both at the gym. My son did boxing at the same place he must have done boxing. Dr Molodov told me he was in the army when he was in Russia and I believe he was a fighter.

124 There is nothing of concern contained within this paragraph of Patient B's statement.

125 There is nothing contained within this paragraph which could lead us to form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

126 In some respects, we note the paragraph supports the contention of Dr Molodov that there was no intention to engage in contact with Patient B away from the confines of the surgery.

• [12] I was relieved when Dr Molodov left the clinic and was replaced. People will probably say 'Why didn't you leave if you didn't feel comfortable with Dr Molodov?' and it did cross my mind to leave the clinic. It takes a lot of effort to go from one doctor to another doctor and then build another treating relationship. I didn't dread going to consultations with Dr Molodov because I felt like I was in control of why I was going to the appointment and I wasn't going to let Dr Molodov ruin it for me. There may be women who are not as strong as I am and are more vulnerable, and I am not sure whether they would have been able to manage Dr Molodov's behaviour like I could. I managed Dr Molodov's behaviour by not letting our relationship progress any further than it did. I did not let Dr Molodov take advantage of me.

128 When analysed, there is nothing in this paragraph which could lead us to form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [13] After Dr Molodov left the clinic, I received a text message from Dr Molodov. I think he had moved to Melbourne at this stage. There was only one message and it stated something like 'hello [Patient B] this is Boris Molodov'. I did not reply to the message. The message was sent to me maybe four years ago and I do not have a copy of the message. It must have been deleted over time. I was not a patient of his at the time he sent this message and I am unsure how he got my phone number. This is the only text message I received from Dr Molodov. I showed this message to [redacted]. I am not sure what [redacted] did with the information I told him.

130 Once again, this paragraph may raise questions that require further investigation and potentially a referral to the Tribunal.

131 We note that Dr Molodov denies sending the text. It is a text which was not followed up.

132 There is otherwise a paucity of material with which to engage at this stage of the matter.

133 There is no other suggestion for example that Dr Molodov ever sought to engage with Patient B away from the clinic. To the contrary, as noted in relation to paragraph [11] when Dr Molodov did come across Patient B away from the clinic, nothing untoward took place.

134 We agree with the submissions made on behalf of Dr Molodov that because the alleged text has been deleted, its precise wording will not be able to be ascertained. It cannot even be established that the text was from Dr Molodov or that there was not confusion in Patient B's mind many years down the track about a general clinic message.

135 Whilst in an immediate action scenario the Tribunal does not require full and proper evidence, it would be highly speculative to read something sinister into this to lead us to the reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [14] I also told a staff member at the clinic about the text message Dr Molodov sent me. I do not want to say who that staff member is because I am not sure if they want to get involved in this matter. I also spoke with this staff member about how Dr Molodov had broken up with his wife and was seeing [redacted] from the clinic.

138 We are unable, based on the material in this paragraph, to form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

• [15] I think it is important that I speak about this information and Dr Molodov's behaviour because if it happened to me, it may have happened to other people too. Other people may have been more vulnerable than me. I have a [describes own circumstances] and I know there can be some very vulnerable people in our community who may not be safe around Dr Molodov.

140 It was submitted by the Board that the statements of Patient B clearly indicate discomfort felt by her and her concern in relation to other women who may be even more vulnerable than herself.

141 We agree with the submissions made on behalf of Dr Molodov that it would, at this stage, be speculation on our part to find that there may be other women more vulnerable than Patient B who may not have been able to manage Dr Molodov's behaviour or be safe around Dr Molodov.

142 We are unable, based on the material in this paragraph, to form the requisite reasonable belief that because of Dr Molodov's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

144 Clearly, any suggestion of inappropriate sexualised conduct raises alarm bells. Doctors frequently provide health services to vulnerable members of the community and inappropriate conduct by medical practitioners can have devastating consequences. The doctor-patient power imbalance is a real one. We agree with the submissions of the Board that it is easy for sexualised predatory behaviour to be disguised. We agree that the consequences of such behaviour can seriously affect patients.

145 The Board contended that the risk to be considered by us in this case is whether Dr Molodov will engage in future sexualised examinations under the guise of medical examination. Based on our above analysis, we have however formed an inclination of the mind toward rejecting the proposition that Dr Molodov has engaged in such behaviour.

146 We fully accept that sexual boundary violations can readily be disguised as clinical need. However, we cannot simply dismiss out of hand the very real possibility that Dr Molodov has done no wrong.

147 The Board stresses that the notification, particularly of Patient B, is not fanciful or so lacking in cogency and prospect that it can be dismissed as misconceived. It may not be. However, we do not accept that the mere fact of a complaint/allegation should always, as night follows day, lead to a finding of serious risk.

148 It is not enough for the Board to assert multiple sexual boundary violations and completely disregard the other possibility; namely that consultations were precisely what they purported to be. Contextualised and thorough examination of the material such as exists must take place in order to establish whether a serious risk has been identified.

149 Whilst we agree with the submissions of the Board that the untested statement of a witness may be sufficient in a particular case to support the necessary reasonable belief, we do not accept that the statement of Patient B supports the contentions of the Board in this particular case.

150 Clearly, as we have already identified, there are aspects of the material before us which raise concerns.

151 The Board contends that imposing gender-based restrictions is the least restrictive form of immediate action open to it and states the alternative as suspension.

153 Another option is to take no immediate action knowing that the investigation into these matters is ongoing.

154 Not every allegation requires immediate action to be taken. Where allegations are brought to the attention of the Board many years after the alleged conduct, with intervening years of appropriate conduct to a health professional's credit, immediate action is not always appropriate or required.

155 We emphasise that we are not critical of the patients in relation to these matters. We accept that there can be many complex reasons for delay in reporting and/or disengagement with the Board.

156 The respective delays, uncertainty surrounding the allegations and/or patient disengagement, however, all contribute to our finding that the weight of the evidence currently runs in favour of permitting Dr Molodov to continue unrestricted practise until such time as these matters are fully canvassed following an investigation and hearing if necessary.

157 We emphasise that, whilst there is a public interest in the protection of the public, there is a parallel public interest in permitting a doctor to continue to practise where it is not established that there is a current immediate risk in his doing so.

158 There is an obvious impact on the running of any general practice if there are gender-based restrictions placed on any practitioner.

159 The purpose of immediate action is to take action where there is an immediate need.

160 We are not satisfied on the material before us that such a need has been established.

162 We consider that in circumstances where Dr Molodov practised for many years, both before and after allegations were made, without other complaint, the purported serious risk for the taking of immediate action is not established.

163 We consider it to be highly unlikely that Dr Molodov will engage in conduct which could be harmful to male or female patients, during the period within which this matter will be under investigation by the Board.

164 It was submitted that the Tribunal generally gives deference to the knowledge and expertise of the SBNC. The Tribunal of course has great respect for all decision-makers whose decisions are subject to review by this Tribunal. It is, however, for the Tribunal to examine the material with fresh eyes and make the correct and preferable decision.

165 We are very mindful that the allegations are rejected by Dr Molodov.

166 It is relevant that the references provided by Dr Molodov evidence a respectful, professional practitioner with an otherwise unblemished history of practise. We agree that the sexualised conduct alleged would be very out of character with the person observed by multiple character referees in multiple settings. Whilst it was put by the Board that Dr Molodov's practice holds a vested interest in supporting Dr Molodov to ensure he continues to practise, we did not accept that a practice would do so above the safety of their own patients.

167 We agree with the submissions of Dr Molodov that, although there is clearly a basis for an investigation and potentially a referral to the Tribunal, in light of many years of practise after the time of the allegations, there is not an identifiable current risk necessitating immediate action.

168 We note the existence of a further protection. Dr Molodov will, through having engaged in these proceedings, be placed on high notice during the period of the investigation of the need to maintain appropriate boundaries.

169 If in fact there are other concerns, this decision may in and of itself draw out those complaints. There is, however, no evidence before us to suggest there will be.

170 We will set aside the decision of the respondent dated 3 May 2021 to take immediate action under section 156 of the National Law.

171 We will further note that the application for a stay, under section 50 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), of the respondent's decision is withdrawn.