1. In relation to allegations 1 - 3 (concerning Patient 2) and allegation 4 (concerning Patient 1), Mr Nasser is reprimanded, under s 196(2) of the National Law.
2. In relation to allegations 1 - 3, concerning Patient 2, Mr Nasser is disqualified from applying for registration as a health practitioner for a period of four years, under s 196(4) of the National Law. This disqualification period is to commence from the expiry of the eight year disqualification ordered in matter Z239/2021.

1. This is a disciplinary proceeding brought by the applicant (Board) against Mr Imad Nasser, a physiotherapist (now 32 years old) in relation to sexualised conduct involving two female patients in 2019.
2. The Board alleges unnecessary removal of clothing, insufficient modesty covering being provided, inappropriate comments and sexual touching under the guise of physiotherapy treatment.
3. This proceeding is brought under the Health Practitioner Regulation National Law (National Law).[1] The Notice of Allegations is set out as an Annexure to this decision.
4. Mr Nasser has indicated through his solicitors that he 'vehemently denies' the allegations. But aside from that, he has at no stage provided any form of substantive response to them, either to the police (when reported to them) or to the Board. He indicated through his solicitors that he did not intend to participate in the proceedings. He simply asked to be copied into correspondence relating to orders made. He did not participate in the hearing of this proceeding on 3 April 2025. Nor did he file any submissions or evidence.
5. Upon consideration of the evidence, and the written and oral submissions by the Board, we were comfortably satisfied that the allegations against him had been proved.
6. We found that his conduct in relation to allegations 1, 2 and 3 (concerning Patient 2) comprised professional misconduct under paragraph (c) of the definition of that term in s 5 of the National Law. We also found that his conduct in relation to allegation 4 (concerning Patient 1) comprised professional conduct under (a) of the definition of that term. We announced those findings at the hearing.
7. We reserved our decision on the question of the determinations which should be imposed under s 196 of the National Law. Having now considered that question, we have determined that Mr Nasser should receive a reprimand, and be disqualified from applying for registration for four years. That period of disqualification is to commence at the expiry of the period of eight year disqualification ordered in proceeding Z239/2021.[2] That was a proceeding in which Mr Nasser was found to have engaged in similar conduct to that alleged here, perpetrated in September and November 2019 on a female patient in her early 20s. The combined effect of the two decisions is that Mr Nasser is now disqualified from applying for registration for 12 years, that is, until 8 December 2035.

1. Mr Nasser was first registered as a physiotherapist on 13 December 2016. From June 2018, he was employed at a Melbourne physiotherapy clinic (Clinic).
2. On 18 March 2019, he had a consultation with Patient 1.[3] She was 42 years old and had a long history of back pain. She had been treated by many physiotherapists before for this condition. She was wearing a light T shirt, sports bra and tight yoga pants. Mr Nasser asked her to take off her T shirt, which she did. It is alleged he then asked her to remove her pants and her underpants. He offered her a small hand towel as a modesty covering. She refused to remove her pants and underpants as she felt this was exploitative.
3. The following day Patient 1 made a complaint to the management of the Clinic.
4. The Clinic spoke to its insurers who advised that this incident did not warrant mandatory reporting to the Board, but that the practitioner should be counselled.
5. The Clinic later advised the Board that Mr Nasser had been counselled about this. The file note said: [4]

During this meeting Imad was told in no uncertain terms that this incident was not appropriate and was given a formal warning. He accepted this and promised never to do this again.

1. Next, on or about 1 July 2019, Patient 2 had the first of six appointments at the Clinic. She had exacerbated a prior shoulder injury by lifting a box at work. She was then 19 years old. The consultations were apparently arranged and paid for by her employer as part of its occupational health and safety arrangements.
2. The alleged conduct in relation to Patient 2 is set out in full in the annexed Notice of Allegations. In summary, Patient 2's account is of an escalating course of conduct over the course of the six sessions, involving:
   • Moving, or removal, by the patient or by Mr Nasser himself, of clothing, including underclothing;
   • Insufficient modesty coverings being provided;
   • Inappropriate commentary and questions on Patient 2's clothing and underwear and about sexual matters;
   • Sexual touching under the guise of physiotherapy treatment. This included the provision of full body massages, massages focusing on Patient 2's breasts, buttocks, inner thighs, crotch, and areas close to her anus, vulva and vagina.
3. The last of these six consultations with Patient 2 was on 7 October 2019.
4. Patient 2 said in her witness statement that a friend dropped her off for the appointment on 31 July 2019, and picked her up afterwards. She described telling her friend that she was pretty sure the physiotherapist had sexually assaulted her. She said she did not remember her friend saying anything constructive in response. Rather, 'I think he was just joking around because he didn't know what to say'.[5]
5. These sessions partially overlapped with those the subject of the earlier disciplinary proceeding, Nasser No 1, involving a different patient. The consultations the subject of that proceeding occurred in September and November 2019.
6. On 14 January 2020, the Board took 'immediate action' under s 156 of the National Law to impose conditions on Mr Nasser's registration as a physiotherapist. This related to the complaint by the patient in the Nasser No 1 proceeding. It required that he must not practise in a self-employed capacity (which he had been doing part time) and that he have no contact with female patients.
7. The witness statement provided by Patient 2 indicated that over the year and a half after the completion of her course of consultations with Mr Nasser, she was troubled by what had occurred, but uncertain whether she should take any further action, in part because she said she felt 'defeated'.
8. In March or April 2021, Patient 2 said she disclosed Mr Nasser's conduct to a counsellor she had begun to see in December 2020, who then looked Mr Nasser up on the AHPRA[6] website. Patient 2 then became aware of the gender-based restriction which had been imposed on Mr Nasser in January 2020. The counsellor encouraged Patient 2 to make a report.
9. Patient 2 made her report to AHPRA on 14 July 2021. The Board in turn referred the matter to the police.
10. On 28 August 2021, Patient 2 made a formal statement to the police.
11. Mr Nasser was interviewed by police. He gave a 'no comment' interview.
12. On 17 February 2022, Mr Nasser voluntarily surrendered his registration to practise as a physiotherapist.
13. The police ultimately decided, around July 2022, not to bring charges against Mr Nasser in relation to Patient 2's complaint. In his report, the Detective Sergeant stated that while being of the belief that it is more likely than not that the offences had been committed, he reluctantly came to the view that the 'reasonable chance of conviction' criterion was not met. The report stated that he did however support further inquiries and investigations being undertaken by AHPRA.
14. In the course of the investigation by AHPRA on behalf of the Board, documentation was obtained from the Clinic where Mr Nasser had worked. This alerted the Board to the prior complaint made to the Clinic by Patient 1 in March 2019, and the action taken by the Clinic in response (as described above).
15. The Board obtained a statement from Patient 1 dated 10 October 2022. This set out the allegation relating to the 18 March 2019 consultation referred to above. On 22 February 2023, Patient 1 provided a brief supplementary statement. This clarified that the request Mr Nasser made to her was for her to remove her pants and her underwear.
16. On 12 October 2022, the Board obtained a statement from Patient 2's friend, who had picked her up from the 31 July 2019 appointment. He recalled that she was pretty shaken up when he picked her up. He said he could see she was emotional and that something had happened. Patient 2 told him something weird had happened when she had seen the physiotherapist. She said he had sexually assaulted her. She didn't go into detail about what had happened.
17. The Board obtained an expert report dated 22 November 2022, from Ms Ann Ryan, an experienced practising and academic physiotherapist.
18. On 18 January 2023, through his solicitors, Mr Nasser responded to the allegations and Ms Ryan's expert report. The letter relevantly stated:

... Mr Nasser maintains that he vehemently denies the transgression of any professional boundary in the performance of his function as a Physiotherapist. At no time did Mr Nasser intend to violate any sexual boundary by conduct or comment.

Finally, we note that on 17 February 2022 Mr Nasser voluntarily surrendered his registration to practice [sic] as a Physiotherapist and has no intention of returning to the profession. Mr Nasser's reasons for doing so relate to personal matters and no inference should be drawn from that decision.

1. On 20 June 2023, the Board commenced this disciplinary proceeding at VCAT.
2. On 17 October 2023, Mr Nasser provided his second response to the allegations, again through his solicitors. This reiterated his 'vehement denial' that he had transgressed any professional boundary. It also reiterated the other matters stated on 18 January 2023. It suggested that as he was no longer a health practitioner, Mr Nasser's view was that there was no practical purpose behind his ongoing participation in these proceedings.
3. By email of 18 October 2023, Mr Nasser's solicitors gave notification that he did not intend to participate in the proceedings. They requested, however, that they be copied into correspondence relating to orders made so that they could update their client as the matter progressed.
4. On 23 November 2023, Mr Nasser's solicitors advised that they had ceased to act for him. They provided Mr Nassers's email address to enable documents relating to the proceeding to be sent directly to him.
5. The hearing in this matter was listed for 14 August 2024. Submissions were filed and served by the Board dated 17 July 2024. On 6 August 2024, at the Board's request, the matter was adjourned. It was re-listed for 3 April 2025.
6. All necessary documents were served on Mr Nasser by process server on 1 August 2024. The Tribunal's subsequent order adjourning the matter to 3 April 2025 was sent to Mr Nasser's email address by the Tribunal registry.
7. We were satisfied that Mr Nasser was aware of the hearing date and had been given the opportunity to participate. Consistent with his position throughout, however, Mr Nasser did not participate in the hearing.

1. We now turn to the expert evidence provided by Ms Ryan in her report of 22 November 2022.
2. With regard to removal of underclothing, this relevantly stated, in summary:
   • There was no clinical need for clothing to be removed from the waist down to treat Patient 2's acute shoulder injury.
   • Patient 2 had scoliosis, but this was 'well managed' and the clinical notes contain no reference to any need for closer examination that might necessitate removal of her clothing to treat her buttock area, hips or lower limbs.
   • The only circumstances in which a physiotherapist would request a female patient to remove her underpants would be in the treatment of incontinence or pelvic floor dysfunction [which is clearly not the case here].
   • Moving underwear covering the buttocks, however, is very common in physiotherapy treatment.
   • But there are no circumstances in which it is appropriate for a physiotherapist to expose the perineal/ genital area when treating a musculoskeletal condition.
3. In conclusion, Ms Ryan said:[7]

... it is my opinion that moving [Patient 2]'s underwear (including bra / crop top) such that it exposed her breasts or buttocks was not clinically indicated nor necessary and, as such, would be inappropriate. In the treatment sessions described by [Patient 2] and recorded by Mr Nasser, I believe it would be a complete departure from expected standards of physiotherapy practice for Mr Nasser to move her underwear such that it exposed [Patient 2]'s breasts. Furthermore, even if treatment of the buttock area was clinically justifiable, moving [Patient 2]'s underwear down completely to expose both buttocks, including the gluteal cleft, is not in accordance with the standards of professional conduct applicable to registered physiotherapists and also represents a complete departure from expected standards of practice.

1. Ms Ryan's report went onto say:[8]
   • Patient 2 was inadequately draped at times, both because her buttocks as well as her breasts were exposed when this was not clinically justified;
   • It is never required, and therefore not common nor reasonable, for a physiotherapist to expose a female patient's genitalia on any occasion when treating the patient's hips, thighs and/or buttocks;
   • Soft tissue therapy (in the form of rubbing) over/around the genitalia of a female patient is not indicated and therefore not common nor reasonable when treating hip, thigh and/or buttock area; and
   • Massage close to the nipple would not commonly nor reasonably constitute a standard physiotherapy assessment or treatment regimen.
2. In summary, in relation to the massage provided, Ms Ryan said:[9]

It is my opinion that standard physiotherapy treatment of [Patient 2]'s condition would not involve massage of her buttocks, thighs and legs. Even if justified clinically, such treatment would never involve full exposure of [Patient 2]'s buttocks and would never involve manual therapy close to her genitalia, nor the pulling apart of the buttocks to expose her genitalia. In my professional experience, there is no clinical justification for massaging the area immediately around the anus, vulva or vagina in the treatment of hip tightness. The treatment of her shoulder would not require exposure of her breasts, nor would it require massage very close to her nipples.

1. In relation to Patient 1, Ms Ryan said:[10]

According to [Patient 1]'s statement, Mr Nasser did not provide adequate explanation for her to remove her pants and then continued to attempt to justify his reasons for their removal, citing ease of treatment, the provision of a hand towel and her ability to leave her underwear on if she wanted to. In my responses to Q4-6 above I have explained that, in my opinion and experience, registered physiotherapists acting in accordance with the standards of professional conduct applicable would never ask a patient to remove lower underwear in order to examine or treat any musculoskeletal condition. In my opinion, this conduct demonstrates that Mr Nasser has not respected the rights, dignity and comfort of [Patient 1] in accordance with [the standards applicable] to registered physiotherapists....

By continuing to attempt to convince [Patient 1] to remove her clothes including her underwear, despite her clear discomfort in doing so, Mr Nasser's conduct is inappropriate and does not respect her right to autonomy, dignity or comfort. In my professional experience, the process of informed consent should outline any reasons for a patient to remove their clothing. I have never known a physiotherapist to attempt to convince a patient to remove their clothing once they have stated a preference for leaving them on. As such, it is my opinion that Mr Nasser's conduct represents a moderate departure from the standards of professional conduct applicable to registered physiotherapists.

1. Ms Ryan's report of 22 November 2022, together with the allegations, was provided to Mr Nasser's solicitors for his response. As noted, Mr Nasser's response was confined to a simple denial of all allegations.

1. In making our findings, we must apply the 'Briginshaw' standard.[11] That is, where we have found an allegation, or a Particular of an allegation proved, this is on the basis that we have reached a comfortable level of satisfaction, on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of each finding.
2. The fact that Mr Nasser has decided not to participate in this proceeding does not alter the standard of proof required, nor the fact that the Board bears the onus of proving its case.
3. The Board submitted that the witness statements of Patients 1 and 2 should be accepted as providing proof of the allegations to the Briginshaw standard. The allegations, and the Particulars to them, accurately reflect the things alleged in the witness statements by the two patients.
4. It submitted that these statements are internally consistent and credible. It said there is nothing which contradicts these statements in any material way, either from Mr Nasser, or from any other source.
5. The Board submitted that in these circumstances it was open to VCAT to find, and it should find, that the allegations which reflect those witness statements have been proved to the requisite standard.
6. The Board also took the Tribunal to the decision of the New South Wales Court of Appeal in Ghosh v Medical Council of New South Wales,[12] which in turn refers to the High Court decision of Precision Plastics Pty Ltd v Demir[13].
7. These cases concern the second limb of the rule in Browne v Dunn.[14] This relates to the way in which statements by witnesses are to be treated, where the witness is not cross examined.
8. The effect of this second limb was described by the NSW Court of Appeal in Ghosh. It relates to the situation where a party does not require an opposing witness to be made available for cross examination. That circumstance militates in favour of accepting the uncross-examined evidence, albeit that the court or tribunal is not legally bound to accept that evidence.
9. Mr Jellis, for the Board, submitted that it was not seeking to go so far as to rely on the proposition articulated by Gibbs J (as he then was) in Precision Plastics, that the Tribunal might be bound to accept the complainants' evidence, which was 'uncontradicted and unchallenged in cross examination'. Rather, he submitted that given it was credible, convincing and internally consistent, in the circumstances, the Tribunal should choose to accept it as comprising proof to the standard required.
10. We find that the evidence of Patients 1 and 2 is credible. It is internally consistent. Patient 1's evidence is also corroborated by the contemporaneous file note of the Clinic. Patient 2's evidence is corroborated by the statement of her friend about what happened at the 31 July 2019 appointment. Patient 2's witness statement provides, in her own words, a convincing description of an escalating course of conduct, in terms of the things done and said by Mr Nasser in the successive consultations. We also find her own response to that conduct, as reflected in her statement, to be consistent with her narrative, and credible. In signing her police statement (which is the statement the Board relies on in this proceeding) Patient 2 acknowledged 'that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury'.
11. In discussion in the hearing, we raised three issues with regard to the proofs put forward by the Board concerning allegations by Patient 2. For reasons which follow, however, we are satisfied that none of these detract from the veracity of Patient 2's account.
12. The first is the fact that Patient 2's witness statement refers to her left shoulder, while the clinical notes refer to her right shoulder. We assume the clinical notes are correct. Nevertheless, we do not accord any significance to this disparity. Patient 2 made her statement two years after the consultations in question. The aspects of that complaint which are relevant to this hearing are her account of Mr Nasser's alleged sexualised conduct. Which shoulder it was that was being treated, is of little or no relevance to those matters.
13. The second matter raised in the hearing was the date of the first appointment Patient 2 had with Mr Nasser. Her witness statement refers to this as being on 10 July 2019. However, it appears from the clinical notes that this was in fact on 1 July 2019. Once again, we regard this as immaterial, insofar as proof of the allegations of sexualised conduct are concerned. No untoward conduct is alleged to have occurred at the first appointment. Again, this discrepancy, whether due to a typographical error, lapse in memory or other accidental slip, has no impact on the veracity of Patient 2's account.
14. The third point raised in the hearing concerning Patient 2's response was that she continued to attend Mr Nasser for appointments after the sexualised conduct allegedly commenced. And her report to AHPRA was not made until two years after the conduct occurred. The Board submitted:[15]

That [Patient 2] continued to return to see Mr Nasser over a series of consultations does not undermine her evidence in any way. She had been referred to him by her employer to deal with a workplace injury. She describes in harrowing terms her feelings and attempts to rationalise the behaviour towards her that she recognised as wrong, but did not want to believe to be wrong. This reflects the nature of the power imbalance between a registered physiotherapist and a young female patient as well as the fact that "people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence".

1. We accept that submission. We note that s 52(4) of the Jury Directions Act 2015 (Vic) states (in full):

(4) In giving a direction under this section, the trial judge must inform the jury that experience shows that -

(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and

(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and

(c) delay in making a complaint in respect of a sexual offence is a common occurrence; and

(d) there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.

1. We find that the fact that Patient 2 continued to see Mr Nasser, and that she delayed in making her report, does not diminish the veracity of her evidence.
2. In these circumstances, we are satisfied that the Board has discharged its onus, and that the evidence of the two complainants proves the allegations as to the things Mr Nasser did and said in consultations with Patients 1 and 2 to the requisite standard. We reject Mr Nasser's bare denials, made in January and October 2023.
3. The above analysis, whereby we find that we are satisfied to the requisite degree that the evidence proves the four allegations here, has something in common with the theoretical basis for the second limb in Browne v Dunn. But in the absence of more detailed argument, and clear authority that the principle in Ghosh and Precision Plastics should be applied in the circumstances of this case (in particular, noting that here, the respondent did not appear, and the complainants did not give oral evidence) we do not base our findings specifically on those authorities.
4. We also comment that while we are satisfied in the circumstances of this case, there will be other cases where it will be necessary for the Board to call oral evidence to prove its case.
5. Further elements to allegations 1 and 2 were that the conduct was escalating, and/or without clinical indication or justification, and/or intentional and/or reckless, and/or for a sexual and/or inappropriate and/or for a non-clinical purpose.
6. In relation to these matters, the Board submitted:[16]

(i) There was no clinical need for [Patient 2] to be undressed without underwear;

(ii) There was no clinical need for [Patient 2]'s sexual body parts to be exposed;

(iii) On a number of occasions, Mr Nasser pulled down [Patient 2]'s underwear himself;

(iv) The 'massage' was perceived to be sexual in nature, and escalated such that at times Mr Nasser unnecessarily exposed [Patient 2]'s anus, massaged between her buttocks, touched the outside of her vagina, and massaged her breast near her nipple.

(v) The 'massages' were unrelated to [Patient 2]'s presenting complaint which was shoulder pathology;

(vi) Neither the 'massages' nor the clinical indication or reason for same were recorded in the clinical notes. As Ms Ryan has opined, and as referenced above, 'any clinical justification is poorly defined if not non-existent' - the Board submits it was 'non-existent';

(vii) Mr Nasser never gave [Patient 2] an opportunity to give informed by consent. He did not explain what he intended to do and why. He did not give her a clear opportunity to exercise her own autonomy. This is not to say that if he did, [Patient 2] could have consented to inappropriate/sexually motivated massage or touching and exposure of her sexual body parts. Rather, it is another factor that points to the conclusion that the behaviour was not for the purpose of legitimate physiotherapy treatment;

(viii) Mr Nasser's conduct has a grooming/predatory quality. It slowly escalated over time in terms of the amount of clothing he required to be removed and the nature and extent of the inappropriate touching; and

(ix) Mr Nasser made inappropriate comments and inquiries about her personal circumstances including her relationship status;

1. In light of Ms Ryan's expert evidence (and the Tribunal's own professional expertise) we accept those submissions as correctly characterising the situation. We find that the conduct the subject of allegations 1 and 2 was escalating, without clinical indication or justification, intentional, and for a sexual, inappropriate and non-clinical purpose.
2. With regard to Patient 1, we find that the treatment of her back pain did not require the removal of her underwear and the drape provided was insufficient to maintain her privacy.
3. Finally, the conduct concerning both patients was clearly contrary to the provisions of the Code of Conduct set out in the allegations.[17]
4. We find the four allegations against Mr Nasser proved. [18]

1. The Board also submitted that the findings in Nasser No 1 stand as tendency evidence, which further bolsters the above findings. The above findings have been made without resort to 'tendency' evidence. It is therefore not necessary for us to consider this additional aspect of the Board's submissions.

1. The conduct engaged in by Mr Nasser in relation to Patient 2 was, simply, the exploitation of the power and knowledge imbalance between himself as a registered physiotherapy practitioner, and 19 year old woman, not for a clinical purpose, but for his own gratification.
2. Patient 2's witness statement, which we have accepted, paints a clear picture of his escalating boundary violations, with him becoming bolder and bolder, in terms of both his physical touching, and the things he said (such as comments about her underclothing and asking whether she had a boyfriend, and about her sexuality) over the course of the six consultations.
3. It also describes the dawning realisation by his young patient that what was happening was wrong. Her starting point was the assumption that he was the professional and everything he did was professionally motivated and correct. But as the consultations continued, it became more and more apparent to her that his conduct was inappropriate. She felt uncomfortable. It felt sexual. She felt like it was designed to make her feel 'turned on'. She felt disgusted and violated.
4. Patient 2 resolved between appointments that she would not agree to take her underwear off if he asked her again. However, the way it turned out was that when that point came at the next appointment, she acquiesced. She said:[19]

I didn't give consent for him to touch me like that, it was more him saying "I'm going to do this because of this" and then I went along with it. He didn't specifically ask me if he could.

1. He had the power in that setting. While instinctively she felt it was wrong, she was still unsure, given her lack of experience with such a situation.
2. During the period after the six sessions had been completed, Patient 2 reflected on this, but she was unsure, and said she felt 'defeated'.
3. She spoke to friends, who suggested it was wrong. But it was only when she spoke to a more authoritative figure, namely her counsellor, from December 2020, that she resolved to make her report.
4. As mentioned, the clinical notes do not mention the additional full body massages Mr Nasser gave, nor the extended massages in the vicinity of her buttock, perineal and genital areas. The notes only relate to Patient 2's presenting complaint, her shoulder.
5. We have received a statement from Patient 2 which describes the impact of Mr Nasser's conduct on her. It is profound. She has been adversely affected, including in terms of her mental and physical health, financially, academically and socially.
6. We have no hesitation in finding that Mr Nasser's predatory conduct involving Patient 2 (allegations 1 - 3) was inconsistent with him being a fit and proper person to hold registration as a physiotherapist. Accordingly, we find that it constitutes professional misconduct within the meaning of (c) of the definition of that term in the National Law.
7. With regard to Patient 1, the Board submitted that it was fortunate that she took firm action immediately upon being requested to do something inappropriate, namely remove the leggings and underwear. Patient 1 had long experience of being treated for her back condition by physiotherapists, and she said she had never been asked to remove her pants before.
8. As we have found, it was not clinically indicated for Mr Nasser to seek that Patient 1's clothing be removed for the purposes of treating her particular condition. Nor was it appropriate for him to persist with his request (albeit only briefly) or to provide only a hand towel as a modesty covering.
9. We find that the contact the subject of allegation 4 comprises professional misconduct within the meaning of (a) of the definition of that term in the National Law. That is, it is conduct which was substantially below the standard reasonably expected of a registered physiotherapist of Mr Nasser's level of training and experience.

1. The primary considerations in making determinations are the protection of the public, and maintaining ethical and professional standards and the good reputation of the profession in the eyes of the public. Both general and specific deterrence are to be considered. The likelihood of the conduct occurring again should be a central consideration. Related to this, the extent to which the practitioner has acquired insight is relevant to the degree of continuing risk posed by the practitioner. This includes an understanding of the nature of the conduct which was engaged in, accepting it was wrong, an appreciation of why it occurred and how it will be avoided in future, empathy with the victims and a genuine preparedness to undertake steps to avoid future transgressions. [20]
2. Where serious breaches of professional and ethical obligations occur, orders which preclude the practitioner from practising for a specified period are appropriate for the purposes of general and specific deterrence.
3. First, in relation to allegation 4, the Board submitted that it is sufficient that a reprimand be imposed. It said that given Mr Nasser is currently not registered, and noting the orders made in Nasser No 1, there are no further orders that need to be made with respect to his behaviour concerning Patient 1. Noting in particular that the conduct involving Patient 1 did not progress beyond an inappropriate request for her to remove her pants and underpants, which request was rejected, we agree.
4. With regard to Patient 2, the Board submitted that a reprimand and lengthy disqualification period is justified on the following basis:[21]

(a) First, the inherent seriousness of the conduct which requires a determination that serves the purposes of specific and general deterrence and is sufficient to maintain public confidence in the profession;

(b) Second, that by reason of [Nasser No 1] Mr Nasser has a relevant disciplinary history;

(c) Third, Mr Nasser has shown no insight, contrition or remorse;

(d) Fourth, Mr Nasser is not an appropriate person to be held out as a registered health practitioner, nor a person who can safely provide health services. There is a demonstrable risk that he will exploit patients for his own sexual interest or gratification.

1. In oral submissions, the Board suggested that it might be arguable that the conduct in this matter was equivalent to that in Nasser No 1, in terms of seriousness. It was said the conduct here had persisted after the warning given to Mr Nasser by his employer consequent upon Patient 1 making her complaint.
2. The Board acknowledged, however, that Nasser No 1 involved penetration of the patient's vagina, and alteration of the clinical record to seek to cover his tracks. In our view, those matters render that conduct more serious. The Board also in oral argument noted that there were two patients involved here. However, we have already dealt with the question of determinations in relation to the conduct concerning Patient 1 (allegation 4) above.
3. Also, the conduct the subject of Nasser No 1 is not technically a 'prior' matter. The conduct here occurred before the determinations were made in Nasser No 1 (on 8 December 2023).[22]
4. Nevertheless, the conduct involving Patient 2 was a serious, exploitive breach of professional obligations. It is highly damaging to the reputation of the profession. Mr Nasser has absented himself from the hearing process, so there is nothing available in mitigation for the Tribunal to take into account. There is no indication of any insight at all, given that position he has conveyed is one of denying the allegations. General and specific deterrence both have a significant role to play. In the circumstances, a significant time out of practice needs to be imposed, in addition to a reprimand.
5. In Nasser No 1, the Tribunal ordered that Mr Nasser be disqualified from applying for registration for a period of eight years. The period expires on 8 December 2031. The Board's submission is that he should now be disqualified for an additional six years after that.
6. In our view, it is appropriate for the Tribunal to impose an additional period which is cumulative upon, rather than concurrent with, the eight years already imposed.
7. However, some consideration ought to be given to the totality of the disqualifications imposed across the two proceedings (as occurred in Medical Board of Australia v Datta[23] and in Dental Board of Australia v Dhillon[24]). A six year disqualification as sought by the Board would amount to a total of 14 years' disqualification.
8. This would produce an outcome which is disproportionate, when compared, for example, to a number of the decisions summarised in Medical Board of Australia v Hmood[25] (all of which are relatively recent).
9. In summary, in considering a period of disqualification to be ordered in this case, we take into account our analysis above of the nature of the conduct, and we also make an allowance which takes into account the fact that Mr Nasser is already subject to an eight year disqualification. He will of course have the opportunity to develop insight over that eight year period concerning his actions with regard to Patient 2 as well. Balancing these matters, we determine that Mr Nasser should be disqualified for an additional period of four years, to commence upon the completion of the present disqualification on 8 December 2031. Thus, the total period of disqualification is 12 years, up to 8 December 2035.
10. We note that an order is already in force prohibiting Mr Nasser from providing any health service until such time as he is registered as a health practitioner (made in Nasser No 1).
11. Finally, we note that in the Nasser No 1 decision, it was said that Mr Nasser wished to move on from physiotherapy, but to retain the possibility of re-entering the profession later in life. Given his non-participation in this proceeding, we do not know whether that is still his position. He is still a young man. However, there is an enormous gulf between what the findings in this case and in Nasser No 1 reveal about his character, conduct and fitness, and what he would be required to demonstrate that he is a fit and proper person to be registered, should he seek to make an application for registration in the future.

The allegations in respect of Imad Nasser (Mr Nasser) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Physiotherapy Board of Australia (Board) pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (National Law) are:

(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, between on or about 10 July 2019 and 7 October 2019, Mr Nasser failed to ensure proper boundaries and/or failed to obtain any or adequate informed consent and/or failed to ensure the privacy of his then patient, Patient 2, in that:

(i) over the course of consultations with Patient 2, he variously asked Patient 2 to remove and/or himself moved or removed items of Patient 2's clothing, including:

• (A) with respect to Patient 2's bra:
  • (I) asked Patient 2 to remove her bra; and/or
• (B) with respect to Patient 2's underwear:
  • (I) moved or removed Patient 2's underwear to expose her genitals and/or buttock:

(2) on at least two occasions, did so without asking; and/or

(ii) over the course of consultations with Patient 2 he failed to adequately drape Patient 2; and/or

(iii) he failed to obtain any or adequate informed consent before Patient 2's underwear and/or bra were removed;

in circumstances where the conduct the subject of particulars (i) and/or (ii) and/or (iii) was:

• (A) escalating; and/or
• (B) without clinical indication or justification; and/or
• (C) intentional and/or reckless; and/or
• (D) for a sexual and/or inappropriate and/or for a non-clinical purpose.

(i) at all material times Mr Nasser was:

• (A) a registered physiotherapist; and
• (B) was employed at [the Clinic];

(ii) between on or about 10 July 2019 and 7 October 2019, Patient 2 attended approximately six physiotherapy sessions with Mr Nasser at [the Clinic] for the purpose of seeking treatment for an acute right shoulder injury, sustained while lifting at work;

(iii) during the course of physiotherapy sessions with Mr Nasser, Mr Nasser identified that Patient 2 had 'well-managed' scoliosis and hip/gluteal muscle tightness;

(iv) prior to or during the course of physiotherapy treatment on various of the occasions identified in particular (ii) above:

• (A) Mr Nasser variously requested Patient 2 to remove and/or himself moved or removed items of Patient 2's clothing, including:
  • (I) with respect to Patient 2's bra:

(1) during the consultation occurring on 16 September 2019, Mr Nasser:

1. asked Patient 2 to remove her bra; and
2. massaged Patient 2's pectoral muscles and upper body (including breast area);
   • (II) with respect to Patient 2's underwear:

(1) during the consultation occurring on 31 July 2019, Mr Nasser moved Patient 2 underwear to expose her buttocks, without asking Patient 2's permission to do so;

(2) during the consultation occurring on 2 September 2019, Mr Nasser:

1. asked Patient 2 if he could remove her underwear;
2. lowered Patient 2's underwear down to her mid-thigh area;

(3) during the consultation occurring on 16 September 2019, Mr Nasser:

1. asked Patient 2 if her could remove her underwear;
2. removed Patient 2's underwear;

(4) during the consultation occurring on 7 October 2019, Mr Nasser:

• (B) the treatment of Patient 2's conditions identified in particulars (ii) and (iii) above did not reasonably require the removal of Patient 2's bra or underwear;

(v) in the course of a number of physiotherapy consultations identified in particular (ii) above, Mr Nasser failed to ensure that Patient 2 was appropriately draped to adequately maintain Patient 2's privacy, including:

• (A) on or about 31 July 2019:
  • (I) Patient 2 was undressed to her underwear;
  • (II) Patient 2 was draped with a single towel;
  • (III) during the course of Mr Nasser massaging Patient 2, whilst Patient 2 was lying in the prone position, the towel that Patient 2 was draped with was removed intermittently and Patient 2's underwear was exposed;
• (B) on or about 2 September 2019:
  • (I) Patient 2 was undressed to her underwear;
  • (II) Patient 2 was intermittently draped with a single towel;
  • (III) during the course of Mr Nasser massaging Patient 2, Mr Nasser lowered Patient 2's underwear whilst Patient 2 was lying in the prone position;
  • (IV) the towel that Patient 2 was draped with was removed during the course of the massage, exposing Patient 2's buttocks, anus and vulva;
• (C) on or about 16 September 2019:
  • (I) Patient 2 was undressed to her underwear;
  • (II) Patient 2 was draped with a single towel covering her torso;
  • (III) at some point during the consultation (before the matters set out at particular (VI) below), Mr Nasser asked Patient 2 to remove her bra, and Patient 2 complied;
  • (IV) during the course of Mr Nasser massaging Patient 2:

(1) Mr Nasser removed Patient 2's underwear whilst Patient 2 was lying in the prone position;

(2) Mr Nasser lifted the towel to just above Patient 2's buttocks area, exposing Patient 2's buttocks and anus;

• (V) Mr Nasser then asked Patient 2 to turn over and began to massage her pectoral muscles;
• (VI) Patient 2 turned on to her back and had a towel covering her;
• (VII) as Mr Nasser was massaging Patient 2's pectoral muscles, Patient 2 chest was exposed and her breasts were within Mr Nasser's view, in that:

(1) the towel had been placed just above Patient 2's nipples; and

(2) Mr Nasser lifted the towel so Patient 2's breasts were exposed; and

• (D) Mr Nasser's conduct as set out in particulars (i) to (iv) above is in breach of the Code of Conduct for registered practitioners (version effective from 17 March 2014 to 29 June 2022) (Code) (see Schedule 1), particularly 3.2, 3.3 and 3.5 of the Code and otherwise inconsistent with his professional obligations and the expectations of the public and/or his peers and/or was conduct that is inconsistent with suitability to practise.

(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 dates between on or about 15 July 2019 and 7 October 2019, in the course of physiotherapy consultations, Mr Nasser inappropriately and/or sexually touched his then patient, Patient 2, multiple times, in circumstances where the conduct was:

(i) without clinical indication or justification;

(ii) intentional and/or reckless; and/or

(iii) in a manner that was sexual and/or inappropriate and/or for a non-clinical purpose.

(i) the Applicant refers to and repeats particulars (i) to (iii) of Allegation 1 above;

(ii) during the consultation on 15 July 2019:

• (A) Mr Nasser gave Patient 2 a fully body massage;
  • (B) Mr Nasser massaged Patient 2's outer thighs and both of her outer buttocks area;

(iii) during the consultation occurring on 31 July 2019:

• (A) Mr Nasser gave Patient 2 a full body massage;
• (B) when Mr Nasser got to Patient 2's hip area, he massaged the inner part of her buttocks, under her buttocks and in between her inner thighs with both of his hands;
• (C) the massaging of Patient 2's buttocks lasted for approximately five minutes;
• (D) Mr Nasser pushed Patient 2's underwear up as he was massaging her so her underwear became wedged between the cheeks of her buttocks;
• (E) Mr Nasser concluded the massage with a massage of Patient 2's pectoral muscles.

(iv) during the consultation occurring on 2 September 2019, and after Mr Nasser had removed Patient 2's underwear;

• (A) Mr Nasser started massaging Patient 2's hips with both hands, pulling her buttock cheeks apart to expose her anus and vulva;
• (B) Mr Nasser got closer to Patient 2's vulva and rubbed the outside of her vagina;
• (C) Mr Nasser rubbed and pressed very firmly;
• (D) the part of the massage described in particulars (iii)(A) to (C) above, lasted for approximately five to ten minutes, during which time Mr Nasser did not speak to Patient 2;

(v) during the consultation occurring on 16 September 2019 and after Mr Nasser had removed Patient 2's underwear:

• (A) Mr Nasser rubbed Patient 2's hips and worked his way to Patient 2's crotch area;
• (B) Mr Nasser rubbed Patient 2's buttocks and inner thighs and in between the cheeks of her buttocks;
• (C) Mr Nasser was very close to Patient 2's anus and touched the outside of her vagina;
• (D) Mr Nasser pulled Patient 2's buttock cheeks apart and massaged Patient 2 with both his hands;
• (E) the part of the massage described in particulars (iv)(A) to (D) above lasted for approximately five minutes;
• (F) Patient 2 then turned over into the supine position, and Mr Nasser commenced massaging Patient 2's breasts including the area above Patient 2's nipples;
• (G) the part of the massage described in particular (iv)(F) above lasted for approximately three to four minutes;

(vi) during the consultation occurring on 7 October 2019 and after Mr Nasser had removed Patient 2's underwear, Mr Nasser, in broadly the same manner as the consultation occurring on 16 September 2019:

• (A) massaged Patient 2's buttocks;
• (B) touched the outside of Patient 2's vagina and anus area.

(vii) there was no clinical indication or justification for the touching of Patient 2's buttocks, vulva, or anus areas in the manner described in particulars (ii) to (vi) above; and

(viii) Mr Nasser's conduct as set out in particulars (i) to (vii) above is in breach of the Code (see Schedule 1), particularly 1.2, 3.1, 8.1 and 8.2 of the Code and otherwise inconsistent with his professional obligations and the expectations of the public and/or his peers and/or was conduct that is inconsistent with suitability to practise.

(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 dates between on or about 31 July 2019 and 7 October 2019, in the course of physiotherapy consultations, Mr Nasser failed to ensure proper boundaries and/or made in inappropriate comments or asked inappropriate questions of his then patient, Patient 2, for a non- clinical purpose, in that he:

(i) commented on clothing worn by Patient 2; and/or

(ii) commented on Patient 2's underwear; and/or

(iii) asked Patient 2 questions about her sexual orientation.

(i) the Applicant refers to and repeats particulars (i) to (iii) of Allegation 1 above;

(ii) during the consultation occurring on 31 July 2019, Mr Nasser stated to Patient 2 that her outfit looked like it was from a 'Wish' advertisement;

(iii) during the consultation occurring on 2 September 2019, Mr Nasser stated to Patient 2 that he thought her underwear looked very expensive and/or that her underwear was very pretty;

(iv) during consultations occurring on dates between on or about 31 July 2019 and 7 October 2019, Mr Nasser:

• (A) asked Patient 2 whether she had a boyfriend;
• (B) asked Patient 2 about her sexuality;

(v) there was no clinical purpose or justification for the comments made or questions asked by Mr Nasser of Patient 2 during the course of the physiotherapy consultations described in particulars (ii) to (iv) above; and

(vi) Mr Nasser's conduct as set out in particulars (i) to (iv) above is in breach of the Code (see Schedule 1), particularly 1.2, 3.1, 8.1 and 8.2 of the Code and otherwise inconsistent with his professional obligations and the expectations of the public and/or his peers and/or was conduct that is inconsistent with suitability to practise.

(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 18 March 2019, in the course of a physiotherapy consultation with his then patient, Patient 1, Mr Nasser failed to ensure proper boundaries in that he:

(i) requested that Patient 1 remove her underwear, for the purpose of receiving physiotherapy treatment, in circumstances where the request to remove her underwear was without clinical indication or justification; and/or

(ii) failed to offer adequate privacy aides and/or adequate drapes.

(i) at all material times Mr Nasser was:

• (A) a registered physiotherapist; and
• (B) was employed at [the Clinc];

(ii) on or about 18 March 2019, Patient 1 attended a physiotherapy session with Mr Nasser at [the Clinic] for the purpose of obtaining treatment for back pain;

(iii) during the course of the consultation identified in particular (ii) above:

• (A) Patient 1 was wearing a light t-shirt, sports bra and tight yoga pants;
• (B) Mr Nasser requested that Patient 1 remove her top;
• (C) Patient 1 removed her clothing down to her bra and pants, whilst Mr Nasser remained in the room;
• (D) Mr Nasser then asked Patient 1 to remove her underwear;
• (E) Patient 1 asked Mr Nasser why it was necessary for her to remove her underwear;
• (F) Mr Nasser indicated it was necessary so that he could work on the backs of Patient 1's legs and that Patient 1 could remove her pants and keep her underwear on if that was her preference;
• (G) Mr Nasser offered Patient 1 a hand towel to cover herself and did not offer Patient 1 a gown or alternate draping;
• (H) Patient 1 refused to remove her pants or underwear;
• (I) Mr Nasser provided treatment to Patient 1;

(i) the treatment provided to Patient 1 did not reasonably require the removal of Patient 1's underwear in order to enable the treatment to be provided;

(ii) the item identified in particular (iii)(H), which was proposed to be used to drape Patient 1 was not sufficient and/or adequate to maintain Patient 1's privacy; and

(iii) Mr Nasser's conduct as set out in particulars (i) to (ii) above is in breach of the Code (see Schedule 1), particularly 1.2, 3.1, 8.1 and 8.2 of the Code and otherwise inconsistent with his professional obligations and the expectations of the public and/or his peers and/or was conduct that is inconsistent with suitability to practise.

While individual practitioners have their own personal beliefs and values, there are certain professional values on which all practitioners are expected to base their practice. These professional values apply to the practitioner's conduct regardless of the setting, including in person and electronically, e.g. social media, e-health etc.

Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy.

Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients or clients also rely on practitioners to protect their confidentiality.

Practitioners have a responsibility to protect and promote the health of individuals and the community.

Good practice is centred on patients or clients. It involves practitioners understanding that each patient or client is unique and working in partnership with patients or clients, adapting what they do to address the needs and reasonable expectations of each person. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, and recognising that these cultural differences may impact on the practitioner-patient/client relationship and on the delivery of services. Good practice also includes being aware that differences such as gender, sexuality, age, belief systems and other anti-discrimination grounds in relevant legislation may influence care needs, and avoiding discrimination on the basis of these differences.

Effective communication in all forms underpins every aspect of good practice.

Professionalism embodies all the qualities described here and includes self-awareness and self- reflection. Practitioners are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients or clients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles; for example, practitioners, researchers and managers will all have quite different competence and scopes of practice. To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience to provide advice on over the counter and scheduled medicines, herbal remedies, vitamin supplements, etc.

Practitioners should be committed to safety and quality in healthcare (the Australian Commission on Safety and Quality in Health Care is at www.safetyandquality.gov.au - also see the references section at the end of this code).

Relationships based on respect, trust and good communication will enable practitioners to work in partnership with patients or clients.

A good partnership between a practitioner and the person they are caring for requires high standards of personal conduct.

a) being courteous, respectful, compassionate and honest

b) treating each patient or client as an individual

c) protecting the privacy and right to confidentiality of patients or clients, unless release of information is required by law or by public interest considerations

d) encouraging and supporting patients or clients and, when relevant, their carer/s or family in caring for themselves and managing their health

e) encouraging and supporting patients or clients to be well-informed about their health and assisting patients or clients to make informed decisions about their healthcare activities and treatments by providing information and advice to the best of a practitioner's ability and according to the stated needs of patients or clients

f) respecting the right of the patient or client to choose whether or not they participate in any treatment or accept advice, and

g) recognising that there is a power imbalance in the practitioner-patient/client relationship

h) and not exploiting patients or clients physically, emotionally, sexually or financially (also see Section 8.2 Professional boundaries and Section 8.12 Financial and commercial dealings).

An important part of the practitioner-patient/client relationship is effective communication. This involves:

a) listening to patients or clients, asking for and respecting their views about their health and responding to their concerns and preferences

b) awareness of health literacy issues and taking health literacy into account and/or adjusting their communication in response

c) encouraging patients or clients to tell a practitioner about their condition and how they are managing it, including any other health advice they have received, any prescription or other medications they have been prescribed and any other therapies they are using

d) informing patients or clients of the nature of and need for all aspects of their clinical care, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment

e) discussing with patients or clients their condition and the available healthcare options, including their nature, purpose, possible positive and adverse consequences, limitations and reasonable alternatives wherever they exist

f) endeavouring to confirm that a patient or client understands what a practitioner has said

g) ensuring that patients or clients are informed of the material risks associated with any part of a proposed management plan

h) responding to questions from patients or clients and keeping them informed about their clinical progress

Informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved. A useful guide to the information that practitioners need to give to patients is available in the National Health and Medical Research Council (NHMRC) publication General guidelines for medical practitioners in providing information to patients (www.nhmrc.gov.au). The NHMRC guidelines cover the information that practitioners should provide about their proposed management or approach, including the need to provide more information where the risk of harm is greater and likely to be more serious and advice about how to present information.

a) providing information to patients or clients in a way they can understand before asking for their consent

a) obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving patients or clients in teaching or research, including providing information on material risks

b) when referring a patient or client for investigation or treatment, advising the patient or client that there may be additional costs, which they may wish to clarify before proceeding

c) when working with a patient or client whose capacity to give consent is or may be impaired or limited, obtaining the consent of people with legal authority to act on behalf of the patient or client and attempting to obtain the consent of the patient or client as far as practically possible

d) being mindful of additional informed consent requirements when supplying or prescribing

e) products not approved or made in Australia, and

f) documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.

In professional life, practitioners 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.

The guidance contained in this section emphasises the core qualities and characteristics of good practitioners outlined in Section 1.2 Professional values and qualities.

Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship.

Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties.

a) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; this includes those close to the patient or client, such as their carer, guardian, spouse or the parent of a child patient or client

b) recognising that sexual and other personal relationships with people who have previously

c) been a practitioner's patients or clients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client, and

d) avoiding the expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress.

[1] The National Law as applicable in Victoria is set out in a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] Physiotherapy Board of Australia v Nasser [2023] VCAT 1364 (Nasser No 1).

[3] In Nasser No 1 (at [16]) the Tribunal determined that it was not necessary to make an order under the Open Courts Act 2013 (OCA) to protect the identity of the patient. Here, the Board's position was that the Tribunal may choose to take the same course. In the absence of indications that there is a particular reason to do so in this proceeding and noting that there is an order in place under s 146(4)(b) closing the file to public inspection, and that information which might tend to identify the patients has been expressed in generic terms where appropriate, we have not made an OCA order.

[4] Internal memorandum of the Clinic, 19 March 2019, Tribunal Book (TB) 96.

[6] Being the Australian Health Practitioner Regulation Agency, which assists health practitioner Boards in the conduct of their functions.

[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw). See further Medical Board of Australia v Alkazali [2017] VCAT 39. And see ie Medical Board of Australia v Lagrange [2021] WASAT 161 at [24]; Medical Board of Australia v McCarthy [2020] WASAT 12.

[12] [2020] NSWCA 122, 102 NSWLR 303, Brereton JA, Emmett and Simpson AJJA.

[13] [1975] HCA 27, (1975) 132 CLR 362, Gibbs J, with whom Stephen and Murphy JJ agreed) (Precision Plastics).

[17] Under s 41 of the National Law, that Code is admissible as evidence of what constitutes appropriate professional conduct for the profession.

[18] As discussed in the hearing, Particular (iii) of allegation 1 is not accurate, in that the reference to 'well-managed scoliosis' was by a different practitioner, who initially saw Patient 2. However, this is merely background, and is of no significance.

[20] See Medical Board of Australia v Jansz [2011] VCAT 1026, at [358]-[373].

[22] The conduct in Nasser No 1 itself partially overlapped with the conduct here. The final two consultations with Patient 2 occurred on 16 September and 7 October 2019. This overlaps with the two applicable consultations in Nasser No 1, on 16 September and 4 November 2019.

[23] [2024] VCAT 28 at [81].

[24] [2018] WASAT 107 at [29]- [35].

[25] [2023] VCAT 603 at [31] and [32].

[26] The allegations have been modified by the Tribunal to refer to 'Patient 1' and 'Patient 2' as appropriate.