• previous AHPRA notifications concerning his practice were of little or no relevance;
• his actions were clinically justified and any allegations of improper or sexually motivated conduct could be explained by deficiencies in communication and the procurement of consent;
• immediate action was not necessary and in the alternative, lesser immediate action (by way of mentoring) would be sufficient.

• The previous AHPRA notifications were not irrelevant;
• A requirement for mentoring would not sufficiently protect female patients or the public interest to the requisite degree and, in any event, mentoring had occurred previously and did not prevent the conduct giving rise to the notifications in question;
• There was no basis on which to conclude that the applicant would adequately self-regulate his own behaviour.
• There was a serious risk that the applicant would act with a sexual motivation, or for his own sexual gratification, in the context of a consultation with a female patient.
• The immediate action taken by the Board was necessary to protect the public interest.

Health Practitioner Regulation National Law (South Australia) Act 2010 - Review a decision of the Physiotherapy Board of Australia - Immediate action - Conditions imposed on registration - Gender-based restrictions - Allegations of improper or sexually motivated conduct

Health Practitioner Regulation National Law (South Australia) ss 151, 156, 160, 178, 181, 182, 193, 199

Health Practitioner Regulation National Law (South Australia) Act 2010 s 4

South Australian Civil and Administrative Tribunal Act 2013 s 34

Cheema v MBA [2020] SACAT 40

Farshchi v Chinese Medical Board of Australia [2018] VCAT 1617

Yap v MBA [2019] SACAT 55

Re OMQ [2017] SACAT 8

M v M (1988) 166 CLR 69

BKE v Office of the Children's Guardian [2015] NSWSC 523

Children's Guardian v CFW [2016] NSWSC 1406

Children's Guardian v CXZ [2019] NSWSC 1083

GJC v Department of Human Services [2020] SACAT 38

Kosanoglu v Pharmacy BA [2012] VSCA 295

Mr S Reid with Mr S Dawson for the applicant (by video link)

The Tribunal has made an order pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of, or any material tending to identify, the patients referred to in any document filed before the Tribunal or any submission made to the Tribunal.

1. Mr Ashley Smith (the applicant) is registered as a physiotherapist under the Health Practitioner Regulation National Law (South Australia) (the National Law). The National Law is found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act). Section 4 of the Act provides that the National Law forms part of the law of this jurisdiction.
2. The applicant is the franchisee of a "Back in Motion" physiotherapy practice at Prospect. He works as the senior physiotherapist in the practice. His wife is the Administration Manager.
3. Notifications were made to the Australian Health Practitioner Regulation Agency (AHPRA) on 23 March 2020 and 15 April 2020 concerning alleged conduct by the applicant. After conducting a "show cause" process, the respondent (the Board) decided on 14 May 2020 to take immediate action under s 156 of the National Law by imposing conditions on the applicant's registration. Essentially, the conditions required the applicant to refrain from treating any female patients (gender-based restrictions). In imposing these conditions, the Board had regard to the allegations made in the recent notifications as well as two previous matters that it had been notified about. The Board acted in reliance on the provisions of s 156(1)(a) of the National Law.
4. The applicant lodged an appeal under s 199 of the National Law. The South Australian Civil and Administrative Tribunal is the responsible tribunal designated to hear such an appeal.[1] The appeal is to be heard as an application for review in accordance with the provisions of s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).[2]

1. The nature of the appeal under s 199 was considered in some detail by the Tribunal in Cheema v MBA [2020] SACAT 40. We adopt, without repeating, the analysis in that case.
2. The review is to be conducted as a rehearing. The Tribunal must have regard to the material before the Board but has a discretion to receive further material on review. The Tribunal must give appropriate weight to the decision of the Board but, in the end, must conduct a merits review and come to the correct or preferable outcome.[3]
3. The Tribunal must stand in the shoes of the Board and carry out the task required by s 156. In the current matter, the Tribunal must consider whether it has a reasonable belief as set out in that section. If so, it must determine the correct or preferable immediate action in the circumstances.[4]
4. The scope of the enquiry is limited. It concerns whether action is to be taken on an urgent basis because of the need to protect the public. It is not an occasion for a de facto disciplinary hearing.[5]

1. Section 156(1) of the National Law relevantly provides:

A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -

(a) 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; or

....

(e) the National Board reasonably believes the action is otherwise in the public interest.

**Example of when action may be taken in the public interest - **

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

1. In the proceedings before this Tribunal, the Board sought to rely on par (e) of s 156(1), as well as par (a). The applicant submitted that this was not permissible and that the Board was restricted to the basis on which it had made the decision subject to review. We do not accept this submission. The review is by way of rehearing and the Board may seek to justify its decision by use of the alternative provision. Farshchi v Chinese Medical Board of Australia is an authority to that effect.[6]
2. In Cheema, the Tribunal considered the principles applicable to the determination of an appeal from a decision under s 156.[7] We adopt that analysis. We note the approach to be taken to the formation of a reasonable belief as required by s 156.[8]

1. There was no dispute as to the material tendered before the Tribunal. Most of that material was before the Board when it made its decision. The additional material was received by consent.
2. The Tribunal received a Book of Documents which was marked as Exhibit R1. The Board relied on this material as demonstrating the "objective circumstances" sufficient to found the reasonable belief.
3. We also received and have had regard to a video produced by the applicant to illustrate his explanation of aspects of the matter.[9]
4. Finally, we received a copy of email correspondence between the applicant and his franchisor, highlighting action taken by the franchisor as a result of the current matters.[10] We shall refer to this correspondence later in these Reasons.

1. As stated, the Board relied on allegations concerning four patients. We will review the evidence concerning each. We will refer to the patients in the same way as the Board has in its submissions (patients A, B, C and D) but we will discuss them in a chronological rather than alphabetical order.

Patient C - Notification 00344339 made on 10 January 2017

1. Patient C consulted the applicant on 22 November 2016 after having previously received treatment from another physiotherapist. She was seeking treatment for her pelvis.
2. Her notification[11] records that the applicant asked her to remove her top. She asked why that was necessary. The applicant stated that he needed to see her back. She asked whether there was a robe available. The applicant said there was not. He made no attempt to leave the room for her to undress or to offer a towel or any other covering. The patient felt uncomfortable and did not remove her top.
3. This was the only occasion she saw the applicant. She stated that she had lodged the notification in the hope that the applicant might realize how such situations could make females feel uncomfortable and that he might amend his procedures.[12]
4. The applicant provided a response to the notification dated 6 February 2017.[13] He stated that he suspected a spinal problem and wished to check her spine for asymmetries.
5. The applicant stated that previously the clinic had had a special gown available for female patients, but such was not available on this occasion as "we'd not had clients requesting it for a while". If the gown was not available, the applicant indicated that he would ask the patient to turn and face away from him and remove her top. It could be put back on after the spinal inspection or a towel might be offered if treatment on the treatment table was required. He confirmed that this patient declined to take off her top.
6. He indicated that the clinic had responded to the notification by making sure gowns were always available in the future.
7. In further conversation with an investigator, the applicant acknowledged that he should have explained the procedure before asking the patient to remove her top.[14]
8. In considering this matter the Board noted the applicant's acknowledgement that he should have explained the procedure better and his assurance that robes would be provided in future. The Board decided (and informed the applicant by letter dated 3 March 2017) that it would take no further action.[15]

Patient D - Notification 00375848 made on 7 February 2018

1. Patient D attended for treatment by the applicant on 24 January 2018. On 5 February 2018 solicitors wrote on her behalf to the central office of the Back in Motion franchisor in Victoria, making a complaint of sexual harassment against the applicant. The letter indicated that the patient reserved her right to make a complaint to regulatory bodies.[16]
2. In these circumstances, the applicant self-reported the complaint to AHPRA.[17]
3. The patient provided a signed statement dated 16 April 2018 in support of the allegations made in her solicitor's letter.[18] The key features of her account are as follows:

(a) She injured her lower back early on 24 January 2018 and suffered significant pain and restriction. She arranged an appointment with the applicant. She had not seen him previously. On arrival she completed paperwork, including a medical history.

(b) The applicant asked about her boyfriend, which she regarded as unwelcome, unnecessary, and unprofessional.

(c) The applicant asked if she was pregnant and responded to her reply by saying: "Not that you know of...You're probably too young for that anyway".

(d) The applicant directed her to sit in a chair backwards. The applicant was behind her back. Without informing her, the applicant then reached around her waist from behind and unbuttoned the top two buttons of her shorts and then unzipped her shorts. She put her hand on her zip to cause him to stop.

(e) The applicant then, without informing her or seeking consent, rolled down the back of her shorts, exposing her buttocks.

(f) The applicant did not seek or obtain any permission to undress her. He did not advise her that it was necessary to do so and gave her no warning or opportunity to adjust the clothing herself.

(g) The applicant applied strapping to her back. Without informing her in advance, he then took a photograph of the strapping of her back on a mobile phone. He showed the photograph to her.

(h) The applicant asked to see her again the next day, before working hours. She chose to make an appointment for the afternoon to ensure other staff would be present. She later cancelled the appointment.

(i) She was distressed and anxious due to the applicant's conduct and had a car accident later that day.

(j) On the following day she had two missed calls from Back in Motion and received a text message from the applicant. It stated that he had tried to call her and added: "How'd you pull up overnight? I was a bit concerned when you rang and cancelled as the Admin couldn't tell me why. Hope you were ok with my care."[19]

(k) The patient felt "completely violated, harassed, humiliated and stressed" by the applicant's actions.

1. In his self-report[20] the applicant suggested that he asked about the boyfriend to see if there was someone at home to assist. He asked about pregnancy as he intended to use interferential treatment and was being cautious. He realized the patient seemed uncomfortable about that question and his reply was to the effect that there would be plenty of time (presumably for pregnancy).
2. After the strapping, he had offered to use his phone to show her what he had done. The photo showed only the taped area. The patient indicated she was happy with the treatment. When she cancelled the next day, he made a courtesy call and emailed. Her complaint had left him feeling quite nauseous.
3. Interestingly, the applicant made no mention in the self-report of the allegation that he had undressed the patient.
4. At the invitation of AHPRA the applicant responded further by letter dated 19 February 2018.[21] He provided a copy of the "retrieved" photo of the patient's back.[22]
5. In this response, the applicant stated that it may have assisted the patient if he had more adequately explained the reasons for his questions, treatment and actions. He refuted the suggestion of any inappropriate purpose.
6. He stated:[23]

In relation to my unbuttoning of the top two buttons and my unzipping of [the patient's] shorts to aid in the placement of the wet pad, I should have better explained to [the patient] that I was unable to place the lower two wet pads below her pelvic rim whilst her shorts were buttoned up. I should have sought [the patient's] assistance and/or permission to loosen and lower her shorts before doing so.

1. The applicant also stated that he had only telephoned the patient once after she cancelled the appointment and that was a common practice for him. In other respects, his response was consistent with the information set out in his self-report.
2. AHPRA decided to conduct a formal investigation. At AHPRA's request, the applicant provided a further letter dated 23 April 2018.[24] In that document he relevantly stated:

In relation to obtaining [the patient's] consent to unbutton the top of her shorts to gain access to her pelvic rim, this was in part implied by my explanation of the therapy (and placement of the pads) but was not formal or detailed as I appreciate the Board may expect.

1. In this response the applicant also stated[25] that:

Prior to taking the photo, I specifically recall advising [the patient] that I was going to take a photograph of the taped area of her back but I accept that I did not specifically stop what I was doing, ask for her permission to do so and await her agreement to proceed.

1. After conducting a "show cause" process,[26] the Board determined[27] that the failure to obtain consent to unbutton the top of the patient's shorts and to expose her buttocks was inappropriate and contrary to the Code of Conduct. Similarly, the Board found that the failure to obtain permission to take the photograph was a breach of the Code. The Board also found that the applicant's communication with the patient was deficient and inappropriate. The Board imposed conditions on the applicant's registration under s 178 of the National Law. Those conditions required the applicant to undertake mentoring sessions to address the identified deficiencies.[28]
2. The mentoring sessions took place over four sessions between October 2018 and February 2019. Reports were provided to the Board by the mentor.[29] The applicant provided his own reflection.[30] We note the content of these reports. In particular, we note the following comments of the mentor:

He accepted that undoing of the patient's clothing like he did is inappropriate, and certainly in this context invaded her personal space.[31] ...

Regarding physical contact and appropriate contact during sessions. Ashley confirmed that he had to be diligent in this context and whilst his character was to engage clients with touch, he now purposely puts his hands in his pockets or keeps his arms folded, to avoid any unwanted touch. I discussed the undoing of the trousers and he accepted that he erred in this regard. And so, he was aware in general to be vigilant with all clients in this respect.[32]

He accepts and complies with proper consents throughout all consults now, verbalising this clearly for all patients. All questions he puts to the client have explanation, and he avoids any familiar comments as occurred in the consult in question.[33]

1. In his reflection following the final session the applicant acknowledged that:

...this whole process has had me think more acutely on how my interactions may be perceived by clients. I am more aware of the level of detailed communication required.[34]

1. The Board released the applicant from the conditions on his registration on 5 April 2019.[35] It is against this background that the more recent concerns arose in early 2020.

Patient A - Notification 00438941 made on 23 March 2020

1. Patient A consulted the applicant on one occasion on 5 March 2020. She presented with back pain causing migraine and continuing pains from recent pregnancy.
2. In her notification she stated that:

(a) The applicant asked her to take off her shirt and bra and wear a gown. He left the room whilst she did so.

(b) The applicant asked her to lie on her front on the treatment table and she commented that it was difficult as she had painful breasts from breast-feeding. He offered to put a pillow under her.

(c) As she was lowering herself on the table, he put his hand under her breasts, touching them.

(d) She was shocked and confused and thought maybe it was an accident.

(e) The applicant did not apologise or say anything.

(f) She felt uncomfortable about what had occurred and did not consult the applicant again.

(g) The more she has thought about it, the more she thinks it was not an accident.

1. A statement was subsequently obtained from the patient.[36] Relevantly, she stated as follows:

Mr Smith then lay the pillow down of (sic) the examination table so that it would be under my stomach. As I was going back down to lay on the table and pillow, Mr Smith put his hand under my breasts and his palm lightly touched them - the pressure was enough that I could feel it across both nipples. Mr Smith's hand was in the air and his palm was facing upwards when it touched my breasts I was moving down at the time. It felt like he was guiding my breasts into the gap between the top of the pillow and the bed. The touch was for a couple of seconds. I don't know if it was his right or left hand because I wasn't looking...

I then lay on the bed and his hand was gone - I felt Mr Smith moving his hand away right before my breasts reached the pillow. Mr Smith asked me if I felt more comfortable, but he didn't say anything about the touching of my breasts and just started the massage. He did not apologise and I thought this was weird because if it was an accident, he would have said sorry. It made me feel nervous that he might do something else. At the time I thought that maybe he just wasn't thinking and was trying to guide my breasts into the gap between the pillow and bed, but it was unnecessary. I didn't say anything because I was feeling shocked and a little confused. I tried to put it out of my mind and give him the benefit of the doubt but I was feeling very uncomfortable. There was nothing else unusual about the appointment or the massage..."[37]

1. The patient indicated that she has subsequently been nervous about trying a new physiotherapist due to the incident.
2. The applicant provided a response to the notification.[38] Relevantly, he stated that:

(a) This was a simple misunderstanding of accidental contact.

(b) He denied that the patient was asked to remove her bra. She was advised to leave her bra on. He asked her to remove her top and wear a gown.

(d) The patient was on all fours on the table as he positioned the pillow. She descended much faster than he anticipated, and his reaction may not have been quick enough to pull back.

(e) When he felt contact with the gown, his hand was holding the pillow. His immediate reaction was to withdraw the hand rapidly. Contact would only have been split-second, and he was unaware what part of the patient he made contact with.

1. The applicant repeated a similar account when his solicitors later responded to the "show cause" notice from the Board.[39] In this response he denied that his hand was palm-up when he contacted the patient's gown and body and denied that he guided the patient's breasts as alleged. He stated he was still holding the pillow. It was suggested for the first time in this submission that "Mr Smith believes he may have uttered to [the patient] a soft 'sorry'."[40]

Patient B - Notification 00440771 made on 14 April 2020

1. Patient B consulted the applicant on nine occasions from 28 January 2020 to 8 April 2020. She made a notification after the appointment on 8 April 2020,[41] but referred also to feeling uncomfortable about aspects of earlier appointments.
2. Her account is set out in detail in a statement signed on 7 June 2020.[42] Relevantly, she stated:

(a) She presented to the Clinic with upper back, neck and shoulder pain and was treated on each occasion by the applicant.

(b) The earlier consultations "felt weird" and she mentioned to her family and housemate at the time that the applicant seemed "flirty or over-friendly".

(c) She had told him that she did recreational sword fighting and he said that he would come to the club.

(d) She continued seeing the applicant because she was getting good benefits from the treatments.

(e) When the applicant left the room for her to get changed, he did not always ensure that the sliding door was fully closed. He always returned quickly, and she had to rush to get changed. She could not recall if he would knock.

(f) The applicant never asked her to remove her bra prior to massages but during the first few massages he unclipped her bra during the massage. She was not comfortable with this, so she decided to take her bra off herself before the massage.

(g) The applicant did not ask her if it was ok to unclip her bra before he did it.

(h) At the appointment on 8 April 2020 she was lying on the treatment table and the applicant was giving her a massage. She was wearing a gown that covered her front but was open at the back. She was also wearing leggings.

(i) About 15 minutes into the massage, the applicant leaned across her body, but without touching her. She could not see, and did not know, what he was doing.

(j) As the applicant massaged between her shoulders with his right hand, his left hand was stroking and caressing her waist on the left side. It was a soft touch, like caressing. It felt like he was using his fingers rather than his hand, and gently pinching. This continued for about one minute.

(k) This was not part of the massage and was not in an area where she had complaints. She described it as "soft and yuck". It was different from her recollection of massages on other occasions. Her memory was that on other occasions the applicant used both hands to massage her upper back area.

(l) She endeavoured to terminate the treatment by indicating that her back felt better. The applicant then said words to the effect: "I can make it a pleasurable massage if you want".

(m) She felt that this comment was inappropriate. She replied to the effect that she would "prefer to keep it therapeutic".

(n) The applicant then began wiping the oil off her body with a tissue. He was wiping in circles and figure eights. He did so for a long time - approximately two minutes. It was excessive, compared to previous occasions.

(o) Following the treatment, she went to reception. The applicant approached her there and touched her on the hip and shoulder to correct her posture.

(p) She cancelled her subsequent appointments and will never consult the applicant again.

1. The applicant's solicitors provided his response to these allegations in the context of the immediate action "show cause" process.[43]
2. This response may be summarised as follows:

(a) The applicant denied that he engaged in conduct constituting serious boundary violation or exploitative conduct towards the patient. He stated that his actions were all clinically justified.

(b) He did not say that he would attend the sword club, but in the context of having established good rapport he said something to the effect that he wished he had time to go to a club like that.

(c) He stated that he would always ensure the door was closed when the patient was changing. He never returns to the room until the patient is ready and would ask "Are you decent?" or "Are you ready?"

(d) He denied ever unclipping the patient's bra without first explaining the reason for the request and obtaining consent. The submission further stated:

Mr Smith's practice while the patient is dressed in a treatment gown, if he is treating the area, is that he will have his hand on the patient's back and say words to the effect that he needs to unclip their bra in order to treat the area. If the patient responds affirmatively, Mr Smith will ask if the client needs help unclipping the bra or loosening the bra straps. At no stage during the treatment is the bra ever removed. Mr Smith recalls asking [the patient] if she'd be happy for him to unclip it after he'd explained the need to treat and she replied "that's ok".

(e) As to the massage performed on 8 April 2020, he stated that he was massaging the patient's neck region with his left hand and had his right hand on the patient's lower back and side area to act as a support and counter-balance, and to assist leveraging himself during the massage. He says that he uses this method to reduce the strain on his back caused by massaging multiple patients.

(f) The applicant provided a video, demonstrating this technique and the placement of his hands.

(g) In this context, the applicant admitted that his hand did make contact with the vicinity of the patient's waist on her left side. There was no pinching or caressing but there was incidental movement of the applicant's right hand. The placement of the applicant's hand was "clinically justified".

(h) He concedes that he did not explain the reason for the placement of his right hand and that he should have done so.

(i) In relation to the allegation that he leaned across the patient, he states that he may have done so to retrieve and apply ultrasound gel and oil to his hands. They were stored to the right of the treatment table.

(j) He does not deny the use of the word "pleasurable" during the consultation. He denies that it had any sexual connotation. The submission states:

As part of his introduction to physiotherapy treatment Mr Smith discusses the reasons and focus of treatment in the context of broader rehabilitative perspective. In this regard, in relation to the use of the term "pleasurable", this term may get used as part of the client education process. ... In this context Mr Smith makes comments like - "you should aim to be (physically) healthy to the point that when you book in for a massage it should be for recreation and be a pleasurable, not a painful experience." The remark was never intended to be a sexually connotative remark and has been taken out of context. That said, Mr Smith, in light of the notification, shall going forth use a word less prone to misinterpretation.

(k) As to the removal of oil, the applicant stated that he used an emulsion of Flexall, grapeseed oil and ultrasound gel on the patient's back. It was quite gooey and sticky and required additional time to wipe it off. He believes it took 30-40 seconds.

(l) He denies approaching the patient at reception or touching her hip or shoulder.

1. The Tribunal has viewed the video in which the applicant demonstrated his technique used to massage the patient and the placement of his hands. As the Tribunal constituted to hear this matter includes a registered physiotherapist, we communicated to the parties a preliminary view that the technique demonstrated in the video appeared to depict an awkward, unusual, and inefficient way of performing such massage. We did so before the luncheon adjournment to give the applicant the opportunity to address that preliminary view in any way he wished as part of his case. This issue, and a subsequent question from the Tribunal as to why the treatment table was not used for support rather than the patient's back, were addressed after lunch by the applicant's counsel and the applicant also responded in person. We have carefully considered those responses.
2. Whilst it is not for the Tribunal in these proceedings to form any final conclusions about the applicant's conduct or motivation, we continue to have concerns about the applicant's explanations for the placement and use of his hands. We refer to this issue later in these Reasons.

1. Exhibit A3 contains email correspondence from the applicant's franchisor to the applicant. It is dated 20 May 2020. The email acknowledges the immediate action, the applicant's pending appeal against that action, and the decision of AHPRA to conduct a further investigation. We have regard to the full context of this email, but note particularly the following paragraph:

Given the serious claims that Ashley has shown deficient ethical and professional judgement and a lack of understanding in relation to his obligations to maintain professional boundaries with clients, and without passing any judgement or prejudicing any outcome of the forthcoming investigation, it is our firm position that Ashley Smith stand down immediately and indefinitely in relation to (1) all duties as the nominated Manager under the franchise licence; (2) practice as a physiotherapist within Back in Motion Prospect; and (3) attendance at the practice for any oversight, staff training or administrative purposes whatsoever, until the outcomes of the appeal and investigation are known and further action can be determined.

1. We understand that the applicant accepted this directive that he stand down and his wife was appointed as the interim Nominated Manager.

Consideration of various submissions of the Applicant

1. The applicant submitted that:
   • The criteria under s 156 are not made out;
   • Immediate action is not necessary; and
   • In the alternative, the gender-based restriction is disproportionate and unnecessary, and lesser immediate action (by way of mentoring) would be sufficient.
2. We will return to those central issues in due course, but we will first deal with some submissions made by counsel for the applicant as to the approach that should be taken.
3. The applicant submitted that it was not appropriate for the Tribunal to have regard to the earlier notifications as part of the immediate action enquiry. With respect to the Patient C notification, the Board had resolved to take no further action. By reference to s 151(2) of the National Law, it was submitted that the Patient C notification could not be seen as part of a pattern of conduct or practice by the applicant. With respect to the Patient D notification, it was submitted that s 151(2) had no application as the Board had indeed taken action.
4. We consider that the focus on s 151 is misguided.
5. Although notifications play an important part in the statutory scheme, the Tribunal notes that action by the Board under ss 160, 178, 181, 182, or 193 of the National Law does not have to be linked to a notification. The wording of s 156 makes no reference to notification at all. As to s 156(1)(a), attention is simply drawn to the practitioner's conduct, performance or health. As to s 156(1)(e), the reference is to the even broader concept of the public interest.
6. We do not agree with the suggestion that a decision by the Board to take no action could bring into play the doctrine of functus officio or any similar impediment to subsequent action.[44] As the Tribunal stated in Yap v MBA [2019] SACAT 55 at [14] -[15]:

The scheme of the National Law is designed to ensure that notifications are dealt with. However, the primary objective is the protection of the public. It cannot be the case that a decision to take no action on a notification can prevent the Board from later taking action in relation to the same subject matter. If, for example, a notification about serious abuse was thought to be incapable of proof, no action would be taken. What if a witness then came forward with compelling evidence of the same abuse? Clearly, the Board could then act in the very way it had previously declined to act.

1. The conduct underlying the Patient C notification was not disputed by the applicant. We consider that the Tribunal can have regard to that conduct and the subsequent notification process as part of the relevant history.
2. As to the notification by Patient D, the conduct asserted by the patient was again largely not in dispute. It is correct that the Board finally dealt with that matter by imposing conditions under s 178. This may give rise to an argument (which we need not consider here) that the Board could not lawfully impose further disciplinary action based on the same facts. However, the taking of immediate action does not amount to the imposition of further disciplinary action. It is an interim action, taken for the purposes of public health and safety or in the public interest. It is action based on a belief as to a current level of risk.
3. The immediate action in this case is a response to risk identified by the Board in the light of the more recent notifications. However, it is entirely appropriate that this risk be assessed against the background of previous notifications. In some circumstances, previous conduct may make it more likely (in the context of assessing risk) that recent allegations (that are denied by the practitioner) are true. Alternatively, previous conduct may throw light on the possible motivation of the practitioner in relation to a current matter. In the present case, it is of considerable relevance to note the previous opportunities for the applicant to reflect on his practices in treating female patients. It is also important to note the extensive mentoring he had received.
4. Insofar as s 156 refers to the conduct of the practitioner, it is in no way limited to the conduct relevant to current notifications. We reject the submission that the previous notifications are of little or no relevance. We reject the submission, put initially by the applicant, that reliance on the earlier notifications in some way involved an abuse of process.
5. For similar reasons, we reject the submission of the applicant that the notifications concerning patients A and B should be assessed separately and that it would be an error to look at their cumulative effect. The applicant submitted that the complaints are not similar and in one sense that is so. However, they are both of a nature that could possibly indicate a sexual motivation on the part of the applicant in the context of treating a patient. Where the task of the Board (and this Tribunal) is to assess risk, it is appropriate to look at the combined effect of all relevant conduct.
6. The applicant also submitted that the Tribunal should not consider the various aspects of Patient D's complaints in combination. It was suggested, as we understood the argument,[45] that the Tribunal should examine various aspects (such as the caressing, the "pleasurable" comment, the wiping of oils, the unclipping of the bra) in isolation from each other and ask whether each, by itself, would justify immediate action. This would not be an appropriate way to assess risk. It is not the approach required by s 156.

Whether immediate action is justified and necessary

1. A review under s 156 requires the formulation of a reasonable belief. It does not require findings on the balance of probabilities concerning the applicant's conduct. In a matter of this nature we are to scrutinise the evidence, and assess in a general way the weight that may be given to it, but we are not required to finally resolve disputed issues as to the applicant's conduct or intentions.
2. Where conduct is not in dispute, it can be taken into account in considering whether the Tribunal has a reasonable belief. Where conduct or the motivation for conduct is disputed, it is not the role of the Tribunal in the present context to resolve that dispute. However, the Tribunal may, in assessing the risk for the purposes of s 156, have regard to the allegations as unresolved issues or concerns. The Tribunal may also have regard in a general way to the apparent strength of the competing positions. In our view, there are some parallels to the approach taken to the assessment of risk in other legal contexts, albeit that we are here dealing with untested allegations rather than allegations that remain unproven one way or the other after a hearing.[46]
3. The applicant contends that his conduct can be explained in terms of deficiencies in communication and the obtaining of consent. He has denied any deliberately improper or sexually motivated conduct. Insofar as he disputes the allegations against him, the evidence of those matters has not been tested.
4. The applicant correctly submitted that we should scrutinise carefully the evidence of the patients. We have done so. Some of the allegations might fall away, or be adequately answered, in the context of a contested hearing. Others might not be proved to the requisite standard. The applicant might eventually be exonerated of any wrongdoing. We have due regard to these factors and to the presumption of innocence.
5. We note the submission that Patient B may have retrospectively re-interpreted innocent actions of the applicant due to subsequent events. We have regard to that possibility, but we also note the evidence that the patient expressed some concerns to her family and housemate after her early consultations.
6. We note, as submitted by counsel, that the applicant has treated a vast number of female patients, but that this immediate action has been based on 4 notifications.
7. We note that the applicant has cooperated in the notification process and provided fulsome explanations.
8. Nonetheless, we have formed a reasonable belief that, because of his conduct, the applicant poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety.
9. The following factors have led us to this conclusion:
   • The 2017 notification ought to have operated as a clear warning to the applicant as to the need to be aware of the sensitivities of female patients and the need to communicate adequately and clearly.
   • In relation to the 2018 notification, the applicant's actions in reaching from behind the patient without warning, undoing the buttons of her shorts, lowering the zip, and then rolling down the shorts at the rear to expose her buttocks, displayed lack of respect for the patient's dignity and privacy.
   • If, as the patient alleges (and the applicant denies), a photograph was taken without notice or consent, that is a further failure to respect patient rights.
   • The imposition of conditions under s 178 of the National Law and the mentoring that followed must surely have left the applicant in no doubt of the need to respect the dignity and privacy of patients, to be careful with his language, to communicate fully concerning his actions, and to obtain consent for such actions, especially where they involved the touching of patients. The history leaves little scope for a claim of subsequent naivety.
   • As to the 2020 notification concerning patient A, the patient asserts that she felt the pressure on both nipples as the applicant's hand contacted her breasts. She states that the applicant's hand was palm-up and that it appeared as though he was attempting to guide her breasts into the gap between the pillow and the bed. Even on the applicant's own account, the applicant must have realised that contact was in the general area of the patient's breasts. If it were accidental contact, one would expect that the applicant would apologise immediately. The patient states that he did not. It was only in his second response to AHPRA (provided by his solicitors) that it is suggested for the first time that "Mr Smith believes he may have uttered to [the patient] a soft 'sorry'".
   • As to the 2020 notification concerning patient B, the patient alleges that during the first few consultations, the applicant unclipped her bra during the massage without seeking consent to do so. This made her uncomfortable and so she decided on subsequent occasions to remove her bra before the massage. It is suggested in the response provided by the applicant's solicitors that his normal practice is to "ask if the patient needs help unclipping the bra". However, the response goes on to say that "Mr Smith recalls asking [the patient] if she'd be happy for him to unclip it after he'd explained the need to treat and she replied 'that's ok'". This is to be contrasted with the patient's account. It is not made clear why the applicant did not follow his alleged usual practice of inviting the patient to unclip the bra. Given the mentoring that had occurred a year earlier, we are concerned by the allegation (albeit denied) that the applicant on these occasions unclipped the bra without first seeking consent.
10. Some of these matters in isolation might not give rise to significant concern, but it is the combined effect of all the evidence before us that causes us to have serious concerns. We make no finding that the applicant has acted with any sexual motivation. It is not our present task to determine such matters. However, his conduct causes us to have a reasonable belief that there is a serious risk to persons. That risk is that the applicant may act with a sexual motivation, or for his own sexual gratification, in the context of a consultation with a female patient. That may be in the way he touches a patient, or the suggestions he makes to a patient, or some other type of boundary breach. That risk is not trivial or fanciful. We find that it is a real risk.
11. We remind ourselves that some patients who consult the applicant may be vulnerable patients, who might be ill-equipped to handle any such conduct by the applicant. They might respond by exposing themselves further to a risk of exploitation.
12. We repeat that the allegations against the applicant are untested. If disciplinary proceedings are taken, he may eventually be exonerated of any wrongdoing. We have weighed such factors in our consideration of this matter.
13. We make no findings against the applicant in these proceedings. Our task is to decide whether we have the reasonable belief for the purposes of s 156. The applicant's conduct is such that we do have the belief referred to in 156(1)(a). We also consider that immediate action is necessary in the public interest in accordance with s 156(1)(e). This is primarily due to the risk to the safety of persons as described above. However, there are added considerations of the type referred to in Cheema. Our concerns are such that it would not be in the public interest to allow the applicant to practise in an unrestricted way. Nor would it be appropriate to hold the applicant out to members of the public (during this interim period) as a person who can be trusted unconditionally with all the responsibilities of a registered physiotherapist.

1. The immediate action should take a form which protects the public safety and the public interest with as little damage to the practitioner as is consistent with the maintenance of that public safety and public interest.[48]
2. The applicant submitted that the gender-based restrictions were unnecessary and disproportionate. We do not agree.
3. We consider that the conditions imposed by the Board are appropriate and necessary for the purposes identified in s 156. As was the case in the matter of Cheema, the risk we have identified, and the public interest issues, relate primarily to the treatment of female patients. There is no need to ban the applicant from practising, so long as his practice is limited to the treatment of male patients.
4. We have carefully considered the applicant's relationship with the franchisor and the current decisions taken by the franchisor to effectively ban the applicant from practising in the franchise. Those decisions appear to be at least as much related to the ongoing investigation and potential disciplinary proceedings against the applicant as they are to the immediate action taken by the Board. It appears that the franchisor might not allow the applicant to practise even if the immediate action was modified or revoked.
5. Be that as it may, the contractual relationship and the attitude of the franchisor cannot determine what is necessary and appropriate pursuant to s 156. If action is required to protect the safety of persons and the public interest, the Tribunal cannot refrain from taking that action because the likely response of the franchisor might be to prevent the applicant from practising altogether.
6. Counsel for the applicant referred to the devastating financial impact on the applicant as a result of him being unable to practise. We were provided with some figures said to indicate the effect on the operation of the practice. Whilst this evidence fell well short, in our view, of demonstrating the actual financial impact for the applicant and his wife, we accept that the impact is very significant and could place them in financial peril. However, that is an impact caused by the actions of the franchisor. It is not caused by the gender-based restrictions. The gender-based restrictions allow the applicant to continue to practise and earn substantial income for the practice. The conditions are proportionate to the risk we have identified and the circumstances of the matter.
7. The applicant's counsel argued that the Tribunal should consider conditions that required mentoring rather than the gender-based restriction imposed by the Board. The Board submitted that mentoring and the associated reporting would be inappropriate and problematic in an interim situation where the facts concerning the applicant's conduct and his liability to disciplinary action were in dispute and subject to a potential future hearing. There is force in that submission but, in any event, we do not consider that a requirement for mentoring would protect female patients or the public interest to the degree that we consider to be necessary. There has been substantial mentoring previously and that has not prevented the conduct giving rise to the recent notifications.
8. The applicant also submitted that the ongoing investigation by the Board would be sufficient to ensure that the applicant did not misconduct himself during the interim period. We do not consider that to be a compelling argument. We have formed a reasonable belief that there is a serious risk to persons, namely that the applicant may act with a sexual motivation, or for his own sexual gratification, in a consultation with a female patient. This risk is not acknowledged by the applicant. There is no basis on which to conclude that the applicant will adequately self-regulate his behaviour. Nor is it appropriate to continue to hold out the applicant during this interim period as a practitioner who can be trusted unreservedly with the responsibilities of a registered physiotherapist. Immediate action needs to be taken to remove the risk.
9. It is therefore our view that the immediate action taken by the Board should be affirmed.
10. In making this decision, we refer to the admonition of the Victorian Court of Appeal in Kosanoglu v Pharmacy BA [2012] VSCA 295: this matter ought now be referred to the Tribunal (or a decision be made that it will not be referred) as soon as possible.
11. The Tribunal has made an order pursuant to s 60 of the SACAT Act 2013 prohibiting the publication of the names of, or any material tending to identify, the patients referred to in any document filed before the Tribunal or any submission made to the Tribunal.

[3] SACAT Act 2013 s 34; Cheema v MBA [2020] SACAT 40 at [9] - [10].

[6] [2018] VCAT 1617 at [34].

[8] Farshchi at [41] - [48] as cited in Cheema at [46].

[36] R1 at pages 243-246; and note her confirmation of the accuracy of the unsigned statement at 235-241.

[37] R1 at page 244-245. (Numbering and formatting removed.)

[44] Cf. Re OMQ [2017] SACAT 8.

[45] Paragraph 18 of the Applicant's Submission.

1. [46] See, for example, M v M (1988) 166 CLR 69 at [17] - [26]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at 33; Children's Guardian v CFW [2016] NSWSC 1406 at [13] - [17]; Children's Guardian v CXZ [2019] NSWSC 1083 at [185] - [190]; GJC v Department of Human Services [2020] SACAT 38 at [170] - [191].

[47] Most consultations appear to have been late in the day.

[48] Farshchi v Chinese MBA [2018] VCAT 1617 at [48].