The key issue
Whether, and if so what, immediate action should be taken against Dr Kelvin Vo, following an allegation made to police and notified to the Medical Board of Australia (Board) that he engaged in inappropriate sexual conduct with a male patient during a consultation in 2001.
The background – relevant incident
The alleged conduct occurred on 4 August 2001 and concerned a then 20-year-old intellectually disabled male who presented with abdominal pain and “while Dr Vo was performing a PR [per rectal[] examination he allegedly masturbated the patient and then wanted the patient to put the ejaculate in his mouth. The patient refused”.
The patient reported the incident to police in 2019 who then notified the Board.
On 29 January 2020, the Board took immediate action pursuant to section 156(1)(a) and (1)(e) of the National Law to suspend Dr Vo’s registration. In April 2020, the police charged Dr Vo with one count of rape and one count of indecent assault.
The background – prior disciplinary proceedings
In 2014, the NCAT found that Dr Vo had engaged in similar conduct in 2008 (asked questions of a 20-year-old male patient’s sexual orientation, preferences and sexual activities with no clinical basis, conducted inappropriate examinations of the patient’s genitalia, and offered to suck his penis) and 2011 (asked a 27-year-old male patient about his sex life and fellated him).
The NCAT cancelled Dr Vo’s registration for a minimum of 2 years and, in 2018, reinstated his registration under strict conditions (including limitations on hours worked and patients seen, and a requirement for supervision and continued psychiatric treatment) that remain in place and are regularly reviewed by the Medical Council. The NCAT found that although Dr Vo had an ongoing need for psychological treatment, he was now a fit and proper person to re-join the profession. The Board-appointed psychiatrist considered that Dr Vo had a past history of major depression and that his problems arose as a result of a vulnerability to depression in the context of marital disharmony, unacknowledged sexual identity confusion, work and financial stress, against a background of severe childhood trauma.
The NCAT found that Dr Vo had largely resolved these issues through psychotherapy and it was unlikely that he would reoffend by abusing his authority as a doctor to seek to engage in homosexual activity with male patients.
The outcome
The Board’s decision from 29 January 2020 was set aside and no immediate action was taken.
Section 156(1)(a) – serious risk to persons (three components)
- Factual substratum – by a combination of a contemporaneous complaint in 2001 by the patient, a recent statement to police by the patient (substantially in the same terms), and the conduct that was the subject of the 2014 NCAT finding, the VCAT held a reasonable belief that Dr Vo “inappropriately masturbated the patient”;
- First evaluative assessment – the alleged conduct suggested possible pre-offending not re-offending and relates to a time when Dr Vo’s practice was marred by a number of errors of judgment and conduct (with psychiatric evidence indicating that Dr Vo has made significant progress in overcoming those issues) and therefore the VCAT did not hold a reasonable belief that Dr Vo currently posed a serious risk, noting:
“[t]o translate the new allegations about alleged conduct in 2001 into a belief that Dr Vo currently poses a serious risk to persons would be, in our view, to ignore all that has happened since Dr Vo’s registration was cancelled in 2014, and the objective circumstance that there is no suggestion that he has engaged in any form of sexual misconduct since 2011”;
- Second evaluative assessment – whilst not necessary, the VCAT considered that the conditions in place were sufficient to protect public health and safety.
Section 156(1)(e) – otherwise in the public interest
The relevant allegation from 19 years ago reflected a failure at the time (when considered together with the conduct from 2008-2011) to meet the ethical standards of the profession. Dr Vo’s registration was cancelled in 2014, and he was disqualified from re-applying for two years. His registration was re-instated in 2018 only after careful consideration. The VCAT did not hold a reasonable belief that suspension was warranted to reassure the public that the regulatory system is safe and adequate or to maintain public confidence in the profession.
Implications
Section 156(1)(a) requires the decision-maker to hold a reasonable belief that the practitioner currently poses a serious risk to persons. This will require an evaluation of all circumstances including the passage of time since the alleged conduct, any disciplinary proceedings, professional conduct in the intervening period, current restrictions on their ability to practise, and evidence of any rehabilitative progress to address relevant issues.
Section 156(1)(e) requires an assessment of the ‘public interest’ which is context dependant, noting that public perception is to be assessed on the basis that “the public will be informed of the whole story, fairly told”.
To read the full case of Vo v Medical Board of Australia (Review and Regulation) [2020] VCAT 1072, click here.
