Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tran [2022] NSWCATOD 129 Hearing dates: 2, 3 and 4 March 2022; Further written submissions, 28 March 2022 (Respondent) and 30 March 2022 (Applicant) Date of orders: 25 October 2022 Decision date: 25 October 2022 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr A Reid, Senior Member Dr J Aitken, Senior Member Ms J Houen, General Member Decision: The Tribunal makes the following orders: (1) Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Vincent Dzung Tran's registration as a medical practitioner is cancelled; (2) Pursuant to s 149C(7), Dr Tran may not apply for a review of the cancellation order for a period of one year from the date of this decision; (3) Dr Tran is prohibited from providing a health service, as defined under s 4 of the Health Care Complaints Act, 1993, for a period of one year, being the non-review period imposed in order (2); (4) Dr Tran is ordered to pay the Commission's costs as agreed or assessed, and to be responsible for the costs of Dr Forrester giving oral evidence in the proceedings. Catchwords: HEALTH — professional registration — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Care Complaints Commission Act 1993 Health Practitioner Regulation (New South Wales) Regulation 2016 Cases Cited: Bannister v Walton (1993) 30 NSWLR 699 Campbell v Campbell [2015] NSWSC 784 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] NSWCA 297; 41 NSWLR 630 Health Care Complaints Commission v Parajuli [2010] NSWMT 3 Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Vincent Dzung Tran (Respondent) Representation: Counsel: A Petrie (Applicant) T Saunders (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2021/00272056 Publication restriction: Orders were made prior to the first hearing date that the names of Patient A and her mother not be published. REASONS FOR DECISION Introduction 1. Dr Vincent Dzung Tran (Dr Tran, the practitioner, or the Respondent) was suspended from the practice of medicine following a Section 150 (s 150) inquiry held by the Medical Council of New South Wales on 24 June 2020, the suspension taking effect at 5pm on that day, and the reasons published on 14 July 2020 (Ex A1, tabs 6, 28 and 29). 2. In these present proceedings, the Health Care Complaints Commission (the HCCC or the Commission) seeks from this Tribunal (submissions, pars 316-17) orders: (a) cancelling Dr Tran's registration for a further two years, pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) (the National Law), (b) prohibiting his providing any health service (as defined in s 4 of the Health Care Complaints Commission Act 1993) for the two years non-review period, and (c) that he pay the Commission's costs of these proceedings, including the costs of Dr Alan Forrester giving oral evidence at the hearing. 1. Dr Tran's submissions argue (pars 170-72) for a reprimand, payment of the Commission's costs, and the imposition on Dr Tran of various conditions for a period of two years. 2. Both the s 150 hearing and these Tribunal proceedings concerned two "intimate" examinations which Dr Tran performed on a female patient who presented to the Emergency Department of Wollongong District Hospital during a shift worked by Dr Tran overnight on 22-23 May 2020. 3. Pursuant to orders made prior to this Tribunal's hearing, the relevant patient will be referred to in these reasons as "Patient A". Those orders also suppressed her mother's name, styling her as "Witness A", but, to save any confusion, we will refer to her in these reasons as "Patient A's mother". 4. Both women, along with Dr Tran, gave oral evidence at our hearing, which the parties agreed constituted a combined Stage 1/Stage 2 hearing, held over three full days, 2 to 4 March 2022. 5. The HCCC was represented by Ms Angela Petrie of counsel, and Dr Tran by Mr Tim Saunders of counsel, both of whom assisted the Tribunal with comprehensive oral and written submissions, some submitted post-hearing, by agreement, prior to the end of March 2022. 6. During the currency of these proceedings, and indeed during the actual hearing, the Commission's original Complaint (filed 22 September 2021) was amended, without objection, firstly on 6 December 2021, and finally on 4 March 2022. 7. In its final form, the Complaint comprises three separate complaints, all of which we will set out in full shortly, along with Dr Tran's comprehensive Reply, dated 16 February 2022 (Ex R1, tab 1). 8. In summary, Complaint One deals with Dr Tran's personal dealings with Patient A during her presentation at the hospital, and especially with two admitted "vaginal examinations"; Complaint Two with his "record-keeping" regarding those dealings and related events; and Complaint Three contends that Dr Tran's "unsatisfactory professional conduct", as alleged in Complaints One and Two, if found proven, amount, in combination, to "professional misconduct", such as to justify the cancellation order sought by the HCCC. 9. The Commission's extensive documentary evidence is gathered in a single volume (Ex A1), and likewise the Respondent's (Ex R1). 10. Both parties relied upon expert evidence, and Dr Tran also on the written and oral evidence of a psychologist, Maya Bazouni, to whom he was referred by an unidentified general practitioner (GP), rather than by his solicitors. 11. Included in the HCCC evidence were expert opinions expressed very early in the Hospital's investigation by a senior doctor at Wollongong Hospital (Dr Simon Keane), but the HCCC referred the matter to Dr Alan Forrester, and, later, to Dr Robert Day, for expert advice. 12. At the hearing, the Commission relied upon Dr Day's expert reports (Ex A1, tabs 17-21) and oral evidence, but it had included, in its served material, Dr Forrester's expert report of 27 January 2021. Dr Tran relied upon Dr Forrester's report (Ex R1, tab 2), but the HCCC required him for cross-examination, and the parties are in dispute regarding the responsibility for his fees for giving oral evidence at the hearing. Relevant Guidelines Notes and Records 1. Apart from the physical examinations, the present Complaint deals also with Dr Tran's medical records, and the HCCC material relevantly includes (Ex A1, tab 31) the 2014 Code of Conduct, which stresses (p 18, sec 8.4, especially 8.4.4) that clear and accurate records are "essential for the continuing good care of patients", and (sec 8.4.5) that records should be made at the time of the event or as soon as possible afterwards. Examinations 1. So-called "intimate" physical examinations come within the purview of Guidelines published by the Medical Board of Australia on 12 December 2018, entitled "Sexual Boundaries in the Doctor-Patient Relationship" (Ex A1, tab 32). 2. Those Guidelines recognise that the doctor-patient relationship is "inherently unequal", that the patient is "often vulnerable", places trust in the doctor, and "in some clinical situations may depend emotionally on the doctor", and that a "breach of sexual boundaries in the… relationship exploits this power imbalance" (p 3, sec 2). 3. Section 3 of the Guidelines discusses (p 3) a "spectrum of behaviours" which breach the boundaries, such as unnecessary or inappropriate comments, unwarranted physical examinations, and inappropriate touching. Such examinations or touching may constitute sexual assault, and one breach specified (in sec 3.1), which is relevant to the present case, is: "conducting a physical examination which is not clinically indicated or when the patient has not consented to it". 1. Another behaviour which may breach sexual boundaries (sec 3.2) is: "asking a patient to undress more than is necessary or providing inadequate privacy screening or cover for a physical examination". 1. Section 7 of the Guidelines (p 5) deals in more detail with "Physical examinations" and (pp 5-6) the "Use of observers". It emphasises that physical examinations must be "clinically warranted". They must be fully explained to the patient in advance, and the patient's "informed consent" obtained. A patient must be allowed to have a "support person" present, and the doctor must be alert for any sign that consent is "uncertain, … refused or... withdrawn". Gloves are to be used "when examining genitals or conducting internal examinations". 2. The Guidelines define "intimate examination" (pp 5 and 7), and recognise that the definition "depends on the patient's perspective, which may be affected by cultural values and beliefs". The definition says that an "intimate examination" is one "a patient or member of the public may reasonably regard as intimate, usually the breasts, genitalia, or an internal examination (vaginal or rectal)". A doctor "may choose to have an observer present", who may be a "registered or enrolled nurse", acceptable to the patient or the patient's support person, but a patient has the right to decline the presence of an observer, and to ask to be accompanied by a support person of their choice. The Present Case 1. Dr Tran made a series of representations objecting to the use of the term "internal vaginal examination" in remarks critical of his actions in respect of Patient A, and he pressed investigators, experts and the Tribunal to distinguish between "external" and "internal" vaginal examinations. 2. The Tribunal takes note of the following clarification in this respect, provided to the hospital investigator by Dr Simon Binks, Director of Emergency Medicine at Wollongong Hospital (Ex A1, tab 26, p 4): "An internal vaginal examination implies: Bimanual examination: where the examiner places a gloved finger or fingers into the vagina with the view of assessing the cervix, the fornices and other abdominal organs; Speculum examination: where the examiner places a speculum into the vagina, once the speculum is opened the vagina and cervix can be better visualised and pathology taken as required. An examination of the external genital anatomy would be referred to as such. Thus, in this case, an examination of the external genital anatomy has taken place with Dr Tran using the exam to look for evidence of discharge." 1. Dr Tran told the hospital investigator (and, later, the Tribunal) that a "full pelvic examination" would include external, internal and speculum components (see Ex A1, tab 9, p 5). In terms of his exchanges with Patient A, he talks about "checking down there", but in his interviews and evidence about those exchanges, he uses the term "pelvic examination" (eg, Ex A1, tab 9, pp 4-5). 2. Clearly, Dr Tran's "external" examinations, and his recommended "internal" examination, of Patient A's vagina were all "intimate", and, therefore, highly challenging to any patient (as suggested in Ex A1, tab 14, p 3, sec 5). The Respondent 1. Dr Tran was born in Vietnam in 1986, and escaped with his family at the age of three. Following some five years in a refugee camp in Indonesia, the family ended up in Australia. 2. After completing his secondary education in Canberra, with distinction, at the end of 2003, he studied optometry at the University of New South Wales, graduating and being registered at the end of 2007 (Ex A1, tab 3), and then practised as an optometrist in various practices around Australia and New Zealand, 2008-13, before undertaking his MBBS studies at the University of Sydney, 2012-15, involving training placements around New South Wales and in Nepal. 3. He was first provisionally registered as a medical practitioner on 28 January 2016, and completed his internship and residency over 2016-17. He achieved general registration on 11 May 2017 (Ex A1, tab 2). He worked as a "locum emergency SRMO/Registrar" from about February 2018 until his suspension in June 2020, in the Illawarra, Shoalhaven, Blue Mountains and Tamworth Districts (Ex R1, tab 13). 4. At the relevant time, he was working casually as a two-year experienced Emergency RMO at Wollongong Hospital, with two years other full-time hospital experience (transcript Day 3, p 17). On the night shift in question, he says (Day 1, p 32) that he was the "subacute in charge doctor" in Emergency. 5. Since his suspension, he has chosen not to seek to requalify and return to optometry, and claims that he remains "highly motivated" to return to medical practice. 6. He told the Tribunal that he was presently relying on financial support from his family, and has been helping his father in a disability support business. 7. In January 2021 he married Nadine, a nurse at Westmead Private Hospital, and their family now comprises her daughter (now at least 12 years old) from an earlier relationship, and their own twins, born in 2021. 8. His career intentions, if allowed to resume practice, are either general practice or perhaps psychiatry, but at the time of the hearing he had made no inquiries about future work, and said he would resume in emergency practice while he worked out his future direction (Day 2, p 46). It is noted that a few days after the date of his suspension, Dr Tran was scheduled to sit an admission examination for general practice. 9. He has provided to the Tribunal several character references (Ex R1, tabs 3-6, and 15), and various CPD Certificates of Completion (Ex R1, tabs 7-12, and 16-22), in respect of courses undertaken in June 2020 and February 2022 (see also tab 27, pp 7-13). 10. The character references were not challenged by the Commission, but there was argument about the adequacy of the CPD. The Complaints 1. In fairness to Dr Tran, we now set out in full, and in their final form, the Commission's complaints and their particulars: 2. Complaint One: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience ii. engaged in other improper or unethical conduct related to the practice or purported practice of medicine PARTICULARS OF COMPLAINT ONE The First Vaginal Examination 1. On 23 May 2020 at about 1:15am the practitioner carried out a vaginal examination ("the first vaginal examination") on Patient A without proper and sufficient clinical indications in that: a. Patient A's presenting symptoms were heart palpitations and light headedness; b. No detailed sexual health history of Patient A was taken before the examination was carried out; c. Other examinations carried out prior to the first vaginal examination and Patient A's presenting symptoms did not provide a sufficient basis to conduct a vaginal examination. 2. The practitioner carried out the first vaginal examination on Patient A in an inappropriate manner in that: a. The practitioner briefly touched Patient A… near her clitoris; b. Patient A was not adequately prepared for the examination, in that the practitioner failed to communicate to her in a professional manner the nature of the examination he wished to perform, or reasons why he wished to perform a vaginal examination; c. The vaginal examination was limited to external visualisation, which was inadequate for the purpose of making any findings in respect of pelvic inflammatory disease; d. The examination was incomplete in that it did not include an internal vaginal examination and speculum examination; e. The practitioner failed to provide Patient A with adequate draping for modesty. The Second Vaginal Examination 3. On 23 May 2020 at about 2:00am the practitioner carried out a further vaginal examination ("the second examination") on Patient A without proper and sufficient clinical indication in that: a. Patient A had not complained of or exhibited additional further clinical symptoms or signs; b. No further sexual health history was elicited from Patient A prior to carrying out the examination; c. A further visual examination of Patient A's vagina would not provide any additional clinical information to that which had already been gained from the first vaginal examination. 4. The practitioner carried out the second vaginal examination on Patient A in an inappropriate manner in that: a. the examination was incomplete in that it did not include an internal vaginal examination and speculum examination; b. the vaginal examination was limited to external visualisation, which was inadequate for the purpose of making any findings in respect of pelvic inflammatory disease; c. the practitioner did not discuss the purpose or clinical reasoning for the second vaginal examination with Patient A or explain what he was proposing to do, sufficient for the patient to give informed consent; d. the practitioner did not wear gloves; e. the practitioner failed to provide Patient A with adequate draping for modesty; f. the practitioner failed to offer Patient A a female chaperone to accompany her as the examination was being carried out. 5. Based on particulars 3 and 4 above the practitioner's conduct in carrying out the second vaginal examination was: a. improper and unethical; b. for the purpose of the practitioner's own personal and/or sexual gratification; c. in breach of cll 3.1, 3.2 and 7 of the Medical Board of Australia's Guidelines - Sexual boundaries in the doctor-patient relationship, dated December 2018. Other Conduct 6. The discharge letter the practitioner prepared for Patient A was inadequate and incomplete in that it: a. Failed to articulate follow-up plans for the benefit of Patient A; b. Failed to note the possibility of pelvic inflammatory disease including a recommendation for a speculum examination and a pelvic ultrasound; c. [withdrawn] 7. The practitioner inappropriately relied on a verbal communication with Patient A for future management 8. The patient history taken by the practitioner for Patient A was inadequate, and should have included the following: a. A more detailed history of pain; b. A family history of heart disease; c. Patient A's history of hemiplegic migraine; d. A more detailed history of vaginal discharge; e. A sexual history; f. A history of similar episodes in the past; g. Any history of recent gynaecological surgery or recent instrumentation; h. The absence of other gastrointestinal or urinary tract symptoms that may relate to another diagnosis. 9. The practitioner did not perform pathology and other relevant investigations, in view of the history and other diagnoses he should have considered for Patient A, including: a. A CRP blood test to assess for an acute inflammatory condition such as pelvic inflammatory disease; b. A pregnancy test either blood or urine; c. A urinalysis and a urine culture if the urinalysis was positive; d. A vaginal swab; e. An STI screen; and f. A pelvic ultrasound as an outpatient after discharge." 1. Complaint Two: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulations"). PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to make and keep adequate records sufficient to facilitate the continuity of patient care in relation to Patient A, pursuant to r 6 of the Regulations, including records of: i. the practitioner's initial and subsequent assessment of the patient; ii. examinations undertaken by the practitioner and the practitioner's clinical findings and reasoning for them; iii. whether the patient consented to the examinations undertaken; iv. provisional or final diagnoses for Patient A's presenting symptoms; v. a management plan at the time of discharging Patient A. vi. the vaginal examinations and his findings." 1. Complaint Three: "The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT THREE Complaints One and Two are repeated and relied upon to support a finding of professional misconduct cumulatively. In the alternative, Complaint 1 justifies a finding of professional misconduct on its own." Dr Tran's Reply 1. Dr Tran's Reply to the Commission's Amended Application is as follows (Ex R1, tab 1): "Complaint One: 1 The Practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law as set out in paragraph i. 2 The Practitioner denies that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law as set out in paragraph ii. Particulars of Complaint One 3 The Practitioner denies the facts set out in Particular 1(a) and further says: a) in addition to the mentioned complaints, Patient A exhibited shakes, pelvic tenderness on examination and reported excessive vaginal discharge on further history, prompting suspicion by the Practitioner of pelvic inflammatory disease "PID". 4 The Practitioner denies the facts set out in Particular 1(b) and further says: a) a sexual and gynaecological history was taken from Patient A. 5 The Practitioner denies the facts set out in Particular 1(c) and further says: a) there was a clinical basis to conduct a vaginal examination, namely due to the suspicion of PID and the reported history of excessive vaginal discharge. 6 In relation to the facts set out in Particular 2(a), the Practitioner says: a) it is agreed he touched near her clitoris, however this was done in a clinically appropriate manner, by briefly parting the labia major and labia minor to check for the presence of vaginal discharge; and b) in relation to actual "touching" of her clitoris, there is no evidence of this allegation and this should be removed from the complaint. 7 The Practitioner denies the facts set out in Particular 2(b) and further says: a) from the point of view of the Practitioner, this is denied as he sought consent from Patient A, obtained it, and advised her of the reason for the requirement of the vaginal examination. 8 The Practitioner admits to the facts set out in Particular 2(c) and further says: a) the internal examination was not performed and this is due in part to the inexperience of the Practitioner in performing these examinations and the Practitioner wanting her regular general practitioner to do a complete pelvic examination and ultrasound. 9 The Practitioner admits to the facts set out in Particular 2(d) and further says: a) the internal examination was not performed and this is due in part to the inexperience of the Practitioner in performing these examinations and the Practitioner wanting her regular general practitioner to do a complete pelvic examination and ultrasound. 10 The Practitioner admits to the facts set out in Particular 2(e). 11 The Practitioner admits to the facts set out in Particular 3(a). 12 The Practitioner admits to the facts set out in Particular 3(b). 13 The Practitioner admits to the facts set out in Particular 3(c) and further says: a) the Practitioner accepts that the second examination of her vagina, in hindsight, was not clinically justified due to its intimate nature and no changes were reported from the first examination. The main purpose of the second examination was to ensure he did not overlook anything from the first examination. The Practitioner admits he was insensitive as to the intimate nature of the examination and that it should have only proceeded if clinically warranted. 14 The Practitioner admits to the facts set out in Particular 4(a) and further says: a) the second examination was incomplete and did not include an internal examination and speculum examination. The Practitioner wanted her regular general practitioner to do a complete pelvic examination and ultrasound. 15 The Practitioner admits to the facts set out in Particular 4(b) and further says: a) the examination was inadequate, however if some vaginal discharge and/or odour was noted, this may indicate a symptomatic finding tending toward PID. 16. The Practitioner denies the facts set out in Particular 4(c) and further says: a) the Practitioner however readily concedes that he erroneously considered that Patient A's consent for the second examination was likely as Patient A had consented to the first examination and therefore the words he used to obtain consent for the second examination, were more cursory than usual. 17 The Practitioner admits to the facts set out in Particular 4(d) and further says: a) the Practitioner did not however actually touch any part of the Patient A's vagina for the second examination. The Practitioner admits he should have worn gloves for this examination, however when he commenced his second examination he did not intend to physically re-examine the vaginal area, rather he decided during discussions to visually inspect again and parted her vagina by placing his hands approximately 3cm on either side of her vagina, on the inside of her thighs. 18 The Practitioner denies the facts set out in Particular 4(e) and further says: a) a hospital gown was provided to Patient A, which she wore for the second examination and she initially kept her underwear on. 19 The Practitioner denies the facts set out in Particular 4(f) and further says: a) a chaperone was offered to Patient A, and she stated that she was comfortable to proceed alone and that this was not required and she consented for the second examination. 20 The Practitioner denies the facts set out in Particular 5(a) and further says: a) the Practitioner however accepts with hindsight the second vaginal examination was not clinically justified. 21 The Practitioner denies the facts set out in Particular 5(b). 22 The Practitioner denies the facts set out in Particular 5(c) and further says: a) the Practitioner however accepts with hindsight that the second examination of her vagina was not clinically justified and he was insensitive to the intimate nature of the examination. The Practitioner also accepts other deficiencies in his clinical approach as specified above. 23 The Practitioner admits to the facts set out in Particular 6(a-b). 24 The Practitioner denies the facts set out in Particular 6(c) and further says: a) the blood test results were communicated in the discharge referral letter at pages 2, 7 and 8. 25 The Practitioner denies the facts set out in Particular 7 and further says: a) his written discharge letter did not corelate with his verbal instructions. 26 The Practitioner denies the facts set out in Particular 8(a) and further says: a) there was no pain reported, only tenderness found on examination. 27 The Practitioner admits to the facts set out in Particular 8 (b-d). 28 The Practitioner denies the facts set out in Particular 8(e) and further says: a) the Practitioner recalls it was unremarkable with the exception of a reported history of excessive vaginal discharge. 29 The Practitioner admits to the facts set out in Particular 8 (f-h). 30 The Practitioner admits to the facts set out in Particular 9 (a) and further says: a) the Practitioner however notes that a white blood cell count, which was performed, may detect an acute inflammatory condition. 31 The Practitioner admits to the facts set out in Particular 9 (b-c). 32 The Practitioner admits to the facts set out in Particular 9 (d-e) and further says: a) The Practitioner however considers these would be done by her general practitioner upon review. 33 The Practitioner denies the facts set out in Particular 9(f) and further says: a) the Practitioner recommended Patient A have a full pelvic examination and ultrasound through her general practitioner. Complaint Two 34 The Practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law as set out in paragraph i. Particulars of Complaint Two 35 The Practitioner admits to the facts set out in Particular 1 (i-vi). Complaint Three 36 The Practitioner denies that he is guilty of unsatisfactory professional conduct under section 139E of the National Law as set out in paragraph i. 37 The Practitioner denies that he is guilty of unsatisfactory professional conduct under section 139E of the National Law as set out in paragraph ii. Particulars of Complaint Three 38 The Practitioner denies the particulars and relies on his responses as per Complaint One." Summary of the Contest 1. Dr Tran has made many factual admissions which have narrowed the contest between himself and the Commission. 2. Although complaints that he actually touched Patient A's clitoris in either or both of his vaginal examinations were not pressed, following oral evidence from Patient A and her mother, it is still alleged, but he vehemently denies, that he touched her inappropriately near her clitoris, and that he did so for his own personal and/or sexual gratification. 3. Apart from the live issues before us in respect of Dr Tran's physical dealings with Patient A, the Commission presses its allegations of the inadequacy of his medical records of those dealings, and the "discharge letter" which he prepared following them. 4. Subsequent to the two examinations, Patient A "complained" to her mother, and next day to a workmate, about her relevant dealings with Dr Tran, but her subsequent attendance upon a different doctor (Dr Nathan Trist) at the same hospital on 25 May 2020 led to a formal complaint process, an investigation, and ultimately these proceedings. The Evidence Patient A and her Mother 1. Patient A was a 22 year old hairdresser, with no children, at the time of her relevant attendance at Wollongong Hospital, but, by the time of her oral evidence to this Tribunal, she had turned 23 and become a "stay-at-home Mum". 2. Since the relevant incident on 22-23 May 2020, she has actually been diagnosed – for the first time – as suffering from anxiety, for which she is now seeing her GP and a psychologist, and taking prescribed medication. 3. She has a close relationship with her mother, who attended the hospital with her when she saw Dr Tran, but was not present during his second examination, nor when she attended the hospital again on 25 May 2020 and saw Dr Trist. 4. Patient A and her mother both denied on oath any collaboration in respect of their evidence to this Tribunal, written or oral, and we found both of them to be frank and helpful witnesses. 5. Patient A admits that, prior to the events of 22-23 May 2020 (ie, in approximately March 2020), she had had a termination, and that, about eight weeks before attending the hospital, she had used cannabis. She apparently smokes perhaps 10 normal cigarettes per day, and consumes more energy drinks than alcohol. 6. Patient A and her mother attended the Emergency Department at Wollongong Hospital late at night on 22 May 2020. Patient A was complaining that, over several days, she had experienced "palpitations, shakes, and light-headedness", and some stomach irritation, leading to a feeling of the need to open her bowels. 7. Her mother thought she was suffering from anxiety, but Patient A herself felt she was going to faint, and feared she might be having a heart attack. (Her father has had a long history of cardiac problems, dating from age 19). 8. She was triaged around 11.19pm on 22 May 2020, but first saw Dr Tran at around 1.00am on 23 May 2020. 9. She says that he put to her only "acute anxiety" as a provisional diagnosis, but she denied to him that there was "anything going on". He then felt her abdomen, and the left side hurt "a little bit" (perhaps 4 or 5 out of 10) when he "pressed down". (His notes wrongly record "soft non-tender"). She denies his claims that he then raised as a provisional diagnosis "Pelvic Inflammatory Disease" (PID), and asked about "thrush", but there was some discussion about vaginal discharge – not "excessive" discharge as he claims – and he told her he was "going to 'check' down there". She understood he asked if her mother ought stay in the room and Patient A agreed. There was no formal consent process, but she did not demur, and he wore gloves for that first examination. 10. The disagreement, prior to her and her mother's oral evidence, about possible clitoral contact during that first vaginal examination, and/or the second one to which we will return, seems to us to have flowed from Patient A's use at various times of the expression "on top of my clitoris", in respect of his physical inspection of her vagina, when she meant "above the clitoris towards the belly button" (Day 1, pp 32-33). 11. Dr Tran wiped the orifice of her vagina with his right index finger, and found no discharge. He said that his inspection showed everything was "fine". Patient A told the Tribunal that the whole of the first vaginal inspection was very quick, "less than a minute". 12. He took some blood tests, and returned her to the waiting room for approximately 45 minutes, until he called her back into the examination room, but this time without her mother. Both Patient A and Dr Tran seemed to agree that he did so in case she might wish to say something to him about her circumstances of possible anxiety that she might not be comfortable saying in the presence of her mother. 13. He repeated the abdominal palpation, and the "quick" external vaginal examination. This time he put her in a hospital gown, but conducted the examination without gloves, draping or modesty sheeting. 14. Again, their "consent" discussion was informal – Dr Tran told her that he was "going to check down there again", and she did not demur. 15. She had "coarse tremors" at the time of the first examination, and was "physically shaking" at the time of the second. 16. She told the Tribunal that he did not say anything inappropriate, and that she trusted him as "the doctor", but she later agreed with her mother that his repeating the vaginal examination had seemed "weird". 17. There is a disagreement between Patient A and Dr Tran about their subsequent discussion prior to her discharge from the emergency room – she says he did not mention that her GP should do a speculum examination and/or an ultrasound, but she is unclear if he mentioned anything about having the GP administer a Holter monitor. 18. She left the hospital around 2.00am on 23 May 2020, still anxious about what was wrong with her. Her symptoms persisted, and she wanted her blood test results, so she returned to the hospital alone two nights later (25 May). She did not go back to the hospital to make a complaint about Dr Tran, but says that she would have been concerned about seeing him again (Day 1, p 41). However, she did bring up with Dr Trist, on her second visit, the events of her first visit, of which he could find no clinical notes (Ex A1 tab 30, pp 1-10). 19. Dr Trist emailed his supervisor, Dr Ben Shepherd, Operations Manager of the Local Health District (LHD) at 5.49pm on the evening of 25 May 2020, detailing what Patient A had conveyed to him during his interview earlier that afternoon (Ex A1, tab 22). 20. Dr Trist commented that he had found Patient A "rational during [his] interview with her", that he "believed her complaint to be genuine", that he had apologised to her "on behalf of the service", and that he had "encouraged her to send her recollection" of relevant events to the email address on the Complaint Process pamphlet which he gave her. 21. On 26 May 2020, Dr Binks and Ms Anna O'Hare, NUM, met Patient A (Ex A1, tab 26, p 4), and she repeated the allegation in terms similar to what she had said to Dr Trist. 22. The matter was also advised to New South Wales Police on 26 May 2020 but they did not have any objection to the Local Health District conducting its own internal investigation. (The s 150 decision suggests that Patient A declined to give the police a statement, preferring only a hospital-based investigation – Ex A1, tab 29, p 2). 23. A NSW Health "Incident Report" (Ex A1, tab 23) was created on 27 May 2020, and a mandatory notification was made to the Australian Health Practitioner Regulation Agency (Ahpra) on the same date, by Dr Justine Harris, the LHD's Medical Workforce Director (Ex A1, tab 4). 24. There are some disparities between Patient A's recollections and her mother's. For example, her mother says that Dr Tran asked about "thrush", and that the vaginal examinations each took only "a couple of seconds". She says that she had a clear view and saw him actually put his finger into [Patient A's] vagina, and that she found it unusual for him to focus on Patient A's stomach and vagina when her complaint was "anxiety". 25. Patient A's mother found Dr Tran "a little bit abrupt" when he separated her from Patient A before the second examination, and she also found his constant attention to his hair during his attendance on Patient A "really strange", but not "inappropriate", although she wondered if he was trying to impress Patient A (Ex A1, tab 8, p 8). 26. Patient A was young, compliant, and vulnerable with Dr Tran, and we agree with Ms Petrie that her evidence was "clear, measured, reliable and truthful". Dr Trans's Evidence 1. The relevant "allegations" were relayed to Dr Tran by letter dated 29 May 2020 (Ex A1, tab 24) by Nouran Tawfiq, Principal Investigation Manager of the LHD's Professional Practice Unit (PPU). Tawfiq had already interviewed Patient A and her mother on 26 May 2020 by telephone (Ex A1, tabs 7-8), and he ultimately interviewed Dr Tran on 12 June 2020 (Ex A1, tab 9). 2. He made no statement specifically for this hearing, but there were many of his statements among the material, and he was cross-examined closely and at length. 3. For his part, Dr Tran says (Ex A1, tab 9, p 9) that the tenderness of Patient A's abdomen led him to think that she "probably" had PID or a UTI, and that he asked her further questions, but at interview soon afterwards he could not "remember exactly" what they were. He asserts that his first quick vaginal examination of Patient A was clinically justified, but he now admits that his second was not; he suspected PID, despite the absence of any complaint of pain other than that associated with the tenderness of her abdomen; he consistently denied any contact with her clitoris on either vaginal examination; and he consistently asserts that she said her vaginal discharge was excessive, whereas he found her discharge "normal". 4. He says he called her in for the second physical examination, so that she could safely be sent home, even without her blood results. He says that, when he called her back in, he had no intention of repeating his vaginal examination, as he had detected nothing of concern in the first one, but it seemed strange to the Tribunal that he would put her in a gown for her second examination if a vaginal examination was not contemplated. 5. He and Patient A disagree on the amount of sexual history taken on either occasion, and on the question of their process of seeking and granting consent for either vaginal examination. He "actually can't remember" what "aspects of her sexual history" he explored that night (Ex A1, tab 28, p 19, LL 37-43). 6. He admits that he did not properly consider the sensitivity of such intimate examinations for the patient – he chose to undertake vaginal examinations on an anxious young woman, and explains it on the basis that he was "just thinking clinically" and was not really thinking of her "comfort level" (Ex A1, tab 28, p 35, LL 11-25). 7. On the second examination, he should have worn gloves, provided modesty sheeting or drapes, and arranged – perhaps insisted upon – the attendance of either Patient A's mother or another chaperone. The s150 decision said that the failure to wear gloves showed "cavalier, dangerous disregard for hygiene protocols for protection against infection spread" (Ex A1, tab 29, p 11). 8. However, he "didn't sense any discomfort from the patient" (Ex A1, tab 28, p 35, LL 29-37). 9. He acknowledged that he may have been taught to have a chaperone (Ex A1, tab 28, p 43, LL 32-4). 10. There is no allegation that he said anything "inappropriate" on either occasion, and he denies that he excluded Patient A's mother on the second occasion so that he could be alone with Patient A (Day 3, p 27), but they disagree about what he said to her prior to discharging her – he says he sent her to her GP for review of her bloods and also for an internal speculum examination and ultrasound, and administration of a Holter monitor. 11. He admits that he did not write any clinical notes or a discharge letter until about 5.00am on 23 May 2020, approximately three hours after he had discharged her. He admits his documentation was inadequate – he omitted from the letter crucial details such as the conducting of the two external vaginal examinations, which he considered necessary, his suspicion of PID, her left-sided abdominal tenderness, and his reasoning about a possible diagnosis of anxiety. 12. The Tribunal put to him that vaginal examinations are unusual in emergency departments, and so should be recorded. The s150 panel found it "implausible" that he simply forgot to document them – such "forgetfulness around documentation is a very serious clinical error" (Ex A1, tab 29, p 11). 13. His only excuse/explanation for his complained-of conduct, and the shortcomings of his treatment of Patient A, are "stressors" in his personal life at the time (eg, tension with his Catholic parents over his proposed marriage to a single mother, and the loss of his grandfather to COVID-19 in the United States), and the burdens of his shift work at the hospital. (He would take over ten patients at the beginning of the shift, and take on ten more during it). 14. However, he admitted in cross-examination that this was a normal "night load" in the Emergency Department, that sleep deprivation was no excuse for his conduct, and that his career had been proceeding quite well despite the alleged stressors in his private life. 15. He testified (Day 2, pp 36-8) that he had very limited experience of doing any type of vaginal examination, especially internal, and in future he would do only "full" examinations, and insist on a chaperone, apart from any family member, preferably a qualified nurse – for the patient's comfort and his own protection. In future, he will also abide by the other "boundaries" Guidelines, wear gloves, and use modesty draping, for any intimate examinations. 16. He says that he got into the unwise habit of moving on too quickly to the next case in Emergency, and leaving his paperwork until later, especially if busy. He thought that being a good doctor required his "being efficient" with time. He was defensive of his method of "consenting" Patient A on both occasions, and conceded that he needed to "slow down and ensure" that his documentation was accurate. He admitted that he tended to become "fixated [on tentative diagnoses] and lose perspective", and he agreed that he needed to treat each "patient as a person first" (Day 2, pp 36-8). 17. On or around 13 January 2022, Dr Tran directly contacted Patient A by email, saying he was "desperate", wanted "to exhaust all [his] options", and seeking her "forgiveness". He apologised profusely for his "performance that night" and put to her that if he lost his licence he "wouldn't know how to provide for" his family. He denied any "malice", said it was an "honest mistake", and invited her to contact him. 18. Before us, he denied that this was an attempt by him to intimidate Patient A in any way prior to her giving evidence at this hearing, and he apologised to the Tribunal for his actions. He admitted that he knew such contact was inappropriate – and "crossed a boundary" (Day 3, p 29) – and that he did not think about how stressful the hearing would be for Patient A, not only for himself. He did not seek legal advice before making this contact, and his wife had counselled him not to do it, but when he decided to do so, he did not tell or ask her. 19. He also said that he had been avoiding pursuing CPD while under suspension, because these whole proceedings had made him "sad" (Day 2, pp 40-41). 20. The Tribunal found his evidence, when tested, to be quite unsatisfactory in many respects. He tended to construct his answers on the basis of what he "would have" usually done, rather than what he actually did, let alone what he recalled doing. He also departed on many occasions from what he had stated previously. 21. He persistently claimed that he asked Patient A many questions by way of taking her history, but he seems to recall no specific responses. When asked what specific questions he asked her when taking her history, he could not remember, but thinks he would have asked, for example, if her discharge was "excessive" (as he seems to have inferred). His history, however, does not mention the termination of pregnancy, her history of migraine, her cannabis use, her father's serious cardiac history, or her mother's and grandmother's history of lupus. 22. In respect of the second vaginal examination, he conceded that he implied her consent, and that such was not strong enough to be "informed" consent, because he had not told her exactly what he was doing, and why. (He now admits he had no grounds to assume that she knew what a vaginal examination entailed). It remains unclear why he would choose to do a second vaginal examination if he actually wanted her GP to do a full examination and a pelvic ultrasound. 23. He told the Tribunal that he had developed "insights from the material presented by all of Doctors Keane, Day and Forrester". 24. He failed to do – but now concedes he should have done – a pregnancy test, a urinalysis, a vaginal swab, or an STI screen, and he admits to "very very poor clinical judgment on that night" (Day 2, p 63). He now concedes that there were no real indicators of PID, such as a history of pain (pp 64-66), and he agrees that he could not definitively diagnose PID from the examination that he did (p 69). 25. When pressed by Tribunal members, he said of his experience in the four years following graduation and first registration (Day 3, p 18f) that he had "plenty" of experience of females presenting with lower abdominal pain, but saw only this one case – with pain only under pressure on the abdomen – which called for him to perform a vaginal examination. He thought he was by then senior enough to handle a "bare minimum" external examination, even though there were other more senior doctors available to perform it. He did not want to seem incompetent, but he described doing the external vaginal examinations as "the bare minimum I could get away with" (Day 3, p 21). 26. The emergency room was not particularly busy on that night, but he liked to get through the patients quickly so that they got home overnight (Day 3, p 22). He denied that he wrote his discharge letter deliberately to cover up his intimate examinations, but he could not adequately explain their omission and the omission of his suspicion of PID as his provisional diagnosis – it "slipped my mind" – nor his recording that Patient A's abdomen was soft but not tender. We also note here that the letter was not given to the patient, but sent to her GP. He says of his omission of the examinations that he was fatigued, and had found nothing of concern (p 27). 27. He could not explain why he disregarded finding no discharge (on "wiping" her vagina), which would have been relevant to his consideration of PID as a diagnosis (Day 3, p 25), nor could he explain wiping rather than simply relying on his visual observations (p 26). He told the Tribunal he "thought [he] needed to" wipe the rim of her vagina, but, having done so, he could not explain why he needed to do the second examination at all – all he could proffer was that he wanted to "make sure I didn't miss anything" (p 25). 28. He could not explain why he put Patient A in a gown for the second examination, which he says was not intended to be any more thorough than the first. It did not occur to him to get Patient A's mother into the room while Patient A was putting the gown on. 29. Nor could he explain why he expected her to speak freely, when he acknowledged the power imbalance between them and that she had trusted him because he was "the doctor". 30. He did, however, explain that he was wearing his hair long at the relevant time, and often had to "flick" it out of his eyes. The Experts 1. During his investigation, Mr Tawfiq sought expert advice from Dr Simon Keane, a Senior Medical Officer listed on Patient A's clinical notes for each of her visits. Dr Keane's comments are contained in the Investigation Report (Ex A1, tab 26, from p 9). 2. Dr Keane considered that the two examinations done by Dr Tran were indeed "vaginal examinations" ("in layman's terms" – tab 25, p 4), and required gloves: "Given the presenting complaint I would not normally expect a vaginal examination to be conducted on this patient… Dr Tran developed a cognitive Bias for [PID] supported by a poor and incomplete sexual history and examination findings… Given Dr Tran's level of experience and training I would have expected better from him… fatigue likely played a factor in his performance… this all contributed to result in a poorly managed presentation with unnecessary invasive exams… There is no reason to touch the clitoris or close to the clitoris as part of a "normal" vaginal examination" (Ex A1, tab 26, pp 9-10). 1. Dr Keane also noted (p 12) that it was "relatively common", but "very unadvisable", to leave documentation to a more convenient time, and that "a pelvic exam is a significant examination not carried out lightly in an emergency setting", and that he would expect it, and any findings, to be documented, even if a verbal consent is not always recorded. 2. Dr Keane went on to say (p 17) that the second vaginal examination was "not clinically indicated" on the "poor sexual history" taken and inadequate pathology done, (p 19) that "examinations of intimate areas would always require gloves", and (p 21) that "asking the patient's mother to be absent, but using the time to conduct an intimate exam… , all without a chaperone is poor management". 3. As already noted, when these proceedings were taken, the HCCC sought and obtained thorough expert reports from Dr Alan Forrester, an Emergency Physician and Emergency Department Clinical Director from Port Macquarie, and later from Dr Robert Day, long-time Head of the Emergency Department at Royal North Shore Hospital. 4. Ms Petrie correctly submitted that the HCCC does not need to explain to the Tribunal why it switched experts, but the Tribunal observed that Dr Forrester's report, although very critical of Dr Tran, was not quite as critical as Dr Day's, and paid more attention to Dr Tran's position than Patient A's. 5. At the hearing, Dr Forrester gave oral evidence in Dr Tran's case, and Dr Day in the Commission's, but both were closely questioned and gave the Tribunal useful evidence. Both were critical of Dr Tran in many respects, and in the end, Dr Forrester came close to Dr Day in respect of Dr Tran's shortcomings. For example, Dr Tran did not interrogate the family cardiac history, simply focusing on the issue of discharge. 6. The only CV we have for Dr Tran was included in his material (Ex R1, tab 13), but it clearly emerged during the evidence that it contained some regrettable inaccuracies regarding the years he has spent in various phases of his career since first registration. However, Dr Forrester unfortunately appears to have relied on it to conclude in some respects in his original report that Dr Tran had less experience as at May 2020 than he actually had, and to therefore measure (Ex R1, tab 2) Dr Tran's performance against what turned out to be a deficient standard. Dr Forrester also appeared to attribute Dr Tran's admitted and proven shortcomings to "unstructured locum arrangements", but he was very strong in his evidence on the vital importance of contemporaneous note-taking. 7. On balance, we prefer Dr Day's evidence (Ex A1, tabs 17-21), where it differs from Dr Forrester's. Dr Day echoed some of what Dr Keane had said. He found the vaginal examinations to be inappropriate in the circumstances, and to have been performed inappropriately. Mr Saunders, making submissions on Dr Tran's behalf, criticised Dr Day for expecting from Dr Tran a "gold-plated performance". 8. Dr Day opined that PID – disregarding how quickly Dr Tran arrived at it as a possible diagnosis – called for closer investigation than a basic external examination of the patient's vagina, and that touching 1cm above the clitoris was not appropriate in either examination. Dr Tran should have been much more thorough with taking the patient's relevant history; with the range of investigatory tests he conducted; with obtaining informed consent for invasive intimate examinations; with the provision of adequate draping, the wearing of gloves, and the presence of a chaperone, preferably other than the patient's support person; with explaining more clearly what he was doing and why; and with ensuring that all he found and did was fully reported in the notes, and in any letter to Patient A's GP. 9. Dr Day was critical of Dr Tran for assuming or inferring Patient A's consent, but a visual inspection of, and a finger at the opening of, a patient's vagina is not likely to provide useful information to diagnose or exclude PID. Dr Tran needed to give her a more detailed account of his plan and formally seek her consent. He needed a more detailed gynaecological or sexual history before the first vaginal examination, but more so before the second, and he should not have sent her home until at least some of her blood tests were back. 10. In summary, the expert opinions before the Tribunal indicate professional conduct by Dr Tran on 23 May 2020, even on his own account, generally below, and often significantly below (eg, the absence of gloves), the standard reasonably expected of a practitioner of his qualifications and experience. The Psychological Evidence 1. It is convenient to deal, at this point in these reasons, with the evidence of Dr Tran's psychologist, Maya Bazouni (Ex R1, tab 14). 2. Dr Tran apparently obtained from his GP a mental health plan, and it was the GP, and not the solicitors for Dr Tran, who sent him to see her. 3. By the time of the hearing, Ms Bazouni had seen Dr Tran three times, and had also administered psychometric tests to him on three occasions. 4. She found him "sad", and he reported that he had lost his sense of pleasure, and was "uncomfortable" in some social situations, due to his social isolation and detachment. He tends to be self-critical and pessimistic, and to blame himself for setbacks. 5. The psychometric testing found him "moderately" depressed in December 2021, and "more severely" so in February 2022, but his anxiety level was in the "normal" range on both occasions. 6. Ms Bazouni was very optimistic that, because of the insight she says she detected, that Dr Tran would respond well to a treatment plan that she had devised for him, involving 12 sessions over 6 months, but he has exhibited to her low motivation (p 7, par 27, and confirmed in his oral evidence to this Tribunal) to undertake it. He sees little need for changes in his behaviour, and Ms Bazouni believes he needs further clinical evaluation. 7. Ms Bazouni opined that Dr Tran acted with impaired clinical judgment and management in relation to Patient A. At the time, he was preoccupied with some personal matters, and may have been suffering from work fatigue and tiredness. She opined that he was possibly underprepared for, and inexperienced in, the sensitive clinical situation he encountered when assisting Patient A. He acknowledges his faults and shortcomings in the matter, and Ms Bazouni thinks he is not likely to engage in future similar conduct – "he has insight" (p 9, par (c)), and is fit to resume medical practice (p 10, par (e)). 8. We note that he did not tell Mz Bazouni of his attempt to contact Patient A before this hearing commenced. With respect, given Dr Tran has not been completely frank with her, we give Ms Bazouni's opinions little weight. Discussion 1. We have already observed that we found Dr Tran to be an unsatisfactory witness in many respects, having applied to his evidence the established principles for determining the credit of witnesses: see Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 (Priyamanna), at [79], where this Tribunal cited with approval Sackar J's exposition of the relevant law in Campbell v Campbell [2015] NSWSC 784. 2. In respect of Complaint One, which dealt with the physical aspects of the matter, Dr Tran has made admissions that some of his actions amount to "unsatisfactory professional conduct", but he denies that those actions are of a sufficiently serious nature as to amount to "professional misconduct" and so justify suspension or cancellation of his already-suspended registration (Complaint Three). 3. While he continued to challenge some of the facts underpinning the complaints and particulars in Complaint One, he was especially vehement in asserting that none of his conduct, especially in conducting the second vaginal examination, was "for the purpose of [his] own personal and/or sexual gratification" (Complaint One, particular 5 b). 4. We find no evidence of such motivation, and we find in Dr Tran's favour in respect of that particular. However, in terms of particular 5 a, we find Dr Tran's conduct of the second vaginal examination "improper and unethical". 5. We are "comfortably satisfied" (in the Briginshaw sense) that all the other elements of Complaint One and its particulars have been established: Bannister v Walton (1993) 30 NSWLR 699. 6. We accept that Patient A may have "looked well", that Dr Tran thought during examination that she was "completely comfortable", and that her presentation was not a classic emergency case, but we find that Dr Tran was not at all sympathetic to her sense of vulnerability. 7. While the two vaginal examinations were very brief (certainly less than one minute, if not only seconds), they were invasive, and not clinically justified in the circumstances, and the patient had already been found to be "anxious". 8. The circumstances of the second examination were alarming for Patient A, all at a time where expert opinion indicates that a brief visual observation would have sufficed, and, if PID was likely, a much more comprehensive physical examination was urgently required. 9. While there remain some minor disparities in the factual evidence, none of them is of much consequence in our considerations (eg, which nurse performed the ECG), and we accept the primary evidence of Patient A and her mother, rather than the "I would have" contentions of Dr Tran, whose evidence the s 150 panel had already found could not be relied upon (Ex A1, tab 29, p 11). 10. Turning now to Complaint Two, regarding Dr Tran's record-keeping, it is clear from the documents, and from all the other evidence, that Dr Tran took an inadequate history, especially regarding sexual and cardiac matters, did not adequately record what he was told, what he did and what he found or did not find, and inadequately reported all of this to Patient A's GP. 11. There has been a clear breach of the relevant regulations, guidelines, and Code of Conduct, but we do not accept the submission that his retrospective notes were motivated by "cover-up". 12. Complaint Three requires the Tribunal to make a value judgment on the evidence as to the seriousness of Dr Tran's unsatisfactory professional conduct, and we have concluded that it is, on Complaint One alone, but also in combination with Complaint Two, sufficiently serious as to amount to professional misconduct under s 193E of the National Law. Priyamanna makes clear (at [175]-[189]) that the absence of a finding of a sexual motivation does not preclude such a conclusion. 13. The Tribunal's function is to protect the public rather than punish Dr Tran: see discussion in Health Care Complaints Commission v Do [2014] NSWCA 307, at [35] per Meagher JA, with whom Basten JA agreed. However, protective orders may sometimes have a punitive effect: Health Care Complaints Commission v Litchfield [1997] NSWCA 297; 41 NSWLR 630. 14. We are cognisant of the fact that Dr Tran has been suspended since May 2020, and that these proceedings have become protracted, and no doubt hard on him and his family, and we have taken note of the evidence given, and submissions made, in respect of what actions should flow from our finding of professional misconduct. 15. We are of the opinion that Dr Tran's proven incompetence and insensitivity pose a risk to the public, and we are not satisfied that his behaviour with Patient A will not be repeated. 16. His lack of judgment in making contact with Patient A on the eve of this hearing also causes us some concern as we consider his apparent reluctance to pursue relevant training during his suspension, and to undertake recommended psychological treatment. 17. However, Dr Tran has no bad record, an encouraging psychological report, and some strong references, was fatigued and under some personal stress at the relevant time, and errors of judgment in only one case, however serious, do not equate to a permanent character defect. 18. We do not agree with Ms Bazouni that he has developed (adequate) insight, and so we cannot find that he is at "low risk" of repeating the behaviour complained of: Health Care Complaints Commission v Parajuli [2010] NSWMT 3, at [35] to [38]. 19. General deterrence is also required in a case such as this: Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [91] per Basten JA. 20. We have concluded that, in all these circumstances, the protective orders recommended in the submissions made on Dr Tran's behalf (par 171) are not sufficient, and that cancellation should be ordered, that a non-review period of one year (rather than the two sought by the HCCC) should be imposed, that Dr Tran should be prohibited from providing a health service during that one year non-review period, and that Dr Tran should pay the Commission's costs, including those incurred in respect of Dr Forrester's oral evidence. 21. Dr Forrester's report was admitted into evidence without challenge, and he became Dr Tran's witness. While we accept that Dr Forrester's oral evidence was only cross-examination by Ms Petrie on behalf of the HCCC, once Dr Tran wanted to rely upon Dr Forrester's report, the Commission had every right to cross-examine him upon it. Dr Tran must bear the costs of Dr Forrester's oral evidence. 22. The Tribunal makes the following orders: 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Vincent Dzung Tran's registration as a medical practitioner is cancelled; 2. Pursuant to s 149C(7), Dr Tran may not apply for a review of the cancellation order for a period of one year from the date of this decision; 3. Dr Tran is prohibited from providing a health service, as defined under s 4 of the Health Care Complaints Act, 1993, for a period of one year, being the non-review period imposed in order (2); 4. Dr Tran is ordered to pay the Commission's costs as agreed or assessed, and to be responsible for the costs of Dr Forrester giving oral evidence in the proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022