Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tran v Medical Council of New South Wales [2024] NSWCATOD 185 Hearing dates: 21 August 2024 Date of orders: 14 November 2024 Decision date: 14 November 2024 Jurisdiction: Occupational Division Before: Seiden SC DCJ, Deputy President Dr T Salonga, Senior Member Dr S Cowap, Senior Member R Kusuma, General Member Decision: (1) Pursuant to s 163B(1)(c) of Health Practitioner Regulation National Law (NSW) 2009, the Tribunal makes a reinstatement order. (2) Pursuant to s 163B(4), the Tribunal imposes conditions on the applicant's registration the subject of the reinstatement order. The conditions are set out at paras [74]–[75] of the Tribunal's reasons for decision. (3) The applicant is to pay the respondent's costs pursuant to cl 13 of Sch 5D of the National Law, as agreed or as assessed. Catchwords: OCCUPATIONS — medical practitioner — application for reinstatement — whether the practitioner has developed insight — reinstatement application granted with conditions Legislation Cited: Civil and Administrative Tribunal 2013 Act (NSW) Health Practitioner Regulation National Law (NSW) 2009 Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Hart v Medical Council of New South Wales [2024] NSWCATOD 21 Health Care Complaints Commission v Tran [2022] NSWCATOD 129 Jan v Health Care Complaints Commission [2021] NSWSC 350 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Texts Cited: Australian Medical Associations, National Code of Practice – Hours of work, shiftwork and rostering for hospital doctors, 2006 Medical Board of Australia, Guidelines: Sexual boundaries in the doctor-patient relationship, 2018 Medical Board of Australia, Good medical practice: a code of conduct for doctors in Australia, 2020 Category: Principal judgment Parties: Vincent Dzung Tran (applicant) Medical Council of New South Wales (respondent) Representation: Counsel: I Chatterjee (applicant) K Sharma (respondent) Solicitors: Navado Lawyers & Solicitors (applicant) Medical Council of New South Wales (respondent) File Number(s): 2024/00140482 Publication restriction: On 21 August 2024 the Tribunal made an order, pursuant to cl 7 of Sch 5D to the National Law, that the names of Patient A and Patient A's mother are not to be published. REASONS FOR DECISION The Application 1. Pursuant to orders of the Tribunal, the applicant's registration as a medical practitioner was cancelled and he was prohibited from applying for review of the cancellation order for a period of one year: Health Care Complaints Commission v Tran [2022] NSWCATOD 129 (the Decision). The applicant now applies for a review and seeks a reinstatement order, pursuant to Div 8 of Pt 8 to the Health Practitioner Regulation National Law (NSW) 2009 (National Law). 2. The Medical Council of New South Wales is entitled to appear in the inquiry conducted by the Tribunal: National Law, s 163C(4). The respondent neither consents nor opposes the applicant's application; but submits that if the Tribunal makes a reinstatement order, then the applicant's registration should be subject to conditions: at [3] of the respondent's written submissions. 3. The respondent also seeks an order that the applicant pay the respondent's costs pursuant to cl 13 of Sch 5D to the National Law. 4. For the reasons that follow, the Tribunal is satisfied that it would be in accordance with the principles, guidelines and objects of the National Law that the application be granted; and that the Tribunal make a reinstatement order on conditions. Legislation 1. A person may apply to the Tribunal for review of a relevant order made in relation to the person which includes an order that the person's registration be cancelled: National Law, s 163A. The "appropriate review body" to review the order is the Tribunal: National Law, s 163(1)(c). 2. The powers of the Tribunal on review are stated in s 163B of the National Law: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. … (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. The task of the Tribunal in conducting an inquiry into an application for review is to determine the appropriateness, at the time of the review, of the order concerned: National Law, s 163C(1). In conducting the review, the Tribunal is not to review the decision to make the order, or any findings made in connection with the making of that decision: National Law, s 163C(2). 2. In exercising functions under the National Law, "the protection of the health and safety of the public must be the paramount consideration": National Law s 3B. Functions under the National Law must be exercised having regard to its objectives and guiding principles: National Law, s 4. These provisions are mirrored in the Civil and Administrative Tribunal 2013 Act (NSW) (NCAT Act). In particular, the Tribunal is, when exercising functions for the purposes of the National Law, under a duty to observe the objectives and principles referred to in ss 3 and 3A of the National Law: NCAT Act, cl 9 of Sch 5. Further, s 36(5) of the NCAT Act requires the Tribunal to exercise any function consistently with the objects or principles of the enabling legislation; here, the National Law. 3. The main guiding principle is that the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A(1). Other guiding principles include that the scheme is to operate in "a transparent, accountable, efficient, effective and fair way": National Law, s 3A(2)(a); and restrictions on the practice of a health profession are to be imposed "only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3A(2)(c). The objectives of the national registration and accreditation scheme include "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3(2)(a). Principles 1. The respondent cited the following principles, which the applicant accepted are correct: "5. Under s 163A of the National Law, a person may, relevantly, apply to the Tribunal for a review of an order cancelling the person's registration (see 163A(1)(b) and (4)). The Tribunal must conduct an inquiry into an application for review and may then, amongst other things, make a reinstatement order and impose conditions on a person's registration (see s 163B(1)(c), (1)(d) and (4)). 6. The task of the Tribunal undertaking a review is to determine the appropriateness, as at the time of the review, of the order concerned (s 163C(1)). The Tribunal does not review the decision to make the original order or any findings made in connection with the making of that decision (s 163C(2)). 7. In undertaking a review, the Tribunal must have regard to the objectives and guiding principles of the National Law, which include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)) [fn 2: Zepinic v Health Care Complaints Commission [2020] NSWSC 13 (Zepinic) at [85] citing Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]]. 8. An applicant for a reinstatement order must demonstrate that he or she can be trusted to practise in a way that conforms to the standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession [fn 3: Zepinic at [85] citing Ameisen v Medical Council of NSW [2015] NSWCATOD 49 at [24]. See also Hossain v Medical Council of New South Wales [2024] NSWCATOD 29 at [13]]. In this connection, the position of an application for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness [fn 4: Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18], Zepinic at [85] citing Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]] 9. The focus is not on what an applicant has suffered in the past. The relevant focus is on his or her worthiness and reliability for the future [fn 5: Zepinic at [85] citing In re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]]. In this regard, the mere passage of time without further misconduct is insufficient. Clear proof is required to establish that there has been a reformation of character [fn 6: Zepinic at [85] citing Ex parte Tzinilios Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461]. 10. Improved insight into conduct which led to the cancellation of registration in the first place, and into the personal factors which resulted in the complaints in question, will often be relevant to any application for reinstatement, as will any steps taken to demonstrate such improved insight as well as that the former practitioner is a changed person [fn 7: Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [21] citing Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43; Ristevski v Medical Council of NSW [2016] NSWCATOD 18]." (Citations in original) 1. These principles are consonant with recent authorities. 2. In Jan v Health Care Complaints Commission [2021] NSWSC 350 at [33], Leeming JA stated, "[t]he starting point is NCAT's evaluation of the plaintiff himself, in light of his history of transgression after having been deregistered." 3. In a recent decision of Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney), the NSW Court of Appeal explained that the Tribunal's role is not to consider the correctness of the decision to cancel the practitioner's registration, but to determine the "appropriateness" of making a reinstatement order at the time of the hearing for such an order: Mooney at [40]. 4. The relevant principles in determining the "appropriateness" of making a reinstatement order were discussed by the NSW Court of Appeal in Qasim v Medical Council of New South Wales [2021] NSWCA 173 (Qasim) at [17]–[19]: "[17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public. [18] The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. [19] Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof." (Footnotes omitted) 1. The Tribunal accepts these are the relevant principles. The Tribunal decision of 25 October 2022 1. The Tribunal ordered the cancellation of the applicant's registration after finding the applicant guilty of unsatisfactory professional conduct and professional misconduct: Decision at [121]–[132]. The subject of the Decision was three complaints against the applicant. Complaint One 1. Complaint One alleged the applicant was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (1)(l) of the National Law. The particulars of Complaint One alleged that the applicant carried out vaginal examinations on Patient A on two separate dates, without proper and sufficient clinical indication and in an inappropriate manner. It was also alleged that the practitioner's conduct in relation to the second vaginal examination was improper and unethical, for the purpose of the applicant's own personal and/or sexual gratification and in breach of the Medical Board of Australia, Guidelines: Sexual boundaries in the doctor-patient relationship, 2018. 2. Other particulars to Complaint One alleged the applicant prepared a discharge letter for Patient A that was inadequate and incomplete, inappropriately relied on verbal communication with Patient A for future management, took an inadequate patient history from Patient A and did not perform relevant pathology and other relevant investigations, in view of the history and other diagnoses. 3. In relation to Complaint One, the Tribunal found no evidence that the second examination was for sexual gratification but found, nevertheless, that the second examination was "improper and unethical": Decision at [124]. The Tribunal was otherwise "'comfortably satisfied" that all other elements of Complaint One and its particulars had been established: Decision at [125]. 4. The Tribunal said at [126]–[128]: "[126] 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. [127] 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'. [128] 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 [Pelvic Inflammatory Disease] was likely, a much more comprehensive physical examination was urgently required." Complaint Two 1. Complaint Two alleged that the applicant was guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint Two, Particular One alleged that the applicant failed to make and keep adequate records sufficient to facilitate the continuity of patient care in relation to Patient A, pursuant to reg 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). 2. The Tribunal was satisfied that Complaint Two was made out, having found that the applicant "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". The Tribunal determined there had been a clear breach of the relevant regulations, guidelines, and the 2014 Code of Conduct. Complaint Three 1. Complaint Three alleged that the applicant was guilty of professional misconduct. The Tribunal found that Complaint One alone, but also in combination with Complaint Two, was sufficiently serious as to amount to professional misconduct under s 139E of the National Law: Decision at [132]. Protective Orders 1. In determining the appropriate protective orders, the Tribunal was not satisfied the applicant "[had] developed (adequate) insight", and said, "we cannot find that he is at 'low risk' of repeating the behaviour complained of": Decision at [138]. The Tribunal ordered the cancellation of the applicant's registration, with a non-review period of one year, and prohibited the applicant from providing a health service during that period: Decision at [140]. The statutory task 1. The Tribunal is not, here, reviewing the Decision. The Tribunal is considering whether the applicant has demonstrated that he, now (borrowing the words in Qasim) "can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession". 2. The focus, in this particular case, is on whether the applicant has satisfied the Tribunal that he has gained insight and capabilities in relation to the matters that led to his registration being cancelled in the first place; and that with appropriate conditions, he does not pose a risk to the health and safety of the public. The respondent does not suggest that the Tribunal need look beyond the particular Complaint the subject of the Decision. Nevertheless, the Tribunal must be satisfied that the applicant can practise in a competent and ethical manner. We have assessed the evidence accordingly. 3. Broadly, the issues this Tribunal needs to be satisfied of relate to the following: 1. communication with patients, including in relation to the taking of medical history and in relation to the performance of procedures; 2. his capability concerning the need for and the performing of vaginal examinations; 3. and record-keeping. The evidence 1. The applicant provided a written statement which includes a list of continuing professional development (CPD) activities undertaken and a professional development plan. He also provided an oral statement and was cross-examined by the respondent's counsel. The applicant also relies on a statement from his psychologist, Maya Bazouni, and a number of character references. 2. The respondent served a report from Dr Anthony Samuels. The applicant's statement 1. As mentioned, the applicant provided a written statement. He was candid in his statement. He explained that since the Decision, he has reflected on his behaviours that led to the loss of his registration and has done significant work towards ensuring that the types of transgressions that led to his registration being cancelled will not occur again. 2. He has read again the Medical Board of Australia, Good medical practice: a code of conduct for doctors in Australia, 2020; and Medical Board of Australia, Guidelines: Sexual boundaries in the doctor-patient relationship, 2018. In retrospect, he wishes that, at the relevant time, he had attained a better understanding of the code. In particular, whilst not an exhaustive list, he has learned the importance of prioritising patient-centred care; improved communication; engaging in continuing education; and the importance of keeping clear, accurate and contemporaneous medical records. The applicant does not simply list these factors. He also identifies how, had he held these at the forefront of his mind at the relevant time, his behaviour would have been different and why it will be different in the future. For instance, he would have: slowed down; been sensitive to many issues; and focussed on assisting the particular patient in her health journey. He now understands the inherent power imbalance between patient and doctor and that it can be ameliorated by communication and a sensitive approach. He is very conscious that in many areas of the Decision, his lack of sensitivity is referenced. In hindsight, he completely agrees that his patient management was lacking in empathy and sensitivity; in particular, with respect to the vaginal examinations. He now recognises the importance of making the patient as comfortable as possible. 3. The level of detail in his statement discloses a genuine understanding of these issues. For instance, he identifies that had he observed a patient-centred focus, he would have communicated the process and used privacy drapes and gloves and that he did not do so, as he did not consider the situation from the patient's perspective. He expresses his understanding that if he treats patients with compassion, then being sensitive to their needs will follow. He now recognises that he must treat each patient as an individual and that they must feel seen and heard. 4. He identified that on the relevant occasion he had the wrong priorities: he focussed on efficiency over patient care. He identified that, at the relevant time, he did not recognise this was an error, but now does. He commits to not letting it happen again. He commits to going slower in future, pausing, reflecting, and considering the patient's perspective. He expresses an understanding that providing good care starts with having a patient focus which enables him to provide optimal treatment. He also recognises the positive feedback loop with a patient feeling more engaged in their own care and more empowered. 5. Insofar as communication is concerned, he has completed many CPD activities, attended workshops and appreciates the importance of listening to ensure that his consultation is not superficial. In particular, he has a greater understanding of what is meant by informed consent and the importance of ensuring that he is addressing the patient's questions and concerns and keeping them updated with progress. 6. The applicant also recognises that, whilst there were no specific findings of wrongdoing concerning his time management, he did not manage his time well. He was wrongly concerned to get through all the cases as they presented, when he should have taken time to document his notes contemporaneously. He recognises that, particularly on the night in question, his notes were done many hours after the events and in circumstances where he worked continuously for a very long time. 7. Overarchingly, his statement reveals that he now recognises the importance of not putting time efficiency and seeing patients in a timely manner ahead of approaching each patient's care properly, focusing on the patient and their medical issues. Through counselling, he can see that despite pressures of workflow in an emergency room, these pressures are not for him to solve alone. He also recognises how important it is that he manage his own stress and fatigue and that he will use the Australian Medical Associations, National Code of Practice – Hours of work, shiftwork and rostering for hospital doctors, 2006. 8. In relation to the vaginal examination, particularly, he acknowledges that his taking of a sexual history and family history was inadequate. He has gained an understanding of how to take a sexual history. For example: he will have a more open approach; not make assumptions or judgements based on gender or age; and he now has a greater familiarity with the types of questions he should ask. Further still, he has attained a greater understanding of patient-doctor sexual boundaries and recognises the importance of gaining the patient's trust and that this can be positively affected by communication and negatively affected by crossing sexual boundaries which he commits to guard against. 9. Specifically in relation to the pelvic examinations, he recognises they were wholly inadequate. Whilst there was some indication to perform an initial pelvic examination based upon the suspicion of pelvic inflammatory disease, he needed to explore the history further and he recognises that the examination performed was marred "with many mistakes". As part of his own journey back to practice, he would like to gain further experience in performing pelvic examinations. He would like to be supervised in relation to this, so that he does not make the same mistakes again. Importantly, he now appreciates how intimate examinations can be challenging for patients and that they are particularly vulnerable during the examination. He believes that from all the work that he has to do, communication needs to be at the forefront of his mind. He recognises the importance asking himself, "what is the point of doing this, what will I gain and what is the price?" 10. In relation to the vaginal examinations, he recognises that he should have used gloves, a chaperone and a privacy drape. In relation to the second examination, he identified that the patient's consent was inadequate as he failed to gauge her understanding: therefore, her consent was not fully informed. He acknowledges that his medical management was not adequate. 11. In relation to medical records, he acknowledges that they were inadequate: he omitted the sexual history, intimate examinations and his suspicion of pelvic inflammatory disease. Further, he did not record the consent or abdominal tenderness. The applicant has been very specific about what he missed and recognises that he has not demonstrated a high quality of care. He now recognises the importance of good records for the benefit of the doctor but also to help treat the current condition of the patient going forward. Also, he recognises that good medical records should demonstrate that he showed respect to the patients and put future practitioners in a position to assist the patient. 12. The applicant acknowledges that he should have gone to a senior for help, particularly given his uncertainty around his findings. Significantly, he recognises that his own personality tends towards not making a fuss and not wanting to bother others; however, he realises that in the interests of his patients, he needs to actively mitigate these personality traits. Also, he accepts that he could be characterised as lacking sensitivity, which he is actively working to redress. 13. He has engaged in many continuing professional development courses since the Decision and is exploring his own personal development, particularly through the assistance of his psychologist. The Decision has created in him what he calls a "philosophical shift". Where he was previously naïve and thought that practising with good intention was enough, he now knows he must refocus. He believes he has changed. 14. Ultimately, he implored the Tribunal not to consider that his transgressions demonstrate a permanent character defect. He recognises that he acted badly. 15. The applicant acknowledges that as he has not practised for 3 and a half years. He has thought about a realistic re-entry to practice. If reinstated, he considers that a structured and supervised position, for instance, as a resident medical officer (RMO) would suit him. He hopes to return to his previous clinical competency within six months, if his registration is returned. 16. The Tribunal was satisfied that the applicant's detailed statement, which provides concrete examples of how and why things will be different in future and how and why his behaviour was not acceptable in the first place, demonstrates genuine insight. The applicant's statement demonstrates that he has deeply thought about his transgressions and how to prevent a repeat. The applicant's oral evidence 1. Orally, the applicant impressed the Tribunal with his candour. He gave heartfelt explanations of his transgressions and was open in his answers to the cross-examiner. He recognises the aspects of his personality that contributed to the transgressions: particularly in prioritising efficiency over patient communication; not understanding the importance of communication; that his personality trait of submissiveness led him not to seek help or take breaks; and that his insensitivity compounded all of it. He communicated to the Tribunal that he thinks as a result of the Decision, he will be a better doctor. 2. In particular, the applicant responded to many of the comments that Dr Samuels made, by specifically agreeing with them. As noted below, Dr Samuels considers that the applicant has a tendency towards a lack of empathy, some interpersonal insensitivity and that he can become hyper-focused on tasks. The applicant acknowledged these shortcomings and identified to the Tribunal the steps he took to address these. 3. Once again, he gave many concrete examples of his new approach to sensitivity: for instance, taking time for family, taking time to listen carefully, and not prioritising efficiency. One particular example of his communications with his brother, in relation to personal and sensitive matters, was instructive. The applicant said that in the past, he would have felt uncomfortable to deal with the issues his brother raised and avoided any discussion, but since the Decision he has fully engaged and believes his relationship with his brother has improved. The applicant believes he has been able to help his brother. Ultimately, he communicated that not only has the experience aided in his professional life but also his personal life. 4. The Tribunal is satisfied that the applicant has genuinely considered his position. In particular, he recognises that prioritising efficiency above communicating with others and considering patient needs led to the transgressions. 5. The Tribunal is satisfied that he was earnest and truthful in giving his evidence and that he has gained insight. Character references 1. The applicant relied on many character references: some from 2020 and some recent. Without detailing all of them, an example is by Dr George Rennie who is a registrar in ophthalmology at the Sydney Eye Hospital. Dr Rennie met the applicant when they studied optometry 20 years ago and has remained in contact since. He describes the applicant as being "more than capable of intellectually and emotionally" keeping rigorous notes, displaying greater patient sensitivity and performing more comprehensive examinations. He identified that there was a particular constellation of events that may have contributed to what he describes as an "unexpected lapse in clinical reasoning" and "lapse in judgement" but also identifies that these are things that the applicant is capable of remedying and supports the applicant being given an opportunity to remediate and recommence work as a medical doctor. 2. Avleen Hans, optometrist, has provided two references. He considers the applicant "able to learn from his previous failings" and capable to "make changes to his practice going forward". 3. Dr Clarence Yeong is a respiratory and sleep physician and Deputy Medical Director of Medical Services Concord Repatriation General Hospital. Dr Yeong met the applicant when they were both undertaking a Bachelor of Optometry at the University of New South Wales and have maintained contact since. Dr Yeong describes the applicant as a hard worker "almost to a fault". He notes the applicant is culturally and linguistically diverse and brought up in Australia with traditions, values and cultural beliefs of his Vietnamese background. He has recognised in the applicant a strong reluctance to make a fuss which may have contributed to the applicant not seeking advice from seniors in a busy department. He considers that further mandatory training will assist the applicant to have "a good chance of rehabilitation". 4. Dr Narinder Negi worked with the applicant from 2018 until the applicant lost his registration. Dr Negi has supervised and worked alongside the applicant in emergency and describes him as someone who is soft-spoken, kind-natured, communicates clearly, and is polite to patients and fellow hospital staff. His experience of the applicant is of someone who ensures the patient has a clear understanding of the medical issues and the patient's management plan. Prior to the allegations in the Complaint, he had not heard a bad word about him. Despite the applicant's lapses in judgement as revealed in the Decision, he considers the applicant to have many qualities and to be an asset to society. 5. Melissa Valdes is a nurse who has worked alongside the applicant and knows him as someone committed to providing quality care to patients, and someone with an ability to collaborate effectively with the healthcare team. She is able to recommend him for his professional competence, dedication and personal integrity, despite the Decision. 6. The references paint a picture of a kind and caring person with a natural inclination to help others and who could be an asset to the profession. Expert witness reports Maya Bazouni 1. Maya Bazouni is a registered psychologist, she provided an expert witness report that, among other things, identified that the applicant: showed no clinical symptoms of psychological disorders; adhered to the psychological treatment plan; acknowledged and accepted the Decision; had reflected on the findings in the Decision; had demonstrated improved insight and introspection into his professional misconduct; and reflected on his changes. In her opinion, the applicant is "mentally fit to practice as a doctor and has demonstrated good/intact insight during the treatment process." 2. Ms Bazouni identified that an aspect of his interpersonal and social environment was that he is very uncomfortable in social situations and takes a passive or submissive stance when dealing with others. Her treatment plan involves psycho-education, cognitive and behavioural therapy for a depressive disorder, assertiveness and social skills training, and the use of introspection. Ms Bazouni noted that the applicant was committed to and attended regular therapy sessions and that he achieved a healthy adjustment and improved functioning. She considered that he demonstrated insight and she observed changes in his capacity for insight, empathy, reflective thinking and introspection. He did not engage in an angry, resentful or hostile manner; rather, he was calm, forthcoming about the stressful experience, and accepted the need for adequate communication with patients. She opined that he recognises the importance of compassion, patient sensitivity (including through history taking) and checking patient understanding. He has consolidated his understanding through professional development courses and re-reading the professional codes. In her view, he has improved his self-awareness and recognises his errors in judgement. 3. Ms Bazouni recognises the need for supervised practice in some areas to improve skills and to support him to: engage in continuing professional development; slow down rather than rush through patient load; avoid hasty decisions and compromise the care of patients; engage in improved history and notetaking; take scheduled breaks; not exceed work hours; and to continue to seek support from his psychologist. 4. Ultimately, Ms Bazouni concluded that the applicant is "unlikely to engage in offending conduct of a like nature in future" and concluded that there are "no indications of an impairment and there are no clinical symptoms of a psychological disorder" and that he is "fit to resume medical practice". Dr Anthony Samuels 1. Dr Samuels is a consultant psychiatrist. His report was provided by the respondent. The applicant described his report as broadly supportive of the applicant's application. The Tribunal accepts this characterisation. 2. Dr Samuels found no clear evidence of significant psychiatric condition, he considers that the applicant has some deficits in communication, empathy and interpersonal sensitivity. Dr Samuels describes the applicant as someone who seems to compartmentalise issues and be hyper-focused on tasks. With respect to Patient A, and the subject matter of the Decision, Dr Samuels observes that the applicant was very focused on patient flows, efficiency, communicating with other doctors and did not prioritise patient needs or engage empathetically. Dr Samuels describes the applicant as quite limited in his capacity to understand the patient experience; he also worked six night shifts in a row and was not taking sufficient breaks. The incident occurred in the context of a hurried, detached examination, where the applicant was seeking to complete the assigned task, rather than trying to properly understand the clinical situation and the patient's needs. 3. Dr Samuels opined that the applicant's personality traits were a factor. However, he has nevertheless gained some insight, in that he now sees the need to alter his approach to patients; particularly in regard to listening to them, understanding what they are trying to say and giving feedback. 4. While Dr Samuels considers the applicant is still struggling to integrate some of the learning around the factors that led to the complaint against him, he is beginning to develop an intellectual understanding and insight. Dr Samuels acknowledges that the applicant has taken some appropriate steps to reflect and has a better understanding of how to ensure these problems do not emerge in the future. He opined that the applicant: "now has a much clearer understanding about the process of intimate examinations of patients and the fact that these situations can be extremely confronting and upsetting for some particularly vulnerable patients. I do believe that he would approach such examinations differently in the future". 1. Dr Samuels considers that the applicant should continue to work with his psychologist to help better understand the patient experience and to assist in issues with regard to empathy and sensitivity. He also considers the applicant will benefit from ongoing supervision and mentoring in the workplace, with respect to improving his interpersonal and clinical skills. 2. Ultimately, Dr Samuels considers that, with appropriate support, the applicant should be able to return to some form of clinical practice. Consideration 1. As noted above, the respondent neither consented to nor opposed the application; but assisted the Tribunal in assessing the appropriateness of the applicant regaining his registration, by cross-examining the applicant and making submissions generally about the evidence and principles. The Tribunal was greatly assisted by the respondent counsel's exploration of issues in cross-examination. This provided the Tribunal with an excellent opportunity to assess the applicant's candour and whether his asserted insight and reflection was genuine. 2. We note too, that the Tribunal was also assisted by the applicant's counsel's approach, which facilitated the applicant's open, straightforward, and frank evidence, which in turn facilitated keeping the guiding principles of the National Law at the forefront of the proceedings. 3. Without derogating from the seriousness of the applicant's transgressions, as detailed in the Decision, the Tribunal is satisfied that the applicant has developed sufficient insight, changed his attitude and has a viable plan of continuing work with his psychologist and continuing professional development, to have confidence that similar mistakes will not be made in the future. The applicant's acceptance of the need for ongoing support and training strengthens the Tribunal's view. 4. In light of his candour and evident learning, the Tribunal is satisfied that the applicant will, ongoingly, have patient care at the forefront of his mind, will strive to communicate effectively and efficiently, will manage his own stress and workload, will seek supervisor support where appropriate. With ongoing supervision, the Tribunal is satisfied he will make an admirable contribution to the health system. 5. In relation to each of the issues that the Tribunal must be particularly mindful of (as detailed above at [27]) we find that the applicant has demonstrated insight and awareness into the importance of communication with patients, including in relation to the taking of medical history and in relation to the performance of procedures. He also understands the importance of record-keeping. Additionally, we find that he has developed his theoretical capability concerning the need for and the method of performing of vaginal examinations, but he will need supervision in upskilling his clinical practice. 6. The Tribunal considers it appropriate that the applicant's registration be reinstated on conditions. Conditions 1. The applicant accepted that in the event his registration was reinstated that certain conditions were appropriate, in addition to the conditions proposed by the respondent. He suggested specific conditions that would address his re-entry into practice. 2. The conditions sought by the respondent are as follows: "1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To work only in a Medical Council of NSW approved RMO 1 or 2 position in an accredited teaching hospital or within its secondment network. 3. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • Appropriate professional boundaries with patients • Recent developments in clinical practice • Workload management • Clinical performance including review of medical records and clinical outcomes. • Informed consent • Communication with patients and colleagues • Patient management and appropriate patient assessment b. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any relevant Council decision or report. c. Not to practise until a supervisor has been approved by the Medical Council of NSW. 4. To nominate an experienced specialist registered medical practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting the practitioner is to include discussion of the following: • His personal and professional development • Professional ethics • Career progression • Continuing professional development • Initially the issues highlighted in this decision and then any personal and/or practice issues that may arise. b. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or welfare. 5. Within the first three months of recommencement of practice, the practitioner is to provide a written reflective report to the Medical Council of NSW following review of : • RANZCOG Guidelines for Gynaecological Examinations and Procedures (C-Gyn 30) • RACP's Genital examinations in Girls and Young Women: A Clinical Practice Guideline • RACGP Information Sheet: Informed Patient Decisions a. The reflective report must demonstrate how he has incorporated learnings from the above mentioned guidelines, and specifically address: i. His learnings from the guidelines with respect to the decisions which led the cancellation and restoration of his registration ii. How he is/will incorporate his learnings into his future professional practice 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions 7. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW). 8. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia." 1. In addition, the conditions as sought by the applicant are as follows: "1. To attend for treatment by Ms Maya Bazouni, psychologist, or if she is unavailable, a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. 2. The practitioner: 2.1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 2.1.1. failure to attend for treatment; 2.1.2. termination of treatment; or 2.1.3. a significant change in health status (including a significant temporary change). 2.2. must provide the Council with the professional details of the treating practitioner/s." 1. The Tribunal agrees that conditions are warranted and that the conditions suggested by the respondent, as added to by the applicant are appropriate. Costs 1. The respondent seeks its costs, as assessed or agreed. The applicant did not oppose the making of such an order. The Tribunal has the power to award costs: National Law , cl 13(1) of Sch 5D. Whilst the general rule is that costs follow the event, the Tribunal has recognised that in an application for reinstatement, the respondent should be compensated regardless of whether the order is approved or refused provided the respondent has conducted its case appropriately: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [49], citing Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [87]; Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [49]. Recently, the Tribunal reaffirmed this position. In reinstatement applications, the respondent is entitled to appear and be heard and is required to attend: Hart v Medical Council of New South Wales [2024] NSWCATOD 21 at [76]. 2. The Tribunal accepts that the respondent conducted its case appropriately. As mentioned above, the respondent assisted the Tribunal. In these circumstances it appropriate that the respondent be awarded its costs. Orders 1. The Tribunal orders: 1. Pursuant to s 163B(1)(c) of Health Practitioner Regulation National Law (NSW) 2009, the Tribunal makes a reinstatement order. 2. Pursuant to s 163B(4), the Tribunal imposes conditions on the applicant's registration the subject of the reinstatement order. The conditions are set out at paras [74]–[75] of the Tribunal's reasons for decision. 3. The applicant is to pay the respondent's costs pursuant to cl 13 of Sch 5D of the National Law, as agreed or as assessed. ********** 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: 14 November 2024