Health Care Complaints Commission v Dr Annette Dao Quynh Do [2013] NSWMT 7

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do [2013] NSWMT 7 Hearing dates: 29, 30, 31 October 2012; 17, 18, 19 December 2012; and, 19 March 2013 Decision date: 29 April 2013 Before: Colefax SC DCJ; Dr. M. Giuffrida; Dr. M. Walker; Ms. J. Houen Decision: 1. Complaints (x 2) of professional misconduct proved. 2. Further hearing for appropriate protective orders fixed for 7 June 2013. Catchwords: Medical practitioner - professional misconduct - onus of proof - requirement for re-hearing if Deputy Chairperson retires before final orders - obligation of full disclosure by witness to the Tribunal, especially witnesses other than the respondent. Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 Medical Practice Regulation 2002 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Palmer v Dolman [2005] NSWCA 361 Director General of Department of Community Services, Re Sophie [2008] NSWCA 250 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Annette Dao Quynh Do (Respondent) Representation: Mr. C. O'Donnell (Complainant) Ms. F. Westwood (instructed by the Health Care Complaints Commission) (Complainant)

Dr A. Do (self represented) (Respondent) File Number(s): 4005 of 2011 Publication restriction: No

Reasons for decision

Introduction 1Dr Annette Dao Quynh Do was born in New Zealand in 1968. 2In 1995 she obtained bachelor degrees in Medicine and Surgery from the University of Auckland. 3Also in 1995 Dr Do was first granted conditional registration as a medical practitioner in New South Wales. With some short exceptions she was a registered medical practitioner in this State continuously until 22 January 2009 when her name was removed from the Register because she had not paid her annual registration fee. 4During the time of her registration Dr Do was not subject to any practising conditions. 5In 2005 Dr Do met Mr Daniel Siebler (who was then living in Melbourne) over the internet (not a dating site) and a relationship through that medium commenced. At that time Dr Do was 37 years old and Mr Siebler 27 years old. 6On 10 June 2006 Mr Siebler moved to Sydney to live with Dr Do in a de facto relationship. 7On 29 July 2006 Mr Siebler started to develop severe debilitating headaches and on 3 August 2006 Dr Do made a diagnosis of "cluster headaches". 8On 18 June 2008 Mr Siebler died from a self-administered overdose of amitriptyline. 9An inquest was subsequently held into Mr Siebler's death. 10As a result of that inquest, the Health Care Complaints Commission ("the Commission") undertook an investigation into the conduct of Dr Do. 11This investigation resulted in the Commission filing a Notice of Complaint with this Tribunal on 30 November 2010. An Amended Complaint was filed on 21 March 2012. 12On 26 and 27 March 2012 the Tribunal conducted an inquiry and at the conclusion of that inquiry reserved its findings in relation to the Amended Complaint. 13On 10 May 2012 the Tribunal delivered its findings to the effect that it was satisfied that the particulars of each of the 2 complaints in the Amended Complaint had been made out. The Tribunal then adjourned in order to conduct a further hearing as to what appropriate protective orders ought to be made in the light of those findings. 14The date for that further hearing was fixed for 16 July 2012. 15Before 16 July 2012, however, the Deputy Chairperson who had presided at the earlier Tribunal hearing retired and resigned her judicial commission and consequently her Honour ceased to be a qualified person to be a Deputy Chairperson of this Tribunal. 16On 16 July 2012 another Deputy Chairperson of the Tribunal, Colefax SC DCJ, delivered a decision in which he held that, by reason of section 165C of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the retirement of the previous Deputy Chairperson effectively terminated that previous inquiry and that a differently constituted Tribunal would be appointed to consider ab initio the allegations made in the Amended Complaint. 17The further hearing of the Amended Complaint commenced on Monday 29 October 2012 before this presently constituted Tribunal. None of the members of this Tribunal were members of the earlier Tribunal. 18In that hearing, the Commission was represented by Mr O'Donnell of counsel. Dr Do appeared for herself unrepresented. Apparently (and somewhat ironically) her professional indemnity insurer declined to indemnify her because Dr Do contended (contrary to one of the allegations made against her in the Amended Complaint) that she was not the treating practitioner for Mr Siebler. 19The hearing continued up to and including 31 October 2012 when it was adjourned to enable the evidence of Dr Gronow to be obtained. Dr Gronow had not previously been interviewed in connection with the Amended Complaint. The significance of his evidence will be obvious later in these reasons. The hearing resumed for a further three days on 17 December 2012. The final hearing day was on 19 March 2013. 20Dr Do was not present for that final hearing day. However, before that day she had been served with the detailed written submissions of the Commission; and had herself filed and served detailed written submissions. 21At the conclusion of the hearing the Tribunal reserved its decision. The Tribunal also directed the Registrar to provide a copy of the transcript of the final day of hearing to Dr Do. 22After the Tribunal reserved its decision, Dr Do on two separate occasions sought to file further evidence and submissions. The Tribunal refused leave for her to do so on each such occasion, having regard to the well established principles of finality of litigation.