Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do (No. 3) [2013] NSWMT 16 Hearing dates: 7 June 2013; and, 2 August 2013 Decision date: 02 August 2013 Before: Colefax SC DCJ; Dr. M. Giuffrida; Dr. M. Walker; Ms. J. Houen Decision: 1. Orders made in accordance with Short Minutes of Order. 2. Respondent to pay the Complainant's costs of the amended complaint, excluding the costs directly involved in the previous hearing. Catchwords: Medical practitioner - professional misconduct - protective orders - costs - substantial departure from appropriate medical practice - split decision of the Tribunal. Legislation Cited: - Cases Cited: Health Care Complaints Commission v Dr Annette Do [2013] NSWMT 7 Texts Cited: - Category: Procedural and other rulings 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: - Reasons for decision 1On 29 April 2013 the Tribunal published reasons for decision in which we concluded that each of the particulars of the amended complaint had been established; and that such particulars not only constituted unsatisfactory professional conduct by Dr Do but also constituted professional misconduct. 2Having made that determination, the Tribunal sat on 7 June 2013 for the purpose of determining what the appropriate protective orders ought to be made. Dr Do appeared in person during most of the first stage of the hearing concerning the question of whether the complaint had been made out. She appeared by leave by telephone link-up on 7 June 2013. The second stage of the hearing did not conclude on 7 June 2013 but was stood over part heard to today. 3Dr Do has not appeared today either in person or by telephone link and, as was noted at the commencement of the hearing today, it is not the first occasion where Dr Do has failed to make herself available for the purposes of these proceedings. 4In the context of what appropriate protective orders ought to be made, Mr O'Donnell of counsel (who appears for the complainant Commission) has submitted today that the absence of Dr Do should give rise to a finding that she is, at this stage of the proceedings, exhibiting an unwillingness to engage with the Tribunal. Mr O'Donnell further points to the fact in this context that Dr Do did not provide the reference or references requested of her by the Tribunal when it adjourned these proceedings on 7 June 2013. 5Given that, to a very considerable extent, Dr Do has vigorously participated at other (but not at all) stages of the proceedings, the Tribunal is unwilling on the limited material available to it to draw such an adverse inference against Dr Do. 6Nevertheless the Tribunal is in a position to proceed to determine the matter today. 7The Commission's primary submission is that Dr Do should, in effect, be disqualified from practising medicine for a period of eighteen months to two years from today. She is presently not registered in any State of Australia, and the order that the Commission seeks in that respect is that any application for registration be not accepted in that period. 8As a consequence of what fell from some of the Tribunal members on 7 June 2013, the Commission has an alternative submission namely, that if Dr Do applies for registration in any State of Australia, any such registration be subject to stringent conditions. The Commission in that respect has helpfully drafted some appropriate conditions. 9Whether Dr Do should, in effect, be deregistered (in the meaning of that expression as we have explained it) is of course a very serious step. 10As the Tribunal's reasons for decision of 29 April 2013 will reveal, the Tribunal was gravely concerned at the conduct of Dr Do in her treatment of Mr Siebler - treatment (it should be restated) which, indirectly at least, resulted in his death. 11There were many substantial departures from appropriate medical practice, as those reasons will also reveal. 12One matter which has exercised the Tribunal's present thinking is whether those substantial departures from satisfactory conduct represent something more than the paradigm of the relationship between Dr Do and Mr Siebler. That is to say, whether those departures were intimately connected with the intricacies of that relationship such that, outside of that context, Dr Do otherwise has been a satisfactory medical practitioner. 13This is a question upon which the Tribunal is divided. Two members of the Tribunal are firmly of the opinion that the departures from acceptable medical practice by Dr Do were such that, regardless of whether or not they are contained to the treatment of Mr Siebler, they justify effective disqualification or deregistration for the period sought by the Commission in order to adequately protect the community. Two other members of the Tribunal are of a different opinion. They are of the opinion that there is no evidence to suggest that Dr Do's quite obvious failings in relation to Mr Siebler are more widely based; and that the public could be adequately protected by the imposition of rigorous conditions, including a requirement that she be the subject of level 1 supervision if she were to be registered. 14The division being of the kind we have referred to means that the prevailing view is to be that of the Deputy Chairperson. In that respect the Deputy Chairperson is of the opinion that the public would be adequately protected if Dr Do, upon application for registration, were to be subject to the conditions proposed by the Commission and level 1 supervision - with the following exception - in respect of which of the members of the Tribunal are in agreement. 15The Tribunal is of the opinion that the proposed Health Records Course submitted by the Commission today is an inappropriate condition to impose on Dr Do. The Tribunal is of that view for two reasons. First, on the limited information available to the Tribunal, the course contended for seems more suitable for a lay practice manager of a medical practice rather than for a medical practitioner. Secondly, and more importantly, if Dr Do is registered subject to supervision on the other conditions proposed by the Commission, and at level 1, she will be subject almost daily to intense and constant supervision in relation to her record keeping by her supervisor. That, it seems to the Tribunal, is a more effective manner of addressing that issue. 16The Tribunal therefore directs the Commission to bring in Short Minutes of Order giving effect to the Tribunal's decision which is to the effect as we have stated. It is expected that those Short Minutes will be comprehensive so as to embrace any application by Dr Do in any jurisdiction of Australia. 17The Tribunal also orders Dr Do to pay the complainant's costs of the amended complaint, excluding the costs directly involved in the previous hearing presided over by Deputy Chairperson Kavanagh J (see Health Care Complaints Commission v Dr Annette Do [2013] NSWMT 7 at [12] ff). 18NOTE: Annexed to these Reasons for Decision are the Short Minutes of Order subsequently provided to the Tribunal and which are incorporated by reference to these Reasons. They are therefore to be published with these Reasons. SHORT MINUTES OF ORDER ANNEXURES 1 & 2 ANNEXURES A & B 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: 10 September 2013