Health Care Complaints Commission v Dr Nguyen [2013] NSWMT 18

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Nguyen [2013] NSWMT 18 Hearing dates: 28, 29 & 30/10/2013 Decision date: 19 November 2013 Before: Levy SC DCJ

Dr M Wright Dr S Toh Ms J Houen Decision: The complaints are dismissed. Catchwords: MEDICAL PRACTITIONER - allegations of inappropriate conduct by general practitioner concerning vaginal examination and offer of breast examination -allegations not proven on required standard: Briginshaw v Briginshaw Legislation Cited: Health Practitioner Regulation National Law (NSW) s 139B, s 139E, cl 7 Sch 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Don Nguyen (Respondent) Representation: Mr G Farmer SC (Complainant) Mr P Boulten SC with Mr A Williams (Respondent) Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 40027/12 Publication restriction: Suppression order in respect of the patient named in the complaint and the witnesses named in the evidence

REASONS FOR DECISION

Table of Contents The proceedings [1] - [5] Non-publication order [6] The complaints and the issues [7] - [10] Dr Nguyen's background and registration history [11] - [21] Credibility of the key witnesses [22] - [38] Credit of the patient [23] - [26] Credit of Dr Nguyen [27] - [34] Conclusions on the credit of key witnesses [35] - [38] Reliability of the evidence of the patient [39] - [61] Reliability of the evidence of Dr Nguyen [62] - [66] Ancillary matters [67] - [76] Facts leading to the complaints [77] - [160] Background to the doctor patient relationship [78] - [94] Background to the consultation on 3 September 2009 [95] - [98] Consultation on 3 September 2009 [99] - [141] Report to the police [142] - [147] Listening device recording [148] - [153] Supplementary statement [154] - [156] Committal proceedings [157] HCCC interview [158] The present proceedings [159] - [160] Construction of the listening device recording [161] - [285] Assertion 1 [177] - [188] Assertion 2 [189] - [201] Assertion 3 [202] - [213] Assertion 4 [214] - [228] Assertion 5 [229] - [233] Assertion 6 [234] - [246] Assertion 7 [247] - [250] Assertion 8 [251] - [266] Assertion 9 [267] - [285] Whether there was sexualised behaviour by Dr Nguyen [286] - [291] Consideration of Particulars of Complaint [292] - [371] Particular 1 - Alleged gloveless vulvo-vaginal examination [293] - [307] Particular 2 - Time taken for vulvo-vaginal examination [308] - [320] Particular 3 - Alleged inappropriate touching of the clitoris [321] - [332] Particular 4 - Alleged rubbing of patient's bare leg [333] - [345] Particular 5 - Offer for internal examination [346] - [355] Particular 7 - Offer for breast examination [356] - [366] Particular 8 - Representation for examining the female body [367] - [371] Findings [372] Orders [373]