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]

The proceedings

1. This tribunal was convened to inquire into two inter-related disciplinary complaints filed by the Health Care Complaints Commission ["HCCC"] concerning alleged inappropriate sexualised clinical behaviour by Dr Don Nguyen on 3 September 2009.

1. Dr Nguyen was at the time, and still is, a general practitioner practising in Bankstown, NSW. The proceedings are governed by the Health Practitioner Regulation National Law (NSW) No 86a ["National Law (NSW)"].

1. The alleged facts that underlie the complaints are disputed by Dr Nguyen. Unfortunately for both the patient and for Dr Nguyen, the protracted legal processes associated with, first, the related criminal proceedings brought against Dr Nguyen for alleged sexual assault, which were ultimately withdrawn by the Director of Public Prosecutions, and then the subsequent delays leading to the hearing of these complaints, have been outside the control of Dr Nguyen and his patient. This has resulted in a cumulative delay of a little over 4 years before the issues now calling for decision could be fully considered and resolved in this tribunal hearing.

1. The tribunal hearing took place over the course of 3 of the 5 scheduled days. That relative brevity belied the volume of documentary and audio material that was tendered for consideration in these proceedings. That material included evidence given in the earlier committal proceedings. The requirement to analyse that material with reasons, has determined the extent of these reasons for decision.

1. After hearing and considering the evidence in respect of those matters, and for the reasons that follow, the tribunal has determined that each of the complaints brought against Dr Nguyen should be dismissed.

Non-publication order

1. As a preliminary matter, at the commencement of the hearing on 28 October 2013, the tribunal made an order pursuant to cl 7 Sch 5D of the National Law (NSW) prohibiting the publication or disclosure of the name, address, or any other evidence and information that might tend to, or lead to, the identification of the female patient who is the subject of these proceedings. That order was extended to include the details of the witness to whom that patient had spoken in corroboration of her complaint about Dr Nguyen.

The complaints and the issues

1. The first complaint, which was made under s 139B of the National Law (NSW), alleged that Dr Nguyen had engaged in unsatisfactory professional conduct. In reliance on the same underlying circumstances, the second complaint, which was made under s 139E of the National Law (NSW), alleged that Dr Nguyen had engaged in professional misconduct.

1. The Particulars of Complaint relating to each of the complaints, which are to be read collectively and cumulatively, were identical, and alleged that on 3 September 2009, in a professional consultation with the subject patient, Dr Nguyen had:

(1)   Performed a vulvo-vaginal examination without wearing gloves;

(2)   Took approximately 3-5 minutes to perform the vulvo-vaginal examination:

(3)   Inappropriately touched the patient's clitoris during the course of the examination;

(4)   Rubbed the patient's bare leg at the time proximate to the vulvo-vaginal examination;

(5)   Inappropriately offered to do an internal examination without proper and sufficient clinical indications for a further internal examination of the patient;

(6)   (Withdrawn particular - alleged inappropriate touching of the patient's right leg whilst she was seated beside Dr Nguyen's consultation table);

(7)   Inappropriately offered to perform a breast examination on the patient without proper and sufficient clinical indications for a breast examination;

(8)   When the patient refused his offer to perform a breast examination, he inappropriately stated "It's important to check the female body".

1. Dr Nguyen contested the factual basis of each of the above Particulars of Complaint relied upon by the HCCC. Resolution of those contested factual matters, and the tribunal's assessment of the reliability of the testimony of the patient and of Dr Nguyen, have determined the outcome of the proceedings.

1. There was no real dispute on the content of the expert and peer review evidence that was necessarily called as a framework for the proceedings. The outcome of the proceedings essentially stood to be determined by the resolution of the disputed matters of fact.

Dr Nguyen's background and registration history

1. The paragraphs that immediately follow set out Dr Nguyen's personal background and his registration details.

1. Dr Nguyen is presently aged 43 years. He arrived in Australia from Vietnam with his parents and siblings when he was aged 13 years. He is the youngest of nine children. He is married and has three sons. His wife, whom he has known since they were in Year 8 of their schooling, works as his practice manager.

1. After undertaking intensive English language tuition, and completing his secondary education, Dr Nguyen studied medicine at the University of Sydney. In 1996, he graduated with the degrees of Bachelor of Medicine and Bachelor of Surgery.

1. On 21 January 1997 Dr Nguyen obtained general registration as a medical practitioner. That registration, which was under the former Medical Practice Act 1992, continued until 1 July 2010, when the National Law (NSW) came into force. Since then, his registration has continued under that legislation, and remains current.

1. In 2000, after satisfying examination requirements, Dr Nguyen obtained his fellowship of the Royal Australian College of General Practitioners. He has chosen to practise in Bankstown, which he described as a disadvantaged area in western Sydney. He said that he chose to practise in that area because of a perceived need he recognised from his own disadvantaged background.

1. Dr Nguyen initially worked in a group practice in Bankstown. Since 2006 he has worked in his present solo practice. There is no challenge to his qualifications, or to the appropriateness of his professional associations. Nor has there been any challenge regarding his efforts in maintaining his professional skills through his reading of journals, and his attention to his continuing medical education.

1. There is no issue that at the relevant time, Dr Nguyen's practice rooms were anything other than appropriately equipped, maintained, and laid out in a manner that served to facilitate his efficient engagement in general practice. This is confirmed by what is shown in the photographs the investigating police took of his premises.

1. Since the subject matter of the present complaints came to the notice of the authorities, first to the investigating police, who then proceeded to prosecute Dr Nguyen, and then to the HCCC which brought these complaints, pending the resolution of these proceedings, and in the interests of the protection of the public, understandably, Dr Nguyen's practice has been the subject of a number of onerous and restrictive conditions concerning his treatment of his patients.

1. Those conditions have included the need for a chaperone to be present during Dr Nguyen's examination of female patients. Those conditions also included an absolute prohibition on him conducting perineal or genital area examinations on any female patient. The conditions have also required Dr Nguyen to display professionally demeaning chaperone notices in his practice premises.

1. By their nature, those conditions have necessarily had an incidental negative and punitive impact upon Dr Nguyen's practice. This was an inevitable consequence of the need to ensure that the public was protected pending the resolution of these proceedings.

1. Since the initiation of these proceedings, no other complaints of any kind have come to light concerning Dr Nguyen's practice of medicine. He must be seen to be a practitioner of good standing and character.

Credibility of the key witnesses

1. In determining the validity of the complaints, it was necessary to assess the credibility of the two key witnesses, namely, the patient and Dr Nguyen. There was no issue as to the credibility of the witness to whom the patient had made her corroborative complaint on the same evening as the alleged conduct which is the subject of the complaints.

Credit of the patient

1. To the credit of the patient, the tribunal records the view that she handled the burden of cross-examination on matters that most people would ordinarily find embarrassing, in a dignified manner that was frank and open. From an emotional perspective, the patient gave her evidence in circumstances that were obviously very difficult for her. At her request, her evidence was given from behind a partition screen so that she was not in the line of Dr Nguyen's sight in the tribunal hearing room.

1. The patient demonstrated a mature and intelligent approach to the task of giving evidence, even when she was at times clearly upset by the subject matter canvassed in her evidence. She carefully considered and answered questions asked of her in cross-examination. She made concessions when it was fair and appropriate for her to do so. The tribunal is satisfied that she did her best to give a truthful account of the events in question in accordance with her perception of the events in question, and how she recalled them.

1. Since September 2009, following the events in question, the patient has had to endure a process of police interviews, the preparation of her successive statements to the police concerning events she said she had tried to forget, and then later, she had to give contested evidence in committal proceedings against Dr Nguyen in respect of criminal charges of alleged sexual assault, which were ultimately withdrawn by the prosecuting authority. All of those events preceded her appearance as a witness in these proceedings, years after the events in question.

1. Save for some reservations that have emerged from an analysis of the content of a surreptitious recording obtained by the use of a police listening device, the tribunal has concluded that the patient was an impressive, honest and credible witness. The detail of that matter is identified in the course of the analysis of the listening device recording. The reliability of her evidence on the disputed matters of fact underlying the complaints requires a separate consideration having regard to the evidence as a whole.

Credit of Dr Nguyen

1. The tribunal is also satisfied that Dr Nguyen gave his evidence in an open, honest, and straightforward manner without attempts at obfuscation. The tribunal rejects the submission made on behalf of the HCCC to the effect that in his evidence, Dr Nguyen had sought to place the most advantageous complexion on the facts in order to benefit himself and in order to seek to avoid possible adverse disciplinary consequences for himself.

1. The tribunal considered that Dr Nguyen gave credible evidence. The burden of giving evidence in these proceedings also took an emotional toll on Dr Nguyen. At times he had to pause whilst giving his evidence in order to gain control over what the tribunal considered was a genuine and burgeoning state of emotional upset at the gravity of what was being alleged against him. The tribunal considered that his reactions in that regard were spontaneous, and were not contrived in order to seek to obtain a perceived advantage.

1. Furthermore, given the subject matter of the questioning, and the potentially serious adverse implications for Dr Nguyen's professional status if the subject matter of the complaints were to be found to have been proven, the tribunal considers that Dr Nguyen's responses to the questions that were put to him in cross-examination were appropriately thoughtful, forthright, factual, non-argumentative, and included appropriate concessions, even where one of those concessions appeared to be against his interests in these proceedings.

1. This last mentioned matter concerned Dr Nguyen's hindsight concession to the effect that on reflection, he could see that due to factors within the circumstances of the consultation that were subjective to the patient, his offer to provide the patient with a breast examination near the conclusion of the consultation, appeared to have had the unfortunate effect of breaking the bond of trust which he had taken particular care to build and to develop with his patient over the course of the years that marked their clinical relationship.

1. Although Dr Nguyen made the qualified concession that his offer of a breast examination was in hindsight inappropriate, the tribunal is of the view that his offer to examine the patient's breasts was on the evidence, medically justified, and was therefore not inappropriate at the time it was made.

1. The evidence which indicated that the offer was medically justified was the patient's prescription for the contraceptive pill, and the need to educate the patient in self-examination of her breasts, especially given that at the time, she was about to leave the country for an extended period of time, with resultant uncertainty of the nature of any definite plans for further medical follow-up according to the dictates of her medical needs.

1. That said, it is plain that the patient had reacted poorly to that offer due to her own subjective thought processes that were affecting her disposition at the time, where significantly, at that time, the patient had not made those thought processes known to Dr Nguyen.

1. The patient's reaction to those circumstances have led to a cascading series of events which this tribunal is now required to consider and to resolve in the course of its fact-finding task.

Conclusions on the credit of the key witnesses

1. In circumstances where the respective opposing witnesses have been assessed as having been honest and truthful in providing their respective evidentiary accounts of the relevant events as they perceived them, the essential preliminary matter for the tribunal to resolve is the question of which critical aspects of the opposing factual accounts are more probably than not likely to be reliable, and which of the accounts if any, should therefore be accepted as being the most accurate and correct account.

1. In resolving the issue of reliability of the evidence, as formulated in the preceding paragraph, for the reasons that follow in the ensuing paragraphs, the tribunal has concluded that the factual account of the events as has been provided by the evidence of the patient must, in the non-pejorative sense of the word, be considered to be unreliable in a number of material respects.

1. This conclusion has required that the evidence of the patient on some critical matters should be viewed with an appropriate degree of caution. The reasons for that view on any particular issue of dispute are identified in the context of the particular analysis.

1. In arriving at that conclusion concerning the reliability of the evidence of the patient, the tribunal wishes to make it clear, that conclusion should be in no way read as a personal criticism of the patient, whom the tribunal considers to have done her best to accurately relate the events as she perceived them to have occurred.

Reliability of the evidence of the patient

1. The tribunal considers that the key content of the patient's evidence was influenced and distorted by her escalating but misplaced emotional perceptions on the day in question. This must be seen in the context of her pre-existing vulnerabilities in a number of respects.

1. Those emotions have been variously described as comprising her self-described "paranoia" over the presenting problem of a possible sexually transmitted condition and infection ["STI"], and then her subsequent feelings of evolving concern, panic and anger that were based upon what the tribunal considers to have been fundamental misunderstandings that arose between herself and Dr Nguyen concerning a number of events occurring at various stages of, and surrounding the consultation on the day in question.

1. Those matters are more fully explained in the tribunal's findings on the individual matters calling for decision. Such misunderstandings occurred in an evolving framework of suspicion in the mind of the patient concerning Dr Nguyen's clinical actions, which the patient had initially downplayed in her mind at the time, thinking she was "being silly", before she "freaked out" when Dr Nguyen offered her a breast examination.

1. The tribunal is of the view that the perceptual differences between the patient and Dr Nguyen concerning the events of the consultation arose because, it appears, that the patient experienced an emergent groundswell feeling that something was wrong and inappropriate at the time when Dr Nguyen offered her a breast examination, and then, in her mind, she characterised the preceding events of the consultation in a different light. This is a matter that will be revisited in further detail in outlining the tribunal's findings of fact and in the resolution of the individual Particulars of Complaint.

1. At this point, it is relevant to flag a significant concession made by the patient in her evidence given at the committal proceedings in the Local Court on 2 and 3 December 2010 (at transcript page 71 on the first day, and at transcript page 32 on the second day), to the effect that due to the feeling of panic on her part at the time of the consultation, she was confused and uncertain as to the order in which the events in question had occurred on the day. It was apparent that such confusion was also reflected in her evidence tendered in the tribunal hearing, and in some comparative aspects of the underlying police statements that were tendered.

1. The tribunal makes the observation that by reason of a confluence of unfortunate circumstances on the day of the consultation in question, where the patient ended up being late for her appointment, which in turn meant that without prior design, she had in effect become Dr Nguyen's last patient for the day, her apprehensions and thoughts on the intended subject matter of the consultation, and her sensitivity and reaction to those circumstances, had affected the way that she had perceived the events. Those matters then also affected her understanding concerning the events that followed.

1. At the relevant time, Dr Nguyen was alone on the premises without the presence of potential chaperones. In other circumstances, that was in itself unremarkable. There is no suggestion that chaperones had been required by either the patient or by Dr Nguyen at any of the earlier and numerous intimate examinations that Dr Nguyen had carried out on the patient between 2004 and 2009 concerning her sexual health, including at consultations that had previously taken place at the end of the day to accommodate the request of the patient due to her work commitments.

1. However, on the day in question, the patient's uncommunicated perception to the effect that there was something she thought was wrong during the consultation, became a determining feature of her recollection of the events, which has in turn influenced the content of her evidence.

1. The pivotal feature that emerged from the patient's evidence was her abruptly formed reaction to Dr Nguyen's expression of apology to her, which he made in response to her abrupt rejection of his offer of a breast examination.

1. In that regard, the patient said that were it not for Dr Nguyen's expression of apology when he realised from her reaction that his offer of a breast examination had caused her offence, she would have shrugged off her suspicion based perceptions, and she would have continued to think that she was just "being silly" in her construction of the events.

1. However, as events turned out, as a consequence of Dr Nguyen's apology, rather than viewing the events in a benign way, the patient placed a different and far more sinister construction on the events of the consultation. The tribunal is of the view that this occurred in an atmosphere of misunderstanding on the part of the patient, which then led her to believe that Dr Nguyen had harboured inappropriate and sexualised motives towards her. The effect of that misunderstanding was to then propel the patient into a course of events which has resulted in these proceedings.

1. Two matters emerge from the context of the events summarised in the preceding paragraphs.

1. First, the patient's emotional response to the circumstances was that of heightening or escalating concern and suspicion where she was not in control of the consultation and the subject matter of the conversation made her feel awkward and apprehensive. Secondly, she did not communicate any of her concerns to Dr Nguyen regarding such matters. The patient had given no prior indication to Dr Nguyen that she was becoming concerned about any aspect of the circumstances of the consultation until she reacted abruptly to his suggestion that she have a breast examination. It was not until that offer of a breast examination was made by Dr Nguyen that matters began to spiral out of control.

1. The tribunal considers that the evolving misunderstanding between the patient and her doctor then escalated further, and became magnified and distorted by subsequent events. Those events included the reinforcing effect of the remarks made to the patient by her friend when she spoke to her later that evening, and which resulted in the patient making a report of the events as she perceived them, to the police.

1. Also influential was the process by which the police obtained the statements of the patient that were used in the committal proceedings, as was the process by which the police sought to surreptitiously obtain, by means of a pretext, potentially incriminating evidence from Dr Nguyen by means of a listening device they had secreted onto the patient when, on 11 September 2009, they sent her to see Dr Nguyen under the guise that she had presented herself to obtain her medical records.

1. On that date, when the listening device was employed, the investigating police assisted and provided support to the patient for her to go to Dr Nguyen's surgery under the pretext of her seeking to obtain from him her medical records. The police later obtained the medical records later, as they had planned to do in any event. In truth, what was actually being sought from Dr Nguyen on that occasion was his responses to a number of assertions the patient had made to him in a personal confrontation that had been contrived in the manner described.

1. In those circumstances, the tribunal was not persuaded as to the correctness of the interpretation that the HCCC had sought to place on the ensuing recorded conversation that occurred during the patient's confrontation with Dr Nguyen on 11 September 2009.

1. The HCCC had argued that Dr Nguyen's recorded and transcribed responses to the comments made to him by the patient on that occasion should be understood to constitute a material acknowledgment of wrongdoing or professional impropriety on his part. The tribunal took a very different view to that which was urged by the HCCC, as will be made plain at a later point in the tribunal's reasons on that discrete subject.

1. With regard to the general reliability of the evidence of the patient, the tribunal accepts that, as was submitted on behalf of Dr Nguyen, the sequence of the events, as has emerged from the evidence of the patient, and the patient's acknowledgement of her confusion over some of those events, have given rise to concerns over the reliability of her account of events she has given over time. This view is explained more particularly in the course of the tribunal's findings of fact.

1. It should be clearly understood that in assessing the reliability of the patient's evidence, the tribunal considered that the detail of her past medical history, including matters concerning her past sexual health history, and her treatment by Dr Nguyen for her history of depression, whilst being relevant to a consideration of her background, and being relevant to an understanding of her reaction to events occurring in the clinical setting, should not of themselves, be seen as being relevant factors detracting from the reliability of her evidence.

1. Instead, the reliability of the patient's evidence must be assessed on the various differences of significance in the factual content of the patient's statements and her evidence, and on the inherent probabilities or otherwise of the facts recounted in the evidence, when the respective conflicting testimonies are evaluated.

1. Where matters of conflict, ambiguity or uncertainty within the evidence have to be resolved, especially where evidence on factual matters has the potential to be distorted by perceptions influenced by the emotions that prevailed at the time, and where the patient has acknowledged that her recall of the order of events was in parts confused, the tribunal has been guided by the need to exercise caution when evaluating her evidence.

1. This is especially so where the gravity of the consequences for the affected party is significant, as is the case in these proceedings: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Reliability of the evidence of Dr Nguyen

1. The background to Dr Nguyen's evidence is the context of his clinical records concerning his treatment of the patient over a number of years. As a preliminary observation, the tribunal notes that Dr Nguyen has kept appropriate and sufficiently detailed medical records of his treatment of the patient, not only as an aide to his own memory, but if the need arose, for other practitioners to follow his clinical methods, observations and clinical thinking concerning his treatment of the patient.

1. The relevance of that observation is that in cross-examination, Dr Nguyen was challenged in respect of the absence of a particular entry in his patient records. In that regard, it was suggested that the absence of a record that he had offered the patient a breast examination which she had refused, meant his records were incomplete.

1. Whilst on one view that may be so, this has little if any significance to the reliability of Dr Nguyen's notes and records when the purpose of those notes is borne in mind. The notes in question are not a transcript, they serve as an aide memoire, and as was confirmed by Dr Nguyen, his method of note taking was to record tasks performed, and not to record tasks not performed. The tribunal considers that in this instance, that evidence by Dr Nguyen constitutes a reasonable explanation for the construction he seeks to have placed on his notes. Accordingly, the argued omission from the notes does not represent a justified focus for criticising the reliability of Dr Nguyen's testimony or the adequacy of his records.

1. The tribunal is satisfied that in all other respects, Dr Nguyen's written statement, the 23 June 2011 record of his interview by the HCCC, and his oral evidence, provided the tribunal with no basis for a concern that his evidence lacked reliability.

1. The tribunal is comfortably satisfied that reliance can be placed upon the explanatory evidence given by Dr Nguyen, including the reliability of his evidence that explains the apparent ambiguity of the content of his conversation with the patient that was recorded under pretext using a listening device. More will be said later in these reasons on that discrete subject.

Ancillary matters

1. Shortly after the conversation recorded by the listening device, Dr Nguyen was charged with two counts of aggravated sexual assault on a victim under his authority, and with two counts of aggravated indecent assault in relation to the events of the consultation on 3 September 2009.

1. The committal proceedings in respect of those charges took place at Burwood Local Court on 2 and 3 December 2010. On that occasion, the charge sheet under s 61J(1) of the Crimes Act 1900 read as follows:

"That Don NGUYEN on the 3rd day of September 2009, at BANKSTOWN, in the State of New South Wales, did have sexual intercourse with [name of patient] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [name of patient] was under the authority of Don NGUYEN, by reason of Don NGUYEN being a Medical Practitioner."

1. At the committal proceedings in the Local Court, the patient gave her evidence by means of closed circuit television arrangements as she did not want to have to see Dr Nguyen.

1. The transcript of those committal proceedings was tendered as part of the evidence in these proceedings. Unfortunately, some parts of that transcript included portions that were "not transcribable". In addition, the transcript of those proceedings also noted a significant number of non-verbal replies to questions that were asked of the patient.

1. On 3 December 2010, the proceedings were stood over partly heard for further mention on 11 February 2011, and also on 9 March 2011. However, before those scheduled listings, those charges against Dr Nguyen were withdrawn at the further listing at Burwood Local Court on 20 December 2010.

1. It appears from the HCCC materials that the HCCC had paused its investigations into the complaints pending the outcome of the committal proceedings that had been initiated by the police. After the charges laid by the police were withdrawn in December 2010, the HCCC convened an interview with Dr Nguyen on 23 June 2011.

1. At that interview, counsel for Dr Nguyen identified what was described as a resourcing question in expressing his concern at the time it had taken for the investigation of this matter to get to that stage. He also identified the substantial impact the outstanding issues were having on Dr Nguyen. The HCCC Manager of Investigations responded by noting that concern, and acknowledged the requirement to deal with such matters as quickly as possible, and indicated that since the criminal charges against Dr Nguyen were no longer causing delay, the HCCC would deal with the matter as quickly as it could.

1. The tribunal file indicates that the Notice of Complaint was filed a little over 12 months later, on 29 August 2012. The first directions hearing took place in the tribunal on 14 March 2013, at which time a further directions date was fixed for 11 April 2013 to enable the HCCC to prepare documents. The HCCC was already in possession of its expert peer review opinion in the form of a report from Dr Emery Kertesz, dated 14 April 2010.

1. A subpoena process then followed. At the directions hearing on 11 April 2013, Dr Nguyen was required to file and serve his documents by 9 May 2013. He complied with that direction. A further directions date was fixed for 16 May 2013, at which time the hearing of the proceedings was fixed to commence on 28 October 2013.

1. In arriving at its findings of fact, the tribunal has had to consider multiple sources of evidence. This has included the statements obtained by the police, the transcript of the listening device recording, the evidence given by the patient in the committal proceedings against Dr Nguyen, the transcripts of HCCC interviews, a statement prepared by Dr Nguyen, and the oral evidence of the patient and Dr Nguyen given in the present proceedings before the tribunal. Some of those sources are identified as follows:

• Patient's statement dated 3 September 2009
• Listening device transcript dated 11 September 2009
• Patient's statement dated 12 August 2010
• Committal hearing transcript - Day 1, 2 December 2010
• Committal hearing transcript - Day 2, 3 December 2010
• HCCC record of interview of Dr Nguyen dated 23 June 2011
• Dr Nguyen's statement dated 11 April 2013
• Tribunal hearing transcript between 28 and 30 October 2013

Facts leading to the complaints

1. Before addressing the issues calling for decision, it is necessary to set out the findings of fact arrived at by the tribunal. Unless otherwise stated to be qualified, these findings appear in the series of paragraphs that immediately follow.

Background to the doctor patient relationship

1. The patient commenced consulting Dr Nguyen as her general practitioner when she was aged about 16 years. Her therapeutic relationship with Dr Nguyen then continued without interruption until 3 September 2009, at which time the patient was aged 22 years.

1. At that time, as a consequence of the subject matter of these complaints, the patient abruptly terminated her therapeutic relationship with Dr Nguyen.

1. It is relevant to provide some detail of the patient's background circumstances. The factual description that follows is not intended to be in any way disparaging of the patient.

1. The patient's parents had separated when she was about 18 months old. Thereafter, the patient continued to live with her father who was frequently away from home due to his work as a truck driver. It appears from the evidence that she continued to have some contact with her mother.

1. The patient became sexually active at a young age, and as a result, she had formed a number of unsatisfactory relationships with males. She also harboured some trust-related issues. One of those issues appeared to have had its origins in her knowledge that her mother had been the subject of sexual advances from another general medical practitioner who had practised in Bankstown, and who was later de-registered due to patient boundary violation issues. It is not known whether that de-registration occurred because of that practitioner's dealings with the patient's mother. It was those events that had apparently led the patient to commence seeing Dr Nguyen as her general practitioner, as she had previously consulted her mother's former general practitioner before he was deregistered.

1. It has emerged that the patient was sensitive to such issues. A question arose in these proceedings as to whether the misconduct of the other practitioner was known to Dr Nguyen. To a degree, on a peripheral issue, this question had some impact on the assessment of the reliability of the testimony of the patient because she claimed she had not previously discussed that matter with Dr Nguyen, yet that subject had featured as part of her conversation with Dr Nguyen that was recorded with a listening device on 11 September 2009. In that conversation, the patient raised this issue in a way that indicated the other practitioner's misbehaviour was known to them both. Based upon the content of the listening device recording, this aspect of the patient's evidence to the effect she had not previously discussed that issue with Dr Nguyen, was unreliable.

1. The patient had a significant history of depression requiring treatment. This involved her in taking anti-depressant medication and receiving counselling. The patient had some time earlier refused Dr Nguyen's suggestion that she consult a psychologist for this condition. Therefore, over the time that Dr Nguyen had been responsible for the care of the patient, he had taken on the role of providing her with such treatment. This was in the form of counselling and advice, as well as treatment for matters of a physical nature, including matters concerning her sexual health.

1. Dr Nguyen said, and the tribunal unreservedly accepts, that in that context, and in his treatment of the patient over time, he had developed an approach to the task of managing her health needs in a way that can be described as involving a degree of benevolent paternalism, using that term in the benign sense. The tribunal accepts, that at all relevant times before the events in question, Dr Nguyen had the best interests of his patient in mind.

1. A question that needs to be resolved is whether Dr Nguyen had harboured any sexualised motives towards his patient at the particular consultation which is the subject of the present complaints. The resolution of that question involves an analysis of the perceptions of the patient when she was interpreting Dr Nguyen's clinical actions. In that regard, on a number of grounds, the tribunal has concluded that on 3 September 2009, the patient had grossly misperceived and misinterpreted Dr Nguyen's behaviour as being sexualised, when it was not. The basis for that conclusion will be identified as a separate topic of analysis in the tribunal's reasons for decision.

1. It appears that from the time of the patient's first consultation with Dr Nguyen in 2004, until the events of her last consultation with him on 3 September 2009, she had not been at all concerned about his role in the management of any aspect of her health care, including Dr Nguyen providing her with care on matters pertaining to her sexual health. Until the events under present consideration, she clearly had trust in Dr Nguyen carrying out that role. This is evidenced by the fact that on numerous occasions, the patient had from time to time permitted Dr Nguyen to carry out necessarily intimate examinations of her private parts in connection with those matters.

1. In that regard, Dr Nguyen's clinical records concerning his treatment of the patient show that between 2004 and the subject consultation, she had consulted with him on a total of 36 occasions. Some 24 of those occasions related to matters concerning her sexual health. In that context, there were numerous occasions on which Dr Nguyen had from time to time legitimately conducted intimate clinical examinations of the patient's genital area in the course of investigating her presenting complaints. In respect of those previous consultations and examinations, the patient had never raised any questions or doubts about Dr Nguyen's professionalism or motives.

1. All of those examinations, including the very first of those intimate examinations, were conducted by Dr Nguyen for sound medical reasons. Over the course of time, those reasons included the investigation and treatment of a number of STI's, including perineal abrasions, vulvo-vaginal irritation, rashes, recurrent Monilia or thrush, the herpes simplex virus, and Chlamydia.

1. The patient stated that on each occasion that she had previously consulted Dr Nguyen in respect of matters pertaining to her sexual health, except for the consultation on 3 September 2009, he had worn protective gloves when examining her vulvo-vaginal area.

1. Dr Nguyen disputed the patient's evidence to the effect that he had not used gloves on that last occasion. This is a critical matter of fact to be resolved in the tribunal's consideration of the first of the particulars of complaint.

1. In that regard, it is a significant issue of contention as to whether at the relevant time, the patient had been in a position to either see or to feel whether or not Dr Nguyen was wearing gloves when he examined her private parts. For the reasons set out in respect of the consideration of Particular (1) of the complaints, the tribunal accepts Dr Nguyen's evidence that he was wearing gloves when he conducted a genital area examination of the patient on 3 September 2009.

1. Mention has already been made of the patient's history of depression and psychological problems as being of background relevance to the consideration of the complaints. Since 2005, Dr Nguyen had been counselling the patient for stress and anxiety related conditions. In April 2008, he began treating her for a depressive illness. He commenced treatment of that illness with anti-depressant medication.

1. Treatment of the patient with anti-depressant medication had continued over time. This was, appropriately clinically monitored by Dr Nguyen, including up until the subject consultation. His records pertaining to the patient confirmed his clinical observation that her depression had remained stable since January 2009. Stabilisation had been achieved after he had made some alterations to her prescriptions and to her dosages of anti-depression medication.

Background to the consultation on 3 September 2009

1. At the consultation on 3 September 2009, the patient said that since July 2009, she had been "feeling very sad" since the ending of her relationship with her boyfriend. This description was consistent with her history of depression for which she was taking anti-depressant medication.

1. The context of the consultation on 3 September 2009 was that the patient had recently terminated her relationship with her boyfriend, and had quit her job. This was an apparently precipitous reaction to her then prevailing social and work circumstances. She told Dr Nguyen she was intending to travel to the UK, first for a holiday, and to then seek work in the longer term, in order to get away from her situation.

1. As part of that plan, on the previous day she had made an appointment to see Dr Nguyen in a late appointment after her work on the day in question. She said it had been her usual practice to make the last appointment of the day due to the requirements of her work. Nothing turns on that fact other than the observation that she had never before felt uncomfortable about seeing Dr Nguyen alone in such circumstances. Although she was running late for that appointment, Dr Nguyen was still with another patient. He then saw her as his last patient for the day.

1. It was the intention of the patient to raise with Dr Nguyen her wish to have an intimate examination of her private parts as she was very concerned about STI issues. She was apprehensive about that anticipated examination.

Consultation on 3 September 2009

1. On 3 September 2009, when Dr Nguyen first saw the patient, she told him of her travel plans. It was initially determined that she needed a series of prescriptions for vaccinations, the contraceptive pill, her anti-depressant medication, and other travel related medication advice.

1. Dr Nguyen quickly printed the necessary prescriptions for her so she could get them dispensed before the nearby pharmacy closed. Dr Nguyen then waited for her to return for the consultation to continue. He then ushered her into his consulting room where the remainder of the consultation in question took place.

1. The patient's account of what then followed has to be understood in the light of her acknowledged confusion as to the sequence in which the ensuing events occurred, and her acknowledgment that some of the events described in her second statement to the police were not accurate. As a result of that confusion, the tribunal prefers and accepts the chronological account as described by Dr Nguyen.

1. After the patient had indicated to Dr Nguyen that her relationship with her boyfriend had recently broken up, and that she was intending to go overseas, Dr Nguyen expressed concern over those plans and questioned her about them. He also asked questions as to her reasons for her decision, and as to how her father felt about those plans. He did so because he considered that her decision to quit her job, and her travel plans, had been poorly thought through, and because he was concerned about her welfare. This was consistent with the benevolent and paternalistic attitude that Dr Nguyen had formed towards his patient over time.

1. On the patient's return from the pharmacy, the resumed consultation first dealt with vaccination and medication issues. The patient then disclosed to Dr Nguyen her current sexual health concerns, which raised the indication for an examination of her vulvo-vaginal area. In fact, the patient indicated that she wanted to have an examination of her vulvo-vaginal area because she was experiencing a rash and some irritation. She was concerned to determine whether she had acquired an STI from her former boyfriend.

1. In this context, the patient had described herself as having an attitude of "feeling a bit paranoid" about any abnormalities in her vagina. She said that she had felt that way ever since she was treated for HPV in 2005/2006. Since that time, according to her own description, Dr Nguyen had in fact performed some 12 Pap smear test investigations for her.

1. The patient acknowledged that in the lead-up to the examination on 3 September 2009, she had felt sensitive, anxious and awkward about having a vaginal examination, even though it was to be performed by her regular doctor. Although she had not communicated those concerns to Dr Nguyen, it appears that by reason of his general training and experience, he would have had some degree of general understanding that his patient might have had such apprehensions in the circumstances.

1. It is plain from the history presented to Dr Nguyen, and from the patient's account of the background circumstances, that on 3 September 2009, she had in fact requested and agreed to Dr Nguyen examining and inspecting her private parts, at least externally. The purpose of the examination had clearly been legitimate. It is also plain that such an examination would have necessarily included some legitimate need for Dr Nguyen to carry out some degree of manual manipulation of her labia and the surrounding skin and associated parts.

1. This was not only indicated by the patient's description of the history of the presenting problem at that consultation, but also by the patient's description of the progress of the examination where Dr Nguyen was looking for abnormalities that co-related to the patient's complaints, and she repeatedly guided him by saying "down there", by which she was directing him towards her vaginal introitus. In those circumstances Dr Nguyen acted in accordance with his training for such examinations, as summarised by the adage "look, feel, move".

1. The patient stated that on the previous occasions on which Dr Nguyen had examined her private parts she had not felt uncomfortable in the psychological sense, and she considered that Dr Nguyen had always acted in an appropriate professional manner.

1. However, the patient said that on this particular occasion, she had gained an impression that something was not right in connection with Dr Nguyen's examination of her. It is difficult for the tribunal to form a view on whether that impression was soundly based, as the extent of the previous intimate examinations may have been different to a material degree. This was not explored in detail in the evidence.

1. The patient's impression that something may not have been right was not based on any particular standout event that occurred during the examination. It appeared that her impression was based on a combination of thoughts that she had later linked, and upon which she placed significance. Essentially, this was the combination of Dr Nguyen closing and locking the trellis door to the premises, and her own uncommunicated evolving perception of what Dr Nguyen was doing during his examination.

1. Those matters did not result in the patient actually forming a conclusion that something wrong had occurred until later, and at the time when she was again clothed. At that time, Dr Nguyen raised the suggestion that she might have a breast examination. It was her abrupt negative reaction to that suggestion, in which she then drew upon her earlier impressions, that led her to the view that there had been impropriety on the part of Dr Nguyen.

1. A matter that requires resolution is whether, on an objective view, the impressions of the patient were justified by the circumstances. The reason the question needs to be reviewed objectively is because significantly, at no stage during the examination now complained of, did the patient share with Dr Nguyen any aspect of the evolving impression-based concerns she later described having in that regard. Instead, the patient had only reacted at the end, and she did so angrily, stating that she had "freaked out".

1. Returning then to the events of the examination. To facilitate the examination of her vulvo-vaginal area, the patient said that she had proceeded to remove one leg out of her trousers, and from her underpants. She said that she then pulled these garments down to her ankle and she then lay on the examination table in Dr Nguyen's consultation room whilst Dr Nguyen attended to the preliminary tasks before commencing the examination.

1. Dr Nguyen disputed that the patient had on this occasion only partially removed her lower garments as she had described. Instead, he stated that she had removed them entirely, and had placed them on a nearby chair before getting onto the examination couch. He said that she had carried out those actions whilst he had his back turned to her during which time he was preparing for the examination that was to follow, and when he turned around he had observed her clothes on the chair.

1. Dr Nguyen was adamant that she had totally removed her lower garments and had placed them on a nearby chair and he observed this when he had turned around to commence the examination. He said if the garments had been left around the patient's ankle this would have interfered with the examination.

1. It is therefore necessary to resolve that issue of conflicting factual accounts. In doing so, the tribunal considers that Dr Nguyen's account of the events is the more reliable and the most probably correct version.

1. The patient was confused as to whether she had left her trousers on and pulled down to her left or right leg for the purposes of the examination. This conclusion arises because at different times she had given different versions of some of the details of these events. The tribunal prefers Dr Nguyen's account on this issue.

1. It is convenient to next refer to and analyse another critical matter of disputed fact over whether the door to the premises had been locked before the commencement of the examination. That analysis has to be undertaken in recognition of the evidence given by the patient that she had been confused in her description as to the order of the events.

1. Shortly before the physical examination had commenced, and unbeknown to Dr Nguyen, the patient had harboured a concern in her own mind over the fact that the front door of the premises had been locked by Dr Nguyen, and they were in the premises alone. Contrary to the perceptions of the patient concerning Dr Nguyen's motives in locking the door, the tribunal is satisfied that the door self-locked on closure, without a key, contrary to her perception that a key had been used to lock the door. The tribunal finds that there was no improper motive on the part of Dr Nguyen in that regard, although it is accepted that the patient perceived things very differently.

1. The tribunal is not persuaded that Dr Nguyen's action in closing, and therefore locking the door to the premises, was in any way untoward in the circumstances where he had come to realise that he was going to have to conduct an intimate examination of the patient.

1. The tribunal considers Dr Nguyen's action of closing and therefore locking the door to the premises was justified on account of his need to ensure patient privacy and to ensure security once it was determined that an intimate patient examination was required. This was so especially where his staff, who had previously been on duty, had left to go home after finishing their work for the day.

1. The tribunal considers that the evidence of the patient to the effect that Dr Nguyen went to lock the door is incorrect as the door was self-locking without a key being required to lock it. It would appear that the patient has made an incorrect assumption in the course of reconstructing this facet of her evidence. It would appear that she has assumed the door was locked with a key because a key had been required to unlock it, when in fact, contrary to her earlier evidence, she did not see a key being used to lock the door. The tribunal prefers and accepts Dr Nguyen's uncontradicted evidence on the door locking issue.

1. Dr Nguyen said that in preparation for the examination he had laid down a blue hygiene sheet on the examination table. In her evidence, the patient agreed that Dr Nguyen had provided a hygiene sheet for that examination.

1. Dr Nguyen had on previous such examinations provided the patient with a modesty sheet. The patient said she could not recall whether he had also provided her with a modesty sheet on this particular occasion. Given the sensitive nature of the examination, and the patient's stated apprehensions over her need for such an examination, the tribunal considers it remarkable that the patient could not recall whether or not a modesty sheet had been provided on the occasion of the examination under present consideration. This suggests that the patient's recollection was not entirely complete or accurate, and that her evidence on the surrounding details of the events should therefore be viewed with caution.

1. As was explained in the evidence, the photographic exhibits obtained by the investigating police show that a modesty sheet was stored nearby, and was readily on hand on the shelf behind the examination table. The tribunal accepts Dr Nguyen's evidence that both a hygiene sheet and a modesty sheet were appropriately provided to the patient on the occasion in question.

1. Rather than summarise and thereby dilute the force of the patient's initial account of the course of the examination in question, the key portions of the patient's police statement dated 3 September 2009 are cited in full.

1. The importance of citing the relevant portions of that statement arises for a number of reasons. First, to assess the event in terms of the patient's concession that she was confused as to the sequence of the events that took place in the examination, but where she regarded her statement as being the most accurate account. This was in circumstances where she had tried over time not to recall the events because she found it upsetting to remember them. The second reason for citing the actual terms of the patient's account as set out in her initial statement is to enable a critical comparison to be made with her later accounts when recording findings on the particularised complaints.

1. The initial statement which the patient gave to the police on the evening in question had been completed after she had undergone extensive police questioning. That process had concluded at 1.30am on 4 September 2009. In that statement the patient described the key events as follows:

"22. He opened his office door and went to lock the front door. I lost sigh of the doctor and I heard the front door getting locked. I started to freak out a bit. I then thought to myself, I'm being silly. He walked back in and I was on the bed looking at the ceiling. I had my left leg completely out of my pants and my right leg was pulled down to my ankle.

23. Dr NGUYEN took his lamp which he uses whenever he examines. Dr NGUYEN stood directly where my feet were. He said,"Ok, then" and he spread both my legs open and said, "Oh, you have your period."

I said, "Yes."

He touched the lips of my vagina. I noticed he wasn't wearing gloves. He separated the lips of my vagina and said, "Where is the rash?" He kept moving his fingers around my vaginal lips. I used my right hand to point towards the inside of my vagina. He started making 'mmm' noises, not in a weird way but in an observing way. He said, "It all looks good." He then used one finger to press on my clitoris and said, "It all looks healthy." He kept saying, "It all looks good, it all looks healthy." I could feel his finger moving inside my vagina but not deep since I had my tampon inside. His finger went inside my vagina to about one centimetre deep. He had his finger inside me for maybe a couple of seconds. He then started pulling on the outside so he could see inside. I started feeling freaked out since he kept saying, "Its all good, it's healthy' but he wouldn't stop doing it. He continued moving his fingers around my vagina for about three to five minutes.

24. I started to move and said, "Ok, then thanks." I was still lying down and he started to rub my bare left leg with his hand. I couldn't see which hand he was using. He went up and down my left leg starting from my knee to my mid thigh. I started panicking and I pulled my jeans up as fast as I could. He said, "Do you want me to do an internal examination?" I said, "No."

He was still standing near my feet and was staring at me the whole time without saying anything. His eyes appeared to be glazed over. I haven't seen that sort of a look in his eyes before."

1. It is of some importance to note that Dr Nguyen was not cross-examined on the last three sentences of paragraph [24] of the above cited statement.

1. When the content of the statement of 3 September 2009 is compared with the patient's supplementary statement dated 12 August 2010, an inconsistent and incorrect statement becomes apparent.

1. The first account has the patient saying she heard the door being locked out of her line of sight. The second account has her saying she saw the door being locked with a key. She later agreed she could not have seen the key locking the door and had simply assumed this to be so. This insight into the way the patient's evidence has evolved emphasises the need for caution before accepting her evidence as being reliable.

1. A number of factual matters emerge from the cited paragraphs of the patient's 3 September 2009 statement. As they relate to the Particulars of Complaint, they are more conveniently analysed separately in the context of each such allegation. Those matters are:

• whether Dr Nguyen was wearing gloves
• the time taken for the examination
• the extent of touching of the patient's clitoris
• the alleged rubbing of the patient's bare leg
• the offer of a further internal examination
• the offer of a breast examination
• the representation that it was important to examine the female body

1. For present purposes, it is sufficient to say that after Dr Nguyen had completed the intimate examination, and when the patient was clothed, a further discussion occurred about the patient's need for future vaccinations and medical advice whilst she was overseas, and there was some discussion about medication for travel sickness.

1. For the reasons that follow, the tribunal does not accept the allegation that Dr Nguyen had offered his patient a breast examination without there having been a sufficient clinical indication for him to have done so.

1. First, the patient had been prescribed the oral contraceptive pill. According to the evidence of Dr Bland and Dr Kertesz, which the tribunal considers to be supportive of the position of Dr Nguyen on this point, Dr Nguyen's offer to the patient of a breast examination was clinically indicated and justified. In that regard, it is significant to note that it was also considered to have been indicated and appropriate as recorded in Dr Nguyen's clinical notes for the consultation with the patient in April 2004, when he had offered his patient advice on self-breast examination in the context of a prescription for the oral contraceptive pill.

1. Secondly, in circumstances where it was clear to Dr Nguyen that his long term patient, whom over time he had come to view with what the tribunal considers to have been an appropriate sense of benevolent paternalism and concern for her welfare, and whose physical and emotional health had been appropriately monitored by him over time for a number of years, would be lost to follow-up, he considered it reasonable to offer her such an examination.

1. It should be observed that the purpose for this offer was not only to ascertain whether pathology was present, which was unlikely in the case of someone so young, but more because it was reasonable to seek to instruct such a patient on appropriate self-examination of her breasts, particularly as coincidence would have it, she was at an opportune stage of her menstrual cycle for a breast examination. The tribunal considers that this description by Dr Nguyen was consistent with him having provided the patient with a good standard of care, particularly as she was about to be lost to long term follow-up by him, and beforehand, he had consistently provided her with a good standard of health care.

1. Thirdly, the tribunal does not consider the hindsight concession made by Dr Nguyen in his evidence in these proceedings as to the inappropriateness of his offer of a breast examination as determinative of this aspect of the complaint against him.

1. The gist of Dr Nguyen's concession was that after the event, when he had realised that he had offended the patient's sensibilities by the offer of a breast examination, he considered the offer to have been inappropriate because it was to a degree insensitive to the patient in view of her past issues of trust. The context was that over time he had worked hard in order to gain her trust because of her particular circumstances. When viewed in that light, Dr Nguyen's offer to perform a breast examination was not inappropriate at the time it was made.

1. The tribunal is of the view that when properly understood, the hindsight concessions by Dr Nguyen did not support the submitted contrary conclusion that he had acted inappropriately, or in any sense that mandated disciplinary consequences.

1. This view is also supported by an understanding of the circumstances of the concession, namely the occasion of the recording obtained by pretext with the aid of a listening device. That situation did not constitute a normal consultation or conversational setting where his clinical reasoning would have been appropriately tailored and ventilated to suit the needs of the occasion. Instead, a very different process prevailed. Dr Nguyen was confronted with an uncharacteristically assertive and angry conversation driven by the patient according to an agenda to which Dr Nguyen was not a party. He had to assimilate and assess this view of his patient's presentation, which occurred in circumstances he had believed was a professional consultation by appointment, although from the patient's perspective, it was no such thing. It was therefore not surprising that Dr Nguyen was somewhat taken aback by this presentation by his patient.

1. Other subjective factors must also necessarily be taken into account as a relevant part of the consideration. Those matters included the fact that at the time of the recorded conversation, Dr Nguyen was not just considering the nature of the verbal responses to be made to the patient's assertions, he was also considering her subjective factors and trying to formulate his comments whilst at the same time seeking to empathise and apologise for any offence she had taken. That was not a normal unpressured conversation occurring naturally between the participants. It is therefore artificial to seek to examine it as if it was, which seems to have been the approach taken by the HCCC in its analysis and submissions.

1. Accordingly, the tribunal rejects the submission that there had been an inappropriate offer of a breast examination.

1. That rejection marks the collapse of the central plank in the case against Dr Nguyen, as it was the patient's perception of the appropriateness of that offer that set off the chain of events that led to these proceedings.

Particular 8 - Representation concerning the importance of examining the female body

1. The tribunal considers that the statement attributed to Dr Nguyen to the effect that it is important to examine the female body is a self-evident truism for which, in the context of the examination of the patient on the issues she raised in consultation, no further explanatory evidence is required.

1. The content of that statement was not specifically explored in cross-examination with Dr Nguyen to suggest that the statement was untoward in the circumstances. Given the tribunal's earlier stated findings rejecting the submission that Dr Nguyen had somehow sought to obtain some form of personal sexual gratification from the examination of the patient, the tribunal considers that this element of the complaint is unfounded.

1. The basis for that view has already been identified, namely because it was reasonable for Dr Nguyen to have offered the patient a breast examination, or to at least have offered to instruct her on self-examination of her breasts given that she was going to be lost to follow-up by him and because she had been prescribed the oral contraceptive pill.

1. The tribunal has accepted the evidence of Dr Nguyen and the expert evidence on that topic. Dr Nguyen's remark along the lines cited was therefore relevant and beyond criticism. This should have been seen as an ordinary incident of the expected communications that would flow from a doctor to his patient.

1. The reason the patient thought otherwise, and therefore angrily rejected the offer of a breast examination out of hand, appears to be because she had fundamentally misperceived and misunderstood the events and the circumstances.

Findings

1. Accordingly, the tribunal has concluded that none of the complaints the HCCC has brought against Dr Nguyen have been made out. The tribunal therefore finds that Dr Nguyen had not engaged in unsatisfactory professional conduct, or professional misconduct, as alleged. The inevitable result of that conclusion is that each of the complaints must be dismissed, with the question of which party should pay the costs of these proceedings, to follow that event.

Orders

1. The Tribunal makes the following orders:

(1)   Each of the two complaints against Dr Nguyen as filed by the HCCC are dismissed;

(2)   The Medical Council is directed to forthwith remove the presently applicable practice conditions and restrictions on Dr Nguyen's right to practise medicine;

(3)   The HCCC is ordered to pay Dr Nguyen's costs of the proceedings;

(4)   The exhibits may be returned;

(5)   Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 20 November 2013