MEDICAL BOARD OF AUSTRALIA and NGUYEN
[2023] WASAT 95
•9 OCTOBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and NGUYEN [2023] WASAT 95
MEMBER: PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
DR P WINTERTON, SENIOR SESSIONAL MEMBER
HEARD: 12, 13 AND 14 OCTOBER 2022
DELIVERED : 9 OCTOBER 2023
FILE NO/S: VR 95 of 2021
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
ANH NGUYEN
Respondent
Catchwords:
Vocational regulation – Health practitioner – Medical practitioner – General practitioner – Disciplinary proceedings, conduct only – Allegation of professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance – Orders pursuant to s 196(1) of the Health Practitioner Regulation National Law(WA) Act 2010 (WA) – Allegation of failure to obtain informed consent, pressuring patient to withdraw a complaint – Inadequate clinical notes – Turns on own facts
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1), s 5, s 6, s 160(1)(a), s 193(1), s 193(1)(a), s 193(2), s 196(1), s 196(1)(b), s 196(2)
Health Practitioner Regulation National Law Regulation 2018 (WA), reg 4
Result:
Finding of professional misconduct
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Pratt and Ms M Scott |
| Respondent | : | Ms R Young & Mr E Panetta |
Solicitors:
| Applicant | : | Australian Government Solicitor – Perth |
| Respondent | : | Panetta McGrath Lawyers |
Cases referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Medical Board of Australia and Tan [2022] WASAT 57
Neat Holdings Pty Ltd v Karajen Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Panegyres v Medical Board of Australia [2020] WASCA 58
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
By an application filed on 25 November 2021 (Application), made under s 193(1)(a) of the Health Practitioner Regulation National Law(WA) Act 2010 (WA) (National Law),[1] the Medical Board of Australia (Board) alleged that Dr Anh Nguyen[2] (Dr Anh), a specialist general practitioner, behaved in a way that constituted professional misconduct (alternatively unprofessional conduct or unsatisfactory performance) in relation to his conduct and clinical management of a patient (Patient) over a period between 11 July 2019 and 23 July 2020.
[1] The National Law, which comprises the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNL Act), applies as a law of Western Australia: s 4(1) of the HPRNL Act.
[2] The respondent prefers to be addressed as Dr Anh: ts 2, 12 October 2022.
The Application contained three grounds which, in summary, were to the following effect. In Ground 1, the Board alleged that the Patient attended a consultation with Dr Anh on 11 July 2019 (11 July Consultation) in the course of which he undertook a physical examination of the Patient without first obtaining her informed consent, failed to cease the examination when the Patient's behaviour suggested that she no longer consented to the examination, and failed to provide the Patient with a chaperone or a suitable covering for the examination. In Ground 2, the Board alleged that Dr Anh failed to keep adequate notes of the 11 July Consultation, and of a further consultation with the Patient on 20 July 2019 (20 July Consultation). However, ultimately the Board abandoned the part of Ground 2 which pertained to the notes from the 11 July Consultation. In Ground 3, the Board alleged that on 22 June 2020, Dr Anh spoke to the Patient about the complaint she had made in relation to the alleged conduct the subject of Ground 1 (Complaint or AHPRA Complaint), and participated in other conduct on other occasions, with a view to discouraging or dissuading the Patient from pursuing the Complaint.
For the reasons that follow, we find that Ground 3 of the Application is proved. We are satisfied, and we find, that on 27 June 2020 Dr Anh spoke to the Patient about the Complaint, and that he did so with a view to discouraging or dissuading her from pursuing the Complaint. We are satisfied, and we find, that such conduct was conduct which was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (Requisite Standard), such that that conduct therefore constituted professional misconduct for the purposes of the National Law.
We are not satisfied that the Board has proved the allegations in Grounds 1 and 2. Accordingly, save for Ground 3, the balance of the Application will be dismissed.
In these reasons for decision, we deal with the following matters:
(a)Overview of the Application and the Grounds;
(b)The issues for determination, and the onus and standard of proof;
(c)The legislative framework for the Application;
(d)Overview of the evidence adduced at the hearing;
(e)Our findings as to the credibility and reliability of the witnesses of fact, and as to the expertise of the expert witnesses;
(f)Ground 1: the evidence and our findings;
(g)Ground 3: evidence and findings;
(h)Ground 2: evidence and findings; and
(i)The orders which should be made.
(a)Overview of the Application and the Grounds
In the Application the Board applied to the Tribunal for:
(a) an order or orders pursuant to s 196(1)(b) of the National Law, that the conduct alleged against Dr Anh amounted to professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance, each of which would require a finding that Dr Anh's conduct had fallen below the Requisite Standard;[3] and
(b) the imposition of a sanction or sanctions pursuant to s 196(2) of the National Law.
[3] As to which see [64] below.
The hearing dealt solely with the question whether the Grounds in the Application were proved, on the basis that a further hearing in relation to penalty would be held if required.
The facts alleged and the issues raised by the Grounds of the Application were fleshed out in the Board's Statement of Facts, Issues and Contentions (SIFC). Dr Anh filed a responsive SIFC which set out his response. The parties' cases are summarised below.
Ground 1
The essence of Ground 1 of the Application was that on 11 July 2019, the Patient attended a consultation with Dr Anh complaining of constipation, and severe cramping and pain in her lower abdomen for about one month. Dr Anh requested that she lie on the examination table to be examined.[4]
[4] Board's Statement of Issues, Facts and Contentions dated 28 March 2022 (Board's SIFC) at paras 6.1 – 6.2.
The Board alleged that Dr Anh then proceeded to conduct a physical examination without first explaining to the Patient the reasons why the examination was required, contrary to clause 3.3.3 of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code),[5] nor did he seek and/or obtain consent from the Patient to conduct the examination, contrary to clause 3.5.2 of the Code, and having regard to Pt 7 of the Guidelines: Sexual Boundaries in the DoctorPatient Relationship (Guidelines)[6] which also required that informed consent be obtained;[7] nor did he offer to provide the Patient with a chaperone and/or suitable covering for the examination contrary to Pt 7 of the Guidelines.[8]
[5] Board's SIFC at paras 6.4.1 and 33.1.
[6] Although the Board relied on the Guidelines it conceded that the alleged breaches involved a lack of consent and a failure to have regard to non-verbal signs. In this case, no sexual intention is attributed to Dr Anh's conduct: ts 13, 12 October 2022.
[7] Board's SIFC at paras 6.4.2 and 33.2.
[8] Board's SIFC at para 6.4.3 and Application dated 25 November 2021 at para 15.3(a).
We should observe here that counsel for the Board made clear that the Board did not contend, as part of its case, that Dr Anh's conduct involved any sexual transgression, nor was it alleged that his conduct was motivated by any sexual intention[9] notwithstanding the Board's reliance on the Guidelines, the title of which implies that the conduct in question has a sexual connotation. Rather, the Board's submission was that Pt 7 of the Guidelines, which we have set out below, could be contravened without any sexual intent or motivation.[10]
[9] ts 14, 12 October 2022.
[10] ts 15, 12 October 2022.
The Board relied on various provisions of the Code. Clause 3.3 relevantly provides:
An important part of the doctor-patient relationship is effective communication. This involves:
…
3.3.3informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.
Clause 3.5.2 of the Code relevantly provides:
Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. The information that doctors need to give to patients is detailed in guidelines issued by the National Health and Medical Research Council (NHMRC). Good medical practice involves:
…
3.5.2Obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency) or before involving patients in teaching or research.
Part 7 of the Guidelines relevantly provides:
A physical examination is an important part of the medical consultation. It can provide valuable information to assist in the diagnosis of patients. However, physical examinations should be clinically warranted. …
Before conducting a physical examination, good medical practice involves:
·Explaining to the patient why the examination is necessary, what it involves and providing an opportunity for them to ask questions or to refuse the examination;
·Obtaining the patient's informed consent;
…
·Allowing a patient to bring a support person … .
When conducting a physical examination, good medical practice involves:
·Being aware of any verbal or non-verbal sign the patient has withdrawn consent;
·Not continuing with an examination when consent is uncertain, has been refused or has been withdrawn;
·Providing suitable covering during an examination so that the patient is covered as much as possible, to maintain their dignity ;
…
·Not allowing the patient to remain undressed for any longer than is needed for the examination.
7.1 Use of observers
Patients may find intimate examinations stressful and embarrassing. The definition of an intimate examination depends on the patient's perspective, which may be affected by cultural value and beliefs. An intimate examination usually by means examination of the breasts, genitalia or an internal examination ... . Doctors should be sensitive and respectful of a patient's views when discussing the reasons for an intimate examination and should ensure the patient's comfort, dignity and privacy when conducting an intimate examination.
A doctor may choose to have an observer present during an intimate examination of a patient or in any consultation. The observer is essential a witness to the consultation and may be a registered nurse employed in the practice. An observer can provide an account of the consultation if later there is an allegation of improper behaviour. Their presence may also provide a level of comfort to the patient. …
The Board also alleged that during the examination, Dr Anh lifted up the Patient's skirt and pulled her underwear down to the top of her pubic area while palpating her abdomen, without seeking and/or obtaining her prior consent, contrary to clause 3.5.2 of the Code (set out above). That conduct was also alleged to be contrary to Pt 7 of the Guidelines (set out above), in that the Patient was partially undressed and Dr Anh failed to ensure the Patient was covered as much as possible during the examination so as to maintain her dignity.[11]
[11] Board's SIFC at paras 6.5.1, 33.2 and 33.5.
The Board further alleged that on at least two occasions during the examination, the Patient attempted to sit up to indicate her discomfort and the withdrawal of her consent but Dr Anh pushed her down by her shoulder and proceeded to continue with the examination, contrary to Pt 7 of the Guidelines (set out above).[12]
[12] Board's SIFC at paras 6.5.2 and 33.3.
The Board alleged that Dr Anh then asked the Patient to lie on her stomach so that he could examine her back.[13]
[13] Initially the Board contended that Dr Anh's examination of the Patient's back was not clinically indicated: Board's SIFC at paras 6.5.3 and 33.4. However, in opening, counsel for the Board indicated that the question as to whether examination of the Patient's back was clinically indicated was no longer being pursued, and it was only relevant so far as the adequacy of the clinical notes of the consultation on 11 July 2019 were concerned. (ts 12, 12 October 2022).
The Board alleged that Dr Anh then lifted up the Patient's skirt to expose her buttocks. It was alleged that that conduct was contrary to Pt 7 of the Guidelines (set out above), in that the Patient was partially undressed and Dr Anh failed to ensure the Patient was covered as much as possible during the examination so as to maintain her dignity.[14]
[14] Board's SIFC at paras 6.5.4 and 33.5.
The Board alleged that Dr Anh prescribed the Patient Ibuprofen and referred her for a pelvic ultrasound, without giving the Patient any adequate explanation of the reasons for doing so.[15]
[15] Board's SIFC at para 6.6.
The Board contends that in not explaining to the Patient the nature and/or reasons why the examination was required and in not providing any or any adequate explanation of the reasons why he referred her for a pelvic ultrasound, Dr Anh breached paragraph 3.3.3 of the Code (set out above).[16]
[16] Board's SIFC at para 33.1.
The essence of Dr Anh's response to the Board's case on Ground 1 was as follows.
Dr Anh's case was that at the 11 July Consultation, the Patient reported symptoms of lower abdominal pain and lower back pain for approximately one week's duration, that this was the first time she had experienced such pain, and that she had no gastrointestinal or pelvic symptoms.[17]
[17] Respondent's Statement of Issues, Facts and Contentions dated 3 May 2021 (Respondent's SIFC) at para 6.2.
Dr Anh's case was that he advised the Patient that he needed to examine her abdomen, briefly explaining the reason for and steps of the examination. He contended that he asked the Patient to lie on her back on the examination table and requested that she lift her top up to the costal margins so that he could examine her abdomen, and that she did so.[18] He also contended that he explained the reason for and the steps of the examination he then conducted, and that he obtained the Patient's consent, or alternatively that by lying on the table and lifting her top, she gave implied consent for the examination.[19] Dr Anh contended that he did not offer to provide a chaperone, or a suitable covering, because an intimate examination was not being performed.[20]
[18] Respondent's SIFC at para 6.3.
[19] Respondent's SIFC at para 6.4.
[20] Respondent's SIFC at para 6.4.
Dr Anh's case was that during the examination, he examined over the Patient's central abdomen and both iliac fossae, well above the pubis and her skirt line, that he noted her abdomen was soft and there were no palpable masses, and that her iliac fossae were tender. Dr Anh also contended that he asked the Patient to turn over onto her stomach and briefly explained the reason for and the steps of the examination, that he noted her lower lumbar segment was tender, and that he found no acute abdominal signs present.[21]
[21] Respondent's SIFC at para 6.5.
Dr Anh's case was that in respect of the 11 July Consultation, he adequately informed the Patient of the nature and need for examination and investigations; that he sought or obtained the Patient's informed consent to conduct the examination; and that it was unnecessary to provide her with a chaperone or suitable covering as the Patient did not require an intimate examination. Dr Anh's case was that he did not conduct himself in the manner alleged by the Patient, in that he did not engage in any inappropriate conduct or transgress any sexual boundary; and that the examination he performed was clinically indicated and performed in a manner consistent with the standards expected in medical practice.[22]
[22] Respondent's SIFC at para 32.1.
Dr Anh did not dispute that he prescribed the Patient Ibuprofen and referred her for a pelvic ultrasound.[23] His case was that he explained to the Patient that because he could not find any obvious clinical pathology on examination, he was referring her for a pelvic ultrasound to investigate her symptoms further.[24]
[23] Respondent's SIFC at para 6.6.
[24] Respondent's SIFC at para 6.7.
Dr Anh's case was that when the Patient attended the 20 July Consultation (after having the pelvic ultrasound) he advised her that it was normal.[25] He contended that the Patient reported that she still had a lower abdominal ache but that it was a 'bit better now'.[26] Dr Anh contended that he explained to the Patient that he was prescribing her Codalgin Forte for her pain, that he advised the Patient of its side effects, that she acknowledged and accepted those risks, and that he advised her to return immediately if any side effects occurred.[27]
Ground 2
[25] Respondent's SIFC at para 9.1.
[26] Respondent's SIFC at para 9.2.
[27] Respondent's SIFC at para 9.3.
The Board alleged that Dr Anh breached clauses 8.4.1 and 8.4.4 of the Code, in that he failed to keep adequate notes of the 11 July Consultation in that he did not adequately detail the history of the Patient's presenting complaints, record that any vital signs were taken (temperature, blood pressure, pulse rate), give a diagnostic impression or differential diagnosis; or provide any reasoning for referring her for an ultrasound.[28]
[28] Board's SIFC at paras 7 and 34.
The Board also alleged that Dr Anh breached clause 8.4.1 of the Code, in that he failed to keep adequate notes of the 20 July Consultation, in that the clinical notes of that consultation did not record any rationale or reasoning for prescribing Codalgin Forte 30 milligram tablets.[29]
[29] Board's SIFC at paras 10 and 35 and ts 17, 12 October 2022.
Clauses 8.4.1 and 8.4.4 of the Code relevantly provide:
Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:
8.4.1Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.
…
8.4.4Ensuring that the records are sufficient to facilitate continuity of patient care.
Dr Anh denied that his notes of the 11 July Consultation and the 20 July consultation were inadequate.[30] He contended that they were adequate.[31]
[30] Respondent's SIFC at paras 7 and 10.
[31] Respondent's SIFC at para 32.2.
At the conclusion of the Board's case, counsel for the Board conceded that Dr Anh's notes of the 11 July Consultation met the Requisite Standard.[32]
Ground 3
[32] ts 220, 14 October 2022.
Dr Anh was the President of the Vietnamese Community in Australia – Western Australian Chapter (VCWA).[33] The Patient worked at the VCWA office as a welfare officer.
[33] Board's SIFC at para 14.
The Board alleged that on or about 22 April 2020, Dr Anh, in his capacity as President of the VCWA, raised concerns with the Patient concerning her performance in her role at the VCWA.[34]
[34] Board's SIFC at para 14.
On 18 May 2020, the Patient lodged the Complaint with the Australian Health Practitioner Regulation Agency (AHPRA) in respect of Dr Anh's conduct during the 11 July Consultation (AHPRA Complaint). On 27 May 2020, the Board decided to conduct an investigation into the AHPRA Complaint.[35]
[35] Board's SIFC at para 16.
Dr Anh was advised of the Complaint by telephone on 9 June 2020, and later in writing.[36]
[36] Board's SIFC at para 17.
The Board alleged that by a letter dated 11 June 2020, the Vice President of the VCWA, Mr Chanh Thai (Mr Chanh) advised the Patient to the effect that at the end of the financial year, the executive committee of the VCWA (VCWA Committee) reviewed all staff of the VCWA and their work, that her employment with the VCWA would temporarily cease on 30 June 2020; and that after 30 June 2020, the VCWA would contact her to resign a new employment contract, depending on the assessment made by the VCWA Committee.[37]
[37] Board's SIFC at para 18.
On 27 June 2020, the Patient, Dr Anh and his wife Ms Dung Ngoc Tran (Ms Tran), amongst others, were present at a meeting at a Vietnamese Community School (School) where the Patient was working as a volunteer teacher. The Board alleged that Dr Anh and Ms Tran approached the Patient and engaged in a discussion with her in relation to the Complaint. The Board alleged that Dr Anh made a number of statements to the Patient, including (amongst others) that she had to withdraw the Complaint. The Board alleged that his intention in approaching the Patient and speaking to her in that way was to discourage or dissuade the Patient from pursuing the Complaint.[38]
[38] Board's SIFC at paras 19 and 20.
The Board alleged that by an email on 11 July 2020, Mr Chanh, on behalf of VCWA, advised the Patient that her employment with the VCWA had been terminated on 30 June 2020 as advised in the letter sent to her on 12 June 2020 (in fact, 11 June 2020) and if she had any further questions, she should contact Dr Anh who created the funding, signed her employment contract and employed her.[39]
[39] Board's SIFC at para 21.
The Board also alleged that on 20 July 2020, the Patient sent a text message to Mr Chanh and Dr Anh (in his capacity as the President of VCWA) amongst others, advising that she had been underpaid in the course of her employment with the VCWA and was entitled to back pay of $3,078.14.[40]
[40] Board's SIFC at para 22.
On 23 July 2020, Mr Chanh advised the Patient by email that the VCWA Committee would agree to pay the Patient her entitlements ($3,078.14), but she had to withdraw 'her complaints'.[41] The Board alleged that the Patient reasonably understood the reference in that email to withdrawing her 'complaints' to include the Complaint to APHRA regarding Dr Anh.[42]
[41] Board's SIFC at para 23.
[42] Board's SIFC at para 24.
On 25 July 2020, Dr Anh emailed the Patient and advised her to the effect that the VCWA Committee had sent her an email inviting her to settle the issue but had not heard from her.[43]
[43] Board's SIFC at para 26.
The Board alleged that the communications from Mr Chanh to the Patient which are set out above were sent with the authority of the VCWA Committee, including Dr Anh.[44]
[44] Board's SIFC at para 25.
The Board alleged that Dr Anh's conduct:
(a)in approaching the Patient and speaking to her at the School on 27 June 2020;
(b)in authorising (along with the other members of the VCWA Committee) the Vice President of the VCWA Committee to send the letter of 11 June 2020, the email of 11 July 2020, and the email of 23 July 2023, to the Patient; and
(c)in emailing the Patient on 25 July 2020;
was intended to discourage or dissuade the Patient from pursuing her complaint to AHPRA.[45]
[45] Board's SIFC at paras 20 and 27.
The Board alleged that that conduct contravened clause 8.1 and clause 3.11 of the Code in that Dr Anh acted in an inappropriate and unethical manner.[46] Further, the Board alleged that Dr Anh breached clauses 3.11.1, 3.11.2 and 3.11.3 of the Code in that he did not acknowledge the Patient's right to complain, did not work with the Patient to resolve the Complaint, and did not provide a prompt, open and constructive response to the Complaint, including an explanation, and, if appropriate, an apology.[47]
[46] Board's SIFC at para 36.
[47] Board's SIFC at para 36; ts 18 – 19, 12 October 2022.
Clause 3.11 of the Code relevantly provides:
Patients who are dissatisfied have a right to complain about their care. When a complaint is made, good medical practical involves:
3.11.1Acknowledging the patient's right to complain.
3.11.2Providing information about the complaints system.
3.11.3Working with the patient to resolve the issue, locally where possible.
3.11.4Providing a prompt, open and constructive response, including an explanation and, if appropriate, an apology.
3.11.5Ensuring the complaint does not adversely affect the patient's care. In some cases, it may be advisable to refer the patient to another doctor.
3.11.6Complying with relevant complaints law, policies and procedures.
Clause 8.1 of the Code relevantly provides:
In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.
The guidance contained in this section emphasises the core qualities and characteristics of good doctors outlined in Section 1.4.
Dr Anh did not dispute that on about 22 April 2020, he raised concerns with the Patient regarding her performance in her role as a welfare officer with the VCWA.[48]
[48] Respondent's SIFC at para 14.
Dr Anh's case was that he and his wife were surprised to see the Patient at the meeting at the School on 27 June 2020. He contended that it was his wife who approached the Patient and asked her to stay behind for a few minutes so that the three of them could talk, and that the Patient then came and sat down with them and they had a discussion in relation to the Complaint.[49]
[49] Respondent's SIFC at para 20.2.
Dr Anh denied the Board's allegations in relation to what was said in that conversation, and instead contended that he said words to the effect of, amongst others, 'Why did you do this to me?', 'You want for me to be deregistered?' and 'Think about your action'.[50]
[50] Respondent's SIFC at para 20.3.
Pausing there, while Dr Anh did not admit that he said all of what was alleged by the Board, there was a considerable overlap between what he admitted saying and what the Board alleged.
Critically, however, Dr Anh denied that his intention in approaching the Patient and in speaking to her on 27 June 2020 was to discourage or dissuade her from pursuing the Complaint.[51]
[51] Respondent's SIFC at para 21.
Dr Anh admitted that the Patient sent a text message to Mr Chanh and to him advising them to the effect that she had been underpaid during her employment with the VCWA and that she was entitled to backpay of $3,078.14.[52] Dr Anh also contended that on about 20 July 2020, the Patient lodged an application for unfair dismissal in the Fair Work Commission.[53]
[52] Respondent's SIFC at para 21.
[53] Respondent's SIFC at para 24.
Dr Anh denied that the Patient reasonably understood that the reference in Mr Chanh's email of 23 July 2020 to withdrawing the 'complaints' included the AHPRA Complaint.[54]
[54] Respondent's SIFC at para 24.
Dr Anh denied that the communications sent to the Patient by the Vice President of the VCWA were sent with the authority of the VCWA including Dr Anh.[55]
[55] Respondent's SIFC at para 27.
Dr Anh denied that those communications and his email to the Patient of 25 July 2020 were made with the intention of discouraging or dissuading the Patient from pursuing the AHPRA Complaint.[56]
[56] Respondent's SIFC at para 27.
Dr Anh contended that he did not attempt to pressure, discourage or dissuade the Patient from pursuing the Complaint, and therefore his conduct was not inappropriate or unethical.[57]
(b)The issues for determination, and the onus and standard of proof
The issues for determination
[57] Respondent's SIFC at para 32.3.
The parties agreed that four principal issues arose for determination. Having regard to the concessions made by the Board in relation to its case, the issues for resolution boil down to these:
1. (In relation to Ground 1): What occurred during the 11 July Consultation;
2. (In relation to Ground 2): Were Dr Anh's notes of the 20 July Consultation adequate in that they met the Requirements of the Code?;
3. (In relation to Ground 3): Whether Dr Anh attempted to discourage or dissuade the Patient from pursuing her Complaint; and
4. To the extent that any of those Grounds were established, whether such conduct by Dr Anh constituted professional misconduct, unprofessional conduct and/or unsatisfactory professional performance as defined by s 5 of the National Law.
The onus and standard of proof
It is uncontentious that the Board bears the onus of proving its case against Dr Anh to the civil standard (being on the balance of probabilities).[58]
[58] Medical Board of Australia and Tan [2022] WASAT 57 (Tan) at [6].
However, given the seriousness of the allegations of professional misconduct advanced by the Board in this case:
[C]ogent evidence will be required to establish the facts on which those allegations depend. Satisfaction that such serious conduct … has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect inferences.[59]
[59] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (Ebtash) at [55], citing Neat Holdings Pty Ltd v Karajen Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Briginshaw).
In these reasons, when we express ourselves to be satisfied, and we find that a fact or an allegation has been proved, we mean that we are satisfied, on the balance of probabilities, and on the basis of cogent evidence, that that fact or allegation has been proved.
(c)The legislative framework for the Application
Pursuant to s 193(1) of the National Law, the Board must refer a matter about a registered health practitioner to the Tribunal[60] if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.[61]
[60] For the purposes of the National Law, the Board is the National Board under reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA), and the Tribunal is a 'responsible tribunal' pursuant to s 6 of the HPRNL Act.
[61] National Law, s 193(1) and s 193(2).
After hearing a matter referred to it, the Tribunal may make one or more of the decisions set out in s 196(1) of the National Law.[62] Relevantly, these include that the practitioner concerned has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, or professional misconduct. Those terms describe categories of behaviour of different gravity[63] and are defined[64] as follows:
[62] National Law, s 196(1)(b).
[63] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [139] (Vaughan JA).
[64] National Law, s 5.
(a)'unsatisfactory professional performance' means:
[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[;]
(b)'unprofessional conduct' means:
[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes [specific examples of conduct which constitute unprofessional conduct set out in paras (a) – (h) of the definition][;][65]
(c)'professional misconduct' includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[;]
[65] The definition of unprofessional conduct is inclusive of, but not limited to, the conduct specified in paras (a) – (h). Such specified conduct (which includes, for example, contraventions of particular laws and convictions for certain kinds of offences) necessarily constitutes, but is not required for the Tribunal to find, unprofessional conduct: see Ebtash at [47].
In Panegyres, Vaughan JA (with whom Buss P and Murphy JA agreed) observed, in relation to 'professional misconduct' so defined, that:
(a)the definition is inclusive and does not contain an exhaustive statement of what may constitute professional misconduct (accordingly, the concept of professional misconduct is wider than that which is provided for in pars (a) to (c));[66]
[66] Panegyres at [149] and [152].
(b)the definition has both a 'performance component' (in pars (a) and (b)) and a 'conduct component' (in par (c));[67] and
[67] Panegyres at [150].
(c)as to the 'performance component' under pars (a) and (b):
(i)there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct;[68]
[68] Panegyres at [151].
(ii)there is a difference between pars (a) and (b) of the definition - par (a) is concerned with a single instance of unprofessional conduct, while par (b) is concerned with more than one instance (that is, multiple instances) of unprofessional conduct;[69]
[69] Panegyres at [150].
(iii)a finding of professional misconduct under this component involves, in substance, two elements:
1.First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct').
2.Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1.What level of training or experience is possessed by the practitioner?
2.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
3.Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard[;][70]
(d)the 'conduct component' under par (c):
(i)expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession; and
(ii)provides part of the context in which pars (a) and (b) are to be construed, giving an indication of the degree of serious departure from the Requisite Standard required for conduct to be 'substantially below' the standard, and the gravity of making such a finding.[71]
[70] Panegyres at [153] – [155].
[71] Panegyres at [157].
If any finding is made under s 196(1)(b) of the National Law, the Tribunal may decide to take one or more of the steps set out in s 196(2) in respect of the practitioner.
(d)Overview of the evidence adduced at the hearing
Documentary evidence
The parties tendered an agreed bundle of 440 pages of documents (Agreed Tender Bundle).[72] A further 15 items were tendered as exhibits during the hearing. The documentary evidence included:
(a) photographs of the Patient in the clothes she said she was wearing on the day of the 11 July Consultation;
(b) Dr Anh's notes of the 11 July Consultation and the 20 July Consultation; and
(c) records produced by the medical practice (Practice) where Dr Anh was working at the relevant time.
Witnesses of fact
[72] Exhibit 1. The individual documents within Exhibit 1 were individually received as exhibits (i.e. Exhibit 1.1, 1.2 etc).
The Board relied on the following witnesses of fact:
(a) the Patient – whose witness statements dated 29 July 2020 and 3 June 2021 were tendered as her evidence‑in‑chief.[73] The Patient also gave oral evidence at the hearing;
(b) Mr KM, the Patient's partner – whose witness statement dated 1 October 2020 was tendered as his evidence‑in‑chief.[74] Mr KM also gave oral evidence at the hearing;[75] and
(c) Ms Xuan Huong Phan (Ms Huong) – whose witness statement dated 14 August 2020 was tendered in evidence as part of the Agreed Tender Bundle.[76] Ms Huong was not required for cross‑examination, and we accept her unchallenged evidence.
[73] Patient's witness statement dated 29 July 2020 (No 1) (Exhibit 1.3) and Patient's witness statement dated 3 June 2021 (No 2) (Exhibit 1.4).
[74] KM's witness statement dated 1 October 2020 (Exhibit 1.21).
[75] ts 90, 12 October 2022.
[76] Ms Huong's witness statement dated 14 August 2020 (Exhibit 1.16).
Dr Anh relied on evidence from the following witnesses:
(a)his own evidence – Dr Anh's witness statement dated 8 August 2022 was tendered as his evidence‑in‑chief.[77] He also gave oral evidence at the hearing; and
(b)Ms Tran – whose witness statement dated 29 July 2022 was tendered as her evidence‑in‑chief.[78] Ms Tran also gave evidence at the hearing.[79]
[77] Dr Anh's witness statement dated 8 August 2022 (Exhibit 6).
[78] Dung Ngoc Tran's witness statement dated 29 July 2022 (Exhibit 7).
[79] ts 146, 13 October 2022.
Dr Anh also relied on favourable references as to his character from:
(a)Associate Professor Mark Thomas dated 10 February 2022;[80]
(b)Dr Tue Anh Hoang dated 13 February 2022;[81]
(c)Dr Jenny Tu dated 21 February 2022;[82] and
(d)Dr Thomas Brian Woods dated 28 February 2022.[83]
[80] Agreed Tender Bundle at page 347 (Exhibit 2.8).
[81] Agreed Tender Bundle at page 350 (Exhibit 2.10).
[82] Agreed Tender Bundle at pages 353 – 354 (Exhibit 2.12).
[83] Agreed Tender Bundle at pages 357 – 358 (Exhibit 2.13).
None of the character witnesses were called to testify at the hearing. We accept the evidence of the character witnesses.
Each of the parties filed written submissions.[84] As was the case in relation to the evidence, most of the parties' submissions were directed to Ground 1, and the Board's allegations about Dr Anh's conduct during his consultation with the Patient in the 11 July Consultation.
(e)Our findings as to the credibility and reliability of the witnesses of fact, and as to the expertise of the expert witnesses
The Patient
[84] Applicant's Opening Submissions dated 27 September 2022, Respondent's Opening Submissions filed 7 October 2022, Respondent's Closing Submissions filed 14 October 2022.
Generally speaking, the Patient was a confident witness. She confidently professed to recollect what had occurred, and rejected any suggestion that her memory might have faded since the relevant events. The Patient was composed throughout most of her evidence, although became emotional at one point.[85] We have not placed any significant weight on the Patient's demeanour in giving her evidence for the purpose of assessing her credibility, but rather have focused on the reliability of her evidence.
[85] See, eg, ts 56, 12 October 2022.
Having regard to the totality of the Patient's evidence, we are satisfied that the Patient gave evidence which she regarded as truthful. More particularly, we accept that she genuinely believes that something untoward happened in the 11 July Consultation. We accept that she also genuinely believed that the termination of her employment was connected with her complaint to AHPRA about the 11 July Consultation.
However, we found the Patient's evidence to be unreliable in many important respects. We have summarised our reasons for that conclusion below. We explain each of these reasons in more detail in the course of our discussion of particular aspects of the evidence.
First, by the time the Patient gave her evidence at the hearing it was more than three years after the 11 July Consultation. The Patient did not make any contemporaneous record of what occurred on that occasion. Nor did she report what had occurred to any other person prior to 22 April 2020.[86] Indeed, the Patient accepted that at least until 22 April 2020, she had not thought much about the 11 July Consultation at all.[87] Accordingly, she accepted that her memory of what occurred in the 11 July Consultation was based on what came to her mind on 22 April 2020, some nine months later.[88] In those circumstances, her memory of the 11 July Consultation is likely to have faded in at least some respects. That necessarily warrants some caution in assessing the reliability of her evidence.
[86] ts 36, 12 October 2022
[87] See [301] below; see also ts 36, 12 October 2022.
[88] ts 40, 12 October 2022.
Secondly, while the Patient claimed to have a clear recollection of the events in question, and especially of what occurred in the 11 July Consultation, her recollection, when challenged, proved to be rather less clear than it first appeared. At times, her evidence about the events of the 11 July Consultation was expressed in terms of what 'would have' occurred, rather than what she in fact recollected as having occurred.[89]
[89] See, eg ts 40 and 54, 12 October 2022.
Thirdly, in respect of some aspects of the 11 July Consultation, and of the surrounding events, the Patient's recollection was at odds with contemporary documentary evidence, namely the clinical records made by Dr Anh of the 11 July Consultation, and other relevant consultations.[90] We considered that documentary evidence to be a more reliable record of what occurred.
[90] For example, the Patient expressly did not recall that Dr Anh examined her lower limbs at the 11 July Consultation (see below at [172]) but his clinical notes of that consultation indicated that he had examined her lower limbs and reflexes: see below at [132]. Similarly, the Patient rejected any suggestion that she had attended an appointment with her younger sister to see Dr Anh after the 11 July Consultation (see below at [271]) but the Practice's clinical records were to the contrary (see below at [276]). A further example concerns the Patient's claim that she told Dr Anh that she was constipated (see below at [129]) yet that information did not appear in his clinical notes (see below at [132]).
Fourthly, the Patient gave several accounts of what occurred in the 11 July Consultation, and there were inconsistencies between these accounts.[91] The Patient accepted that what she reported in the AHPRA Complaint was not accurate in one respect, namely whether Dr Anh gave her any explanation for the examination,[92] and said that it was only while giving her evidence at the hearing that she realised that that part of the report in the AHPRA Complaint was inaccurate.[93] Nevertheless, the Patient refused to countenance the possibility that her recollection of events at the hearing may have faded since she made the Complaint.[94]
[91] By way of example, in the AHPRA Complaint, the Patient reported that Dr Anh told her to lie down on the examination, and that 'he said he was going to feel around and ask where I felt pain' (see below at [157]), yet in her evidence at the hearing, she claimed that Dr Anh gave her no explanation for why a physical examination was required (see below at [152]).
[92] ts 49, 12 October 2022.
[93] ts 50, 12 October 2022.
[94] ts 49, 12 October 2022.
Fifthly, the Patient's evidence‑in‑chief and her evidence in cross‑examination were not consistent in a number of respects.[95]
[95] By way of example, in her evidence‑in‑chief the Patient made no mention of reporting to Dr Anh that she was experiencing back pain (see below at [129]). Yet in cross‑examination, the Patient said that in the 11 July Consultation she had told Dr Anh about her back pain (see below at [135]). The Patient also accepted that she had not thought much about the 11 July Consultation before 22 April 2020 (see below at [301]) yet also said that she had thought about the events of that day in the interim (see ts 37, 12 October 2022).
Sixthly, the first account the Patient gave to any other person about the 11 July Consultation was a report to her partner, Mr KM, on the evening of 22 April 2020, almost nine months after the 11 July Consultation. The evidence about that conversation suggested that the Patient was far from sure about what had occurred. She told Mr KM that 'I might have been sexually assaulted, I'm not quite sure'.[96] In contrast, in her evidence at the hearing, the Patient expressed herself to be far more certain as to what had occurred in the 11 July Consultation.
[96] Patient's witness statement No 1 (Exhibit 1.3) at para 93.
Seventhly, while the victim of alleged misconduct may well recall some details of the relevant event with clarity, it is implausible that they will recall every detail of the event with perfect recall, after the passage of a significant period of time. However, the Patient professed to have a very clear recollection of the events of the 11 July Consultation. By way of example, the Patient claimed that she recalled what she was wearing at the 11 July Consultation, and asserted that she was 100% sure of the underwear that she was wearing on that occasion.[97] While we accept that a victim of alleged misconduct might have a vivid memory of the clothing worn during the relevant event, the Patient did not convey any basis for how it was that she had such a precise recollection about the clothing, including the underwear, she was wearing on this occasion. We considered her claim to the accuracy of that recollection to be implausible.
[97] See below at [192]; ts 48, 12 October 2022.
Eighthly, the Patient rejected the suggestion that her memory of the 11 July Consultation may have faded,[98] and she maintained that her recollection at the hearing was likely to be more accurate than the recollection she had conveyed in her earlier report in the AHPRA Complaint.[99]
[98] See, for example, ts 38, 12 October 2022.
[99] See below at [164].
Ninthly, the Patient's explanation for how she came to recall the events of the 11 July Consultation was troubling, and left us with a deep sense of unease about the reliability of her account. That was because it was her experience of having been criticised by Dr Anh about the state of the VCWA Committee's office, which, on her account, 'triggered' her memory of what had occurred during the 11 July Consultation. That experience appears to have caused the Patient to view Dr Anh in a far less favourable light than she had previously. That different perspective of his character then appears to have coloured her perspective on what had occurred during the 11 July Consultation, so that she came to view that examination in a sinister light.
That was illustrated clearly by the Patient's conduct after the 11 July Consultation, and prior to 22 April 2020. She saw Dr Anh for a further consultation (at the 22 July Consultation), she accompanied her sister to a consultation with Dr Anh in October 2019, and most significantly, she continued to work at the Practice, where she saw Dr Anh every day, and at the VCWA office, where she also saw Dr Anh, albeit less regularly. That conduct was not consistent with the Patient experiencing, at the time of the 11 July Consultation, shame and humiliation about what had occurred (as she later claimed), but rather suggests that the shame and humiliation the Patient claimed she felt were emotions she attached to the 11 July Consultation only after 22 April 2020.
Tenthly, as a result of that fresh perspective on the events of the 11 July Consultation, it was apparent that the Patient was angry with Dr Anh about how he had made her feel. Our assessment was that her anger had coloured her recollection of, and response to, the events the subject of the allegations in Ground 1, and Ground 3. As a result, the Patient refused to make reasonable concessions about deficiencies in her evidence, which suggested she was wedded to a fixed interpretation of what had occurred, such as in relation to the circumstances surrounding the termination of her employment with the VCWA office.[100]
[100] See, for example, the Patient's evidence in relation to her understanding of the reference to 'complaints' in Mr Chanh's email of 23 July 2023 (see below at [343]).
The Board argued that any inconsistencies in the Patient's evidence were not of such import or so material as to warrant the rejection of her evidence as a whole.[101] We have not rejected the Patient's evidence as a whole. But in view of our concerns about its reliability, we did not consider that her evidence was sufficiently cogent, in and of itself, to prove the Board's allegations, serious as those allegations are, in the face of Dr Anh's denials and in the face of other evidence which was contrary to the Patient's version of events. Consequently, save where the Patient's evidence was uncontroversial, or was consistent with, or corroborated by, another witness (including Dr Anh), we have not relied upon it.
[101] ts 243, 14 October 2022.
As a result, we were unable to prefer the Patient's evidence, over Dr Anh's evidence, in relation to the key aspects of Ground 1 (whether Dr Anh explained why a physical examination was required; whether he obtained informed consent to the physical examination of the Patient; whether he pulled her skirt up or underwear down; whether he obtained her informed consent prior to doing so; and whether he persisted with the examination notwithstanding that her conduct indicated the withdrawal of her consent). In so far as Ground 3 is concerned, the Patient's evidence was broadly consistent with the evidence given, and admissions made, by Dr Anh in key respects, and we have accepted her evidence in those respects. Proof of the allegation in Ground 2 turned on the content of Dr Anh's clinical notes and the expert evidence as to whether they met the Requisite Standard.
Dr Anh
We approached Dr Anh's evidence with some caution. He had every reason to portray himself in the best light possible.
However, some of Dr Anh's evidence, especially in relation to the allegations in Ground 3, was arguably contrary to his interests, and that supported our assessment that his evidence was truthful. Our assessment of his credibility was also supported by the fact that Dr Anh made appropriate concessions and accepted that he could not recall the precise words used in some conversations.
The Board contended that we should not accept Dr Anh's evidence in relation to the details of the 11 July Consultation, other than insofar as they were supported by the notes of that consultation.[102]
[102] ts 245 – 246, 14 October 2022.
Counsel for the Board also submitted that Dr Anh would have seen thousands of patients by the time he became aware of the Patient's Complaint to APHRA. Counsel for the Board also submitted that it was inherently implausible that Dr Anh would recollect his examination of the Patient from among the approximately 12,000 examinations of patients that he conducts every year. The 11 July Consultation was 'entirely routine' and 'not particularly special or unusual'.[103] At first blush, those were attractive submissions. In the end, however, we are unable to accept those submissions. That is because the Patient was not just any patient. Dr Anh had known her since she was a young child, and he and Ms Tran clearly viewed her like family, as was evidenced by the fact that he sought to provide her with employment.
[103] ts 127, 13 October 2022 and ts 246, 14 October 2022.
Given that Dr Anh had known the Patient since she was a child, he knew her family, and he saw her before and after the 11 July Consultation, Dr Anh's examination of the Patient was one which was more likely to be fixed in his memory than his examination of a patient he had not seen before or since. We therefore accept that it is more likely than not that Dr Anh would recall at least aspects of the 11 July Consultation with the Patient. Aspects of Dr Anh's evidence were consistent with him actually recalling the 11 July Consultation.[104]
[104] By way of example, Dr Anh explained that he had referred the Patient for an ultrasound, but specifically not a vaginal ultrasound, because of her modesty. We found that explanation quite credible, in light of the fact that Dr Anh had known the Patient since infancy.
We therefore did not find Dr Anh's evidence that he had some actual recollection of the consultation on 11 July 2019 to lack credibility or to be disingenuous.
We also found his explanation for his evidence that the Patient was not wearing the clothes she said she had been wearing at the 11 July Consultation to be plausible, having regard to his knowledge of the Patient, and his familiarity with her usual style of dressing.[105]
[105] See, eg, ts 127, 13 October 2022.
On the other hand, the fact that Dr Anh recollected some aspects of the 11 July Consultation does not mean that it is more likely than not that he would accurately recall the entirety of that consultation, and thus that his recollection was entirely reliable. Dr Anh was frank about the limits of his recollection. He explained that he could not recall the exact words he said to every patient, or to this particular Patient.[106] He also acknowledged that he drew on his usual practice about what he said to patients on particular issues, such as the side effects of medicines.[107]
[106] ts 119, 13 October 2022.
[107] ts 118, 13 October 2022.
Counsel for the Board invited the Tribunal to conclude that Dr Anh had a very limited ability to distinguish between the extent to which he had an actual memory of what had occurred and the extent to which he was reconstructing what had occurred based on his usual practice.[108] There is no doubt that Dr Anh's recollection of the 11 July Consultation is likely to have been assisted, at the least, by his access to his clinical notes of that consultation. There can also be no doubt that his evidence was influenced, whether consciously or otherwise, by his 'usual practice' in examining patients.[109] Dr Anh acknowledged that to be so.[110] We have borne that in mind in assessing the various aspects of his evidence to discern whether his recollection was an actual recollection or a memory of a usual practice. Counsel's cross‑examination assisted in exploring the limits of Dr Anh's recollection.
[108] ts 245 – 246, 14 October 2022.
[109] Cf ts 128, 13 October 2022.
[110] ts 129, 13 October 2022.
In our view, the same issues did not affect the balance of Dr Anh's evidence in relation to the other allegations, especially in relation to Ground 3. We did not doubt the reliability of his recollection of those matters.
In summary, then, we considered Dr Anh to be a credible witness, and we regarded his recollection as generally reliable. In relation to the 11 July Consultation, we assessed his evidence as generally reliable, at least in so far as it was supported by other corroborative evidence (such as his clinical notes). However, we remained cautious about his ability to accurately recollect every detail of the 11 July Consultation.
Having said all of that, we have not overlooked the fact that Dr Anh did not have to prove anything. Even if we had rejected all of Dr Anh's evidence, it would not follow that the Board would thereby have proved its case.
Mr KM
Mr KM is the Patient's partner. At the date of the hearing, he and the Patient had been living together for about three years.
Nothing in Mr KM's evidence gave us any reason to doubt that he was an honest and reliable witness. However, ultimately his evidence was of limited assistance, for the reasons we explain below.
Ms Tran
Ms Tran is Dr Anh's wife. She gave limited evidence in relation to the issues in dispute, and the focus of her evidence was on the conversation between her, the Patient and Dr Anh at the School on 27 June 2020.
We approached Ms Tran's evidence with some caution. She was clearly shocked and upset by the Patient's allegations against Dr Anh, given that they had known the Patient since she was a baby,[111] and that they 'treated her like how we treated our children'.[112]
[111] Dung Ngoc Tran's witness statement dated 29 July 2022 (Exhibit 7) at para 12.
[112] Dung Ngoc Tran's witness statement dated 29 July 2022 (Exhibit 7) at para 54.
However, Ms Tran's evidence was of limited utility because she agreed that she could not recall Dr Anh 'saying many things'[113] to the Patient during the conversation at the School.
[113] ts 150, 13 October 2022.
Ultimately, we formed the view that Ms Tran's evidence was credible but, in the end, nothing turned on her evidence because it was so limited in its scope and detail that it did not assist to establish, nor did it undermine, the Board's case.
Ms Huong
Ms Huong was not required for cross‑examination. We accept her unchallenged evidence.
The character witnesses
None of the character witnesses were required for cross‑examination. We accept their evidence although, given our findings in relation to the Grounds, we have, ultimately, not relied on their evidence.
The Expert evidence
The Board and Dr Anh each relied on the evidence of an expert witness in relation to the Requisite Standard.
The Board relied on the evidence of Dr Hui Bing Ooi, MBBS, FRACGP who produced an expert report dated 25 July 2022.[114]
[114] Agreed Tender Bundle at pages 222 – 235 (Exhibit 4).
Dr Anh called Dr Joe Kosterich, MBBS who produced an expert report dated 19 July 2022.[115]
[115] Agreed Tender Bundle at pages 308 – 317 (Exhibit 5).
Both experts attended the hearing and gave concurrent evidence.[116]
[116] Dr Ooi appeared by video-link and Dr Kosterich appeared in person.
Their evidence addressed the nature of the examination undertaken during the 11 July Consultation, and the adequacy of Dr Anh's notes of the 11 July Consultation and the 20 July Consultation.
Given our findings in relation to Ground 1, the relevance of the expert evidence was primarily in relation to Ground 2. We accept that both Dr Ooi and Dr Kosterich had appropriate expertise to assist the Tribunal to understand the Requisite Standard in relation to keeping patient notes. We accept the expertise of each of the expert witnesses and have no doubt as to their independence. To the extent that there were differences between them, that did not reflect any lack of independence on their part.
Furthermore, even in respect of that issue, the facts which we found as to what was said in the conversation (set out at para [8] above), were facts which had been admitted by Dr Anh in his Responsive Statement of Issues, Facts and Contentions. The basis on which the Board succeeded on ground 3 was that we concluded that the only reasonable inference was that Dr Anh said those words with the intention of discouraging or dissuading the Patient from pursuing the Complaint.
Insofar as the Board's claim for costs included an amount for the hearing in relation to penalty, the Board has also been unsuccessful in its contention that a suspension, rather than a fine, in addition to a reprimand, is the appropriate penalty.
The upshot is that the overall proportion of its case on which the Board was successful was, in the end, very small, the evidence that went to that allegation was very confined, and the facts and evidence on which we relied in reaching our finding had been admitted by Dr Anh or were not disputed (e.g. Ms Huong's evidence). Had the conversation at the School been the only issue which was the subject of an application for disciplinary action, we are left with real doubts as to whether that issue would have required resolution through a hearing at all.
Furthermore, it was necessary for Dr Anh to mount a defence and deal with the many other issues going to grounds 1, 2 and 3, requiring him to marshal evidence, including expert evidence, to engage counsel and to bear the costs of a three day hearing, plus a further hearing as to penalty. He has no doubt been put to considerable expense, and the end result is that he has been found guilty of professional misconduct on a single issue, the facts as to which were admitted by him from the outset.
In all of those circumstances, we do not consider that it would be fair and reasonable to require Dr Anh to pay what would be a very small proportion of the Board's costs to recognise its very limited success on the Application.
The fair and reasonable outcome as to costs, in our view, is that there should be no order as to costs.
(j)The orders which will be made
The orders which will be made are:
1.Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) the respondent is reprimanded.
2.Pursuant to s 196(2)(c) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), the respondent is required pay to the applicant a fine of $7,500 within 28 days of the date of these orders, or such further period as may be agreed between the parties.
3.There be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
17 MAY 2024
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