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

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

The complaints were not made out because the tribunal was not satisfied, applying the required standard of proof and caution required by Briginshaw, that the patient’s evidence reliably established the disputed particulars or that the listening device recording contained admissions or reliable proof of professional...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 November 2013
Procedural Posture
Disciplinary Complaints Concerning Alleged Unsatisfactory Professional Conduct and Professional Misconduct by a Registered Medical Practitioner / Principal Judgment After Tribunal Hearing
Outcome
The complaints are dismissed.
Legal Topics
['alleged Inappropriate Sexualised Clinical Conduct' 'vulvo Vaginal Examination' 'offer of Breast Examination' 'credibility and Reliability of Witnesses' 'briginshaw Standard' 'use and Construction of Listening Device Recording' 'suppression Order']
['health Practitioner Regulation' 'professional Discipline' 'medical Law'] ['alleged Inappropriate Sexualised Clinical Conduct' 'vulvo Vaginal Examination' 'offer of Breast Examination' 'credibility and Reliability of Witnesses' 'briginshaw Standard' 'use and Construction of Listening Device Recording' 'suppression Order']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Disciplinary Complaints Concerning Alleged Unsatisfactory Professional Conduct and Professional Misconduct by a Registered Medical Practitioner / Principal Judgment After Tribunal Hearing

Legal Issues

  1. 1 ['Whether Dr Nguyen engaged in unsatisfactory professional conduct under s 139B of the Health Practitioner Regulation National Law (NSW).' 'Whether Dr Nguyen engaged in professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).' 'Whether the alleged particulars concerning the vulvo-vaginal examination, touching, offers of further internal and breast examinations, and related statement were proven on the required standard.' 'Whether the patient’s evidence and the listening device recording reliably established professional wrongdoing or sexualised conduct.']

Ratio Decidendi

The complaints were not made out because the tribunal was not satisfied, applying the required standard of proof and caution required by Briginshaw, that the patient’s evidence reliably established the disputed particulars or that the listening device recording contained admissions or reliable proof of professional wrongdoing. The tribunal accepted Dr Nguyen’s evidence that he had no sexualised or improper motive, wore gloves, conducted a clinically justified examination, and made a clinically justified offer of breast examination. The patient’s perceptions were found to have been influenced by misunderstanding, emotional responses, confusion and unreliable reconstruction.

Court Disposition

The complaints are dismissed.

Orders

  • ['Each of the two complaints against Dr Nguyen as filed by the HCCC are dismissed.' "The Medical Council is directed to forthwith remove the presently applicable practice conditions and restrictions on Dr Nguyen's right to practise medicine." "The HCCC is ordered to pay Dr Nguyen's costs of the proceedings." 'The...