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.

2 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)"].

3 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.

4 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.

5 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

6 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

7 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.

8 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".

9 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.

10 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

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

12 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.

13 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.

14 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.

15 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.

16 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.

17 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.

18 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.

19 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.

20 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.

21 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

22 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

23 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.

24 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.

25 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.

26 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

27 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.

28 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.

29 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.

30 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.

31 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.

32 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.

33 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.

34 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

35 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.

36 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.

37 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.

38 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

39 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.

40 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.

41 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.

42 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.

43 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.

44 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.

45 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.

46 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.

47 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.

48 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.

49 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.

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

51 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.

52 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.

53 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.

54 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.

55 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.

56 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.

57 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.

58 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.

59 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.

60 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.

61 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

62 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.

63 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.

64 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.

65 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.

66 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

67 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.

68 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."

69 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.

70 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.

71 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.

72 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.

73 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.

74 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.

75 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.

76 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

77 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

78 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.

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

80 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.

81 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.

82 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.

83 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.

84 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.

85 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.

86 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.

87 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.

88 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.

89 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.

90 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.

91 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.

92 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.

93 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.

94 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

95 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.

96 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.

97 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.

98 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

99 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.

100 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.

101 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.

102 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.

103 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.

104 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.

105 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.

106 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.

107 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".

108 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.

109 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.

110 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.

111 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.

112 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".

113 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.

114 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.

115 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.

116 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.

117 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.

118 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.

119 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.

120 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.

121 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.

122 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.

123 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.

124 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.

125 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.

126 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.

127 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.

128 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."

129 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.

130 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.

131 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.

132 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

133 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.

134 At that point, the patient was confused as to whether she was on the examination table or seated beside his desk when Dr Nguyen allegedly touched her on the thigh. It is no longer necessary to resolve that issue in these proceedings as the HCCC has abandoned its complaint about that discrete matter. Nevertheless, the fact that such confusion exists within the evidence of the patient, is a matter that reflects on the reliability of her evidence.

135 The critical event of the consultation was Dr Nguyen's suggestion of a breast examination. The appropriateness or otherwise of that suggestion is the subject of a separate analysis. In the meantime, some consideration of the circumstances surrounding that suggestion is required.

136 There was confusion within the patient's evidence as to whether she was seated or standing when Dr Nguyen raised the topic of a breast examination. This too is a matter that suggests the patient's perception of events is not reliable.

137 The fact that aspects of the patient's account was confused is further confirmed by paragraph [24] of her statement, which suggests that she has given a conflated, if not confused account. She said that she had started panicking when Dr Nguyen allegedly rubbed her bare leg. Putting aside the question of whether he had in fact rubbed her leg in the manner she described, her evidence was that she was panicking well before that time, but had not given Dr Nguyen any indication that this was so. This could possibly be explained by the fact that he was examining her genital area at the time, and was not in a position to see any of her facial expressions that might have otherwise provided him with a clue to her emotional state at that time.

138 Returning then to the topic of the suggested breast examination, the patient said that Dr Nguyen had said "Should I check your breasts". She said she refused this suggestion, and she said that he then added "It's important to check the female body". She said she responded to Dr Nguyen by saying to him "This is very inappropriate and I am going".

139 The patient then said that she gathered her belongings and intended to leave, but before leaving she had leaned over Dr Nguyen's desk and had used his pen to make a note in her diary to remind herself of the advice that Dr Nguyen had given her regarding her need for further vaccinations, and possibly to note the details of the travel sickness medication he had suggested to her. Those actions appear to be inconsistent with the state of abrupt anger as described by the patient.

140 The tribunal considers that the confusion evident in the patient's account of the events is a confounding factor that undermines the reliability of her evidence. This factor becomes evident when considering the patient's description of the timing of the alleged offer by Dr Nguyen for an internal examination. It would seem unlikely that Dr Nguyen would, after examining the patient's vagina, and after she had dressed herself, then offer to carry out an internal examination, which would necessarily require that she get undressed again.

141 In the patient's initial statement she described the termination of the consultation in the following terse terms:

"25. ...

I quickly walked to the front door and realised that I couldn't get out. I had to wait for him to come behind me to open the door. He unlocked the door and didn't say anything. As he was unlocking he said, "I'm sorry if I had made you feel uncomfortable."

I said, "This is very inappropriate when you have a practice." I left and I didn't look back."

Report to the police

142 After leaving Dr Nguyen's premises, the patient rang a female friend, and she then arranged to meet that friend and another female friend for dinner. Later, when she was alone with the first of those friends, whom she trusted, she recounted her version of the events of the examination by Dr Nguyen.

143 That friend then encouraged the patient to attend Revesby Police Station to report Dr Nguyen on account of the conduct that had been related to her. From there they went together to Bankstown Police Station, where statements of evidence were taken. That friend, whose corroborative statement was also dated 3 September 2009, and which formed part of the evidence, was not required for cross-examination on the content of her statement.

144 Nothing turns on the fact that the corroborative witness did not give oral evidence to confirm her statement as there is no dispute that the patient had made a relatively contemporaneous corroborative statement of her version of the events. The only real issue in that regard was the reliability of the patient's own descriptions of her perceptions regarding the matters that she has described as having occurred when she had consulted Dr Nguyen.

145 The patient's initial statement dated 3 September 2009 went on to conclude as follows:

"29. I feel really disgusting and shocked this has happened. I know the doctor for years and I still can't believe this has happened to me. I trusted the doctor and I feel violated by the doctor. This was the one and only occasion when Dr NGUYEN examined me without wearing any gloves. Every other occasion, he always wore his gloves.

30. While the doctor was touching me in an inappropriate way, I never asked him to stop. I didn't ask him to stop since I felt too scared when he was touching me as I knew the front door was locked and even if I screamed for help no one would hear anything. I just froze and I could not believe what was happening to me at that time."

146 The tribunal considers that the content of the patient's statement to the effect that she "just froze" and felt "too scared" to scream, serves to confirm that the effect those emotions had upon her, had also served to distort her perception of the events, which led her to believe that something untoward had occurred. Notwithstanding that the patient did not consider this to be the case, the tribunal considers this view is also confirmed by the patient's confused perception of the sequence in which the events occurred.

147 This suggests she has reconstructed her account albeit in an honest but unreliable way due to the effect of those emotions, rather than providing an actual factual recollection of the events. The tribunal also considers this to be so because it was not until Dr Nguyen had apologised to her when she had adversely reacted to the suggestion for a breast examination, that she then came to consider his whole conduct in a sinister way that disgusted her.

Listening device recording on 11 September 2009

148 On 11 September 2009, in the course of an arrangement reached with the investigating police, the patient assisted the police to obtain a recording of a conversation between herself and Dr Nguyen using the pretext of wanting her medical records. The police obtained that recording by duly authorised legal means.

149 In the lead-up to those events, the patient had to undergo medical examinations in accordance with police investigation protocols. The question of whether that had also served to focus, reinforce and perhaps magnify her reaction to the circumstances was not explored.

150 Following that recorded conversation the police arrested Dr Nguyen and then laid charges of sexual assault against him. Those charges were later withdrawn, as described earlier.

151 The content of the conversation recorded using the listening device is the subject of a more detailed consideration and analysis that will shortly follow.

152 In the meantime, for present purposes, it is sufficient to say the tribunal considers that an overly simplistic and incorrect construction had been placed on the significance and import of that recording. This initially occurred when the police analysed the conversation, and again later, when the HCCC relied upon the content of that conversation in these proceedings.

153 On the day following the recorded conversation, the patient travelled overseas to the UK as she had planned. Whilst she was there, the police officer who was involved in prosecuting Dr Nguyen over these events remained in contact with her as they continued their preparation of the criminal charges that they had laid against Dr Nguyen in relation to the events in question. It is not in any way suggested that such contact was untoward.

Supplementary statement

154 In the course of that preparation, some email exchanges took place between that police officer and the patient, regarding the preparation of a supplementary statement by the patient. That correspondence was tendered in evidence. It sheds light on how inaccuracies had crept into the patient's evidence of the critical events.

155 On 12 August 2010, which was almost a year after the consultation with Dr Nguyen on 3 September 2009, whilst she was still in the UK, the patient then signed a further police statement. The relevant parts of that statement are as follows:

"3. On the 3 September 2009 I attended the Family Doctor Surgery, located at 114 Bankstown City Plaza, Bankstown NSW. I have been attending this surgery for a number of years, since I was 15 or 16 I think. The reason I changed doctor's from my family doctor is because my mum (parents separated when I was 18 months) told me that our family doctor assaulted her years ago but she never said anything because she didn't speak very good English at the time and was a bit naive as to what happened. That scared me and so I looked for a new doctor and seeing as I was at Bankstown Station everyday to get to and from school, I just went in the first surgery I saw which was Dr NGUYEN'S surgery. When in attendance at the surgery I have only ever been treated by Doctor NGUYEN and no-one else. My main reason for attending the surgery was because I suffer from severe thrush, where it occurs quite frequently and I often experience discomfort in this area. In addition to this, I had HPV a few years ago and had an operation to remove it. My last boyfriend had cheated on me so I am always paranoid about that area and constantly think that I have contracted some sort of STD at the first sign of irritation in this area. To assist me with this problem I would have regular check ups to make sure that it was gone and there were no signs of it coming back.

4. Therefore, given my medical history I attended Doctor NGUYEN'S surgery on the above date and informed Doctor NGUYEN that I needed a vaginal examination because of a rash on the exterior of my vagina. Almost immediately alter informing Doctor NGUYEN of this I saw him walk out of the examination room and towards the front door to the surgery in the foyer area. I saw him lock the front of the surgery door with a key, before walking back to the examination room. When I saw him do this I was very uncomfortable because I was the last patient in the surgery and there was no one else, not even the receptionist, in at the front desk. I saw Doctor NGUYEN walk back into the examination room, where he left the door of his office / examination room open. Again this made me feel even more uncomfortable, because it felt like there was no privacy. At this time I got up onto the examination bed and Doctor NGUYEN proceeded with preparing for the examination. I starting thinking at the time that I was just being paranoid and silly and that there was nothing to be worried about. I started thinking how Doctor NGUYEN and I had a doctor / patient relationship that extended not only to medical health but to psychological and social issues. I also thought about times when I had spent over an hour with Dr NGUYEN at his surgery where we have spoken about my relationships and sexual issue's, because I had HPV and was concerned that it would come back. This has always been an issue for me.

5. Dr NGUYEN diagnosed me with depression around two or three years ago. To assist me with his condition Dr NGUYEN has prescribed a number of antidepressants, some of which I have had a bad reaction to and therefore had to switch medications, causing me to return to the surgery for the medication to be prescribed.

EXAMINATION:

6. Just prior to the examination taking place I recall getting onto the examination bed / table as I have done several times before. When lying on the bed I saw Doctor NGUYEN appear to look at me in an odd way, which made me feel uneasy. I did not know why he was looking at me differently and whether or not it had something to do with my medical condition. I saw Doctor NGUYEN, who was still standing at the end of the bed at the time, get a lamp for the examination and move the lamp over towards the end of the examination bed / table. I distinctly remember Doctor NGUYEN was not wearing gloves at the time. This made me concerned because on every other occasion when I had been to the surgery he had worn gloves when conducting an examination.

7. After moving the lamp to the right position l could feel Dr NGUYEN'S fingers on me and he was rubbing me in a strange way on my clitoris. He then parted my labia with his finger and inserted his fingertip to look inside my vagina. When I felt this happening I heard Doctor NGUYEN says; 'You have your period?' I said, 'Yes.' Immediately after he said this to me I started to get more and more nervous so I hurriedly said, 'It's probably just nothing,' before quickly getting off the bed / table and putting my clothes back on. After putting my clothes back on I sat down on a chair next to the examination bed and Doctor NGUYEN sat across from me, approximately 1.5 meters away from where I was seated. I saw Doctor NGUYEN lean towards me, where he was about half a meter away from me and was facing me front on. At this point, I felt very confused and I think I must have been babbling, because I can not remember what I said to him. During this time I can remember Doctor NGUYEN placing his hand on my thigh before saying, 'Is there anything else?' I said, No.' before getting up from my seat. Doctor NGUYEN said, 'Would you like a breast examination?' I started to get angry at this point and said, 'That's a little inappropriate.' Doctor NGUYEN did not say anything in reply. I exited the examination room and walked to the front door. Dr NGUYEN followed me because he had locked the front door of the surgery and I couldn't get out. He started to say something but I cut him off and said, 'this is so wrong, you have a family.' He tried to talk but I interrupted and told him to open the door immediately. He did and I left quickly without looking back."

156 The supplementary statement dated 12 August 2010 has served to identify the elements of confusion in the patient's account of aspects of the events in a way that serves to undermine the reliability of her evidence.

Committal proceedings for sexual assault charges

157 At the committal hearing, fairly, the patient made a concession in acknowledging her uncertainty, over the sequence of events she said had occurred at the consultation on 3 September 2009. The tribunal considers that concession is an important and significant matter that influences the assessment of the reliability of the patient's evidence as to the relevant sequence of events in question.

HCCC interview on 23 June 2011

158 It was not until 23 June 2011 that Dr Nguyen had the opportunity to provide his explanation of the content of the conversation recorded by means of the listening device. That explanation, which was in answer to questions, will be drawn upon in the tribunal's findings concerning the construction to be placed upon the content of that recorded conversation.

The present proceedings

159 In the present proceedings, the patient gave her evidence on the first day of the hearing. She did so from behind a partition screen that shielded her from view by Dr Nguyen, and vice versa. This was at her request as she did not want to see, or be seen by, Dr Nguyen. The tribunal members and counsel were nevertheless able to observe the patient whilst she gave her evidence, and form views as to her manner of giving evidence and the content of her answers to questions.

160 Before stating the findings of the tribunal on the individual Particulars of Complaint, and before outlining the interpretation to be placed on them, it is necessary to identify the tribunal's conclusions on the significance of the evidence obtained surreptitiously by the police through the use of a listening device to record the conversation between the patient and Dr Nguyen on 11 September 2009. That analysis is a necessary preliminary step to the tribunal drawing its conclusions on the issue of whether, on 3 September 2009, Dr Nguyen had an improper sexual motive towards the patient.

Construction of the listening device recording

161 On 11 September 2009, by arrangement with the investigating police, the patient was fitted with a concealed listening device. The device started recording at about 3.15pm and it continued for an unstated time which was approximately 1 hour and 15 mins.

162 In the course of the recording, the patient is heard to make a telephone call to make an appointment to attend Dr Nguyen's premises. Because of the need of the police to establish continuity for evidence purposes, the recording included some irrelevant conversation between the police officers and the patient. That material has no relevance to these proceedings other than to provide a background understanding to the recording.

163 The relevant portion of the recording is not timed in transcript. It proceeds for a little under 14 minutes. At the beginning of those 14 minutes the patient can be heard walking, and after a short time she can be heard asking Dr Nguyen for her medical records. A conversation between them then ensued, in which the patient put a number of assertions to Dr Nguyen. The sound recording indicates that Dr Nguyen was obviously taken aback by that confrontation. His responses were obviously, and understandably, awkward in parts due to the circumstances of that confrontation.

164 In these proceedings, and as the prosecution did in the discontinued committal proceedings, the HCCC sought to make much of that recording as constituting evidence of material wrongdoing on the part of Dr Nguyen.

165 In deference to that argument, although on the face of it, it is embarrassing to Dr Nguyen, the tribunal has decided to incorporate the complete transcribed text of the relevant parts of the conversation, but broken down into identifiable segments for analysis.

166 This is done with the caveat that unanimated, without annotations for pauses, sighs and the like, including the absence of any description of any non-verbal communication that was likely to have accompanied the conversation, the text has the potential to create an unbalanced impression of the content. Nevertheless, the tribunal considers the transcribed text should be set out in order to understand the tribunal's interpretation of it in the context of the evidence as a whole.

167 In order to address the concerns raised in the preceding paragraph, it is appropriate to summarise Dr Nguyen's explanations in respect of that recording when he eventually had the opportunity to comment upon its contents when interviewed by the HCCC nearly 2 years later, on 23 June 2011.

168 In that regard, Dr Nguyen explained that on 11 September 2009, before he had a chance to say anything to the patient apart from calling her into his consulting room, the patient demanded her records and demanded an apology. His reaction of shock on realising she had misunderstood his intentions still remained. In accordance with his training, he set about trying to defuse her anger and frustration, apologising and being empathic. The tribunal considers that Dr Nguyen's annotation to the recording to reflect the overall tone, including the prevailing non-verbal events of that conversation is relevant to an understanding of it.

169 Dr Nguyen said that it was not immediately apparent to him what the patient was talking about in that conversation. In accordance with his training, he was seeking to make neutral statements to try and defuse the situation. He said he had been frequently interrupted by the patient, and never had a chance to fully explain what he was trying to tell her. Ultimately, he became aware they were speaking of totally different things, and this had confused him to a degree.

170 Dr Nguyen explained that the overall tenor of his conversation with the patient on that day was that his patient's wellbeing was foremost in his mind. In that regard, his aim was to defuse the situation. In those circumstances, it was unlikely that he was going to challenge her and debate with her the correctness or otherwise of what she was saying to him.

171 Dr Nguyen identified the patient's attitude as displaying anger and upset. The matters put to Dr Nguyen by the two HCCC representatives on that occasion when they sought to question him on the content of his comments to the patient need not be engaged here, as they can be adequately covered in the course of analysing the specific segments of the conversation that have been separated out in the paragraphs that will shortly follow.

172 Against that background explanation, it is appropriate to now set out the tribunal's interpretation of that conversation.

173 The recording shows that the conversation in question started with the patient requesting her medical records. Dr Nguyen immediately and without hesitation, indicated to the patient that he would oblige her request. In doing so he said he wanted to apologise for what happened at the last consultation. The patient responded by seizing the agenda and asking for an apology. Dr Nguyen responded by saying he was really sorry for what had happened and gave a sincere apology without including any content to that apology. Dr Nguyen's expression of apology was given in an apparently awkward tone. It is plain that he was bewildered. The patient then took the initiative in the conversation and adopted a forthright tone in putting a series of assertions to Dr Nguyen.

174 The assertions that the patient made to Dr Nguyen in the recorded conversation can be summarised as follows:

(1) An assertion was made of two separate elements of impropriety, comprising "two separate attempts". These were identified as being first, whilst the patient "was in here", indicating the consulting room, and the second when she "was on the table". The order in which those assertions were made, did not accurately reflect the chronology of the events that occurred during the consultation: (Claim of two attempts of impropriety);

(2) An assertion that there was "no excuse" [for what was left unstated] as Dr Nguyen was "in a position of authority": (Claim of inexcusable abuse of authority);

(3) An exclamatory reference was made to "the doctor across the road", this being a reference to another general practitioner who had, to the apparent knowledge of the parties, acted inappropriately to a patient, approximately 3 years earlier: (Reference to an abusive doctor);

(4) An assertion that perhaps Dr Nguyen should not be in his profession if he "can't handle" his "natural human feelings": (Reference to human feelings);

(5) An assertion that Dr Nguyen knew the patient had been in "a vulnerable situation", being "half clothed": (Claim of vulnerability when patient half clothed);

(6) A rebuttal statement to the effect that Dr Nguyen's work in having acted in the patient's best interests as her doctor over a number of years, had now "gone out the window": (Work gone out the window);

(7) An assertion that Dr Nguyen had "just completely broken all of [the patient's] trust in male doctors": (Broken trust in male doctors);

(8) An assertion that the patient had felt "sick and disgusting" when she had left Dr Nguyen's premises, and the related statement that because he was a doctor he was "not meant to do [unspecified] things like that": (Claim of feelings of disgust);

(9) A refusal of Dr Nguyen's offers of apology, the patient stating that she had no intention of returning to him as her doctor because "what just happened [which was left unspecified and which] has just changed everything": (Refusal of apology).

175 Each of the above (9) elements of assertion require a contextual analysis that takes into consideration the entire circumstances of the recorded conversation between the patient and Dr Nguyen. That analysis follows.

176 A striking preliminary observation about the conversation is that no particular admissions were made by Dr Nguyen, consistent with his stated empathic approach to the confrontation. In the sequence of paragraphs that follows, each of the assertions made by the patient are examined in the order in which they arose in the conversation.

Assertion 1 - Claim of two attempts of impropriety

177 The patient started the conversation by requesting her medical records. Dr Nguyen can be heard to immediately agree to provide them, which did not suggest that he had something to hide. In that initial interchange, the patient also took the initiative by requesting an apology. Dr Nguyen, who was initially hesitant, and clearly bewildered, responded immediately with an apology without particular content. In his evidence, he explained that at the time he was trying to empathise with the patient.

178 The patient made her request in an assertive tone. The tribunal considers that empathetic response would have been appropriate in order to avoid confrontation. Dr Nguyen's recorded response was consistent with an empathetic approach to having been confronted in the manner described. Dr Nguyen's bewildered response is considered to be naturally appropriate to those circumstances. That initial exchange was as follows:

"...

Pt:  ... I wanted to get my medical records.

Dr:  Oh, right. Do you want the copy of ---

Pt:  Yeah, that's fine.

Dr:  Yeah. Well, I've, can I just explain what, what happened?

Pt:  I would like an apology.

Dr:  I'm really sorry for what happened. I'm very sorry that, that I, I don't know what to say but to really sincerely say sorry to be honest."

179 This portion of the conversation had been relatively straightforward and was not overly pressured, although Dr Nguyen can be heard to sigh and exhale as he apologised. This was consistent with an air of bewilderment on his part. There were also some pauses that are not reflected in the transcript.

180 The patient then took an assertive tone, and alleged two incidents of impropriety in a way that indicated she was calling upon Dr Nguyen for an answer. In his response, Dr Nguyen did not acknowledge any impropriety. He adopted an empathic response as he sought details. In that part of the conversation, the patient responded by referring to the offer of a breast examination, and to the alleged touching of her leg. That interchange was as follows:

"...

Pt:  Do you know how inappropriate that was, on two separate attempts while I was in here, once when I was on the table and then when I was leaving? What were you, what were you trying to do?

Dr:  When was, when you were leaving?

Pt:  When I was leaving and you said, "Would you like me, should I check your breasts."

Dr:  What, when was on the table, what do you mean?

Pt:  You, oh, you know that that was inappropriate, touching my leg.

Dr:  I just can't remember what I did. I'm really sorry. But I did make the inappropriate comments about you when you stand up, when you were standing here, and I, I've been very very very sad about all of this. I'm, I'm, I'm, I'm, I don't know what to say but be really really sorry about the whole thing. I don't know what got over me on, on that particular day and I've been trying my best to be very professional and I know that I've, I've broken your trust, I, I don't know what to say, to be honest, I've, on that particular day I think, and you can just hear me out ---"

181 In this part of the conversation the patient had elevated her tone in asking her questions. She had proceeded to talk over Dr Nguyen when he tried to say something. There was obviously some incompletely verbalised expression on the part of the patient when she said "oh" and then sighed, as if in disbelief.

182 After the patient made the allegation of leg touching, there was a significant pause before Dr Nguyen replied. He seemed to have a perplexed tone in his reply. His reply was hesitant in parts, with brief exhalatory pauses as he found his words to reply. It is not clear why he said "can you just hear me out". There may or may not have been some non-verbal behaviour from the patient that led him to say this, as this appeared to have been said by him in a tone of frustration. Alternatively, Dr Nguyen may have been scrambling for words to reply. It is difficult to determine which was the case, but the conversation fits in with Dr Nguyen's description that he was being interrupted, and that he was not given an adequate opportunity to explain himself.

183 However, several matters of significance emerge from the above portion of the conversation.

184 First, the patient's allegations of impropriety made no reference to any aspect of Dr Nguyen's touching of her private parts. Secondly, when the patient referred to a touching of her leg, Dr Nguyen's response was one of bewilderment. Thirdly, Dr Nguyen was clearly regretful that the patient was unhappy with him. Fourthly, his tone was one of abject apology, not self-justification. This was consistent with his description of his approach to the way in which that conversation had developed. The terms of Dr Nguyen's apology at this point in the conversation are worthy of analysis.

185 It is plain that the apology made by Dr Nguyen at this point was not an acknowledgment of particular wrongdoing. Dr Nguyen was clearly upset at the confrontation. He was grappling with how he should respond in an empathic way towards his patient, who was herself clearly upset. This was not a normal conversational interchange. As is clear from the purpose of the patient's attendance to record the conversation, she was not going to be placated. She was there with a pre-arranged agenda in mind. Although she stated at the outset, that she wanted an apology, she was clearly not open to receiving or accepting any apology from Dr Nguyen, as the course of the conversation later reveals.

186 In this part of the conversation, Dr Nguyen had clearly recognised that he had to empathise with the patient, and not antagonise her, as he had explained.

187 That approach was entirely understandable, given his knowledge of her history of psychological issues. In that context, the tribunal does not consider Dr Nguyen's non-specific expression "I don't know what got over me" to constitute an admission of guilt of any kind. This view arises because of the limited and non-particularised content of the conversation, where the statement was said in juxtaposition with his other statement that he had been trying to do his best for the patient over many years.

188 The message Dr Nguyen was seeking to convey by those words was incompletely recorded. He only got as far as saying that he was sorry he had broken her trust. Whatever else he was about to say was then cut off by the patient interrupting him by her redoubled effort at confronting him at that point.

Assertion 2 - Claim of inexcusable abuse of authority

189 That further confrontation was sharply aimed at seeking a more elaborate response from Dr Nguyen, as is evident from the following cited sequence:

"...

Pt:  There's no excuse. You're in a position of authority.

Dr:  I understand that, yeah. There's, there, I don't have, I'm not trying to look for any excuses at all."

190 This portion of the conversation is marked by the patient having adopted an exclamatory tone and elevating the tone of her voice, placing extra emphasis on the word "authority".

191 Dr Nguyen's response to that rebuke was initially hesitant in the face of the patient's sustained assertiveness. His response appeared to be self-deprecatory in the sense he was scrambling for words. It is clear that he was not seeking to argue with her. This was consistent with his explanation of those events.

192 The patient then took the initiative, sensing either that Dr Nguyen was not in control of the conversation, or that he was not arguing with her. At this point she asserted herself by demanding he explain what he wanted to say. In this confrontation, Dr Nguyen's response was to a degree rambling. He was obviously upset at the confrontation, and his attempts to explain himself were abruptly dismissed by the patient, as the following extract shows:

"...

Pt:  Well, then what is there to hear out?

Dr:  I just want you to understand that on that particular day I don't, I don't know why I behaved like that. Normally and so far all other, all the other patients, including yourself, I have been trying to maintain myself and be as professional as I could. I don't know, because I was, there are two sides to the, to a human and as I always trying to help patients understand that. One is the professional side of you and one is just being a normal human being. And being a doctor it is very hard for us every day we are trying to suppress our normal natural human being response and there was just that one particular time that I don't know because I was tired, I was sick or hearing you that you were leaving um, to England, I was worried that you, you, there were just too many things going through my mind and it got the better of me basically.

Pt:  No excuse. What about ---

Dr:  I understand that."

[Emphasis added]

193 This portion of the conversation was characterised by a moderate matter-of-fact tone of delivery, occasionally marked by pauses. At one point Dr Nguyen's thoughts must have been merging on a point, and he became side-tracked when he said "because I was" followed by "there are two sides" to being human in the clinical setting. He was clearly speaking in the abstract at that point. The emphasised text in the above citation has been added to complete the non-transcribed portions in the transcribed recording.

194 When that portion of the conversation is considered in its context, Dr Nguyen's attempts to explain his clinical attitude to the patient on the day in question was being abruptly dismissed by the patient.

195 It is significant to observe that when Dr Nguyen's remarks thus far into the conversation as cited above are analysed, it is plain that he had not made any admission of wrongdoing, either particularly or generally.

196 Essentially, in the context of the overall events, Dr Nguyen was saying that on 3 September 2009, he, as a human and a professional, was sick and he was tired (it was the end of his working day) and his human side had erred in making a judgment as to what he had said regarding her medical needs, and that had caused offence. It is plain from the evidence that he was referring to his offer of a breast examination, notwithstanding whatever else may have been the focus of the patient's thoughts at that time.

197 It would appear that Dr Nguyen was justifying himself, by reference to his human feelings of benevolence towards his patient in whom he had invested a lot of his time and effort, successfully it seemed, until this moment.

198 The tribunal considers that Dr Nguyen was referring to his feelings of concern and worry that by the patient leaving to go to England, she would be lost to follow-up. As he explained, those were the matters that were, understandably, going through his mind at the time. He had expressed his sadness that he had upset her at the time she had left his consultation room on the day in question. It would have been unusual for him not to have felt that way, given the history of his care for the patient and especially given the abrupt manner in which the consultation had been terminated by the patient.

199 In light of the foregoing analysis on this part of the consultation, were Dr Nguyen's responses reasonable in the circumstances? The tribunal considers they were.

200 Did those responses indicate by their nature, content or context that Dr Nguyen was exhibiting a consciousness of his guilt or wrongdoing with regard to his conduct? The tribunal considers they did not.

201 Does this part of the content of the conversation indicate that Dr Nguyen was acknowledging that he had behaved towards his patient in a sexualised way? The tribunal considers that it does not.

Assertion 3 - Reference to an abusive doctor

202 At this point in the recorded conversation, in talking over Dr Nguyen, and in order to pursue her own agenda, the patient introduced the notion of an alleged sexualised component having been part of the events of the consultation on 3 September 2009, as is evident in the following extract:

"...

Pt:  --- after you told me the doctor across the road -

Dr:  I understand that. I ---

Pt:  You told me about him and like I never, I never thought, after you told me, that was how many years ago you told me about that? Maybe three years ago you told me about that doctor and, you know, how horrible it was, what he was doing, and then you went and tried to do the same thing."

203 In this portion of the conversation, Dr Nguyen was clearly on the back-foot as the patient was proceeding to repeatedly interrupt him in what he was trying to say to her. She did so in an accusatory tone.

204 The patient's non-specific reference to Dr Nguyen having "tried to do the same thing" is a clear reference to an apprehension on her part of there having been a doctor patient boundary violation, to her way of thinking.

205 There are four matters of significance that arise from Dr Nguyen's response, which was as follows:

"...

Dr:  Well, like I said, I, I don't know what happened to me on that day but I was, I was wrong by you. I sincerely from the bottom of my heart, I did want to ring you up to say sorry but I thought that would make you feel even more inappropriate that I was taking advantage of the situation."

206 The first matter of significance is that Dr Nguyen was plainly searching for words by which he should respond to the accusation that the patient had levelled at him in this way.

207 The second matter of significance from Dr Nguyen's response is that he was empathising with the patient by acknowledging her feelings that in her estimation, he had wronged her. That acknowledgment was entirely devoid of any specific content. Dr Nguyen was again apologising to her, saying it had been on his mind, and he had thought of ringing her, but he had decided not to, in order to avoid exacerbating the situation by compounding her perception that something inappropriate had occurred at the consultation on 3 September 2009, contrary to his perception of the events.

208 The third matter of significance is that in offering his sincere apology to the patient, again, he made no admission of any specific guilt or wrongdoing. It is plain that he was simply trying to placate his patient, who was being assertive, accusatory, and plainly displaying some anger towards him.

209 Dr Nguyen's apology had no effect on the patient's approach to the conversation. She continued on with an assertive and provocative tone, as follows:

"...

Pt:  If you are in this profession and you think that you can't handle it, then maybe you shouldn't be. You know ---

Dr:  Well ---"

210 At this point, the accusatory tone of the patient and the content of what she was saying, although unparticularised, escalated the level of accusation.

211 The fourth matter of significance is that to the extent that it might be thought Dr Nguyen's responses appeared to be glib, that impression is dispelled when the content of his HCCC interview on 23 June 2011 is taken into account.

212 The conversation that followed was stultified. It did not flow naturally. It was characterised by the patient being assertive, according to the agenda that she had at the time, and which is now known. Dr Nguyen was in effect put on the spot. He was obviously torn between the need to empathise and placate the assertions of his patient, as opposed to his need to protect himself from the onslaught of her assertions. He was endeavouring to pursue both objectives. His attempt at a response was cut off by the patient as she launched into her next assertion.

213 The impression gained from the recording is that in the circumstances, Dr Nguyen had remained dignified but bewildered by what was occurring.

Assertion 4 - Reference to human feelings

214 In the assertion that followed, the patient picked upon Dr Nguyen's earlier expression of his feelings for her as a patient. At this point the agendas of the participants to the conversation were well and truly at cross-purposes.

215 The patient had turned Dr Nguyen's reference to human feelings, which may have been, in hindsight, an infelicitous choice of expression on his part, into an implied boundary violation, as the following cited extract shows:

"...

Pt:  --- if you, if you think that you can't suppress these feelings, natural, natural human feelings as you so called them, maybe you shouldn't be doing it."

216 At this point, the patient's tone included a sarcastic edge when she suggested that Dr Nguyen shouldn't be in practice, which was the clear contextual meaning of her cited remark.

217 Dr Nguyen's response, which requires analysis, was in the following terms:

"...

Dr:  Well, that's, they are, we're being, when we come out to general practice we do have lectures and tutorials on what to do, 'cause we, we know that we do have to deal with this every day and what they were advising us is if you start to have feelings towards the patient or if the patient have feelings towards you and you feel uncomfortable, you should make the patient aware so they can find another doctor. Most of the time we should be able to suppress that and carry on with our work, and so far I honestly promise you that I have been utmost professional until that particular day. And I don't know what got over me, to be honest, I just don't know what happened and, and I have not, if you can ask all the female patient I had so far, I have, I have not had any incidents apart from you. I have to say that I, I'm not, I should have asked you that when it start to affect doctors and patient relationship"

218 The tone of Dr Nguyen's response as cited above was a bland, matter-of-fact but non-particularised defence of himself. He remained calm and dignified throughout this part of the conversation.

219 The first part of Dr Nguyen's cited answer was a rendition of the effect of standard risk management principles, and was unremarkable, until he used the words "I honestly promise you that I have been utmost professional until that particular day. And I don't know what got over me, ... I just don't know what happened".

220 The portion cited above is ambiguous in a number of respects. It contains no specific admission of wrongdoing. Whilst it implies there may have possibly been some inappropriate feelings, a matter that is far from certain, it would be unreasonable to infer that Dr Nguyen was conceding he had acted inappropriately in some unspecified way. The conversation was vague and not incriminating.

221 Dr Nguyen's use of the expression "until that day" is also open to differing interpretations. It could be taken to mean he was admitting that something untoward had occurred on that day. Alternatively, it could also be taken to mean he had consistently behaved correctly, including up until that particular day. It was a sentinel day for their professional relationship because, contrary to the rapport he had built up with her as a patient over the course of the 6 previous years, she had stormed out of his premises, and had now returned, assertively displaying anger when directing her questions at him. Dr Nguyen may have simply been trying to highlight that he had not behaved in an untoward manner. The remarks are too general to base a specific inference that Dr Nguyen was acknowledging turpitude on his part.

222 A similar analysis arises as to the meaning of the words "I have not had any incidents apart from you"?

223 This could have meant he had not had a patient display offence in the manner that had occurred when she terminated the consultation on 3 September 2009 and stormed out of his premises. That event could certainly be described as "an incident". It could have possibly meant that he was acknowledging having harboured improper thoughts. It could have also possibly meant that he had acted improperly.

224 However, because of the lack of the particularity from the content and context, all of the above interpretations amount to nothing more than unweighted speculation. In the total context of the evidence, the cited statement therefore cannot serve as a sound basis for reasonably inferring the occurrence of professional conduct that should attract peer criticism: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

225 A further matter to be considered in relation to the cited portion of the conversation is the meaning of the phrase "... I should have asked you that when it start to affect doctors and patient relationship". It's noteworthy that this comment was made in an abstract context.

226 That statement has to be evaluated in light of the clinical setting, where the patient agreed in her evidence to the tribunal, that she had not told Dr Nguyen of any of the concerns she described as having arisen in the course of the consultation until she had reacted at the end of that consultation. It must also be viewed in light of the patient's acknowledged confusion over the events of that consultation. Those matters of qualification must serve to diminish the potentially negative significance of the cited comments.

227 It is also distinctly possible that Dr Nguyen was simply saying that in cases where there is a perception or feelings of discomfort on the part of the patient, this could or should have been explored and a referral made to another doctor.

228 The tribunal considers that on the state of the evidence, any interpretation in favour of turpitude on Dr Nguyen's part must be seen as being speculative. His cited comments do not represent an acknowledgment of any particular or general wrongdoing on his part.

Assertion 5 - Claim of vulnerability when patient was half clothed

229 The patient then stepped up the nature of assertions by stating that she had felt vulnerable when she was half clothed, thereby implying something untoward had occurred, although no particular allegation of wrongdoing was made concerning Dr Nguyen's actions. This is evident from the following interchange:

"...

Pt:  You knew what a vulnerable situation I was in as well ---

Dr:  Yeah. And so far ---

Pt:  --- half-clothed."

230 The patient was at this point talking over Dr Nguyen, who had been previously been trying to respond. She maintained the upper hand in the conversation. This is consistent with Dr Nguyen's description of the conversation as set out in his HCCC record of interview.

231 It is plain from Dr Nguyen's response, that not only did he not make any relevant admissions in this part of the conversation, but there was a distinct possibility that the parties were at cross-purposes. This is because at this point in the conversation, he was reminding her that he had looked after her over the years with her best interests in mind, as the following extract indicates:

"...

Dr:  I'm not, I'm not talking about on that particular day, I'm talking about prior to that, so to that date I was always do what I do best as a doctor and not do anything to harm you and you observed have seen that throughout that, all these years I've been looking after you."

[Transcription correction added]

232 At this point, there was no discernable space between that answer and the patient's next statement. The rapidity of the patient's next words do not permit a conclusion on whether Dr Nguyen had in fact finished his answer. The highlighted text in the above quotation corrects the transcription error.

233 The tribunal considers that Dr Nguyen's statement as cited above should be seen as a rebuttal of any assertion of wrongdoing. The reference to "that particular day" is equivocal, and certainly does not represent an admission of any misconduct or wrongdoing. The balance of Dr Nguyen's response was in effect telling the patient he always had her best interests in mind. It was not a plea in mitigation of an underlying assumption of wrongdoing. It was simply a rebuttal of any suggestion of wrongdoing over the course of their clinical relationship.

Assertion 6 - Work gone out the window

234 Notwithstanding the conciliatory stance taken by Dr Nguyen, in the course of the conversation, the patient was not going to be placated, as her following statement in response shows:

"...

Pt:  Well, that's kind of gone out the window now, hasn't it."

235 Dr Nguyen's reply, in the context of the patient's repeated assertions of some implied misconduct on his part, bears analysis. His response was in the following terms:

"...

Dr:  Well, I know. It just takes one fraction of one second of the stupidity and it's undoing all my good work. And I have been so depressed and, and I got sick because of that, of that incidence, because of my (immune system changed) so I'm not trying to make up an excuse but I have. Not until this week I'm starting to get, to come to term with it, that, that, that what I done was quite inappropriate. So all I could ask you is for your sincere, to give you my sincere apologies and I hope that the things that I done for you all this time, you were able to forgive me as, as a man that has suggest to you this, but definitely not as a, not as doctor. And I know you've been through a lot and I, it hurt me so much to see you hurt by this, because I do really care about you, you know that. And that care has gone in a way that made me inappropriately said something like that. I don't know what I can do to, to make up the situation or ---"

236 In that cited response, Dr Nguyen was being hesitant and his delivery was disjointed in parts.

237 Whatever Dr Nguyen was trying to say in his response, which was to some degree rambling, was then cut off by the patient's next words, which were in the form of a strongly delivered rebuff, with what was to be her seventh assertion.

238 To the extent that Dr Nguyen gave an answer to the previous assertion, it is ambiguous and does not compel a finding of wrongdoing.

239 Dr Nguyen's explanation of the misunderstanding was obviously being delivered to an unreceptive audience. The preamble of the answer clearly indicates his distress at the shattered state of his relationship with his patient. He was telling her he had been depressed and sick because he had been ruminating upon that circumstance when the implications of her actions in storming out of his consulting room fully came home to him. His unchallenged description of his depressed state at the time of that conversation also has to be taken into account in his favour, as this could have influenced the terms of his response, and it could influence the interpretation of that response.

240 In that context, where Dr Nguyen's acknowledgment in the terms "... what I done was quite inappropriate", this must be interpreted for its possible meanings.

241 One such meaning is that Dr Nguyen was acknowledging that he had done something wrong in a professional conduct sense. However, before such an interpretation can be adopted, it must be seen to be attached to a clinical event. An inchoate remark, unanchored to such an event, merely confirms its foundation in speculation, which cannot reasonably ground a finding of conduct that attracts the criticism of peers. Speculation along those lines is contrary to the evidence of Dr Nguyen to the effect that he was simply trying to empathise with his patient.

242 Another such meaning is that Dr Nguyen was referring to the offer of a breast examination when he should have known he was dealing with a person who, because of her history which was known to him, was in some way psychologically vulnerable. That interpretation seems a more likely one because Dr Nguyen went on to refer to having "inappropriately said something". That interpretation requires a separate evaluation in due course, in the context and the terms of the allegations that comprise the seventh Particular of Complaint.

243 In the course of Dr Nguyen's rambling reply at this point in the conversation, he was offering an explanation for the misunderstanding that had arisen over his offer to the patient of a breast examination, and he was asking for the patient's forgiveness if he had caused her offence due to any human failing on his part that might have led to his failure to appreciate this possible consequence that had precipitated. That circumstance falls far short of an acknowledgment of unsatisfactory professional conduct, or alternatively, professional misconduct.

244 Nothing turns on the rambling nature of Dr Nguyen's reply. It was a human response to the untoward events that were unfolding before him, and which were patently beyond his control, where his attempts to empathise and apologise to his patient were being rebuffed by the patient in a manner and tone he had not hitherto experienced in their 6 year clinical relationship.

245 Given the efforts that Dr Nguyen had made over the years in helping the patient, and realising that an apparently irremediable misunderstanding had occurred, evidenced by the fallout that was occurring in front of him, it would be unusual for a dedicated general practitioner not to display upset in such circumstances.

246 Dr Nguyen's statement of apology was couched in terms of humility. It is plain that he was apologising for something he said that had made the patient think something had occurred which was inappropriate. On the patient's own evidence, this could only have been a reference to the offer of a breast examination. However, having regard to the terms used by Dr Nguyen, it could not be reasonably inferred from his cited response, that he was conceding some form of wrongful conduct on his part.

Assertion 7 - Broken trust in male doctors

247 In the patient's response to Dr Nguyen's attempt to explain, which she delivered in the form of an interruption to what Dr Nguyen was trying to say, the patient brushed off his attempts to apologise when he sought to assuage her expressions of hurt.

248 It is difficult to assess the patient's motives at that point. Whilst the tribunal accepts that at all times after Dr Nguyen had offered her a breast examination she had sincerely believed Dr Nguyen had misconducted himself towards her, at this stage of her assertions to Dr Nguyen, knowing the intended evidentiary purpose of the recording of that conversation, questions arise as to the patient's thought processes, and what drove her thoughts and responses at this point in the conversation.

249 In fairness, such questions cannot be resolved here because the details were not explored in the patient's evidence. It is therefore sufficient to simply observe, as is shown in the following cited extract from the conversation, that the patient would not be placated, notwithstanding that Dr Nguyen was still trying to do so by seeking to empathise with her:

"...

Pt:  You can't do anything. You've just completely broken all of my trust in male doctors.

Dr:  I understand."

250 At this point in the recording the patient's voice had displayed a distinct tone of agitation.

Assertion 8 - Claim of feelings of disgust

251 At this point, a curious matter was introduced into the conversation by the patient, which gives rise to a doubt as to the genuineness of what she was asserting to Dr Nguyen in her endeavour to provoke some verbal responses from him to the assertions she had put to him. The relevant content of the conversation was as follows:

"...

Pt:  I've grown up with men. I have no problems with male doctors, professionals, nothing like that. I've always grown up with men and I've, had no problems until now. I feel sick thinking about it.

Dr:  I understand that, [patient's first name]. Is there anything that I could do?

Pt:  No, there's nothing you can do because I'm leaving on Saturday and ---

Dr:  Can I ask you ---

Pt:  It's affected me personally. You know, me and my boyfriend were sorting things out. I can't sleep with him because every time he touches me I think how disgusting I felt when I left here."

[Emphasis added]

252 At this point the patient's voice sounded increasingly upset. There was a pause and an inhalation then an exhalation, and then a sigh, when she said "... I'm leaving on Saturday and ...". She sounded as if she was sniffling, maybe even crying, when she said she was leaving on Saturday. The transcript reads as if Dr Nguyen had interrupted her, but this was not so. In the pause at that point, she may have been simply gathering her thoughts before putting her next assertion to him.

253 When she said she had been affected personally, she appeared to have had a tearful and pressured tone in her voice. When she used the words "personally", "sleep", "touches", "disgusting" and "felt", she pronounced those words in an emphatic tone. It was not reasonably possible to draw meaningful conclusions from those emphases.

254 A matter that arouses some curiosity in that part of the patient's statement to Dr Nguyen concerned her assertion, which has been emphasised in the cited text, that as a result of Dr Nguyen's actions that are the subject of the present complaints, she could not sleep with her boyfriend, and that every time he touched her, she felt disgusted, whereas to that point, they "were sorting things out".

255 Those cited remarks were at odds with the effect of the other evidence given by the patient, and they were at odds with the patient's history given to Dr Nguyen.

256 In this regard, those statements were inconsistent with the patient's historical account to the effect that she and her boyfriend had separated. Nothing in the evidence of the intervening 8 days between 3 September 2009 and 11 September 2009 (noting she was leaving for the UK the next day) suggests that she and her boyfriend had reconciled, or had made up, and that they had attempted to resume physical relations in circumstances that had caused her to feel disgusted.

257 On the state of the evidence, the tribunal considers that this aspect of the recorded conversation raised considerable doubt as to the truthfulness of the assertions being put to Dr Nguyen by the patient in the recorded conversation. This tends to confirm the provocative nature of the patient's delivery.

258 The patient continued to display an assertive attitude in which she again expressed her disgust, including when she then reiterated her request for her records, as follows:

"...

Dr:  I'm sorry so much, [patient's first name]. I didn't mean it that way. Why would you feel disgusted?

Pt:  Because you're a doctor. Because you're not meant to do things like that.

Dr:  Well, why, so that is me, it's not you. Why would you just be disgusted about yourself?

Pt:  Because I just think of, every time he tries to touch me I think of you touching me. I just, I'd just like my records and I'll be gone.

Dr:  Sure. Can you please trust me that to that date ---

Pt:  No.

Dr:  --- that I have not had any ill intentions or done anything wrong by you. I have always acted as professional as I could."

259 The transcript of that cited portion of the conversation does not identify the apparently upset tone that was evident in Dr Nguyen's reply. Nor does it identify the pauses in his reply. Nor does the transcript demonstrate the patient's sighing, and the accusatory emphasis on the words "you're a doctor".

260 It is plain from the portion of the conversation cited above, that Dr Nguyen was maintaining that he had not done anything wrong by the patient, despite her implied assertion to the contrary when she made the unparticularised statement "you're not meant to do things like that", and when she made her statement "I think of you touching me".

261 So much of this part of the conversation is left ambiguous and left open to interpretation. Was the patient complaining about Dr Nguyen touching her in a way that disgusted her? Was she saying that in her mind, she was associating her boyfriend's attempts to touch her with Dr Nguyen having touched her? Was the latter notion an imagined association or was there a similarity being asserted. The evidence of the recording, and the other evidence, does not allow these questions to be reasonably resolved. Resolution of such matters by speculation is not permissible: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

262 Furthermore, the complete lack of particularity of those statements by the patient significantly diminishes their probative value in these proceedings: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

263 As the conversation continued, the patient proceeded to issue a general rebuff to Dr Nguyen, consistent with the pretext purpose for her being there, as is evident from the following interchanges:

"...

Pt:  It doesn't matter what happened, it doesn't matter what it was like before, what just happened has just changed everything.

Dr:  Is there anything that I could do to make you feel that I'm, all this time I'm always doing what's best for you. That one moment of time I just, you're going to England. Why would you need your file, [patient's name]?

Pt:  Because I have no intention of coming back here.

Dr:  O.K. Well, I definitely would not want to withhold anything from you, so I'll, do you want me to do it now or do you want ---

Pt:  Yes.

Dr:  Can I copy it and leave it for you out there to pick up or ---

Pt:  No, I'd prefer you to do it now.

Dr:  Yeah, it will take quite a bit of a time so if you could just leave me um, can you give me until the end of the day so I can copy it and leave it out there for you? I'll ask [staff member's name] to copy it and you can pick it up at the end of the day."

264 This component of the patient's conversation sounded pressured. The patient's voice sounded impatient as she spoke. Dr Nguyen's comments were hesitant. He was clearly worried at that time, hence his question as to why the patient wanted her file. His response in that regard was an open one that was beyond criticism, especially as he had already agreed to give her a copy of her file.

265 Evidently, Dr Nguyen was still stunned and bewildered by the patient's performance. He had been trying to assuage the affronted stance she was very apparently displaying towards him, although at the time, he did not appreciate the futility of his attempts at trying to empathise, apologise and placate.

266 Eventually the conversation petered out with Dr Nguyen agreeing to get the patient's records copied.

Assertion 9 - Refusal of apology

267 When Dr Nguyen reiterated his agreement to provide a copy of the patient's records, he unsuccessfully tried one more time to beseech her to forgive any shortcoming on his part, which he still did not understand, as the following cited extract of the conversation shows:

"...

Pt:  O.K.

Dr:  Can you go do some shopping or, but [patient's name], please, like, I beg you, can you please forget what happened because I genuinely, I don't know what to say to you to reverse the time so you don't feel anything bad about this.

Pt:  You can't do anything.

Dr:  Would you accept my apologies?

Pt:  No."

268 This part of the conversation was accompanied by pauses and the sound of pages turning. The patient's response using the words "you can't do anything" was delivered rapidly, as was her refusal of Dr Nguyen's apology. There was a gap before Dr Nguyen asked her to accept his apologies.

269 It appears that Dr Nguyen then realised the futility of pursuing a conversation with the patient on the subject matter of her still only vaguely articulated grievances towards him.

270 The conversation ended with a final unilateral effort on the part of Dr Nguyen seeking to convey a conciliatory message to the patient, as follows:

"...

Dr:  I've said what I need to say and I hope you, in time you can not be affected by this, so I genuinely feel very bad about this 'cause all these year I've been trying to help you and yet I undo all my, all my good work. So. Can you, I'll get Marie to leave it out for you.

Pt:  O.K. (INAUDIBLE CONVERSATION)"

271 That last part of the conversation appeared to be accompanied by the patient sniffling. The entire conversation took place over the course of a little under 14 minutes, after which the patient's footsteps could be heard as she walked away.

272 The meaning of what Dr Nguyen had referred to as "this", which was affecting the patient, and for which he had felt bad, remains unclear, even when the conversation is examined as a whole.

273 A pervading sense of ambiguity remains from the overall content of the conversation. When the conversation, both in its audio and transcribed form is considered as a whole, the following conclusions emerge.

274 First, it is important to recognise the nature of the viewing prism by which the recorded conversation is analysed. When the ambiguity of the conversation is considered from a stand-point overshadowed by an analytical bias primed to seize upon evidence that might be useful to support an argued case of wrongdoing on the part of Dr Nguyen, this must be recognised as having the very real potential to produce a skewed and misleading analysis delivered by the natural potential for distortion that necessarily comes from using such an approach.

275 Secondly, recognising the potential for a misdirected analysis to emerge in the form identified above, it is of the utmost importance to analyse the conversation for its factual content before seeking to draw any adverse inferences from that factual content.

276 Thirdly, once the essential factual content is winnowed from the conversation so it can be examined, it becomes plain that the patient's verbalised complaints to Dr Nguyen, and to which he was responding were, (a), the offer of a breast examination, and (b), an allegation that Dr Nguyen had done something, that was unspecified, whilst she was on the examination table.

277 Both of those matters require analysis in the context of the professional clinical setting in which they arose. The tribunal has undertaken that exercise in its reasons for decision on the individual Particulars of Complaint. Those reasons shortly follow, in the sections that follow the present analysis.

278 Fourthly, in interpreting the recorded conversation for the purpose of assessing whether it can be considered to reasonably provide evidence that is confirmatory of the alleged professional wrongdoing on the part of Dr Nguyen, it must be borne in mind that this was no ordinary conversation. Instead, it was orchestrated by pretext and provocation, and it was also driven by the patient's display of emotion, possibly for those purposes. In those senses, the conversation was, on the patient's side, contrived.

279 In that context, it was therefore inevitable that Dr Nguyen, as the patient's longstanding doctor who had more than just a superficial understanding of her psychological vulnerabilities, would respond in a conciliatory, apologetic and empathic manner, to seek to placate his obviously angry patient, and at the same time try to find out precisely what it was that was bothering her. Dr Nguyen's repeated apologies to the patient have to be viewed in that pronouncedly artificial light, which must necessarily severely limit and constrain any inferential process that might be reasonably applied to that conversation.

280 Fifthly, in assessing the conversation for its potential probative value, it must be recognised that the patient was asserting her control of a predetermined agenda for a conversation that was punctuated by her provocative and accusatory statements. Dr Nguyen's attempts to defuse the intensity of those comments and to focus the discussion by apologising and to seek particularity, were being brusquely deflected by the patient. Dr Nguyen was obviously trying to work out not only what the patient was going on about, but to also try to work out how he should manage such an assertive confrontation that was hitherto uncharacteristic of this patient.

281 Having heard Dr Nguyen's evidence in response to relevantly focussed questions in the structural framework of the particularised criticisms raised in these proceedings, including his evidence explaining his responses that are recorded in his 11 September 2009 conversation with the patient, the tribunal is satisfied that the recorded conversation should be seen to be neutral material insofar as it does not provide any reliable proof of professional wrongdoing on the part of Dr Nguyen.

282 The tribunal is also satisfied that the recorded conversation provided no factual or reasonable basis for inferring that Dr Nguyen had a consciousness of professional turpitude, either at the time of the examination of the patient on 3 September 2009, or at the time when the later conversation with the patient was recorded on 11 September 2009.

283 For the reasons outlined in the above analysis, the tribunal is satisfied that the recorded conversation provides no reasonable evidence for the allegation that Dr Nguyen had in any way acted in a manner that properly attracts the criticisms of his peers.

284 As a consequence of the above analysis, the tribunal considers that the content of the conversation between the patient and Dr Nguyen that was recorded by the police under pretext, is so lacking in particularity that it does not provide a reasonable basis for inferring that Dr Nguyen was guilty of the conduct alleged against him.

285 It therefore becomes necessary to examine the individual Particulars of Complaint and to set out the tribunal's reasons for determining each of those Particulars of Complaint. That consideration is as follows.

Whether Dr Nguyen had an improper sexual motive towards the patient

286 For the reasons that follow, the tribunal rejects the proposition that Dr Nguyen had at any time, and in any respect, either intentionally or unintentionally, acted in a manner that sexualised, or sought to sexualise, or tended to sexualise, the doctor patient relationship in this case.

287 First, the tribunal has formed the view that none of the content of the interchanges between Dr Nguyen and the patient described in the evidence and within the tendered material, indicates an inappropriate or sexualised motive on Dr Nguyen's part in the course of the evidence of that doctor and patient discussion.

288 Secondly, the tribunal accepts Dr Nguyen's evidence that at no time did his actions regarding the patient involve sexual impropriety of any kind. In this regard, the tribunal accepts that Dr Nguyen at all times, had the best interests of his patient in mind. The tribunal finds that at no time did Dr Nguyen cross any professional boundaries regarding his patient.

289 Thirdly, insofar as it is arguable that the conversation between Dr Nguyen and the patient, recorded by means of a listening device on 11 September 2009, could be said to imply some acknowledgment of feelings or actions of impropriety in the circumstances of the consultation on 3 September 2009, the tribunal does not accept that interpretation. This is because, as Dr Nguyen's interview with the HCCC on 23 November 2011 makes clear, the recorded conversation in question was not fully indicative of Dr Nguyen's thought processes. Dr Nguyen has explained that his aim at that time was to use neutral language to try and empathise with his apparently angry patient. In trying to placate her assertive remarks he was trying to defuse the situation. The tribunal accepts those explanations. When the content of the recorded conversation is considered in the light of Dr Nguyen's stated objective as described above, it reveals no sexualised content.

290 Fourthly, the patient's perception that there was a sexualised and inappropriate component to Dr Nguyen's clinical actions and statements on 3 September 2009, was based on an unfortunate misunderstanding on her part, the causes for which have already been described in the tribunal's reasons.

291 Accordingly, the tribunal rejects the proposition that Dr Nguyen had behaved with sexual impropriety of any kind in his professional dealings with the patient.

Consideration of the Particulars of Complaint

292 The following paragraphs set out the consideration and the findings of the tribunal on the remaining 7 contested issues of fact that remain from the 8 issues that were originally particularised against Dr Nguyen.

Particular 1 - Alleged vulvo-vaginal examination without gloves

293 The tribunal considers that the patient was mistaken in her evidence to the effect that she had seen Dr Nguyen was not wearing gloves at the time when he approached her for the purpose of carrying out his examination of her. The tribunal has reached this conclusion for the following reasons.

294 First, Dr Nguyen's evidence that he wore gloves was not inherently improbable, and it therefore needs to be weighed carefully before it can be rejected.

295 Secondly, the tribunal reiterates it is satisfied that in agreeing to carry out and actually carrying out an intimate examination of the patient, Dr Nguyen did not harbour any improper sexual motives towards the patient.

296 Thirdly, notwithstanding the expert evidence to the effect that some medical practitioners would routinely not use gloves when carrying out external genital examinations of their female patients, given Dr Nguyen's past practice, when he conducted intimate examinations of the patient's genital area whilst using gloves, it seems very unlikely he would not have used gloves on this occasion.

297 Fourthly, the tribunal considers that given Dr Nguyen's examination facilities included a ready supply of gloves within easy reach of the area where he was conducting his examination, and given the tribunal's rejection of the suggestion that Dr Nguyen had some improper and sexualised motives towards the patient, it would seem unlikely that he did not use examination gloves on the occasion in question.

298 Fifthly, the tribunal considers it most unlikely that Dr Nguyen would have carried out a vaginal examination of any kind without using gloves. The tribunal considers this to be so given the nature of the presenting problem, namely a presenting history of a possible STI requiring investigation. On grounds of infection control issues alone, in the context of the patient's concerns that she may have contracted a recent STI from her boyfriend whom she said had been unfaithful to her, for Dr Nguyen to undertake such an examination without gloves in those circumstances would have necessarily courted the risk of STI contagion. The tribunal considers that it was unlikely that Dr Nguyen would have acted in that manner.

299 Sixthly, the above views are reinforced by the expert evidence of Dr Kertesz, which the tribunal accepts, concerning the RACGP guidelines for using gloves in such circumstances. Given Dr Nguyen's appropriate pursuit of continuing medical education, which would have included knowledge of such guidelines, in the presenting circumstances, the tribunal is of the view it was improbable that Dr Nguyen did not wear gloves on the occasion in question. The tribunal accepts his evidence that he wore gloves, as was his practice in such circumstances.

300 Seventhly, in weighing the evidence the patient gave to the effect that Dr Nguyen was not wearing gloves when he examined her, and accepting that she had a perception to that effect, and that she had made a relatively contemporaneous complaint to the same effect on the day in question, that evidence has to be considered in the light of what the patient was in a position to have observed at the time of the examination.

301 A matter relevant to the glove issue is the nature and content of the patient's recollection of the other surrounding circumstances generally. In that regard, she said she could not recall Dr Nguyen having provided her with a modesty sheet. Her recollection of the events was not a complete one, and it was affected by a degree of confusion on her part, as has already been described. The tribunal accepts Dr Nguyen's evidence that he had provided the patient with a modesty sheet before he proceeded with his examination of her.

302 Furthermore, whilst Dr Nguyen had his back turned to the patient and whilst he was preparing the materials required for the examination, it is entirely plausible that Dr Nguyen would have reached for and then put on gloves from the box on the nearby shelf behind the patient as he had described in his evidence. Similarly, it was very unlikely that the patient would have been in a position to see what was happening behind her head whilst she was in the supine position on the examination table looking at the ceiling, as has been described.

303 The evidence did not suggest that the sequential actions taken by Dr Nguyen in taking gloves from the box and putting them on and then adjusting them would have necessarily made characteristic or definitive sounds to indicate that he was donning gloves. The patient gave no evidence on that matter.

304 The tribunal accepts that, consistent with the layout of Dr Nguyen's consulting room and the juxtaposition of the examination table, it was more likely than not that Dr Nguyen had his back to the patient whilst she was removing her lower garments and was positioning herself on the examination table as was stated by Dr Nguyen. In that position, whilst laying supine with her legs drawn towards her she was more likely to have been looking up towards the ceiling with a modesty sheet covering the lower part of her body. In those circumstances, the tribunal considers that it was most unlikely that the patient would have been in a position to see Dr Nguyen's hands, and whether or not they were gloved or ungloved, as he approached the examination table in order to examine her.

305 Eighthly, the evidence did not suggest that during the physical palpation component of Dr Nguyen's examination of the patient's vulvo-vaginal area, or during any hand contact that might have occurred with the patient's leg for that matter, the patient would have necessarily felt that she was being examined or touched by either a gloved hand or by an ungloved hand in circumstances where she was not in a position to see what was occurring in her vulvo-vaginal area. This must be so irrespective of whether or not a modesty sheet was being used. The tribunal considers that on any reasonable analysis, absent the patient stating that she had sat up to look at the procedure, it was unlikely she would have had a view of the examination area.

306 As a consequence of the preceding analysis the tribunal is not persuaded that it should reject Dr Nguyen's evidence that he wore examination gloves during his examination of the patient in favour of an acceptance of the patient's evidence to the contrary. The tribunal considers that the patient's evidence in that regard was unreliable, mistaken, and on the balance of probabilities, it is unlikely to be correct.

307 The tribunal therefore finds that contrary to the allegation made in the complaint, Dr Nguyen in fact wore gloves when he conducted an examination of the patient's private parts.

Particular 2 - Time taken for vulvo-vaginal examination

308 Whilst the patient honestly believed that the interval of time for the examination of her private parts had taken too long, and that the examination may have been different to the intimate examinations she had experienced in the past, that belief has to be weighed alongside the patient's evolving emotional perceptions and attitudes that arose during the course of this particular examination, and the after-analysis put together by the patient when she took offence at the offer of a breast examination.

309 For the reasons that follow, the tribunal does not accept the allegation made in the complaint that Dr Nguyen took an inordinate amount of time to professionally carry out his intimate examination on the patient on the day in question.

310 First, neither person present was observing, recording or taking account of the time taken for the examination. The examination included exploratory questions, patient responses, and Dr Nguyen's diagnostic statements, all of which influenced the time taken.

311 Secondly, the varied estimates provided by the patient in respect of that examination, namely 3 to 5 minutes, which was later varied to about 7 minutes, was in any event not proffered as being an accurate estimate of the time involved in the examination.

312 Thirdly, the independent expert opinion of Dr Bland on this subject was expressed in general terms. The opinion of Dr Bland on the likely time required for such an examination was of limited probative value in assessing this issue. This is because his evidence was given from the perspective of his position as a specialist obstetrician and gynaecologist. From that perspective, he indicated he was able to carry out an examination of the kind in question in about 30 seconds or so. That opinion took no account of the less specialised general practice setting in which Dr Nguyen worked, and it did not appear to take into account the actual clinical circumstances with which Dr Nguyen was presented, where the patient was participating by verbally guiding the examination.

313 Without intending any disrespect to Dr Bland, his opinion did not take into account any background psychological factors concerning the patient, such as apprehension over the examination, which Dr Nguyen would have been expected to be aware of, and adjust his examination style accordingly, to take such matters into account. Furthermore, Dr Bland's opinion did not include any allowance for a range of possible patient-related anatomical variations, of which there was no particular evidence given in this case, other than that the patient had presented without pubic hair.

314 Fourthly, the course and the progress of the examination in question was to a significant extent being guided by the patient having repeatedly told Dr Nguyen "down there", indicating that as his examination had proceeded, she felt that he had not yet located the area of her discomfort. This should be seen as being a factor that to some extent must have relevantly prolonged the time taken for the examination.

315 Fifthly, since the plaintiff's complaint of a rash located in her vulval area was not visually confirmed by Dr Nguyen's examination, and given the patient's inability to correlate any area of irritation to the places where Dr Nguyen was palpating in the vulval area, this too suggests that some significant and additional time would have been taken for Dr Nguyen to carry out this intimate examination, compared to a more theoretical construct.

316 Sixthly, Dr Nguyen's estimate of having taken about 2 minutes for his intimate examination of the patient was not materially challenged. That estimate did not seem to be of an inordinate duration where there was scope for widely divergent perceptions with regard to the passage of time during such an examination.

317 What may have seemed to have been a relatively quick and routine procedure to a medical practitioner, may have equally seemed to the patient to have involved an indeterminably prolonged period. In view of the expert evidence concerning the incomplete verbalisations by Dr Nguyen during the examination to reassure the patient, to the effect "mmm" or "it all looks healthy" and the like, to indicate to the patient that no abnormality was detected in the course of the examination, it would seem that Dr Nguyen had conducted a close and methodical examination over the entire area.

318 This of itself would account for the patient's impression of a significantly longer period of time having been taken for the examination compared to other such examinations she had in the past. Nothing turns on the verbalisations Dr Nguyen made during his examinations, which essentially served to report progress and reassure the patient.

319 The patient's untimed comparisons with her perceptions of the time taken in earlier vaginal examinations must involve a significant element of unreliability, and makes no allowance for Dr Nguyen's need to adjust his examination to the patient's apprehensions and sensitivities, which could well have been conveyed, given her self-described "paranoia" on the subject matter.

320 Accordingly, the tribunal is not persuaded that the examination in question involved an inappropriately prolonged period of time as alleged in the complaint.

Particular 3 - Alleged inappropriate touching of the clitoris

321 For the reasons that follow, the tribunal does not accept the allegation that Dr Nguyen had inappropriately touched the patient's clitoris during the examination he carried out on her vulvo-vaginal area.

322 First, the expert evidence indicates that touching of the clitoris was an appropriate action to undertake during the course of a clinical examination and inspection of the external genitalia for the purpose of investigating the presenting complaints of vaginal itchiness or rash. Generally speaking, and depending upon a possible range of relevant anatomical variations, as was acknowledged in the expert evidence, such an examination could include the possible need for manipulation of the clitoral prepuce to enable an effective inspection of the surrounding skin and the folds underneath or at the base of the clitoris, to determine whether there were signs of herpes simplex infection, such as blisters, sores or fissures. This was consistent with Dr Nguyen's clinical approach which was based on his training, namely, to "look, feel, move". Therefore, the evidence indicates that in circumstances where the patient's presenting complaints were as stated by her, some clinical touching of the clitoris by Dr Nguyen in the course of the vulvo-vaginal examination would have been an appropriate measure for an examining medical practitioner to undertake.

323 Secondly, whilst Dr Nguyen could not specifically recall touching the patient's clitoris in the course of his examination of her, and whilst he conceded he could have done so, the patient's ultimate estimate of the time during which her clitoris was touched, namely 1 to 2 seconds, in the above context, does not of itself suggest that there had been inappropriate touching of her clitoris.

324 Thirdly, the evidence discloses that some clinical touching of the clitoris could have been appropriate in the context of the intimate examination in question. Over the course of time, there were significant changes in the patient's evidentiary account as to the time that was taken concerning the touching of her clitoris during the consultation. Those variations ranged from the clitoris being variously pressed, touched in a way that felt strange, or rubbed for an extended period, to being touched for 1 to 2 seconds.

325 In the context of the patient's acknowledged psychological sensitivity to the subject matter of the consultation, her stated apprehensiveness, and her evolving but misplaced concern over the significance of the locked door, the patient's description implying inappropriate touching of her clitoris should be read down to reflect her ultimate acknowledgment that this part of the examination only occupied 1 to 2 seconds. The patient's evidence on this topic must therefore be viewed with the required degree of caution.

326 The tribunal accepts the submission made on behalf of Dr Nguyen to the effect that no particular adverse significance should be invested in the uncommunicated apprehension of the patient that something wrong and untoward was occurring when she felt that her clitoris had been touched in the course of Dr Nguyen's examination. This response influenced and distorted her perceptions. Her reactions during the consultation caused her to "freak out" as she described it. Although not a criticism of the patient, it is unfortunate that this particular apprehension was not raised by the patient at the time.

327 Fourthly, in arriving at the view that there had been no inappropriate touching of the patient's clitoris by Dr Nguyen, the tribunal has not overlooked the submission made on behalf of the HCCC to the effect that Dr Nguyen was alleged to have been disingenuous in his evidence that he could not recall having touched the clitoris in the course of his examination of the patient.

328 The tribunal does not accept that submission, and instead considers that Dr Nguyen gave an honest and truthful account when he said he could not recall touching the patient's clitoris in that examination.

329 When Dr Nguyen was pressed on that matter, he acknowledged that he could have touched the patient's clitoris in the course of that examination. The tribunal considers that concession, which was against his interests, was fairly and reasonably made, and this is a matter which goes to the credit of Dr Nguyen's testimony. On behalf of the HCCC it was submitted that concession, along with a suggestion by Dr Nguyen that it was possible he had inadvertently touched the patient's clitoris, was deliberately disingenuous.

330 The tribunal does not accept that submission, as there is nothing in the evidence that would reasonably suggest Dr Nguyen did in fact have a recollection of touching the patient's clitoris. Therefore, there is no proper basis for inferring that he was avoiding any acknowledgment of a recollection of having touched the patient's clitoris. In the absence of such evidence, it would be wrong to give weight to unsupported suspicion-based speculation to the contrary, along the lines that based the cited HCCC submission: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

331 Fifthly, given the significant variations in the descriptions of the alleged inappropriate touching of the patient's clitoris, and after tracking the changes in the patient's police statements, from the clitoris being rubbed in a strange way, or pressed, to the clitoris being touched for about 1 to 2 seconds, and the tracking of the manner in which those changes occurred in the police statements, as has already been identified in the evidence and highlighted in the respondent's submissions, the tribunal had some considerable disquiet about accepting the submission made by the HCCC to the effect that Dr Nguyen had inappropriately touched the patient's clitoris.

332 In the light of the evidence cited, the tribunal accepts the submission made on behalf of Dr Nguyen that the clitoris issue should be discarded as having no particular significance to the outcome of this case.

Particular 4 - Rubbing of patient's bare leg proximate to vulvo-vaginal examination

333 For the reasons that follow, the tribunal does not accept the allegation that Dr Nguyen had rubbed the patient's bare leg during the course of his examination, although it may have been the patient's perception that he did so.

334 First, for the reasons already stated, the tribunal reiterates that it has not accepted the submission that Dr Nguyen had any improper or sexualised motives towards the patient when he examined her on 3 September 2009.

335 Secondly, the tribunal considers the patient's perception of alleged impropriety on Dr Nguyen's part was disproportionate to the circumstances and that perception had been influenced and distorted by her acknowledged sensitivities and apprehensions over the subject matter of the examination.

336 Thirdly, the evidence of the medical experts as to the appropriate manner and positioning for carrying out an examination of the vagina and vulval area indicates that it may have been appropriate for the examiner to place a hand on the patient's leg or thigh. This could serve to not only steady the examiner's approach to the examination, but also to provide some degree of psychological reassurance to the patient in that awkward and vulnerable position. In the light of the evidence of Dr Bland and Dr Kertesz on this subject, it cannot be reasonably said that touching the patient's thigh during an examination of the kind under present consideration was necessarily inappropriate.

337 Fifthly, the tribunal considers that the patient's evidence that her inside thigh was rubbed or stroked along its length during this examination is unpersuasive, especially given the already described variations, confusions and misperceptions concerning the patient's recollection of the events.

338 Sixthly, the patient's evidence to the effect that Dr Nguyen had touched her on her thigh involved a significant degree of confusion on her part. Her evidence on this topic underwent a number of changes over time. The manner in which this aspect of the patient's evidence had evolved and changed has caused the tribunal some considerable disquiet with regard to the reliability of that evidence. The variations in the patient's evidence included confusion as to whether it was her left or her right thigh that was touched. There was also variation in her evidence as to whether she had been touched on the thigh when seated at Dr Nguyen's consultation desk after the vulvo-vaginal examination, or whilst she was laying on the examination table. This is the very reason why the HCCC properly withdrew Particular of Complaint (6).

339 Seventhly, the fact that the evidence of the patient, concerning the allegation that Dr Nguyen had touched her on the inside thigh whilst she was on the examination table, was surrounded by some confusion suggests that her evidence in that regard was based on unreliable reconstruction rather than on actual recollection.

340 Whilst a reconstructed account may in some circumstances be entirely unremarkable in terms of its reliability, in the circumstances of this case the tribunal considers that the converse applies. This is because the patient's reconstruction has arisen against the background of her emotionally charged and therefore distorted recollections. In cases where the content of the detail of the evidence has varied in the reconstruction process, great caution must be applied to considering such evidence when applying the required standard of proof: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

341 In this context, a great degree of caution is required in evaluating the patient's account on this topic because of the significance of the changes in the recollections of the patient.

342 When the patient's first statement was made, her account was that Dr Nguyen placed his hand on her thigh whilst she was sitting beside his desk. A year later, when she provided a clarification statement at the request of the police, she was confused about where she was when she said she was touched on the thigh. At the time she made her second statement, in August 2012, she had no memory of having been touched on her thigh whilst laying on the examination table. Her subsequent recollection of having been touched on the thigh arose once she had re-read her initial statement and considered that she had then remembered the order in which she believed the events in question had occurred, and at that time she realised she had made some mistakes in the second statement. That course of changes in the content of her evidence reinforces the view that her evidence was based on unreliable reconstruction rather than an actual recollection.

343 The process of reconstruction is entirely understandable in this case given the patient made her second statement whilst she was overseas, through a process of email exchanges with the investigating police officer, at a time when she was without access to her original statement, and it concerned a subject matter that she would rather not have brought to mind.

344 However, in a case where the gravity of the outcome dependent upon such evidence is high, and where a commensurate degree of satisfaction is required before acceptance of such evidence in accordance with the Briginshaw standard, the tribunal finds that the evidence of the patient concerning the allegation that Dr Nguyen touched her on her thigh during the examination, to be an unreliable basis upon which to make an adverse finding of impropriety against Dr Nguyen.

345 For the above reasons, the tribunal is not persuaded that Dr Nguyen inappropriately touched the patient on her thigh as has been alleged.

Particular 5 - Offer for internal examination without sufficient clinical indication

346 For the reasons that follow, the tribunal does not accept the allegation that Dr Nguyen had offered the patient an intimate examination without sufficient clinical indication, or that a second internal examination was offered to her.

347 First, as to the initial examination, the factual context was that the patient had a background history of having experienced recurrent STI issues for which she had sought advice from Dr Nguyen. He knew the patient was sexually active and had presented with an apprehension over whether she had recently contracted an STI in circumstances which gave her concern. She described her concern in terms that she was "paranoid" about the prospect of having acquired an STI. She was therefore requesting an examination of her vaginal area notwithstanding that she had two previous STI screening tests that returned negative results in recent months and notwithstanding Dr Nguyen's reassurances to her that those two consecutive test results had been negative. She was clearly anxious to exclude the possibility she had an STI. In those circumstances, the tribunal considers that it was entirely appropriate for Dr Nguyen to accede to the patient's request for such an examination.

348 Secondly, having already accepted that the intimate examination of the patient had proceeded with Dr Nguyen having used gloves, and given that a systematic inspection of the patient's external genital area had revealed no abnormalities, and also given that during the course of that examination the patient was not able to identify anything by way of a relevant or significant response to palpation suggestive of localised pathology, the tribunal considers that it was reasonable for Dr Nguyen to then proceed to inspect that part of the patient's vaginal introitus that was available for inspection for the presence of any relevant signs, to the extent that he was able to do so, given also that the patient had a menstrual tampon in situ.

349 Thirdly, on the question of whether Dr Nguyen had performed an unreasonable digital penetration of the patient's vagina in the course of his examination, according to the evidence of Dr Bland, and given that a tampon was in situ, it would seem that this is an issue on which it was unlikely that the patient would have been able to give reliable evidence especially where she was not in a position to be able to see what was occurring in the course of the examination.

350 In that regard, Dr Bland gave a compelling analogous demonstration of this point.

351 He did so by holding up the palm of his hand in an attitude of vertical and lateral extension, and then applying pressure from the pad of his index finger of the opposing hand onto the palmar aspect of the outstretched skin of the thenar space between the thumb and the forefinger.

352 By means of that demonstrative evidence Dr Bland explained that the limited sensitivity of the skin to touch at the base of the vaginal introitus would have made it difficult for the patient to accurately determine whether external digital pressure was being applied to that area in the course of an examination attempting to achieve visual inspection exposure of the vaginal introitus, or a whether in fact a slight degree of reasonable and permissible digital intrusion had occurred in exposing the vaginal introitus to view in the course of looking for a possible area of tissue pathology that coincided with a pain response on palpation. In this latter regard, the tribunal interpolates that this would appear to be especially so in circumstances where the patient had been guiding Dr Nguyen's examination by repeatedly saying "down there".

353 In the light of that analysis, the tribunal is not persuaded that the patient could reasonably describe Dr Nguyen as having performed a digital penetration of her vagina to the extent of about 1cm as limited by the presence of a tampon, and that in the course of doing so, he had moved his finger around in her vaginal introitus.

354 Accordingly, where the state of the evidence is left in the terms summarised in the immediately preceding paragraphs on the issue under present consideration, the tribunal is of the view this represents an insufficient basis upon which to reasonably conclude, on the required standard of proof on the balance of probabilities, that in offering and in carrying out an internal examination of his patient in the circumstances, Dr Nguyen had unacceptably departed from the clinical standards of examination that would have been expected of him in the circumstances: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

355 Further, on the evidence, the tribunal is not satisfied that Dr Nguyen had offered the patient a further internal examination after he had carried out his first examination. The proposition to the contrary seems to have been based on the patient's confused perceptions of the events as already described, and that does not provide a sufficiently persuasive basis upon which to make an adverse finding against Dr Nguyen on that subject.

Particular 7 - Offer for breast examination without sufficient clinical indication

356 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.

357 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.

358 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.

359 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.

360 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.

361 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.

362 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.

363 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.

364 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.

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

366 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

367 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.

368 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.

369 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.

370 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.

371 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

372 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

373 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