Health Care Complaints Commission v Nguyen

The Complaints

1. The complaints, in their final form, as set out in the amended document filed with leave on 25 September 2017, can be summarised as set out below.

Complaint 1

1. Complaint 1 was that Dr Nguyen was guilty of unsatisfactory professional conduct within s 139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he engaged in: 1. "conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience"; and/or 2. "improper or unethical conduct relating to the practice or purported practice of medicine".
2. The particulars to Complaint 1 related to Dr Nguyen's administration of pethidine to patient A, his prescription and administration of diazepam to patient A, and prescribing diazepam to patient A in an inappropriate combination with pethidine on three occasions.

Complaint 2

1. Complaint 2 was that Dr Nguyen was guilty of unsatisfactory professional conduct within s 139B(1)(b) and/or (l) in that he: 1. "contravened the regulations under the National Law"; and/or 2. "engaged in improper or unethical conduct relating to the practice or purported practice of medicine".
2. The particulars to Complaint 2 concerned Dr Nguyen's alleged failure to maintain adequate medical records during the period from February 2002 to April 2010 in relation to patient A.

Complaint 3

1. Complaint 3 was that Dr Nguyen was guilty of professional misconduct within s 139E in that he engaged in: 1. "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration"; or 2. "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
2. In relation to this complaint, the HCCC relied on the particulars to Complaint 1 individually, and all the particulars to Complaints 1 and 2 cumulatively.

The Tribunal's Approach

1. Under s 149 of the National Law, the Tribunal may exercise any disciplinary powers conferred on it by subdiv 6 of Div 3 of Pt 8 (ss 149 to 149E) if: 1. it finds the subject-matter of a complaint against a practitioner to have been proved; or 2. the practitioner admits to it in writing to the Tribunal.
2. Dr Nguyen has made extensive admissions and he gave oral evidence before us. In addition, both parties called expert evidence concerning the conduct the subject of the complaints and its characterisation.
3. Although the Tribunal, when carrying out its functions in matters under the National Law, is not bound by the rules of evidence, we accept that the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362 should guide our general approach to fact finding, in accordance with Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. Consequently, we have considered the seriousness of the allegations made by the HCCC, and the gravity of the consequences of the protective orders the Tribunal is empowered to make.

Findings based on the admissions and evidence

1. In his reply to the application for disciplinary findings, dated 21 September 2017 and received by the Tribunal on 22 September 2017, Dr Nguyen expressly admitted most of the particulars of the complaints. In addition, Dr Nguyen gave oral and written evidence concerning these matters. Expert evidence as to what occurred and how it should be characterised was given by Dr Kertesz, on behalf of the HCCC, and Prof Webster, on behalf of Dr Nguyen.
2. We believe that Dr Nguyen's evidence should generally be accepted as his genuine attempt to address truthfully the issues that arose in this matter. We have a limited number of concerns with his evidence, which are referred to specifically below, where relevant. We also accept that Dr Kertesz and Prof Webster were suitably qualified to express opinions as to Dr Nguyen's conduct and its characterisation and that the opinions expressed were genuinely held by them. We shall discuss, below, our conclusions where the opinions of Dr Kertesz and Prof Webster differed and this was significant.

Complaint 1

1. In respect of Complaint 1, that Dr Nguyen engaged in unsatisfactory professional conduct as particularised, Dr Nguyen admitted all of the conduct referred to in particular 1, which was as follows: "1. The practitioner failed to provide appropriate care and treatment for Patient A in that he administered Pethidine to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. without performing an appropriate medical examination on Patient A prior to administration; b. without communicating with the practitioner who had prescribed the pethidine for Patient A, Dr Higginbotham; c. without communicating with Patient A's other treating practitioners; d. without formulating a pain management plan for Patient A; e. without adequately coordinating his care of Patient A with her other treating practitioners; f. without effective referral to or involvement of specialists for treatment review and/or advice in respect of Patient A; g. without making a proper assessment of whether Patient A was drug dependent or exhibiting drug-seeking behaviours."
2. Schedule A to the particulars set out 42 occasions, between 28 July 2002 and 22 April 2010, when Dr Nguyen administered "Pethidine" to patient A, and one occasion, on 27 August 2008, when he administered "Pethidine IM" (which we take to mean that pethidine was administered by intra-muscular injection) to patient A. We note that, although the admitted particular refers to "the quantities set out in [schedule A]", the column headed "Quantity" is blank in each case and no quantities are set out in the schedule. We also note that the column "Drug Strength" is blank. We do not take this to mean that none of the drug was administered. Rather, we accept that some quantity of a certain strength was administered but it is not disclosed what that quantity or strength was. From the oral and written evidence, it appears that patient A presented with an ampoule of pethidine, on the relevant occasions.
3. Dr Nguyen's statement of 18 August 2017 gave further information concerning his relevant treatment of patient A and his recognition of the deficiencies in what he did or did not do for this patient, whom he described as "a complex patient with a complex history of chronic pain, and a variety of mental health issues. … Her mental health problems included bipolar affective disorder, major depression, anxiety and alcohol dependence." This evidence was consistent with, and supported, his admissions in relation to Complaint 1, particulars 1(a) to (g).
4. In addition, at par 32 of his statement, Dr Nguyen stated: "I accept Dr Kertesz's criticism regarding my poor assessment of [patient A] prior to administering pethidine. I have used this to ensure that when I see patients requesting pain medication or drugs of dependence, I make a careful diagnosis of the source of pain and assess the risk of substance abuse. This includes taking into account family history, current environment and personal history of substance abuse. …"
5. We do not accept that Dr Nguyen's oral evidence, to the effect that when patient A presented with a severe migraine he carried out a neurological examination before administering pethidine, should be seen as undermining his admission in relation to particular 1(a). He acknowledged that such examinations or assessments were not documented and were not comprehensive. In the absence of contemporaneous notes and given Dr Nguyen's admissions and written and oral evidence (including par 23 of his statement of 18 August 2017 and pars 1-3 of his statement of 25 September 2017), we find that an appropriately comprehensive examination was not carried out on any of the 43 occasions referred to in particular 1.
6. Similarly, we do not consider Dr Nguyen's written evidence that he referred patient A to a number of specialists and allied health professionals calls into question the basis for his admission of particular 1(c). He acknowledged that he "did not follow up those referrals":
7. The expert witnesses, Dr Kertesz and Prof Webster, were each medical practitioners with considerable experience in dealing with issues of addiction, drug dependence and chronic pain. They agreed that particulars 1(a), (b), (d), (e) and (g) were made out, and that they amounted to conduct that fell "significantly below standard", which we take to be the "standard reasonably expected of a practitioner of an equivalent level of training" to that of Dr Nguyen at the relevant times. We accept these conclusions.
8. As to particulars 1(c) and (f) to Complaint 1, Dr Kertesz was of the view that this conduct also fell significantly below the required standard. Prof Webster did not agree that these particulars had been made out. Given the admissions made by Dr Nguyen and his adherence to them in the written submissions filed on his behalf on 27 October 2017, well after the end of the oral hearing (see pars 4 to 6) as well as Dr Kertesz's evidence and the material referred to there, we do not accept Prof Webster's view that particulars 1(c) and (f) have not been made out. We accept that the conduct the subject of those particulars occurred and was significantly below the required standard, as Dr Kertesz opined.
9. As well as admitting each of the particulars 1(a) to (g) to Complaint 1, Dr Nguyen also admitted that these particulars: "considered cumulatively, justify a finding of unsatisfactory professional conduct, because they amount to conduct by him in the conduct of medicine that is significantly below the standard reasonably expected of a practitioner with the level of training and experience he had at the time he treating Patient A".
10. We believe this admission was appropriately made, in all the circumstances, and find that taken together the conduct amounted to unsatisfactory professional conduct. We further note, for the sake of completeness, that the conduct referred to in each of the particulars 1(a) to (g), taken individually, also, in our view, amounts in each case to unsatisfactory professional conduct within s 139B(1)(a) of the National Law.
11. In respect of particular 2 to Complaint 1, Dr Nguyen admitted all of the matters in that particular, which was in the following terms: "2. The practitioner failed to provide appropriate care and treatment for Patient A in that he prescribed Diazepam to Patient A on the dates and in the quantities set out in rows 1, 2, 3, 4, 6, 8, 11, 12, 13, 14, 15 and 16 of the schedule attached and marked B and he administered Diazepam to Patient A on the dates and in the quantities set out in rows 5, 7, 9 and 10 of the schedule attached and marked B; a. without communicating with Patient A's primary treating practitioner; b. without communicating with Patient A's other treating practitioners as to whether and in what quantity Valium was being prescribed or administered to Patient A; c. without adequately coordinating his care of Patient A with her other treating practitioners; d. without formulating a pain management plan for Patient A; e. without effective referral to or involvement of specialists for treatment, review and/or advice in respect of Patient A; f. without making a proper assessment of whether Patient A was drug dependent or exhibiting drug-seeking behaviours; g. when such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed or administered were being, or were likely to be, abused."
12. Rows 1, 2, 3, 4, 6, 8, 11, 12, 13, 14, 15 and 16 of schedule B record eleven dates, between 27 November 2002 and 11 April 2010, when diazepam, under the name Valium, was prescribed, and one date, 24 January 2008, when diazepam, under the name Valium, was dispensed. Rows 5, 7 and 9 of the schedule record that on three dates, 18 February 2005, 11 May 2007 and 15 June 2007, "Valium IMI" was administered. We take this to mean that diazepam was administered by intra-muscular injection on that date. On 10 August 2007, row 10 records that "Valium" was "administered". Once again, we note that the admitted particular refers to "the quantities set out in [specified] rows", but there are some rows where no quantity is given. There are others where the quantity is given as "50", "20" or "10". In the "Drug Strength" column in some, but not all, cases the strength is given as "5mg" or "10mg". Where no quantity or strength is given, we do not take this to mean that no quantity or strength was prescribed or administered. Rather, we accept that some quantity, in some strength, was prescribed or administered, but the precise quantity or strength is not disclosed.
13. Dr Nguyen's evidence in his statement of 18 August 2017, including at pars 37 to 39, 47 and 50 to 54, and elsewhere, support the conclusion that these particulars, 2(a) to (g), have been made out. Dr Kertesz's evidence also establishes that this conduct fell short of the required standard. To the extent that Prof Webster was of the view that particulars 2(e) and (g) were not made out, we reject that evidence, given Dr Nguyen's admissions and Dr Kertesz's evidence. Otherwise, Prof Webster's evidence supported the view that the conduct in particulars 2(a), (b), (c), (d) and (f) fell below the relevant standard.
14. In addition to admitting each of the particulars 2(a) to (g) to Complaint 1, Dr Nguyen also admitted that these particulars: "considered cumulatively, justify a finding of unsatisfactory professional conduct, because they amount to conduct by him in the conduct of medicine that is significantly below the standard reasonably expected of a practitioner with the level of training and experience he had at the time he treating Patient A".
15. Once again, and in the light of all the evidence, we are of the view that Dr Nguyen was correct to make such an admission. Considered cumulatively, the conduct the subject of particulars 2(a) to (g), in our view, constituted unsatisfactory professional conduct. Further, considered individually, we also conclude that the conduct the subject of each of these particulars amounted to unsatisfactory professional conduct within s 139B(1)(a) of the National Law.
16. Particular 3 to Complaint 1 was in the following terms: "3. The practitioner prescribed Diazepam to Patient A in an inappropriate combination with Pethidine on: a. 7 August 2003; b. 20 September 2004; c. 7 November 2008."
17. In this regard, Dr Nguyen admitted that: "he prescribed Diazepam on the same occasion that he administered Pethidine on these three occasions, but does not admit that this on its own was unsatisfactory professional conduct".
18. The evidence of Dr Kertesz on this issue included the following: "4 Please comment on the appropriateness of prescribing Schedule 4D drugs in conjunction with administering Pethidine to [patient A]. Dr Nguyen's prescribing of Valium (an S4D medication) as outlined above in question 3 was inappropriate especially considering the fact that he administered parenteral Pethidine to her episodically. There was no indication in any of the notes reviewed that Dr Nguyen assessed the patient with respect to her state of alertness and mental orientation to ascertain the possible level of CNS depression existing in the patient before the Pethidine was administered. There was one episode when [patient A] attended the surgery "intoxicated" This appears to be the only time her state of awareness was assessed at any visit. Dr Nguyen appeared to be oblivious to the potential interactions of Narcotic drugs and S4D tranquilizers and administered the parenteral Pethidine as requested by the patient. This lack of awareness as to the possible interactions of the two types of medication made the prescribing of S4D medications inappropriate and thus rendered the conduct of a standard significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and attracts my strong criticism.".
19. We have some difficulty understanding Dr Kertesz's reasoning on this issue and, in particular, why "lack of awareness as to the possible interactions of the two types of medication" rendered "the conduct of a standard significantly below the standard reasonably expected …". It appears to us that Dr Kertesz may have failed to focus on the actual conduct the subject of particular 3, focusing instead on the potential interaction when pethidine and diazepam are administered or taken at the same time.
20. In cross examination, Dr Kertesz accepted that: "the prescribing of diazepam does not necessarily mean the consumption of diazepam so you give somebody a prescription and they may not take the medication for a few days after that so writing a prescription for her at any particular time did not mean that it would necessarily interfere with the administration of pethidine."
21. Prof Webster made the point in oral evidence that pethidine is short acting and has its major impact within an hour or so. Unless a patient took diazepam at the same time as the pethidine injection, the negative interactive effects on the central nervous system were most unlikely to occur. This was especially so in the present case where the patient was observed for some time after the pethidine injection and was only given a prescription for Valium, which would need to be dispensed and taken before there could be any interaction. Prof Webster was, therefore, of the view that Dr Nguyen's conduct in this regard did not fall below the required standard.
22. In the circumstances, we accept Prof Webster's evidence and do not accept that prescribing diazepam at about the same time as administering pethidine, on three separate occasions in three different years, should be found to fall significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience to Dr Nguyen. Nor do we accept that this conduct was improper or unethical. Accordingly, we do not find that the conduct referred to in particular 3 to Complaint 1 amounted to unsatisfactory professional conduct.

Complaint 2

1. In respect of Complaint 2, that Dr Nguyen engaged in unsatisfactory professional conduct as particularised, Dr Nguyen admitted all of the conduct referred to in particulars 1, 2 and 3, which was as follows: "Particular 1 1. Between 16 February 2002 and 31 August 2003. The practitioner failed to maintain adequate medical records in accordance with cl 13(1) and Schedule 2 of the Medical Practice Regulation 1998 in that the practitioner failed to record: (a) Sufficient information to identify Patient A, including address and date of birth; (b) Information known to the practitioner relevant to his diagnosis and treatment of Patient A including sufficient detail of: (i) Patient A's medical history; (ii) the results of any physical examination of Patient A; (iii) details of any examination of Patient A's mental state; (iv) progress of Patient A at each visit; and (v) diagnosis of Patient A; (c) Particulars of any clinical opinion reached by the practitioner; (d) Plans of treatment for Patient A (including recording the reasons for the practitioner's decision to prescribe particular medication); and (e) A level of detail appropriate to Patient A's case. Particular 2 2. Between 1 September 2003 and 31 August 2008, the practitioner failed to maintain adequate medical records in accordance with cl. 5(1) and Schedule 2 of the Medical Practice Regulation 2003 in that the practitioner failed to record: (a) Sufficient information to identify Patient A, including address and date of birth; (b) Information known to the practitioner relevant to his diagnosis and treatment of Patient A including sufficient detail of: (i) Patient A's medical history; (ii) the results of any physical examination of Patient A; (iii) details of any examination of Patient A's mental state; (iv) progress of Patient A at each visit; and (v) diagnosis of Patient A; (c) Particulars of any clinical opinion reached by the practitioner; (d) Plans of treatment for Patient A (including recording the reasons for the practitioner's decision to prescribe particular medication); and (e) A level of detail appropriate to Patient A's case. Particular 3 3. Between 1 September 2008 and 22 April 2010, the practitioner failed to maintain adequate medical records in accordance with cl. 4(1) and Schedule 1 of the Medical Practice Regulation 2008 in that the practitioner failed to record: (a) Sufficient information to identify Patient A, including address and date of birth; (b) Information known to the practitioner relevant to his diagnosis and treatment of Patient A including sufficient detail of: (i) Patient A's medical history; (ii) the results of any physical examination of Patient A; (iii) details of any examination of Patient A's mental state; (iv) progress of Patient A at each visit; and (v) diagnosis of Patient A; (c) Particulars of any clinical opinion reached by the practitioner; (d) Plans of treatment for Patient A (including recording the reasons for the practitioner's decision to prescribe particular medication); and (e) A level of detail appropriate to Patient A's case."
2. As is obvious from the terms of particulars 1, 2 and 3 to Complaint 2, the same failures, in relation to maintaining adequate medical records in respect of patient A, are relied upon under each of the relevant regulations applicable during the period from February 2002 to April 2010.
3. Dr Nguyen admitted each of the failures referred to in particulars 1(b) to (e), 2(b) to (e) and 3(b) to (e) to Complaint 2. In addition, the expert witnesses agreed that these failures were disclosed on the documentation. We are satisfied that this is correct and that Dr Nguyen's medical records concerning patient A were defective in the respects particularised.
4. Complaint 2 also involved the allegations that Dr Nguyen was guilty of unsatisfactory professional conduct on two bases: 1. under s 139B(1)(b), in that he "contravened the regulations under the National Law"; 2. under s 139B(1)(l), in that he "engaged in improper or unethical conduct relating to the practice or purported practice of medicine".
5. It appears to us that there may be a technical difficulty with the first alleged basis. The regulations, which are referred to in the particulars, were all made under the Medical Practice Act 1992 (NSW) and were not "regulations under [the National] Law" as referred to in s 139B(1)(b).
6. The second basis relied upon to establish unsatisfactory professional conduct, in the sense set out in s 139(1)(l), does not present similar difficulties. Under that provision, "unsatisfactory professional conduct" includes "[a]ny other improper … conduct relating to the practice or purported practice of the practitioner's profession". "Improper conduct" is not defined in the National Law. The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case."
7. This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
8. Dr Nguyen has admitted that the failures in relation to maintaining medical records, when considered together, amounted to unsatisfactory professional conduct. Both experts agreed that "the standard of medical records falls significantly below a standard expected of a general practitioner of equivalent level of training and experience as Dr Nguyen and merits criticism" (to quote from Prof Webster's report.
9. In these circumstances, we are satisfied that Dr Nguyen's failure to maintain proper medical records in respect of patient A was in breach of the standards of conduct expected of a medical practitioner in Dr Nguyen's position and accordingly was "improper conduct" falling with s 139B(1)(l). Consequently, Dr Nguyen was correct to admit that the conduct the subject of particulars 1, 2 and 3 to Complaint 2, when considered together, amounted to unsatisfactory professional conduct. Accordingly, we find that the conduct did amount to unsatisfactory professional conduct.

Complaint 3

1. Complaint 3 was that Dr Nguyen was guilty of professional misconduct within s 139E in that he engaged in: 1. "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration"; or 2. "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
2. In relation to this complaint, the HCCC relied on the particulars to Complaint 1 individually, and all the particulars to Complaints 1 and 2 cumulatively.
3. Dr Nguyen responded to this complaint in his reply as follows: "The practitioner admits the he has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration."
4. In respect of the conduct referred to in particulars 1(a), (b) and (d) and 2(a) to Complaint 1, and all the particulars to Complaint 2, the experts were agreed that not only did this conduct fall significantly below the required standard, but that it should also attract strong criticism. In addition, Dr Kertesz opined that the conduct referred to in particulars 1(d) and (g), and 2(b), (d), (f) and (g) to Complaint 1 should also attract strong criticism. These views support the conclusion that these instances of unsatisfactory professional conduct, considered together, were of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
5. In all the circumstances, we accept that Dr Nguyen's admission was properly made. The instances of unsatisfactory professional conduct we have found above do, in our view, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Accordingly, we find Dr Nguyen also engaged in professional misconduct.

Summary of findings

1. For these reasons, we find that each of the complaints is established and that Dr Nguyen has engaged in: 1. unsatisfactory professional conduct in relation to his treatment of patient A, as particularised in Complaint 1 (except in relation to particular 3); 2. unsatisfactory professional conduct in failing to maintain proper medical records in relation to his treatment of patient A, as particularised in Complaint 2; and 3. professional misconduct, when the conduct referred to in the preceding two subparagraphs is considered as a whole.

Procedural matters and submissions

1. At the end of the hearing on 26 September 2017, the Tribunal and parties came to the view that, given the admissions made and the consequent likelihood of a finding of professional misconduct, it would be appropriate to proceed by way of written submissions on both the issues of liability and protective orders. This was on condition that Dr Nguyen be given sufficient time to obtain and file references or other evidence going to the protective orders that might be made, and that the HCCC have an appropriate opportunity to respond. Directions were made accordingly and the proceedings were stood over for mention, if necessary, on 6 November 2017.
2. Dr Nguyen filed a bundle of references and related material on 10 October 2017, and the parties filed their written submissions later that month. Those written submissions included, on the HCCC's part, proposed protective orders. Dr Nguyen's submissions addressed the appropriateness of those orders.
3. On 6 November 2017, the Tribunal made the following orders and notations: "1. Stand over the proceedings part heard to Monday 20 November 2017 at 9 am for Direction only. 2. Note that the Panel will by that date notify the parties of any order contemplated by it that has not been addressed by the parties in their written submission. 3. In the event that after receiving any such notification from the Panel, the parties notify the Registry that they do not wish to be heard further in respect of any order proposed by the Panel, appearance at the Directions Hearing on 20 November 2017 is not required. 4. Note that the parties do not require to address orally their respective written submissions filed to date. 5. Note agreement between the parties that: (i) if the costs are to be awarded to the Applicant the amount of these costs is to be $30,000. (ii) The Respondent may provide a further statement limited to the issue of inquiry and or enrolment in an education course proposed by him, such statement to be filed and served by 13 November 2017."
4. Dr Nguyen provided a statement dated 9 November 2017, concerning the cancellation of the Monash University Course "Issues in General Prescribing", and his acceptance into an education program provided by Carramar Education. That program was to include practices, policies and procedures surrounding the prescription of restricted and controlled medications in general practice, and practices, policies and procedures around the Prescription Shopping Program.
5. On 20 November 2017, the Tribunal made further orders as follows: "1. Stand over proceedings for mention at 9.00 am on Monday 4 December 2017 2. No attendance is required at that time if by 5.00 pm on Friday 1 December 2017 the parties have notified each other and the Tribunal by email of … its and his response to any training course proposed by the Tribunal to be undertaken by the Respondent as a component of the orders that might be made when determining the complaint."
6. On 30 November 2017, the Registrar wrote to the parties in the following terms: "The Members of the Tribunal have not yet resolved the final orders that will be made in these proceedings. However, they are contemplating including in the orders they make a requirement that Doctor Nguyen undertake the following educational requirements in addition to the course he has volunteered with Carramar Consulting. Those additional courses are; 1. The Clinical Communication Program run by the Cognitive Institute 2. The Prescription Drug Misuse and Opioid Risk Management in Chronic Pain online modules run by the Chapter of Addiction Medicine of the Royal Australian College of Physicians 3. Three modules of courses offered by the Black Dog Institute being a. Dealing with Depression b. Talking About Suicide in General Practice c. Dealing with Anxiety Disorders and Stepped Care and eMH in General Practice Please provide any response you wish to make to orders of this kind by email directed to NCAT, preferably by Monday next 4 December 2017."
7. By letter dated 1 December 2017, Dr Nguyen's solicitors stated that he made no objection to the proposed requirement that he undertake the educational courses set out in the Registry's letter. Similarly, the HCCC by its letter of 1 December 2017 also stated that it had no objection to protective orders being made which included a requirement that Dr Nguyen complete those courses.

The Tribunal's powers

1. Having found that the subject matter of the 3 complaints against Dr Nguyen has been proved, the Tribunal is empowered under s 149A of the National Law to do any one or more of the following in relation to the practitioner: "(a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal."
2. The Tribunal may also impose a fine under s 149B since it has found that Dr Nguyen is guilty of unsatisfactory professional conduct and professional misconduct. However, under s 149B(2)(b) that power cannot be exercised unless: "the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest".
3. In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C(1)(b) as it has found that Dr Nguyen is guilty of professional misconduct.
4. The Supreme Court has recently observed in this context, in Health Care Complaints Commission v CSM [2018] NSWSC 902 at [75]: "It is within the discretion of the Tribunal to make some (or all) of the protective orders available in the legislation in pursuit of the requirement to provide for the protection of the public by ensuring that only health practitioners who are suitable trained and qualified to practise in a competent and ethical manner are registered. There is no obligation that a Tribunal make all, or any particular combination of available protective orders. …"
5. We now turn to consider the principles which should guide the Tribunal in the exercise of these powers.

Applicable principles

1. The factors that the Tribunal is required to consider in the exercise of its protective jurisdiction are to be found in the terms of the National Law, and they may be stated expressly or arise by implication from its subject-matter, scope and purpose - Health Care Complaints Commission v Do [2014] NSWCA 307 at [33]. Those factors include the following: 1. In the exercise of its functions under Subdiv 6 of Div 3 of Pt 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - ss 3A and 4 of the National Law, Do at [34]; 2. The protection of the health and safety of the public includes: 1. protecting the patients or potential patients of a particular practitioner from the continuing risk of the practitioner's malpractice or incompetence; and 2. protecting the public from the similar misconduct or incompetence of other practitioners; and 3. upholding public confidence in the standards of the profession, which can be achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct,

• Do at [35] and see also Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 and Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 1. The Tribunal must also exercise its functions having regard to objectives of the registration, accreditation and complaint scheme established by the National Law including: 1. providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and 2. facilitating access to services provided by health practitioners in accordance with the public interest,
• ss 3(2)(a) and (e) and 4 of the National Law, Do at [34]; 1. Protective orders serve to denounce misconduct and involve elements of specific and general deterrence, or, to put it more positively, serve to encourage practitioners to recognise both the importance of complying with professional standards and the risks of failing to do so - Do at [35] and Prakash at [91]. 2. Although the specific purpose for which the Tribunal makes orders is protective of the public interest, and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].

1. The Tribunal in this case has accepted that Dr Nguyen's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration. Nonetheless, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Why this is so was explained by the Court of Appeal in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Karalasingham was a decision under the Medical Practice Act, but the relevant provisions of that Act are sufficiently similar to the corresponding provisions of the National Law that the Court of Appeal's reasoning can be applied to the present case. At [67] it was held: "The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37 [which is similar to s 139E of the National Law]. However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ).
2. We will address the circumstances of the present case, relevant to our consideration of the appropriate protective orders, under the following headings: 1. The nature and extent of Dr Nguyen's conduct the subject of the Complaints; 2. Dr Nguyen's remorse, insight and subsequent conduct; 3. Other matters.
3. Prior to doing so, however, we should note the parties' positions in respect of protective orders.

The HCCC's proposed orders and Dr Nguyen's response

1. The parties have been of particular assistance in the present case by providing proposed protective orders, in the case of the HCCC, and by providing specific responses to those protective orders, in Dr Nguyen's case.
2. Attached to the HCCC's written submissions were the protective orders that it sought in this matter. They were as follows: "Reprimand and Suspension 1) Reprimand under s.149A(1)(a) of the Health Practitioner National Law ("the National Law"). 2) The registration of the practitioner is suspended pursuant to section 149C(1) of the National Law for a period of [3-6] months with effect one month from the date of these orders ("the suspension period"). 3) Immediately following the expiry of the suspension period, the following conditions shall take effect. Education 4) The practitioner must: a) Complete within 12 months of the date of these orders, the course "MCM5606 - Issues in general practice prescribing" as provided by the Monash University. b) Provide to the Medical Council of NSW ("the Council") within 3 months of the date of these orders, evidence of enrolment in that course; c) Provide the Medical Council with evidence of satisfactory completion of that course within 1 month of completion; and d) If that course is not available, propose to the Council a similar course to be undertaken, and satisfactorily complete that course within 12 months of approval of the course by the Council. Supervision 5) To practice under Level C suspension for [6-12] months from the expiry of the suspension period in accordance with the Council's Level C Supervision Policy as varied below: a) During the first 3 months of the suspension period, the approved Supervisor is to meet with the practitioner each fortnight; b) The Supervisor is to report to the Council every 3 months during this supervision period, and if required by the Council, on his/her supervision of the practitioner, and is to raise any concerns with the Council which he/she may have about the practitioner's capacity to practice medicine safely; c) If the approved Supervisor becomes unavailable to continue the supervision, the Supervisor must inform the Council in writing, and the practitioner must nominate a different Supervisor within 14 days of becoming aware that the current arrangement cannot continue. Audit 6) To submit to an audit of his medical practice by a random selection of his medical records by a person or persons nominated by the Council to be held within [3-6] months from the expiry of the suspension period and subsequently as required by the Council. The auditor is to assess his compliance with good medical record keeping standards and legislative requirements. 7) To authorize the auditor to provide the Council with a report on his/her findings. Review 8) The above conditions may be altered, varied or removed at the discretion of the Council and the Council is the appropriate body for the purposes of Division 8 of Part 8 of the National Law. 9) Sections 125 and 127 of the National Law are to apply while the Practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 10) The practitioner is responsible for any costs arising out of compliance with these conditions."
3. In addition, the HCCC sought an order for costs.
4. In his written submissions, Dr Nguyen responded to the HCCC's proposed orders. His responses can be adequately summarised as follows: Order or orders Response 1 (Reprimand) Accepted 2 (Suspension of registration for 3-6 months) Not necessary for the protection of the public nor would it serve any purpose 3 (Conditions on registration) Accepted 4 (Completion of Monash University Course concerning prescribing or similar) Accepted (as set out in Dr Nguyen's statement of 8 November 2017). 5 (Level C Supervision) Open to the Tribunal to impose but a matter for the Tribunal 6 and 7 (Audit and reporting) Accepted 8 and 9 (Alteration, variation of conditions and review of orders) Accepted 10 (Costs of compliance with orders) Accepted

1. Thus, Dr Nguyen submitted that orders 1, 3, 6, 7, 8, 9 and 10 were sufficient to ensure the health and safety of the public. As to order 5, he submitted that this could be made by the Tribunal, if it thought it was necessary and appropriate.
2. In addition, as a result of the correspondence from the parties dated 1 December 2017 referred to above, we understand they are content for a condition as to educational courses (as envisaged in proposed orders 3 and 4) to include the courses proposed by the Tribunal in its correspondence of 30 November 2017. This is in addition to the Carramar Education course, which Dr Nguyen volunteered to attend in his statement of 9 November 2017.
3. As noted by the Tribunal on 6 November 2017, the parties have also agreed that, if the Tribunal decided to award costs in favour of the HCCC, the amount of those costs should be $30,000.
4. In these circumstances, the only substantial dispute between the parties as to the proposed orders is whether or not the Tribunal should suspend Dr Nguyen's registration, for 3 to 6 months, as proposed by the HCCC.
5. We approach the consideration of the appropriate protective orders bearing in mind the parties' positions set out above.

The nature and extent of Dr Nguyen's conduct the subject of the Complaints

1. Dr Nguyen's conduct the subject of Complaint 1, which we have found to amount to unsatisfactory professional conduct and professional misconduct, was very serious. This is borne out by the evidence of Dr Kertesz and Prof Webster in their various reports. Dr Nguyen repeatedly failed properly to address patient A's complex mental health, chronic pain and addiction issues, over a lengthy period from February 2002 to April 2010. The fact that he was not patient A's primary general practitioner does not, in our view, relieve him of his responsibilities in this regard.
2. The failure to perform a comprehensive medical examination on the more than 40 occasions when patient A presented for the administration of pethidine, and his failure to communicate with Dr Higginbotham, who prescribed the pethidine and who appears to have been patient A's primary general practitioner, and with other treating practitioners, meant that Dr Nguyen was not in a position to make a properly informed assessment of whether he should administer the pethidine as requested, or consider other treatment options for patient A's pain and other symptoms, on any of those occasions. The failure to communicate with other treating practitioners also had the consequence that there was no adequate co-ordination of care for patient A being provided by Dr Nguyen, together with those other practitioners, during that eight year period. That care should have included, but did not, formulation of a pain management plan and effective referral to, and following up with, appropriate specialists. Further, by administering the pethidine without making a proper assessment of whether patient A was drug dependent or exhibiting drug seeking behaviours, Dr Nguyen also failed to provide appropriate care for patient A since his conduct facilitated such dependency and behaviours over the eight year period.
3. Dr Nguyen's prescription and administration of diazepam to patient A on the various occasions from November 2002 to April 2010, referred to in the particular 2 to Complaint 1, is similarly serious. Once again, there was a failure to communicate and co-ordinate with Dr Higginbotham and other treating practitioners as to commencing to prescribe, and administering of, diazepam to patient A. As a result, Dr Nguyen failed to provide, or arrange for the provision of, appropriate care for patient A. He did not formulate or assist in formulating a pain management plan for her, nor did he involve appropriate specialists for treatment, review or advice of her complex needs. He did not properly assess, on any of the relevant occasions when diazepam was prescribed or administered, whether patient A was drug dependent or exhibited drug seeking behaviours. Dr Nguyen continued to prescribe or administer diazepam throughout the years from 2002 to 2010, when he knew or ought to have known that diazepam was being, or was likely to be, abused by patient A.
4. Dr Nguyen gave evidence, that we accept as being by way of explanation rather than exculpation, that: 1. when patient A presented for the administration of pethidine he, wrongly, felt reassured by the fact that Dr Higginbotham had prescribed the pethidine; 2. when patient A presented with severe muscle spasm or severe anxiety, he thought it would be best treated by prescribing Valium on a short term basis and that Dr Higginbotham would review this at her next consultation with him; 3. patient A had been, in Dr Nguyen's observation, stable for many years and he assumed that a management plan had been put in place for her by Dr Higginbotham and that it was adequate; and 4. he did carry out neurological examinations on patient A when she presented, but these were not properly documented, nor were they a comprehensive assessment of her complex conditions.
5. While we accept that Dr Nguyen was not patient A's only treating general practitioner, and other practitioners must take some responsibility for what occurred, his explanations do not excuse his conduct although they may go some way to mitigating the need for specific deterrence, if combined with insight and education. Notwithstanding this, we remain of the view that if Dr Nguyen had made a comprehensive assessment of her condition, and provided appropriate treatment and care to patient A when she presented for administration of pethidine, or when diazepam was prescribed or administered, during the eight years from 2002 to 2010, there is a possibility that her death in 2010 may have been avoided. This underlines the seriousness of Dr Nguyen's repeated failures in the care of patient A over 8 years.
6. As to the conduct the subject of Complaint 2, Dr Nguyen's failure to maintain appropriate medical records, in respect of his treatment of patient A throughout the period from 2002 to 2010, was a significant and sustained departure from what is required of a competent and diligent medical practitioner. For the reasons given above, it amounted to both unsatisfactory professional conduct and professional misconduct. While it is serious, it does not, in our view, have the same degree of seriousness as the conduct the subject of Complaint 1.

Dr Nguyen's remorse, insight and subsequent conduct

1. Dr Nguyen has expressed his regret that he did not help wean patient A off pethidine, and did not otherwise take more active step to manage her complex treatment needs. He says that he is truly sorry that he did not take a more proactive role in her management, and that he is deeply sorry that he did not liaise with Dr Higginbotham to work out a consistent management plan for her.
2. Paragraph 67 of his statement of 18 August 2017 is as follows: "I am truly sorry I was unable to provide [patient A] with the help she needed and I deeply regret the missed opportunities I had been given to treat her."
3. We saw Dr Nguyen give oral evidence and listened to his responses concerning his failures in relation to patient A's care and medical records. Dr Nguyen has also, in our view, demonstrated some remorse by reflecting on his failures and making extensive and appropriate admissions, by being prepared to accept disciplinary orders, and by amending his approach to the management of patients such as patient A, the maintenance of medical records, and other matters referred to in his statement of 18 August 2017.
4. In the circumstances, we believe Dr Nguyen's expressions of regret and remorse are genuine.
5. From his statements and his oral evidence, it is also clear to us that Dr Nguyen has reflected constructively on what he did, and failed to do, for patient A. We are satisfied that he has developed considerable insight into the failings in his practice of medicine and care in relation to patient A. This is set out in commendable detail in his statement of 18 August 2017. It was also covered, in part, in his oral evidence.
6. As to his subsequent conduct, we note that Dr Nguyen has been able to articulate his current approach to managing patients like patient A, for example in par 55 of the 18 August 2017 statement. His approach is appropriate and shows some understanding of the proper care of patients experiencing complex pain management, mental health and addiction or dependence issues. It is also a demonstration that his insight into his past failures is genuine.
7. In addition, Dr Nguyen gave specific illustrations of his current practice, in oral evidence, covering matters such as his ability to identify drug seeking behaviour, addiction and dependence. To give just one example, in cross examination, the following evidence was given: "Q. Would you accept that there's a need for a high index of suspicion in cases where a person is seeking opioid medication, or benzodiazepine medication for their issues? A. Definitely, and to answer your question. I think it was three or four weeks ago there's been two patients on separate times. One came in on a Sunday after hours and he had an out-dated letter from his GP, and also an imaging of his back, and he said that he had severe back pain, but when I assessed him he wasn't in any distress, and he showed me some scars on his abdomen, and I said, "I don't know you enough". He wouldn't give me the detail of his GP. He's been waiting out there for one hour, so he became quite aggressive, because I said, "I'm sorry, I cannot give it to you". And eventually he left but he was very aggressive. There was another patient, it was a Lebanese guy from - I think he was from Prestons - also back pain, bit sweaty, coming in wanting, I think it was, oxycodone, and then refused to be examined, he didn't want to be examined. He was vague, and he wouldn't give me the GP's detail. So I rang up the Doctor Shop Hotline and he was on there. He was seeing like some ten doctors, and there was more than 40 PBS scripts."
8. We note that Dr Nguyen has met his quality improvement and continuing professional development requirements and, to his credit, had completed a number of online courses by Avant Mutual Group Limited prior to the hearing before us, including courses that are relevant to some of the issues raised by his treatment of patient A. Nonetheless, we are concerned that Dr Nguyen has not undertaken further training in the treatment of patients with chronic pain and mental health issues and in communication in clinical contexts. In our view, Dr Nguyen and the public would benefit from his being required to undertake the following further courses: 1. The Clinical Communication Program run by the Cognitive Institute; 2. The Prescription Drug Misuse and Opioid Risk Management in Chronic Pain online modules run by the Chapter of Addiction Medicine of the Royal Australian College of Physicians; 3. Three modules of courses offered by the Black Dog Institute being: 1. Dealing with Depression; 2. Talking About Suicide in General Practice; and 3. Dealing with Anxiety Disorders and Stepped Care and eMH in General Practice.
9. These are to be in addition to the Carramar Education program concerning the prescription of restricted and controlled medications in general practice and the Prescription Shopping Program.
10. We are satisfied that Dr Nguyen understands the deficiencies in his previous medical record keeping, and has insight into the importance of proper medical records for the health and safety of patients. He has completed an online course "On the record: Medical records and documentation". His current practice is to use electronic record keeping, as outlined in par 59 of his statement of 18 August 2017.
11. His remorse and insight, supported as they are by the changed approaches and practices adopted by Dr Nguyen since 2010, are real and tend in our view to reduce significantly the need for suspension or deregistration in order to achieve the appropriate protection of the public. We also believe that this conclusion is supported by the fact that it has not been suggested that any of Dr Nguyen's subsequent conduct as a medical practitioner has been the subject of any complaint or would be the subject of justified criticism.
12. Given the exposure of his failures, and the consequent changes Dr Nguyen has made, we believe that, if Dr Nguyen also undertakes the courses and programs to which we have referred above, his practice of medicine is unlikely in future to represent a substantial risk to the health and safety of the public.

Other matters

1. From Dr Nguyen's evidence, and that of Prof Webster, we accept that the Mount Annan Medical Centre is a busy general practice accepting a wide range of patients from an area which, during the period from 2002 to 2010, experienced a shortage of general practitioners and specialists. Dr Nguyen is a part owner of the practice and works alongside other practitioners in that practice. In 2018, he was one of 6 general practitioners. He performs home visits and the Mount Annan Medical Centre is a fully bulk billing practice. The practice is open 7 days per week and also employs a registered nurse. It is beneficial to the public, especially the public living in the Mount Annan area, to have the services of suitably trained and qualified medical practitioners, who practice competently and ethically, through a practice such as the Mount Annan Medical Centre.
2. We also note that Dr Nguyen was a relatively young and inexperienced practitioner when he first saw patient A. He has reflected on what he did, and failed to do, and has changed his practices in relevant respects since 2010. He is prepared to undertake the courses to which we have referred above.
3. Dr Nguyen has also put before the Tribunal a number of references from medical practitioners. In each case, those referees were aware of the complaints made against Dr Nguyen and his admissions in respect of those complaints, as well as what is contained in his statements of 18 August 2017 and 25 September 2017.
4. Dr Timothy Chang, an obstetrician and gynaecologist in the Macarthur area since 2000, said: "I hold Dr Howard Nguyen with the highest regard with all professional matters that I have dealt with him. I have found him to be thorough, knowledgeable as well as empathetic to patients that he has referred to me as well as looking after my own children. In my opinion of Dr Howard Nguyen, he has the highest moral standards and I have no hesitation in recommending him as a medical practitioner. He has an excellent reputation as a general practitioner and is highly regarded by his patients."
5. Dr Vivian Fernandes is a consultant Nuclear Medicine and General Physician in Campbelltown, who has known Dr Nguyen since about 2001, principally on a professional basis. Dr Fernandes wrote: "Over the years I have noted that Dr Nguyen's communication skills are now of a high standard and he is very ethical, diligent and empathetic. He is well respected, has a good following of patients and has a reputation of being a safe and caring clinician and primary care practitioner. My current opinion is that Dr Howard Nguyen is currently a valuable asset in the Macarthur community of Medical Practitioners. He has good insight to the mistakes / errors that he has made in the past. He is genuinely remorseful and contrite about these issues and has taken measures to improve any areas which could be improved on, and now presents as a medical practitioner who has learnt from his past mistakes. His current practice is safe and appropriate for patients."
6. A more recent practitioner in Campbelltown, since 2015, Dr Choong, a Neurologist, reported that: "… all of the referrals were appropriate and there were many instances that such early referrals did make a big difference in patients' care and outcome. The referral letters also appropriately outlined his genuine concern for patients. All of the management plans from my correspondence letters to him were implemented promptly and accordingly. In addition, there were occasional phone calls from him to obtain urgent opinion from me in regard to complex neurological cases or to further discuss the management of hared patient."
7. Further references from Dr Teoh, staff specialist physician at Campbelltown Hospital, Dr Dao, orthopaedic knee surgeon at Chipping Norton, and Dr Tuan-Anh Nguyen, a rehabilitation medicine physician at Campbelltown, were consistent with the references quoted above. We have taken all of these references into account.

Appropriate protective orders

1. The HCCC did not contend that Dr Nguyen's registration should be cancelled, and we think that this was correct in the circumstances. Perhaps in the light of Dr Nguyen's agreement, or non-objection, to the orders proposed by the HCCC, apart from suspension of registration, the HCCC did not make specific submissions on the proposed orders apart from the suspension order. As to suspension, the HCCC submitted: "79. … given the gravamen of the allegations against [Dr Nguyen], the need to protect the public through general deterrence (of other practitioners), and the need to protect the public by reinforcing high professional standards and denouncing transgressions and the maintenance of public confidence in the profession, a period of suspension of [Dr Nguyen's] registration is warranted, for between 3 and 6 months' duration. The period of suspension would permit [Dr Nguyen] to complete the prescribing course and continue the Opioid Awareness Course. 80. Additionally, an order suspending [Dr Nguyen's] registration is necessary as a means of censuring [his] conduct and sending a strong message, both specifically to [Dr Nguyen] but also to other practitioners more broadly, that the misconduct of the type concerned of in these proceedings cannot be condoned."
2. We accept that the conduct the subject of Complaints 1, 2 and 3 (as found above) was serious and extended over 8 years. Nonetheless, in the light of the time that has elapsed since that conduct, his remorse and insight, the steps taken by Dr Nguyen to change his approach and practices, the education and training he has undertaken and is willing to undertake, the high regard in which he is held by other practitioners in the Macarthur area and the unlikelihood of his being a risk to the health and safety of the public in future, the Tribunal believes it is not appropriate to suspend his registration. Such a course is not necessary to protect the health and safety of the public in this case.
3. Further, for the reasons already given, and in the light of all the circumstances referred to above, we believe that the need for specific deterrence is less in the present case than in other cases where there was deliberate misconduct or where the practitioner displayed no remorse or insight. As to general deterrence and the need to uphold public confidence in the standards of the profession, we believe these will be adequately addressed if the misconduct is denounced, in the sense of being openly condemned, by our reprimanding Dr Nguyen and making the other orders as proposed by the HCCC.
4. We are confirmed in this view, that it is not appropriate in the present case to suspend Dr Nguyen's registration, by the consideration that the public of the Macarthur area is more likely to be benefitted if Dr Nguyen is permitted to continue in practice uninterrupted than if he is suspended. The risk of harm to the public is further mitigated if Dr Nguyen is required to undergo a period of supervision. In addition, we note that undertaking the courses referred to above is likely to have the consequence that Dr Nguyen will have to devote time to those courses instead of treating patients. An additional period of formal suspension is not called for, in our view.
5. As to the proposed supervision order, Dr Nguyen submitted that he: "accepts that it is open to the Tribunal to require a period of Level C supervision, as proposed by the HCCC (condition 5). Whether it is necessary is a matter for the Tribunal."
6. As the health and safety of the public must be our paramount concern, and given the need for specific and general deterrence, as well as denunciation of the misconduct, we think that a period of supervision as proposed is appropriate. The HCCC, in its proposed orders, indicated that the period of supervision should be 6 to 12 months. In all the circumstances, we believe that a period of 6 months' supervision, in accordance with the Medical Council's Level C Supervision Policy, is appropriate and sufficient.
7. In the light of Dr Nguyen's acceptance that the other orders proposed by the HCCC are appropriate, we do not believe it is necessary to take further time to set out detailed reasons for making such orders other than to note that they are obviously relevant to the misconduct involved or the proper working out of other orders. They are likely to protect the health and safety of the public. They assist in upholding the standards of the profession and are, in our view, appropriate in the circumstances.
8. Accordingly, the Tribunal proposes to make orders based on orders 1, 3, 4, 5, 6, 7, 8, 9, and 10 of the HCCC's proposed orders, set out above, with changes necessary to reflect the fact that there is to be no suspension period and other formatting changes to differentiate between the orders and the conditions.

Costs

1. As to the costs of these proceedings, cl 13 of Sch 5D to the National Law provides: "(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … 4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013."
2. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85], Meagher JA explained the operation of this clause as follows: "In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)"
3. The HCCC has been successful on each of Complaints 1, 2 and 3. We do not think that our finding that particular 3 to Complaint 1 was not made out constitutes a reason why costs should not follow the event. There was nothing else in the conduct of the proceedings, or the circumstances in which they were brought against Dr Nguyen, which would render it not just and reasonable to award costs in the HCCC's favour in this case. Consequently, there will be an order for costs in favour of the HCCC. The amount of these costs has been agreed between the parties in the amount of $30,000.00.

Orders

1. For the reasons set out above, the Tribunal makes the following orders: 1. The respondent, Dr Howard Van Nguyen, be and hereby is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. The conditions set out below in the schedule headed "Health Care Complaints Commission v Dr Howard Van Nguyen - Conditions" (the Conditions) be imposed on the respondent's registration to be operative 28 days after the making of these orders. 3. The Conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales, and the Council is the appropriate review body for the purposes of Division 8 of Part 8 the Health Practitioner Regulation National Law (NSW). 4. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply while Dr Howard Van Nguyen's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of the Conditions can be conducted by the Medical Board of Australia. 5. The respondent, Dr Howard Van Nguyen, is to pay the costs of the applicant, the Health Care Complaints Commission, agreed in the sum of $30,000.00.

Health Care Complaints Commission v Dr Howard Van Nguyen - Conditions

Education 1. The practitioner must: (a) complete within 12 months of the date of these conditions taking effect the following courses: (i) The education program provided by Carramar Education including practices, policies and procedures surrounding the prescription of restricted and controlled medications in general practice and practices, policies and procedures around the Prescription Shopping Program; (ii) The Clinical Communication Program run by the Cognitive Institute; (iii) The Prescription Drug Misuse and Opioid Risk Management in Chronic Pain online modules run by the Chapter of Addiction Medicine of the Royal Australian College of Physicians; (iv) The Dealing with Depression module provided by the Black Dog Institute; (v) Talking About Suicide in General Practice module provided by the Black Dog Institute; (vi) Dealing with Anxiety Disorders and Stepped Care and eMH in General Practice module provided by the Black Dog Institute b) Provide to the Medical Council of NSW (the Council) within 3 months of the date of these orders, evidence of enrolment in or participation in those courses; c) Provide the Council with evidence of satisfactory completion of those courses within 1 month of completion; and d) If any of those courses is not available, propose to the Council a similar course to be undertaken, and satisfactorily complete that course within 12 months of approval of the course by the Council.

Supervision 2. To practice under category C supervision for 6 months from the date of the Medical Council of NSW approving a supervisor in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. The terms of the Council's Compliance Policy - Supervision are varied to require: a) During the first 3 months of the supervision period, the practitioner is to meet with the approved Supervisor each fortnight; b) The Supervisor is to report to the council every 3 months during the supervision period.

Audit 3. To submit to an audit of his medical practice by a random selection of his medical records by a person or persons nominated by the Council to be held within 3 months from the date of these conditions taking effect and subsequently as required by the Council. The auditor is to assess his compliance with good medical record keeping standards and legislative requirements. 4. To authorize the auditor to provide the Council with a report on his/her findings.

Costs of compliance 5. The practitioner is responsible for any costs arising out of compliance with these conditions." I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 15 November 2018 - Condition 2 of the Schedule completely rewritten. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2018