Adam v Dental Council of NSW

Adam v Dental Council of NSW - [2020] NSWCATOD 153 - NSWCATOD 2020 case summary — Zoe

[4]

Background

Unless otherwise stated the following facts are not in dispute.
Dr Adam is a 51 year old dentist. He is a graduate of the University of Baghdad (1992). He attained the Australian Dental Examination Certificate in 2014. He first gained registration as a General Dentist in New South Wales on 3 February 2015.
Dr Adam is the proprietor and sole dentist of Adam Dental Care in Moorebank.
On 16 May 2020, a former employee of Dr Adam, his Dental Assistant, attended Fairfield/Wetherill Park Police Station at which time she alleged that, without her consent: 1. On Saturday 13 April 2019, Dr Adam massaged her breasts for approximately 10 to 20 minutes; 2. A week or two later, after massaging her shoulders and lower back, Dr Adam started to massage her breasts, stopping suddenly when a patient entered the foyer of the practice; 3. On Saturday 11 May 2019, Dr Adam massaged her breasts for approximately 30 minutes.
On 17 June 2019, the complaint was assigned to the Green Valley Police Station.
On 22 February 2020, the Dental Assistant and her mother attended the Green Valley Police Station to give statements.
On 7 May 2020, Dr Adam was arrested and charged with: 1. Three counts of sexual touching another person pursuant to s 61KC(a) of the Crimes Act 1900 (NSW). If proven, each offence carries a penalty of maximum penalty of imprisonment for five years; and 2. Three counts of common assault pursuant to s 61 of the Crimes Act 1900 (NSW). If proven, each offence carries a penalty of maximum penalty of imprisonment for two years, collectively, "the criminal charges".
On 26 August 2020, the matter was before the Liverpool Local Court. A plea of not guilty was entered and a hearing fixed for 6 November 2020.
On 26 October 2020, a complaint was made by the Health Care Complaints Commission (HCCC) to the respondent, the Dental Council of NSW (Council), with regard to Dr Adam's alleged conduct.
On 3 November 2020, Dr Adam's solicitor wrote to the Council advising that Dr Adam had brought the criminal charges to the attention of the NSW Branch of the Australian Dental Association: "in lieu of the notification of the matter as it was required to be undertaken to the National Board pursuant to s130 of the law. In that regard, it was a genuine misunderstanding of the correct entity the matter had to be reported to, however it must be said for the Practitioner that he undertook an immediate if not very contemporaneous report of the matters under consideration".
Pursuant to s 130 of the National Law Dr Adam must, within seven days after becoming aware that a relevant event has occurred, give the National Board written notice of the event. Relevant event includes being charged with an offence punishable by 12 months' imprisonment or more. As noted above, the sexual touching charges carry a penalty of maximum penalty of imprisonment for five years, and the common assault charges carry a penalty of maximum penalty of imprisonment for two years. Accordingly, Dr Adam should have informed the National Board of the charges on or before 14 May 2020.
On 4 November 2020, a hearing pursuant to s 150 of the Law was held.
At the conclusion of the hearing, the delegates suspended Dr Adam's registration as a Dental Practitioner.
The hearing of the criminal charges was scheduled for hearing at Liverpool Local Court on 6 November 2020, but was adjourned.
The Decision was published on 18 November 2020.

[5]

The Decision

The Decision considered the following matters:
First, Dr Adam's current practice context. In summary, Council stated that: 1. Dr Adam's practice provided mainly general dentistry to adults and children; 2. Dr Adam's utilised electronic practice management software called Dental 4 Windows which includes appointment scheduling and a records system; 3. Dr Adam worked six days per week from Monday to Saturday from 9am to 6pm; 4. In addition to Dr Adam, the practice employed a Practice Manager (who is Dr Adam's wife), an Oral Therapist and a Dental Assistant; 5. At time of the alleged incidents the alleged victim was working as a Dental Assistant.
Secondly, the nature of Dr Adam's relationship with the Dental Assistant at the time of the alleged incidents in April and May 2019. The Council stated that: 1. At the time of the alleged incidents the relationship of Dr Adam with the Dental Assistant was that of employer and employee, and that there was no other relationship between them; 2. There were times when the Dental Assistant worked alone with Dr Adam; 3. There were no disputes or incidents related to the Dental Assistant during her period of employment and prior to her lodging her complaint with the police; 4. The Dental Assistant ceased employment on or about 15 or 16 May 2019 when she did not attend work when rostered to do so. The Council noted that this was the date on which the Dental Assistant attended Wetherill Park Police Station to lodge her complaint against Dr Adam.
Thirdly, whether Dr Adam requested that his Dental Assistant provide him with a massage and whether he offered to provide her with a massage in April and May 2019. Here the Council stated that: 1. Dr Adam indicated that he did not want to discuss the allegations made against him stating that he preferred the matter be dealt with by the court after he provided the court with his evidence; 2. Dr Adam was very emphatic that nothing happened between him and the Dental Assistant and that he was not guilty; 3. Dr Adam denied offering to massage the Dental Assistant or asking her to massage him; 4. It had formed the impression from the manner in which Dr Adam spoke appeared to suggest that because the police took a year to act in relation to the complaint lodged by the Dental Assistant that there was no issue.
Fourthly, whether the physical layout of Dr Adam's rooms was consistent with the Dental Assistant's allegations. The Council concluded that the physical layout of the dental clinic was consistent with the facts outlined to the police by the Dental Assistant.
Fifthly, whether there were gaps in patient attendance that would have enabled the alleged incidents to have occurred. The Council concluded that on the basis of the evidence available for at least two of the dates on which the incidents were alleged to have occurred, the patient appointment schedule indicated that there were periods of time, consistent with the hours noted by the Dental Assistant to the Police, where Dr Adam and the Dental Assistant were alone in the clinic.
Sixthly, whether Dr Adam had reported the charges against him to the Australian Health Practitioner Regulation Agency (AHPRA) as required under s 130 of the National Law. The Council noted that when it raised the issue with Dr Adam, Dr Adam indicated that the failure to notify AHPRA was not deliberate and he apologised for his oversight.
After considering those matters the Council then identified its concerns, being: [The Dental Assistant] with two years of service without incident abandons her employment without providing any notice to Dr Adam. We are advised [the Dental Assistant] did not return any calls or messages from Dr Adam after she ceased working for him. Either on the same day or the day after ceasing her employment, [the Dental Assistant] attended a Police Station to lodge a complaint of sexual touching and assault against Dr Adam alleged to have taken place over three different dates in April and May 2019. Based on photographic evidence available to us we have formed the view that it is possible to place a chair in the OPG [orthopantomogram] room where the incidents are alleged to have occurred in order for a person to be seated he the chair and have their shoulders massaged. Depending on how the chair is positioned and which doors to the OPG [orthopantomogram] room and adjacent rooms are let open, it would be possible for another person to stand behind the chair and perform the massage. On at least two of the dates on which the incidents are alleged to have occurred the patient schedule provides periods of time in which [the Dental Assistant] and Dr Adam are alone in the clinic for enough time for the alleged incidents to take place. Even while allowing that some of this time may have been used for patient processing there would still be sufficient time in our opinion for the alleged incidents to have occurred. These time periods are consistent with the information provided to the Police by [the Dental Assistant] as to the time the alleged incidents took place. It appears to us that [the Dental Assistant] felt strongly enough about what had transpired between herself and Dr Adam that she returned to follow up her statement with the Police in February 2020 when it appeared that no action had been taken since her original complaint. Dr Adam failed to exercise his obligations under s130 of the National Law (NSW). While this may have been an oversight it has had the effect of the regulator being unaware of the charges laid against him and any potential action being taken by [AHPRA] was delayed up until the time that the Commission lodged their complaint.
The Council then concluded: The above findings are consistent with the allegations made to the police by [the Dental Assistant] in terms of location and times on at least two dates which the incidents are alleged to have occurred. The findings further speak to an employee who on the advice of Dr Adam had worked consistently and without incident for two years before she suddenly abandoned her employment. The description outlined by Dr Adam is more consistent with someone abandoning her employment as opposed to someone tendering her resignation. Again, this suggests to us that there may have been a catalyst for this action on the part of [the Dental Assistant] as based on the advice we were given it appears to have been out of character for her. With the benefit of the information available to us it is evident that on or around the date [the Dental Assistant] abandoned her employment she attended Wetherill Park Police Station to lodge a complaint of assault against Dr Adam. We also find that in the context of a routine resignation it is unusual for a former employee to avoid all contact with an employer. However, in the context of the alleged incidents such behaviour on the part of [the Dental Assistant] would be understandable. Accordingly, these findings when viewed together and in the context of the complaint from the Commission cause us to have serious concerns in relation to Dr Adam's conduct as a dental practitioner. While noting that the alleged incidents involve a former employee, our findings are such that they raise the possibility that Dr Adam may pose a risk to other vulnerable females given a suitable opportunity. We note that our primary consideration is to protect the health and safety of the public based on our findings related to the information before us.
In the circumstances, while noting that the matter was proceeding to a hearing in the Local Court, the Council was satisfied that it was in the interest of protecting the health and safety of the public to take immediate action under s 150 of the National Law. Council was also of the view that this would accord with community expectations of the action to be taken by Council in relation to such matters where a dental practitioner was facing multiple charges of sexual touching without consent and common assault.

[6]

Dr Adam's evidence

Dr Adam relied on: 1. The affidavits of his solicitor, Mr Andrew Stojanovic, respectively sworn 9 November, 24 November and 8 December 2020; 2. The affidavits of his wife, Mrs Noor Adam, respectively sworn 19 November and 24 November 2020.
Mr Stojanovic's evidence in his affidavit of 9 November 2020 principally goes to: 1. The conduct of the hearing on 4 November, in particular whether or not Dr Adam was told by the Council that a finding of guilt would be inferred if he did not respond to questions of the delegates so conducted themselves so unreasonably that it amounted to a miscarriage of justice in the conduct of the hearing and a denial of procedural fairness to Dr Adam; 2. The conduct of the police investigation, including delays and a failure to undertake proper enquires such as obtaining and executing search warrant, forensically examining the Dental Assistant's clothing; inspecting Dr Adam's surgery, apprehending and questioning Dr Adam; 3. An incident involving the Dental Assistant's mother on the day of the hearing of the criminal charges, leading to an adjournment of the proceedings; 4. The fact that Dr Adam, a sole practitioner, was working 6 days a week, and supports his wife and their two children.
Mr Stojanovic's affidavit of 9 November 2020 annexes a recording of the s 150 hearing, and correspondence to or from the Office of the Children's Guardian.
Mr Stojanovic's affidavit of 8 December 2020 sets out passages of transcript of the hearing, relevantly: Dr Lobo: Due to the Council's power under section 150 of the National Law to protect the public, if you choose not to answer questions for whatever reason, the council may still draw inferences from your failure to answer questions or to give explanation. If you choose to answer questions and to do so in a misleading way this may be used against you in subsequent proceedings by the Tribunal or elsewhere, The council would be entitled to take into account your failure to explain or answer questions in order to make its decision to take action under section 150(b) of the National Law. . . . Dr Lobo: Did you ask the victim to come and give you a massage? Dr Adam: Sorry, I can't say anything because my court after two days. So after 6 November. So can you please leave all the questions related to that because I'm not guilty, I'm defending myself. And just please leave everything to that case to the court and it didn't happen. I am not guilty and it never happened. Never happened." Dr Lobo: So Dr Adam, I'll just go back I guess to what we said at the opening remarks at the hearing. The Council has called this hearing because there are serious issues raised from the fact sheet and the six counts that you're charged with and you're here to provide that opportunity of your view and what happened from your perspective so l guess if you're saying to us that you can't answer any questions related to it, all we have... Dr Adam: I'm sorry to interrupt you. I can't say what l can't say on all these incidents. I'm not guilty and this one never, never happened. So if you ask you did you have a massage? I can tell you "No" because I can tell you now I'm not guilty. Dr Lobo: Okay, but for example when / asked you did you ask her to do a massage, I think you said you can't answer so are you saying the answer to everything is no or you can't answer?" Dr Adam: Never did this one. Never. . . . Dr Adam So the evidence will be provided to the court in two days, Dr Lobo Are you able to speak to this evidence? What is it? Dr Adam I can't declare it honestly. Dr Lobo Ok. Dr Adam You know, my court after two days, that might affect my evidence, please, yes. Dr Lobo So I'll just clarify to you, we understand what you're saying but you understand the premise of this hearing is for the protection of the public and the public interest and we can only consider the responses you provide to us and what's in front of us when making our decision. Dr Adam Yes, but you know because I have all the evidence. As I told you I'm not guilty so because yes, because you know my court in two days. Dr Lobo Yes, I understand, I'm just making sure that you understand as well that they're two separate matters and this jurisdiction we're in today with this hearing is a protected [sic] jurisdiction and Dr Adam You know some of them, some of them I can tell you is evidence of photograph because I have cameras.
Mrs Adam's evidence principally goes to difficulties in obtaining locum dentists at Dr Adam's practice, and the financial hardship placed on the family as a result of Dr Adam's suspension. Mrs Adam also states her willingness to supervise Dr Adam's practice if he is successful in obtaining a stay.

[8]

Dr Adam's submissions

I summarise Dr Adam's submissions as follows.
First, Council acted with "indecent haste" in convening a panel of delegates constituting "a failure to afford [Dr Adam] the right to defend himself and prepare in circumstances" and amounted to an error of law. In this respect, Dr Adam relies on Bolstad v Psychology Council of New South Wales [2020] NSWSC 1416 (Bolstad). It was submitted that it was "utterly incomprehensible" why the Council hearing took place "with such haste" in circumstances when the criminal trial was two days away;
Secondly, there was an inordinate delay in the prosecution of Dr Adam.
Thirdly, there was a failure by the prosecution to garner evidence, including:

clothing and DNA which would enable proof of Dr Adam being the perpetrator;
failing to obtain or execute a search warrant; and
failing to investigate and take photographs of the surgery;

Fourthly, that the Council overrode Dr Adam's right to invoke the privilege against self-incrimination. In relation to this point, Dr Adam submits: 25. The proceedings before the Tribunal thereupon sought to elicit and albeit by compulsion the compulsion being that if [Dr Adam] did not answer, they would infer guilt from his failure to respond, which is clearly a gross breach of the right to silence which the Tribunal had acknowledged necessitated in the Applicant being forced to disclose aspects of his defence in circumstances where it would be of prior knowledge to both the Police and/or [the Dental Assistant] or both, in circumstances where it would remove from his right to defend himself, matters of a forensic advantage which he properly had available to him and which he would be able to utilise. 26. We would submit this of itself amounted to an error of law insofar as it was a conduct of the proceedings in so unreasonable a manner that it amounted to a miscarriage of justice in the conduct of the hearing and a denial of procedural fairness to [Dr Adam].
Dr Adam then sets out at some length a response to the concerns of the Council in the Decision set out above. Suffice it to say, Dr Adam disputes these findings and, in some cases, poses a number of rhetorical questions. The submissions also assert that there is no reference in the Facts Sheets to the Dental Assistant's return to the Police Station in February 2020, and that some of the findings of the Council are "not only sheer speculation, but utterly against the evidence, the weight of the evidence and as a serious concern and factor" constituted a clear error of law.
Dr Adam also submits, correctly, that the Police Facts Sheet is not evidence, but says that the Council referred to it as such. It is submitted that this amounted to an error of law.
In conclusion, Dr Adam submits that: Simply put, the reasons given for the suspension were so attendant with doubt, both as to their sufficiency and more importantly were devoid of reasoning as to the findings and conclusions that they purported to make adversely to the interests of [Dr Adam], that they are liable to be set aside and as such, feature, if not loom large, in consideration for the stay being granted.

[9]

The Council's Submissions

The Council's position is that Dr Adam's stay application should be dismissed. It submits that the interim protective nature of the suspension imposed on Dr Adam's registration as a Dental Practitioner arose from six serious criminal charges relating to three separate alleged incidents of boundary violations of a sexual nature with his employed dental assistant, including massaging her breasts. I summarise Council's submissions as follows.
First, Dr Adam was charged on 7 May 2020 and had failed to notify the Dental Board of Australia for some six months at the time of the s 150 hearing. The Council submits that whether this was intentional or not, the failure to inform the Dental Board of Australia of the criminal charges was a significant oversight by Dr Adam.
Secondly, at no stage did Dr Adam request an adjournment of the s 150 hearing until after the listing of his criminal proceedings on 6 November 2020
Thirdly, it was appropriate for the Council to convene a s 150 hearing notwithstanding the timing of the defended criminal hearing some two days later, given the serious nature of the allegations the subject of the criminal charges, being a boundary violation of a sexual nature towards a member of staff and the delay in notification to the Council due to Dr Adam's non-compliance with s130 of the National Law.
Fourthly, s 139B(1)(b) of the National Law mandates a finding of unsatisfactory professional conduct for all contraventions of the National Law including s130. Accordingly, Dr Adam's failure to notify his criminal charges to the Dental Board of Australia prior to and at the time of the s150 hearing, constitutes unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law: see Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27].
Fifthly, as to the decision of Bolstad, relied on by Dr Adam, the Council submits that this decision should be distinguished as in that matter, an application seeking to delay a s150 hearing to enable the applicant to obtain expert evidence in relation to positive alcohol testing. The Court ordered a delay in the s150 hearing subject to the practitioner being suspended from practice pending such hearing. The applicant had not sought the adjournment at the time of the hearing. Here, Dr Adam did not avail himself of any opportunity to bring an application for an injunction against the Council to delay the s 150 hearing as a result of the listing of the defended criminal proceedings for hearing before the Local Court at Liverpool some two days later. That opportunity has now passed and, accordingly it is submitted, the considerations set out in the decision of Bolstad are not relevant.
Sixthly, none of the Delegates hearing the s 150 hearing were legally qualified. The criticisms directed by Dr Adam towards the drafting of the s 150 decision need to be looked at in the context of the qualifications of the Delegates hearing and deciding his case, the urgency of such proceedings and the interlocutory and protective nature of the proceedings.
Seventhly, as to Dr Adam's submission that the s 150 hearing was conducted "in so unreasonable a manner that it amounted to a miscarriage of justice in the conduct of the hearing and a denial of procedural fairness to the applicant", the Council submits that at all times Dr Adam was afforded procedural fairness. It notes that the s 150 proceedings were of an urgent interlocutory nature and the Council did not act unreasonably in listing them on short notice, particularly given the seriousness of the criminal charges and Dr Adam's failure to notify AHPRA and/or the Dental Board of Australia of the criminal charges for almost six months.
In summary, the Council submits that Dr Adam's criticisms of the Council in support of his stay application for the timing of the s 150 hearing are unfounded given the serious nature of the criminal charges, the delay caused by Dr Adam not complying with his obligations to report pursuant to s 130 of the National Law and the urgent need to consider the protection of the health and safety of Dr Adam's patients and the public at large and the public interest.

[10]

Nature of a s 150 hearing

Section 150 of the National Law relevantly provides that: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or . . . (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. . . .
As has been explained in the Handbook for Council, Committee and Panel Members published by the Health Professional Council's Authority: The Councils have been provided with important powers under section 150 of the Law to suspend a practitioner's or student's registration or to impose conditions if it is considered that immediate action is appropriate. These powers enable the Councils to take swift and effective action to restrict or even suspend a practitioner's practice. However, given the far reaching consequences that can result from the exercise of the Council's power under section 150, these powers should be exercised with care. Before exercising powers under section 150 of the Law, the Council must be satisfied that it is appropriate to take action for the protection of the health or safety of any person or persons, or that it is in the public interest to do so. The Councils should be mindful that any action taken should be restricted to the minimum action required to achieve public protection in the circumstances or otherwise to serve the public interest. Immediate action taken under section 150 is always interim as it is taken pending the outcome of either a formal investigation by the HCCC or referral for further management by the Council where the matter relates to a practitioner's health or performance (having first consulted with the HCCC about referral of the matter to the Council for management).
Section 150 hearings have been discussed in various cases. In Jiang v Psychology Council of NSW [2016] NSWCATOD 104, the Tribunal relevantly noted that: 1. In determining whether to take action under s 150, it is not the role of the Council or Tribunal to make findings of fact or make a determination of the merits of any complaint: Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53. The Council (or Tribunal) does not determine whether the alleged conduct in fact took place, but rather, whether there is a basis for satisfaction under s 150 that it is "appropriate" to suspend the practitioner for the protection of the health or safety of any person or persons or because suspension is otherwise in the public interest; 2. In considering this question, the nature of the allegations is of particular relevance: Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 at [8]; 3. The material that the Council (or Tribunal) may rely upon in considering whether to impose orders under s 150 may "include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations": see Lindsay v NSW Medical Board [2008] NSWSC 40 at [77(c)].
Lindsay was referred to with approval in WD v Medical Board of Australia [2013] QCAT 614 at [8], which paragraph set out the proper approach to be taken in what might be described as "immediate action matters". Those principles were: 1. an immediate action order does not entail a detailed enquiry; 2. it requires action on an urgent basis because of the need to protect public health and safety; 3. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk; 4. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations; 5. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk; 6. the material available should be carefully scrutinised in order to determine the weight to be attached to it; 7. a complaint that is trivial or misconceived on its face will clearly not be given weight; 8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.

[12]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Relevant principles in determining the application for a stay include the following: • a person who has obtained a judgment is entitled to presume the judgment is correct; • the mere filing of an appeal is insufficient to grant a stay; • the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances; • a person who has obtained a judgment is entitled to the benefit of that judgment; • the bona fides of the applicant; • a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay; • some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case; • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and 1. The protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree: New South Wales Bar Association v Stevens [2003] NSWCA 95; 2. In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (for instance, deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only: Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; 3. Each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight.

[13]

Dr Adam's proposed Grounds of Appeal

One of the considerations in granting a stay is an assessment of the strength of the proposed appeal, and whether the appellant has an arguable case in their appeal under s 159B of the National Law. In his Amended Grounds of Appeal, Dr Adam sets out 19 errors of law he submits were made by the Council in its Decision. Usually I would set out the grounds of appeal in a matter such as this. However, the grounds are some eight pages in length and it is not appropriate to set them out in full. By way of example, ground 12 is that: The Respondent erred in law in addressing the issue of the physical layout of the Applicant's rooms as being consistent with the allegations made by the alleged Victim and in undertaking that consideration erred in law in failing to hold and/or to consider that the presence of the CCTV was a mitigating factor and because of the delay, the failure to obtain the CCTV footage before it was wiped or recorded over after the 2 week period deprived the Applicant of proving his innocence in circumstances where the preference of the Respondent to accept the version of the alleged Victim over the Applicant in circumstances where: (a) the alleged Victim did not give evidence; (b) there was nothing within the material in support of the complaint from the NSW Police that indicated the absence or otherwise of the CCTV footage; and (c) the denials by the Applicant and his reliance upon the CCTV footage such as it was and was able to be relied upon, insofar as the Respondent failed to accord these factors sufficient weight, were indicative of and more importantly constituted an error of law insofar as they found that the CCTV footage was of little, if any, significance and especially where it had been deprived to the Applicant to be relied upon by reason of the delay by the police in the investigation and prosecution of the alleged complaints.
Accordingly, due to their length, I will paraphrase the grounds as follows. Dr Adam says that the Council erred in law by: 1. giving inappropriate weight to certain documents relied on by the Council such as the NSW Police - COPS data, the Court Attendance Notices and the NSW Police Facts Sheet; 2. failing to impose a condition on his registration that he not practise unless Mrs Adam was present; 3. failing to take into consideration that the NSW Office of the Children's Guardian was satisfied that the Applicant could continue to treat children as long as there was another person present; 4. giving inappropriate weight to the circumstances of the Dental Assistant leaving her employment and that those circumstances confirmed the commission of the alleged offences; 5. failing to afford the Applicant natural justice by putting to Dr Adam that the Dental Assistant's departure confirmed the commission of the offences; 6. failing to afford Dr Adam the right ("albeit constrained") to the privilege against self-incrimination; 7. failing to give sufficient weight to Dr Adam's "emphatic denial" that nothing occurred and that he was not guilty; 8. acting on unsworn material which was not sufficient or reliable to warrant the findings made; 9. failing to take into account the "inordinate delay" of the prosecution of the criminal charges; 10. finding that the Dental Assistant returned to the police in February 2020 to follow up her original complaint when the evidence did not support that finding; 11. determining that it had no information available that spoke to the initial police delay, and speculated about the Dental Assistant's return to the police; 12. finding that the physical layout of the Applicant's rooms was consistent with the allegations made by the Dental Assistant and failing to consider that the presence of the CCTV was a mitigating factor and that the failure to obtain the CCTV footage before it was wiped or recorded over after the 2 week period deprived the Applicant of proving his innocence; 13. concluding, on the basis of "the evidence available", at least in respect of two of the three dates on which the incidents were alleged to have occurred, that there were periods of time consistent with the hours noted by the Dental Assistant to the police when the Applicant and the Dental Assistant were alone in the clinic and in that regard it constituted an error of law for the following reasons: 14. giving undue weight to Dr Adam's failure to notify AHPRA of the criminal charges as required by s 130 of the National Law, especially where the NSW Office of the Children's Guardian had resolved to allow Dr Adam to treat children if an adult were present; 15. finding that the Dental Assistant provided a further statement to the police in February 2020; 16. making findings in relation to two of the alleged incidents where those findings and conclusions were not made upon credible evidence; 17. failing to impose conditions on Dr Adam's registration, including in particular that his wife be in attendance on a full-time basis; 18. failing to find that Dr Adam did not represent a risk to the public and/or his staff, in circumstances where he had no prior incidents or subsequent incidents since the matters under consideration.
The seventeenth ground of appeal is a significant matter as it encapsulates two of the two principal matters on which the appeal is based, namely the delay in the prosecution of alleged offences, and the conduct of the hearing by the delegates. I will set it out this ground in full: The Respondent erred in its discretion to suspend the Applicant in coming to the findings and conclusion that it did in circumstances where the exercise of that discretion and the ultimate finding to suspend was vitiated by errors of law in the following respects: (a) the Applicant had been the victim of inordinate delay in the prosecution of the matters and to be confronted by a disciplinary hearing to consider suspending him when his criminal trial was less than 48 hours away constituted an exercise of the discretion to rely upon material that was neither credible nor in circumstances constituting evidence that vitiated any right to suspend him on its reliance; (b) the manner in which the Respondent undertook the hearing of the matter was both unreasonable and in its exercise a denial of natural justice to the Applicant who was facing his criminal trial in a very short timeframe and expected to divulge his defence in circumstances where it would amount to a contempt of court to require a defendant to compel him to give his defence with respect to his forthcoming criminal trial when, in the circumstances, it was neither justified nor did it represent a legitimate concern with respect to public safety, and especially where he was still allowed to practise with respect to children so long as he was accompanied by an adult.
I am satisfied that Dr Adam raises arguable grounds of appeal. These grounds can be grouped into the following areas:

Council's conduct of the s 150 hearing, in particular by "compelling" Dr Adam to give evidence by indicating that inferences would be drawn from a failure to answer delegates' questions, and why the Council hearing took place "with such haste";
the weakness of the evidence before the delegates;
the delay in prosecution of the criminal charges;
suspending Dr Adam's registration in circumstances where it could have imposed conditions on his registration that would have permitted him to continue practising.

[14]

Conduct of the hearing

Dr Adam submits that: the Applicant was required to attend and was compelled to appear before the Tribunal and in circumstances where even though there was no prohibition on the privilege against self-incrimination, the Tribunal [sic - Council] conducted itself in circumstances where it effectively sought to dispense with the privilege against self-incrimination in the conduct of the hearing, where it compelled the Applicant to give, against the invocation of that privilege and especially where his trial was only 48 hours away, details of his defence, which in normal circumstances would have amounted to a contempt of Court.
There are a number of difficulties with this submission, which I do not accept.
The first is that Dr Adam was not compelled to appear before the Council. Dr Adam was not required to attend through a compulsory process such as a summons or subpoena, or the commencement of proceedings. The notice of the s 150 hearing, which was in evidence, states that the Council "requests" Dr Adam to attend the hearing to provide information to assist in its decision making. The notice goes on to state that if Dr Adam did not attend, the hearing would go ahead in his absence. A very detailed Fact Sheet accompanying the notice sets out information about the nature of the hearing, who can attend, what assistance can be sought, what information is required and Dr Adam's review rights following a decision.
Further, shortly after the commencement of the s 150 hearing, it was explained to Dr Adam that the Council had no power to compel him to answer questions and that his attendance at the hearing was voluntary. I note that Dr Adam's barrister and solicitor both accompanied him to the s 150 hearing, although consistent with the practice in that forum Dr Adam represented himself at the hearing. However, the hearing delegates made it clear at the commencement of the hearing that he could ask for an adjournment at any time "if you need to consult with your support persons".
In any event, at all times Dr Adam was represented by experienced counsel and solicitor who would have properly advised him properly of his rights. This is evident in correspondence from both Mr Stojanovic and Mr Stanton to the Council prior to the hearing. In this respect, I note that Mr Stanton wrote to the Council on 4 November 2020 advising it that "we will abide by the unilateral imposition of a protocol" (a reference to the number of support persons who could be present with Dr Adam during the hearing), "that effectively denies the right to legal representation and may well be a denial of natural justice in the ultimate . . . we will reluctantly agree, but reserving our rights as foreshadowed and Dr Adam will be reminded and will and when necessay [sic - necessary], avail himself of the right to consult his lawyers".
Secondly, I do not accept that the Council "effectively sought to dispense with the privilege against self-incrimination". I have set out above the passage of transcript relied on by Dr Adam to support this submission. I do not think that evidence supports the submission. At its highest, the evidence establishes that, quite properly, the Council may draw inferences from his failure to answer questions. This is supported by abundant authority: Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; Lucire v Health Care Complaints Commission [2011] NSWCA 99. In Wingate, the NSW Court of Appeal approved (at [47]) its earlier statement that in Bowen-James v Walton (NSWCA, 5 August 1991, unrep), that: Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts.
I note that at par [25] of Dr Adam's submission he submits that: The proceedings before the Tribunal thereupon sought to elicit and albeit by compulsion the compulsion being that if the Applicant did not answer, they would infer guilt from his failure to respond, which is clearly a gross breach of the right to silence which the Tribunal had acknowledged necessitated in the Applicant being forced to disclose aspects of his defence in circumstances where it would be of prior knowledge to both the Police and/or the Victim, or both, in circumstances where it would remove from his right to defend himself, matters of a forensic advantage which he properly had available to him and which he would be able to utilise.
During the course of the hearing we discussed the submission that the Council would infer that Dr Adam was guilty if he failed to answer questions. This arose in the context of an objection taken to par [6] of the affidavit of Mr Stojanovic of 9 November 2020. Mr Stojanovic had stated that: He [Dr Adam] was reminded more than once that a finding of guilt would be inferred if he did not respond to questions.
On objection taken by Ms Petrie, Mr Stanton did not press the words "of guilt". I conclude therefore that any submission in relation to the Council inferring guilt is also withdrawn.
Thirdly, I do not accept that the Council "compelled [Dr Adam] to give, against the invocation of that privilege and especially where his trial was only 48 hours away, details of his defence". Dr Adam chose to give evidence and made it plain that he was not guilty of the criminal charges.
As to the submissions that the Council proceeded "with such haste", I see no reason why an adjournment of the s 150 hearing could not have been sought. The fact is an adjournment was not sought, and moreover, through his counsel on 4 November 2020, Dr Adam agreed to participate in the hearing.
For the above reasons, I do not accept that this matter warrants a grant of a stay.

[19]

Conclusion

The nature of s 150 hearings was recently discussed by the Court of Appeal in Ghosh v Medical Council of New South Wales [2020] NSWCA 122. In particular, the Court noted the following.
First, the jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest.
Secondly, the exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor.
Thirdly, the existence of the s 150 power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Council need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court.
Fourthly, the Council must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Council's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest.
Fifthly, the "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur.
Sixthly, the "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.
I have considered all of the matters raised by Dr Adam. In my view, none of the matters he raises, either individually or cumulatively, warrants the granting of a stay. Although his proposed grounds of appeal on points of law are arguable, his appeal will not be rendered nugatory if a stay is not granted, and I note that it was not submitted otherwise.
Dr Adam may well have good grounds for persuading a criminal court that the criminal charges are not proved beyond reasonable doubt, but that is not sufficient to warrant a stay of his suspension which is made in the public interest and for the protection of the public.
I reject the submission that the Council's reasons for Decision were so attendant with doubt that a stay is warranted, or that they were devoid of reasoning. The Decision is detailed, considered and, in the context of the Council's task in relation to s 150, persuasive.
While Dr Adam and his family are suffering personally and financially because of the stay of his registration, expedition of his appeals will ameliorate that prejudice. In this respect I note that at the conclusion of the hearing on I gave directions for the management of the matter including the filing of evidence and set the matter down for hearing on 18 and 19 March 2021.

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)

Cited By (1)