BCS v Dental Council of NSW [2015] NSWCATOD 157 | Case summary

NCAT Occupational|2015-09-07

Background to the decision under appeal

The decision the subject of this appeal was triggered by a complaint made in March 2015 to the HCCC by a former patient of the appellant, who in these Reasons we will refer to by the pseudonym "SE". The complaint related to conduct alleged to have occurred in 2002. The Council in making its decision also had regard to a separate complaint made by another patient, "GL". After the Council handed down the decision under appeal the HCCC commenced an investigation into the allegation made by GL. The HCCC has not completed its investigation of the complaints made by SE and GL.

Complaint by SE

SE alleged that during a consultation in October 2002, the appellant asked her to remove her shirt and bra, and then touched her left breast and the top of her pubic bone. SE immediately reported the alleged incident to her parents, her employer, a friend and to police. the appellant denied asking SE to remove her clothing, or touching her below the neck. He was charged with the offence of indecent assault. In March 2004 a jury in the District Court of NSW returned a verdict of not guilty in relation to that charge.

Complaint by GL

GL alleged that during a consultation for root canal therapy in March 2001, after being administered a local anaesthetic, the appellant placed his penis in her mouth, and asked her to close her lips. GL immediately reported the incident to her husband and a friend. Six months later she made a formal report to police. The appellant denied the allegations. He was subsequently charged with the offences of sexual intercourse and aggravated sexual intercourse, without consent. In September 2003 the police withdrew those charges after GL advised that she did not wish to proceed with the complaint because she did not have "sufficient confidence in the justice system to put my self-esteem on the line for what would inevitably be his word against mine".

The appellant is convicted for sexual intercourse without consent

In March 2008 the appellant was convicted by a jury in the District Court of NSW of various offences involving his wife, including one count of sexual intercourse without consent. He was acquitted of six other charges including two counts of sexual intercourse without consent. He received a four year custodial sentence with a non-parole period of two years. He appealed the conviction without success: TK v R [2009] NSWCCA 151.

History of the appellant's registration as a dental practitioner

The appellant was first registered as a dental practitioner in 1987.
In March 2008, the appellant's solicitor notified the then Dental Board of the appellant's conviction for the offences involving his wife. Following release from custody in December 2010, the appellant applied for re-registration as a dental practitioner, his registration having lapsed in January 2009. In March 2011 he was granted general registration by the Australian Health Practitioner Regulation Agency (AHPRA).
In December 2011, the Council complained to the HCCC about the conduct the subject of the appellant's conviction. In March 2012 the HCCC advised the Council of its decision to take no further action on the grounds that "[the appellant's] criminal history was not relevant to his practice of the profession". The Council also resolved not to take any further action.
In July 2014, the Dental Board of Australia notified the Council of the appellant's alleged non-disclosure to NCAT in proceedings relating to his application to NCAT for an "enabling order" under the Child Protection (Working with Children) Act 2012 (NSW). (As a consequence of his conviction for the offence of "sexual intercourse without consent", the appellant is a "disqualified person" and barred from working with children unless granted an enabling order (see s 28(1) of the Child Protection (Working with Children) Act)). The Tribunal (differently constituted) found that the appellant had not disclosed to it, as required by the Child Protection (Working with Children) Act, that he had been charged with offences in relation to SE and GL: BCS v The Children's Guardian [2014] NSWCATAD 81 [17] - [28]). The Supreme Court quashed that decision and remitted the matter to NCAT: BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 125. The remitted matter is yet to be determined.
On receipt of the information about the alleged non-disclosure to NCAT, in July 2014 the Council convened a s 150 hearing. Following that hearing the Council decided to impose as a condition on the appellant's registration that he not treat persons under 18 years of age. The Council also ordered the appellant to undergo a health assessment by a psychiatrist appointed by the Council. The appellant has not appealed against that decision.

Opinion of Ms Grapsas

At the request of the appellant's solicitors, clinical psychologist, Ms Anne Grapsas prepared a report for the purpose of these proceedings and also gave oral evidence. Ms Grapsas first saw the appellant in March 2008 for the purpose of preparing a psychological assessment. A report of that assessment was tendered in the sentencing hearing before the District Court. In a report dated 29 July 2015 Ms Grapsas wrote that in preparing her 2008 report she interviewed the appellant for six hours, conducted five consultations, interviewed his parents and conducted a psychometric evaluation.
On release from custody in December 2010, the appellant saw Ms Grapsas for therapy on a weekly basis until February 2014, when it was terminated by mutual agreement. Ms Grapsas wrote that during the weekly therapy sessions with the appellant she gained the impression that notwithstanding the ordeal of imprisonment: [the appellant] presents as a pleasant, amiable man eager to engage in therapy and benefit from this. There are no signs of evasiveness, resentment or bitterness in his responses, although he does regret the loss of his family and feels an overwhelming sense of responsibility for the turmoil and distress these events have caused to his parents and family. Overall there are no indications of either neurotic, psychotic behaviour or personality disorder in the appellant's presentation and behaviour and he is determined to work hard to repair the damage these events have caused him and his family.
She wrote that she has "no doubt" that the appellant has "gained renewed appreciation of his profession" and is unlikely to act in a way contrary to that expected of a responsible and professional dentist.
She noted that throughout the weekly therapy sessions the appellant steadfastly maintained his innocence in relation to both the offences involving his wife and the complaints made by SE and GL.
On questioning Ms Grapsas agreed with the proposition that her opinion about risk was based on the assumption that the alleged conduct involving SE and GL and the appellant's former wife had not occurred and that her assessment of risk would have been different had she not made that assumption. She said however she was "very confident" that the alleged conduct had not occurred, pointing out that throughout their weekly therapy sessions she had probed and questioned the appellant and "at no time" did he give her any reason to doubt the veracity of his claims. She said in her experience during intensive questioning, such as that conducted with the appellant, people invariably slip up if they are not telling the truth.
In Ms Grapsas' opinion the appellant does not pose a risk to the safety of female patients. She acknowledged that her opinion differed to that held by clinical psychologist Dr Emma Collins.
Ms Grapsas agreed with the proposition that the type of therapy she provided to the appellant after his release would not have addressed the underlying cause, had the alleged conduct involving his wife, SE and GL occurred.

Opinion of Dr Collins

The appellant was assessed by Dr Collins at the request of the Children's Guardian. In a report dated 21 February 2014 Dr Collins concluded that the appellant posed a "moderate to low risk" of sexual recidivism. She explained that notwithstanding the charges relating to GL and SE had been withdrawn/dismissed, the methodology she employed to assess risk, required that they "count". In her opinion any risk posed by the appellant appears to primarily relate to his relationship with his former wife and "is unlikely to extend into his practice".
Dr Collins identified various protective factors that in her opinion reduced the appellant's risk of recidivism - absence of major mental health or history of substance abuse; pro-social attitudes; no violent ideation or prior criminal history. She thought it likely that the degree of risk posed by the appellant was probably slightly lower that his assessed "moderate to low" rating, but given the allegations made by his former patients, in her opinion "some degree of caution is prudent".

Opinion of Dr Giuffrida

At the request of the Council, psychiatrist Dr Michael Giuffrida provided an opinion about whether the appellant suffered an "impairment" and the appropriateness or otherwise of the condition imposed by the Council in July 2014, namely that the appellant not treat persons under 18 years of age.
Dr Giuffrida concluded that the appellant did not appear to suffer a specific psychiatric condition or an impairment that would affect his capacity to practise.
Dr Giuffrida concurred with Dr Collins' assessment of risk. However he pointed out that that assessment did not mean that the nature of the risk posed by the appellant was negligible. He noted that neither he nor Dr Collins were aware of the details of the alleged conduct involving SE and GL. In his opinion a more reliable assessment of risk could only be undertaken if that information was provided.

The appellant's employment history

In 1991 the appellant established a private dental practice where he worked as a sole practitioner until incarcerated in 2008. Since resuming practice in April 2011 he has been in continuous employment.
Since late 2013 the appellant has worked as one of five dentists in a private practice in a northern suburb of Sydney. The Council has approved three of the dental nurses/assistants employed at the practice to act as chaperones for the purpose of satisfying the subject conditions. According to the appellant, it is standard practice for an assistant to be present during all patient consultations, male and female.
The appellant stated that the owner of the practice where he now works had urged him to apply to have the subject conditions removed. He also stated that he found the subject conditions to be "embarrassing" and a "dark cloud over my head". He said he understood some patients were aware of the conditions but agreed he was not obliged to notify patients of them.
He said the subject conditions meant it would be exceedingly difficult to find alternative employment as a dentist, but agreed he had no intention of leaving the practice in the next 12 months.

Character References

The appellant tendered in these proceedings a number of character references.
These include a reference provided by the owner of the practice where the appellant now works. She stated that the appellant "is a fantastic dentist and his patients adore him" and she would recommend him to family and friends. In a letter dated 30 July 2015, legal practitioner Ms Mohini Gunesekera wrote she had known the appellant professionally and socially for over 30 years and always found him to be "a highly skilled and caring professional". Ms Gunesekera is a prominent member of the Buddhist community in Australia. She stated that she is aware of the appellant's criminal conviction and the decision under appeal. She wrote that the appellant is "a fine dentist and a fine gentleman in the truest sense" and, in her opinion a person of good character. Long-standing family friend, Dr Siri Kannangara wrote that since the early 1970s he has been in regular contact with the appellant and his family. He wrote that the appellant holds high ethical and moral standards and respects and lives by Buddhist philosophy. He wrote that he and his family, whose members include three daughters, have enjoyed regular contact with the appellant over many years and "at no stage" has the appellant's character been in question. In his opinion the appellant would "never have crossed the boundaries of decency". He noted he was aware of the appellant's conviction and the decision under appeal.

Is the decision to impose the subject conditions appropriate or otherwise in the public interest?

Our task on reconsideration of the decision under appeal is to decide whether we can now be satisfied that the imposition of the subject conditions on the appellant's registration is appropriate (i) for the protection of the health or safety of any person(s), or (ii) is otherwise in the public interest. In making that decision, it is impermissible to make findings as to the truth or otherwise of the allegations made by SE and GL. On reconsideration we may revoke, vary or confirm the subject conditions (s 159C(1) of the National Law). In making our decision the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law).
Counsel for the appellant, Mr Griffin SC concedes that had the decision now under appeal been taken when SE and GL made their respective allegations there would have been a strong argument for the making of orders under s 150 of the National Law. However, he submits that different considerations now apply. He points out that in the intervening period the appellant has been acquitted of the charges relating to SE and more significantly has not been the subject of any further complaints. In those circumstances, Mr Griffin contends that it cannot reasonably be argued that the appellant now poses a relevant risk.
Mr Griffin argues that the HCCC correctly concluded in 2011 that the appellant's conviction for offences involving his wife are irrelevant to his practice of dentistry and cannot be used to in effect corroborate or bolster the 2001/2002 allegations. He contends that having served a custodial sentence it is now unfair to reagitate the earlier complaints, especially given that no satisfactory explanation has been given for the "gross delay" in prosecuting and investigating them.
The subject conditions permit the appellant to continue to practise providing an approved chaperone is present whenever he treats, examines or consults female patients. Given the practice in which he now works, a dental assistant or nurse is routinely present during consultations and a number have been approved to act as chaperones, the subject conditions cannot be characterised as especially onerous. Nonetheless, as pointed out by the appellant it does not follow that because the subject conditions are not onerous that they should be imposed. Section 150(1) directs that the power to impose conditions can only be exercised where we are satisfied that it is appropriate to do so for the protection of the public or otherwise in the public interest. Self-evidently if the appellant does not pose a relevant risk we could not be satisfied that the first limb of s 150(1) of the National Law is satisfied.
Section 150 imposes a heavy duty upon a Council, or the Tribunal on reconsideration to take action, by suspending or imposing conditions upon a practitioner, for the protection of members of the public, or the public interest more generally, "if at any time it is satisfied it is appropriate to do so … or if satisfied the action is otherwise in the public interest". The protection of members of the public trumps other interests and the threshold for the exercise of the discretion to suspend or impose conditions is, for that reason, relatively low.
There must, of course, be a reasonable basis for the exercise of the power, and the potential harm to members of the public against which protective action is taken must be more than trivial or fanciful. In assessing the risk, two factors must be taken into account: (a) the gravity of the potential harm and (b) the likelihood of the harm, whatever it is, being realised if the power to suspend or impose conditions on, the practitioner's registration under s 150 is not exercised.
In this case, the potential harm against which the Council's conditions are set as protection is significant: indecent or sexual assaults upon patients. The ethical codes of the health professions are very largely devoted to impressing upon, and imbuing practitioners with, a set of standards in which respect for the patient is central. Patients are potentially vulnerable to abuse by health professionals because of their conditions, their lack of specialist knowledge, their subordinate positions in the therapeutic relationship, and, in some cases, the practitioner's access to stupefying drugs or other means of manipulating or overriding the patient's consent. Therapeutic power brings with it great responsibility and onerous standards of integrity.
Even if accepted that the alleged conduct occurred we are prepared to accept that without a chaperone the risk of the appellant acting in an inappropriate manner with female patients is likely now to be low. This is because first, that there have been no further complaints against the appellant for a number of years, and, second, that he has had the personal humiliation of having the complaints made against him, and of being convicted and imprisoned for the offence against his wife, resulting thirdly, we suppose, in a significant degree of personal deterrence, and, lastly, given that the weight of psychiatric and psychological evidence suggests that any risk posed by the appellant is at the low end of the scale. That risk however in our opinion is not so minimal or insubstantial that it can be disregarded.
While the passage of time since the alleged conduct occurred is highly relevant to the assessment of risk, it does not establish that the appellant poses no material risk. Ms Grapsas' opinion does not assist the appellant given that it rests on the assumption that the allegations made by SE and GL lack substance. Ultimately she may be found to be correct, however at this stage little weight can be given to her assessment of risk because to do so would be to in effect adopt the approach both parties agree is impermissible, namely to make findings of fact about the alleged conduct. Similarly, the opinion of Drs Collins and Giuffrida that the appellant poses a low to moderate risk is not determinative as both assumed the alleged conduct involving SE and GL occurred.
The delay in investigating the complaints made by SE and GL and the absence of any explanation for that delay is most troubling, especially given that s 145 of the National Law directs that complaints must be dealt with expeditiously. While regrettable, it is not relevant to the assessment of risk, given as pointed out by the Council, each complaint was made quite contemporaneously and as far as is known, neither complainant knew the other or was aware of the other's complaint.
Whether there is any substance to either or both complaints is yet to be determined. As we have found above, although the risk may be low, the potential harm is not insignificant. For these reasons, we are satisfied that it is appropriate at this stage for the protection of the safety of female patients to impose the subject conditions. Having regard to the nature of the risk we find the subject conditions to be measured and proportionate and for these reasons we have decided to confirm the subject conditions.

Suppression orders

In these proceedings we made orders under cl 7 of sch 5D to the National Law to, among other things, prohibit the disclosure or publication of the name of the appellant in relation to these proceedings. We also decided to give the parties an opportunity to comment on whether that order should continue after they had been given the opportunity to review these reasons.

Costs

The Council foreshadowed that if the appeal were to be dismissed it would seek an order for costs. At their request we have decided to grant the parties the opportunity to make written submissions on the issue of costs. 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
Amendment
On 9 November 2015 the parties were issued with Reasons which contained the name of the appellant (the original Reasons) and were invited to make submissions about whether the orders made under cl 7 of sch 5D to the National Law prohibiting the publication of the name of the appellant, should be revoked. After receiving submissions from the parties the Tribunal decided to continue to prohibit the publication of the name of the appellant and to lift the prohibition on the publication of the reasons for decision. (see xxx) Accordingly, this version of the Reasons contains the following amendments made to the original Reasons: (i) the deletion of all references to the name of the appellant (ii) the use of the pseudonym "BSC" to refer to the appellant (iii) the deletion of the name of the owner of the practice where the appellant now works from [37] (iv) the deletion of Order 7 made on 9 November 2015. 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 28 January 2016 - Typographical error 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: 28 January 2016

Nature of an appeal under s 159

The appellant exercises his right of appeal under s 159 of the National Law, which provides: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- .. (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; … Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.
Section 31(1) of the Civil and Administrative Tribunal Act 2013 (NSW) gives the Tribunal "external appeal jurisdiction" over a decision made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against such decision.
In Bova v Pharmacy Council of NSW [2014] NSWCATOD 40, Acting Judge Boland after reviewing the statutory scheme and the authorities concluded that an appeal under s 159 of the National Law is not "an appeal de novo in the strict sense … but a statutory hybrid or variant". Her Honour observed (at [30]): [T]wo things are clear: the statute mandates the Tribunal engage in a "reconsideration of the matter", and in that deliberative process, it may receive fresh evidence, or evidence in addition to or substitution for the evidence which was before the Council when it considered the matter.
Her Honour concluded (at [33]) that an appeal under s 159(3) is in the nature of a "reconsideration" that is, the Tribunal must be satisfied at the date it hears the appeal that "it is appropriate to suspend the practitioner's registration or place conditions on his registration for the protection of the health and safety of the public". Her Honour stated (at [33]) that the language of s 159(3) "makes it plain" that a Tribunal may reconsider the matter on "entirely different material" to that which was before the Council.

Power to make orders under s 150

Section 150 of the National Law relevantly states: 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 …
In determining whether to make orders under s 150, the role of the Council, or the Tribunal on reconsideration, is not to make findings of fact or to determine the merits of any complaints. In Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53, the Tribunal explained (at [169]): In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public. (emphasis added)
On 30 April 2015, the Council imposed the following conditions on the appellant's registration pursuant to s 150 of the National Law (the subject conditions): 1 The practitioner is not to treat, examine or consult with any female patient unless a chaperone is continuously present. 1.1 The chaperone must be acceptable to the patient and may be a spouse, or other family member who is over the age of 18 years, or a guardian/ carer of the patient. The chaperone may not be a member of the practitioner's family. In the absence of such persons, the chaperone must be another adult who has been approved by the Council. 1.2 To obtain approval for the adult to be a chaperone, the practitioner must submit to the Council: (a) written evidence that he has provided the chaperone(s) with a copy of the conditions. Acceptable evidence includes a signed letter from the chaperone(s) stating they are aware of the conditions; (b) a copy of the chaperone's curriculum vitae; (c) a statutory declaration from the chaperone that he/she has no criminal history. 1.3 The practitioner is to forward to the Dental Council of NSW a record of all female patients who have been treated, examined, or consulted by the practitioner. The record is to be submitted to the Council fortnightly commencing 4 May 2015. The record must include the following: (a) the date and time of each procedure; (b) the patient's name; (c) the name and signature of the chaperone present. 2. To advise the Dental Council of NSW in writing within 7 days of changing the nature or place of his practice. 3. Within 7 days of being advised of the imposition of these conditions, he is to forward evidence to the Dental Council of NSW that he has provided a copy of the conditions to the principal of his current place of practice. 4. To authorise the Dental Council of NSW to exchange information with current and future persons or organisations at places where he works as a dental practitioner in Australia, regarding any issues arising in compliance with these conditions.

BCS v Dental Council of NSW

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Judgment (14 paragraphs)

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Legislation Cited (2)

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