Dental Board of Australia v Bhowmik [2022] QCAT 400

1. Section 196(1)(b) of the National Law provides that, after hearing a matter about a registered health practitioner, the Tribunal may decide that, inter alia, the practitioner has behaved in a way that constitutes:

1. Unprofessional conduct pursuant to s 196(1)(b)(ii) National Law; and/or 2. Professional misconduct pursuant to s 196(1)(b)(iii) National Law.

1. For the purposes of the National Law, the definition of "professional misconduct" includes relevantly:

1. Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level or training or experience; and 2. Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. For the purposes of the National Law, the definition of "unprofessional conduct" includes, relevantly, professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. 2. Codes or guidelines approved by a National Board are admissible in proceedings as evidence of what constitutes appropriate professional conduct or practice. 3. The C_ode of Conduct for registered health practitioners_ (Code of Conduct) is a code of conduct approved by the Board for the purposes of section 41 of the National Law. The Code was in force and applied to registered health practitioners in a number of health professions, including dental practitioners from, 17 March 2014 to 28 June 2022. 4. The allegations that are before the Tribunal are:

(1) That Dr Bhowmik engaged in:

1. Professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law; and/or
2. Unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that for the period 1 July 2019 to 15 November 2020, Dr Bhowmik breached section 129(1) of the National Law, and failed to meet the Board's registration standards for professional indemnity insurance (PII) by not holding PII cover as a registered dentist.

(2) That Mr Bhowmik engaged in:

1. Professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law; and/or

2. Unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.

in that Dr Bhowmik falsely declared when renewing his registration for 2019 and 2020 that he complied with the Standard for the previous registration periods.

1. Dr Bhowmik admits to these allegations as set out in the Statement of Agreed Facts filed by the parties on 27 May 2022 (SOAF).

• [7] A statement of facts has been agreed between the parties. It indicates that the respondent's insurance lapsed on 1 July 2019 and was not renewed until 15 November 2020 despite his practising dentistry over the whole of this period.
• [8] On 16 November 2020, he completed an application for professional indemnity insurance with an appropriate insurer. He then paid the premium and on the same day notified the Board of his failure to hold insurance from July 2019 to November 2020.
• [9] The circumstances in which his failure to obtain insurance are fully set out in the respondent's solicitor's submissions. I do not understand these are contentious and I set out paragraphs 5 to 12 of those submissions:
  1. In December 2018, the respondent purchased his current practice, North Rocky Dental, in Rockhampton, Queensland (Practice). In 2019, the respondent was under increased pressure with many new responsibilities after the retirement of the former practice manager. The respondent was very busy during this time, having to learn to manage the practice and continue to provide a high level of care to his patients. In 2020 during the Covid-19 pandemic, the respondent was very focused on the evolving guidelines and regulations and keeping his staff and patients safe. While the respondent acknowledges this is no excuse for his conduct, his attention was diverted away from ensuring that he had PII in place at the relevant times.
  2. The respondent was under an erroneous belief that he had a direct debit arrangement with his professional indemnity insurer, Dental Protection Limited (DPL). He mistakenly believed that his PII would automatically be renewed annually.
  3. On or around 15 November 2020, it was brought to the respondent's attention that he did not have PII when his accountant requested he provide his insurance policy for tax purposes, which he could not find. Upon discovering his oversight, the respondent immediately contacted DPL for clarification and was advised that he did not have PII at the relevant time.

...

1. On 17 November 2020, the respondent resumed work after being informed by DPL that his PII was effective from 16 November 2020.
2. On 19 November 2020, MDA National Insurance (underwriters of the PII policy with DPL) issued a letter to the respondent confirming the period of insurance to be from 16 November 2020 to 30 June 2021.
3. On 24 November 2020, the respondent notified the Australian Health Practitioners Regulation Agency (AHPRA) that it had become aware that he did not have a PII in place from 1 July 2019 to 15 November 2020.
4. During the period of non-insurance, no claims, complaints or disciplinary proceedings were made/brought against the respondent.

• [10] It is important, in my view, to note that the respondent's conduct was not deliberate, the parties agreed it should be described as reckless, and perhaps more importantly that it was the respondent himself who notified the Board of his misconduct.
• [11] That approach by the respondent is consistent with his subsequent cooperation in his agreement on the facts of the case, and demonstrates his remorse and insight.
• [12] I am satisfied to the requisite standard in conformity with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 of the proof of the two allegations in this case, namely, the respondent's failure to maintain any appropriate PII cover, and his making false declarations on both 8 November 2019 and 6 November 2020 as to compliance with the Board's registered standard for PII arrangements.
• [13] I also accept that to that standard that such conduct constitutes professional misconduct rather than merely unprofessional conduct.
• [14] In submissions before me the parties agreed that it would be appropriate for the Tribunal to make the following orders:
  1. Pursuant to section 196(1)(b)(iii) of the health Practitioner Regulation National Law (Qld)(National Law), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.
  3. Pursuant to section 196(2)(b) of the National Law, the following condition be imposed on the respondent's registration:

(a) the practitioner is required to provide a certificate of currency in respect of appropriate professional indemnity insurance coverage on an annual basis.

4. Pursuant to section 196(3) of the National Law the review period for the condition is five years from the date hereof:

(a) Part 7, division 11, subdivision 2 of the National Law applies to the conditions.

• [15] I conclude that the making of a reprimand and imposition of the condition jointly proposed would be appropriate. In so concluding, I am particularly influenced by a number of matters to which I shall now refer.
• [16] First, the parties have jointly proposed such a sanction. While the determination of the appropriate penalty is a matter for me, numerous cases have referred to the appropriateness of the Tribunal giving very significant weight to any agreement between the parties. See, for example, Medical Board of Australia v Rathnayake [2019] VCAT 1012; Medical Board of Australia v Fox [2016] VCAT 408 at [6]; Medical Board of Australia v McGrath [2014] VCAT 641 at [20]; Medical Board of Australia v Martin [2013] QCAT 376 at [98]; and Pharmacy Board of Australia v Hopkinson [2018] VCAT 982 at [5].
• [17] At paragraph 22 of the applicant's submissions, it is said:

The High Court in Commonwealth v Director Fair Work Building Industry Inspectorate has confirmed that there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions, and upon persuasion of the accuracy of the parties' agreement as to the facts and consequences, and the penalty the parties' propose and is an appropriate one, it is highly desirable practice for the Court to accept the parties' proposal.

• [18] I adopt that approach.
• [19] Second, whilst it was, in my view, reckless of the respondent to have allowed his PII to lapse and to have sworn declarations to the contrary, it is of course significantly relevant that it was he who told the Board of his non-compliance immediately upon becoming aware of it.
• [20] As to this, compare Chiropractors Board of Australia v Northeast [2019] VCAT 1279. Furthermore, he has, his solicitors submit, and I accept, taken a number of steps to ensure his future compliance with the Board's requirements as set out in paragraph 17 of the written submissions.
• [21] Third, I have been referred to a number of matters and importantly similar breaches of professional standards have resulted in similar sanctions being imposed. In that regard, the applicant's solicitors refer to the following matters: Psychology Board of Australia v Postlethwaite [2021] VCAT 569; Chiropractic Board of Australia v Carbery [2018] VCAT 147; and Psychology Board of Australia v Elzo [2020] VCAT 345.
• [22] Furthermore, in Psychology Board of Australia v Rigley [2018] VCAT 1400 similar offending was aggravated by the practitioner's wilfully attempting to mislead AHPRA and the Board by amending dates on the PII certificate of currency. In addition to a reprimand that practitioner was suspended from registration albeit for a period of only three months. Clearly, that was a significantly more serious breach than Dr Bhowmik's.
• [23] So too in Chiropractic Board of Australia v Northeast (surpa), the practitioner's conduct was worse than here and attracted an additional suspension only for a period of one month.
• [24] I am satisfied the proposed sanctions ought to be made, having regard to:

(a) the appropriateness of a global penalty in circumstances where the facts are inexplicably interwoven; > > (b) the need to protect the public against any further conduct; > > (c) the need for both general and specific deterrence; and > > (d) Dr Bhowmik's demonstrated remorse and own endeavours to rehabilitate his professional conduct.

• [25] In the circumstances, the Tribunal orders:

(a) pursuant to section 196(1)(b)(iii) of the health Practitioner Regulation National Law (Qld)(National Law), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct; > > (b) pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded; > > (c) pursuant to section 196(2)(b) of the National Law, the following condition be imposed on his registration: > > > (i) the practitioner is required to provide a certificate of insurance currency in respect of appropriate professional indemnity insurance coverage on an annual basis; > > (d) pursuant to section 196(3) of the National Law, the review period for the condition is five years from the date hereof; and > > > (i) part 7, Division 11, subdivision 2 of the National Law applies to the conditions.