MATTERS TO BE CONSIDERED IN MAKING A DETERMINATION

1. The primary purpose of a determination is to protect the public and not to punish the practitioner. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 (Honey), it was stated at [14] and [16]:

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish ...

Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. As well as the general deterrence to 'the profession as a whole' referred to in Honey's case, the Tribunal must also consider factors in relation to deterring the individual from repeating the conduct which is called specific deterrence. In doing so, we must consider the ongoing risk such as:
   • (a) whether the practitioner has demonstrated insight into the seriousness of his conduct and why it occurred;
   • (b) whether he has shown genuine remorse and has taken independent steps to reduce the risk of rapid repetition; and
   • (c) whether he has any past disciplinary history.
2. It is important that we also consider the confidence that the public has in the profession. The public should be confident that when they or their children attend a dentist, that the dentist will not act inappropriately towards them or their children. Dentists are in a position of trust and there is usually a power imbalance between the patient and the dentist.

1. The respondent submitted, through Mr Wright of Counsel, that the appropriate determination in this particular proceeding is that the respondent be reprimanded and that his registration to practice as a dentist be suspended for a period of time. Mr Wright said that the respondent had already served a two year period where he has undertaken not to practice as a dentist and has fulfilled that undertaking. Mr Wright referred to the findings of Judge Lacava in the County Court to support the proposition that the respondent's behaviour was a 'one-off'. That is, he was infatuated with his sister-in-law, and as a result, the Learned Judge believed that he was unlikely to reoffend. Mr Wright said given these circumstances, the public would be protected because there would be no repetition of what happened in relation to the sexual misconduct with the respondent's sister-in-law.
2. Mr Wright said further, that it would be appropriate to impose certain conditions on the registration which were directed at regulating his professional performance. In this regard, he suggested that the respondent should be supervised in practice for a period of time after his suspension was complete.
3. Mr Wright further said that in this particular instance, a suspension would both serve as a specific deterrent to the respondent as well as a general deterrent which would reflect the seriousness of the relevant misconduct.
4. He further stated that although the respondent does not admit the facts of sexual interference with his sister-in-law, he nonetheless has an insight as to the problems that occur and in future, he would take action that would not put himself in a position where accusations of that nature could be made.
5. Mr Wright also referred us to a number of cases where there had been sexual misconduct by a health professional, which had not resulted in cancellation. In particular, he referred us to Ha v Pharmacy Board of Victoria [2002] VSC 322 (Ha). In that case, Mr Ha had indecently assaulted two prospective employees aged 20 and 14 years. He was dealt with at the Magistrates' Court and on appeal was sentenced without conviction to a Community Based Order and a fine in relation to the same conduct. Justice Gillard accepted reports which provided cogent evidence that the possibility of the appellant offending again was extremely remote. Justice Gillard set aside the suspension of the registration for three months imposed by the Board and instead reprimanded the appellant and imposed conditions upon his registration.

1. We agree with both counsel that it is important that we consider public safety. It may well be, as Judge Lacava found, that the respondent was infatuated with his sister-in-law which was the cause of his conduct. However, it must be realised that the respondent at the time of his conduct was in a position of trust and power in relation to his sister-in-law. He was an adult that had care and control of the teenage child. In pursuing the course which the respondent did, he breached that trust and care. We note, that there is a similar trust and care between a dentist and a patient. Therefore, it is not beyond the realms of probability that the public could envisage, if the respondent was allowed to practice now or in the near or medium future, that there could be a breach of trust by the respondent towards one of his patients. The fact that the respondent has not acted in that way in the past, in our view, does not suggest, given the circumstances, that it could not happen in the future.
2. On the evidence that was provided to us, we are unable to come to any view as to when it would be likely in the future that the respondent, if he was allowed to practice, would be able to do so with the confidence of the public. That is something that would need to be determined over a period of time.
3. Although Judge Lacava allowed the appeal from the Magistrates' Court in relation to sentence by reducing the imprisonment to a 300 hour Community Based Order, we do not believe that, in itself, the Community Based Order is sufficient to show that Judge Lacava did not consider the offences for which he convicted the respondent to be extremely serious. This situation is different from that of Ha's case, where Mr Ha was sentenced without conviction to a Community Based Order and a fine. In this particular instance, the respondent has been convicted of all nine charges. Further, the respondent's conduct continued over a period of two years.
4. We note, that when Judge Lacava sentenced the respondent to a Community Based Order, he took into account the fact that the respondent had lost his income and that he had a wife and two young children dependent upon him. He stated, at [19]-[20]:

At the time of these offences, you were a young professional dentist and that profession has been lost to you. ...

As Mr Heliotis put it, you 'have gone from being a respected dentist on a high income to being a disrespected fork lift driver on a modest to low income'. This offending does not relate in any way to your work as a dentist. Your fall from grace in disgrace is complete and I am sure you appreciate that this has all been brought about by your own doing. In arriving at a sentence I have taken all of this into account.

1. On the question of specific deterrence, while we are of the view on the scant material before us that it is probably unlikely that the respondent would offend again, because the material was so scant, it is a matter that we are unable to reach a proper view. Even though we were told that the respondent was undergoing counselling, we were not presented with any psychiatric or psychological evidence whatsoever.
2. In relation to general deterrence, we were not referred to, nor were we able to find any authority, where the relevant health professional had been convicted of an offence involving sexual misconduct against a child, and that professional's registration being suspended rather than cancelled.
3. We have formed the view, that for there to be proper general deterrence in this case, a cancellation of the registration rather than suspension is appropriate.
4. In relation to the question of public confidence in the dental profession, we have come to the view that nothing less than cancellation will maintain that confidence. As we have stated, both adults and children attend dentists with the expectation, that the person that the dentist that is treating them will not have been involved in sexual misconduct with a teenage girl with whom that dentist was entrusted with the care and well-being. As we have stated, the position of trust between a dentist and a patient and the care of a child are somewhat similar to the present situation.
5. Thus, to sum up our view in relation to determination, we believe that nothing less than cancellation would be sufficient to protect the public, act as both general and specific deterrence and maintain the public's confidence in the dental profession.
6. We note, that paragraph (c) of the definition of professional misconduct in the National Law refers to professional misconduct as 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession'. The respondent has admitted that he is not a fit and proper person in the agreed statement of facts, proposed findings and determinations. That being the case, it necessarily follows that at the present time he is not a fit and proper person to practice as a dentist. As we have previously stated, we are unable to determine on the evidence if and when the respondent would become a fit and proper person to practice as a dentist. We believe, that given the circumstances it is appropriate that his registration be cancelled and when he reapplies for registration, the Board would be in a position then to determine whether he is a fit and proper person to be practising as a dentist.
7. Given these circumstances, we are unable to accept the submission of Mr Wright that the respondent should be suspended for a period of time. Rather, we are of the view that his registration should be cancelled.
8. In considering the period of time when it would be permissible for the respondent to again apply for registration, we take into account the following:
   • (a) his registration as a dentist has already been suspended by the Dental Council of New South Wales and the respondent has provided an undertaking to AHPRA not to practise since November 2017;
   • (b) he has had no previous convictions;
   • (c) Judge Lacava was of the view that the circumstances that led to the respondent's sexual misbehaviour was his infatuation with his sister-in-law;
   • (d) that he made a false declaration to the Board, however we accept the fact that the declaration may have been inadvertent; and
   • (e) the respondent's failure to notify the Board of his charges might also have been inadvertent.
9. Given all these factors, we are not inclined to accept the applicant's proposal through its counsel, Ms Holmes, that there should be an eight year period imposed on the respondent before he can apply for reregistration. In our view, a three year period before the respondent can apply for reregistration is appropriate. In that time, the applicant will be able to judge, and the respondent may be able to show, that he is again a fit and proper person to be registered as a dental professional. At this particular time, the signs would appear to be positive. However, it is impossible for us to 'look into a crystal ball'. At the present time, the respondent appears unfit to practice. Therefore, we believe that a period of three years before the respondent can apply to be reregistered is appropriate in this instance.
10. Before we leave the question of determination, it is noted, as has been referred to earlier, that both parties have agreed that the respondent will be reprimanded. We believe that is appropriate in the circumstances.

1. Ms Holmes submitted that pursuant to s.196(4)(b) of the National Law, the respondent should be precluded from providing any health service or specific health service. She did say however that she did not wish to preclude him from providing health services where he would not come into contact with members of the public. For example, being a dental technician.
2. In our view, we do not believe it is appropriate or possible to make orders pursuant to s.196(4)(b) of the National Law as the same would be likely to create uncertainty. For example, it is difficult to say whether the role of a chairside assistant to a dentist whilst undertaking intraoral procedures would be providing a health service, or whether a practice manager or receptionist would be providing a health service. In addition, having determined to disqualify the respondent for three years under s.196(4)(a), s.196(4)(b) cannot apply as these two clauses are mutually exclusive by use of the conjunction or. Given these circumstances, we are of the view that the orders we intend to make in relation to reprimand and cancellation are sufficient. In any event, we do not believe, given the criteria we have discussed above, it is appropriate to make the orders sought pursuant to s.196(4)(b) of the National Law.

1. Thus, in conclusion, we find that:
   • (a) allegations one and two have been made out;
   • (b) the respondent is guilty of professional misconduct in relation to each charge;
   • (c) the respondent is reprimanded;
   • (d) the respondent's registration is cancelled; and
   • (e) the respondent is prohibited from applying to be reregistered as a dentist for a period of three years from the date of these orders.