1. Dr Creighton is reprimanded under s 196(2)(a) of the National Law.
2. Conditions are imposed on Dr Creighton's registration under s196(2)(b) of the National Law as follows:
3. Undertake education

1. The Practitioner must undertake and successfully complete a program of education approved by the Dental Board of Australia (the Board) including a reflective practice report, in relation to the provision of conscious sedation including the safe use of drugs, treatment planning and informed consent for patients whose dental procedure is being undertaken by another dentist or dental specialist. Special attention should be paid to the 'team nature' of combined dental and conscious sedation procedures. 2. Within one month of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN11): 1. nominate a person to be approved by the Board to act as educator, and 2. provide acknowledgement that AHPRA will obtain a report from the approved educator at the conclusion of the education.

1. The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.

1. The education must consist of a minimum number of 20 hours. 2. The Practitioner must complete the education within six months of the notice of the Board's approval of the education. 3. Within one month of the completion of the education, the Practitioner must provide to AHPRA: 1. Evidence of successful completion of the education. 2. A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.
2. Costs

All costs associated with compliance with the conditions on registration are at the Practitioner's own expense.

1. On 5 August 2015, Dr Creighton acted as dental sedationist in relation to a complex procedure carried out on a female patient 'in the chair' at a suburban general dental practice. The procedure was a full extraction of eight upper teeth, and seven lower teeth of the patient, and the insertion of eight titanium dental implants. It was carried out by Dr Vinoth Arumugam.[1] It was planned for the procedure to take three to four hours. But it ended up taking approximately seven hours.
2. Following a complaint from the patient, the applicant (Board) commenced an investigation into Dr Creighton's conduct of the procedure as seditionist under the Health Practitioner Regulation National Law Act (National Law).[2] Ultimately, two allegations have been referred to VCAT. The first concerns the fact that Dr Creighton inserted a urinary catheter when that was outside the scope of his endorsement as a dental sedationist. The second allegation is that he did not provide good patient care in the course of that procedure, by administering a quantity and combination of medications to sedate his patient over an unacceptable length of time. One aspect of this is a contention that she was unconscious for part of the procedure, instead of remaining conscious throughout, as is necessarily required to be the case where conscious sedation is provided (as was the case here). To the extent she lost consciousness, the risks to the patient were increased.
3. On 23 March 2016, the Board took immediate action by accepting a signed undertaking from Dr Creighton that he would not use urinary catheters in the provision of conscious sedation services to dental patients. Dr Creighton has been fully compliant with that condition.
4. On 23 March 2018, this application was brought by the Board to VCAT. Following various interlocutory steps and the conduct of negotiations, an Agreed Statement of Facts and Proposed Findings and Determinations was filed, dated 7 November 2018 (Agreed Statement). The matter was set down for a partially contested hearing before VCAT.
5. That hearing, on 10 April 2019, was conducted by way of submissions only. No oral evidence was led. We had reference to the statements of Dr Creighton, and various other witnesses, including experts, as described below.
6. In the Agreed Statement, Dr Creighton acknowledges that in placing the indwelling urinary catheter, he practised outside the scope of his endorsement as a dental sedationist. He also acknowledges and admits that he engaged in a serious error of professional judgement in performing the extended duration procedure and in placing the catheter.
7. Through his counsel, Dr Creighton indicated that he had now come to realise that he should not have placed the catheter, nor carried out extended sedation. He now accepts conscious sedation should be for no longer than 120 minutes, which allows for a procedure of no longer than 90 minutes' duration.
8. Dr Creighton is a dentist of 26 years' experience. He had become endorsed as a conscious sedationist in 2010, following completion of a Graduate Diploma in Clinical Dentistry (Conscious Sedation and Pain Control) at the University of Sydney.
9. The circumstances in which he made these errors of judgement are set out in the Agreed Statement which appears below. The parties agree on all matters in the Agreed Statement, save that Dr Creighton does not agree with the statement at (ix) of the Particulars concerning allegation 2 - that the patient was not conscious for the duration of the procedure and did not respond to verbal commands or tactile stimulation.
10. The second difference between the parties is that while the Board contends that Dr Creighton's conduct in relation to both matters comprises professional misconduct, he contends it comprises only unprofessional conduct in each case.
11. There is, however, agreement between the parties as to what the disposition should be, regardless of the above differences: a reprimand, plus a minimum of 20 hours of one on one education in relation to the provision of conscious sedation, subject to the Board's approval.
12. As for the use of urinary catheters, the Board is now satisfied with Dr Creighton 's assurances - repeated in this hearing - that he will never in the future catheterise patients where conscious sedation is provided. In the circumstances, the Board does not seek that a formal undertaking be given by Dr Creighton to refrain from catheterisation. We are similarly satisfied this is not necessary here, and so we have no concerns about the Board's intention to lift the condition it imposed by way of immediate action on 23 March 2016.
13. The decision as to what findings and determinations are made is for VCAT alone. However, the law requires that we should not depart from an agreed position reached between the parties where it is, broadly speaking, within the permissible range.[3] As the High Court said in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors[4] there is a strong public interest in according appropriate weight to proposed determinations which are agreed between the parties.

AGREED STATEMENT OF FACTS AND PROPOSED FINDINGS AND DETERMINATIONS

1. Background
   • 1.1 Dr Barry Creighton (Dr Creighton) is a registered dental practitioner who was first registered on 23 December 1992.
   • 1.2 Dr Creighton completed a Graduate Diploma in Clinical Dentistry (Conscious Sedation and Pain Control) at the University of Sydney in 2010.
   • 1.3 Dr Creighton holds an endorsement as a conscious sedation practitioner, which he obtained following completion of the abovementioned Graduate Diploma.
   • 1.4 The Dental Board of Australia (Board) was established and replaced the previous state and territory boards (or participating jurisdictions and co-regulatory jurisdictions) on 1 July 2010. Accordingly, Dr Creighton has been subject to the Health Practitioner Regulation National Law (National Law) since that time.
2. Dr Creighton's professional conduct
   • 2.1 On 15 July 2015, [the patient] attended V Care Dental's Frankston dental practice and was seen by Dr Vinoth Arumugam ("Dr Arumugam") for dental treatment.
   • 2.2 [the patient] consulted with Dr Arumugam and elected to have a full extraction of all existing upper and lower teeth, surgical dental implants and temporary replacement upper and lower immediate dentures (collectively, the Dental Procedures).
   • 2.3 Between on or about 15 July 2015 and 27 July 2015, [the patient] attended Dr Arumugam's practice to discuss the treatment plan for the Dental Procedures. [the patient] elected to be sedated for the duration of the Dental Procedures and was referred to Dr Creighton.
   • 2.4 Dr Arumugam had advised Dr Creighton that the treatment would take approximately four hours.
   • 2.5 On or about 23 July 2015, [the patient] attended Dr Creighton's rooms for an approximately 45 minute pre-sedation consultation. Dr Creighton assessed [the patient] as being suitable for intravenous conscious sedation.
   • 2.6 During the consultation on 23 July 2015, Dr Creighton informed [the patient] that if she elected to have the Dental Procedures under conscious sedation, a urinary catheter would be required to ensure that she remained stable throughout the procedure, given that she would be administered fluids. He informed [the patient] about what to expect, and asked her to bring a blanket to cover herself during the dental treatment.
   • 2.7 In his response to the Board, dated 3 August 2016, Dr Creighton stated that during the pre-sedation consultation he advised [the patient] that it would be unsafe to stop the procedure for a bathroom break in the middle, and that in consultations similar to [the patient]'s he provides the following options:
     • (a) having a urinary catheter placed while she is sedated; or
     • (b) if the patient did not wish to have a catheter inserted, then the patient is advised that the procedure can be broken down into more than one session; or
     • (c) the patient can make inquiries about having the procedure done under a general anaesthesia.
   • 2.8 On 5 August 2015, [the patient] attended V Care Dental's Frankston dental practice to undergo the Dental Procedures. At approximately 12.45pm on this same date, Dr Creighton brought [the patient] into the dental surgery.
   • 2.9 In his response to the Board's request for further information, dated 3 August 2016, Dr Creighton advised that on the day of the procedure, for a case involving a catheter like [the patient], the patient is brought into the dental surgery and Dr Creighton goes through his pre-anaesthetic checklist with the patient and confirms that the patient has fasted, arranged an escort to collect them after the procedure, has compression socks where indicated, and that the patient is not wearing nail polish.
   • 2.10 Following this pre-sedation check, Dr Creighton asked [the patient] to sit in the dental chair and to remove her undergarments in preparation for the insertion of the urinary catheter. Dr Creighton left the room while she did so. A female dental nurse remained in the room at all times. [the patient] then used a blanket to cover herself. After Dr Creighton inserted the urinary catheter, a sterile drape was placed over the patient, between the patient and the blanket.
   • 2.11 Dr Arumugam performed dental treatment on [the patient] for approximately seven hours, which was longer than the treatment duration estimate Dr Arumugam had provided to [the patient] and to Dr Creighton. [the patient] was sedated by Dr Creighton using fentanyl, midazolam and propofol for approximately seven hours. Sedation concluded at 7:20pm. [the patient] reports no recollection of the procedure.
   • 2.12 Dr Anthony Franzmann (Dr Franzmann), a self-employed contractor to V Care Dental, assisted Dr Arumugam, the treating dentist, to conduct the Dental Procedures including by maintaining a mouth pack and providing suction. A female dental nurse was also in attendance throughout the procedure.
   • 2.13 On 1 September 2015, the Australia Health Practitioner Regulation Agency (AHPRA), on behalf of the Board, received a notification (the Notification) from [the patient] regarding the professional conduct of Dr Arumugam.
   • 2.14 In the notification, [the patient] described dental implant treatment she received from Dr Arumugam and identified Dr Creighton as having provided sedation during the course of that procedure.
   • 2.15 On 9 December 2015, the Board wrote to Dr Creighton informing him that the Board was investigating a registered practitioner in relation to treatment of [the patient]. The investigator requested that Dr Creighton provide the Board with:
     • (a) a report detailing Dr Creighton's advice to [the patient] together with his comments; and/or
     • (b) anaesthetic records pertaining to [the patient]'s treatment.
   • 2.16 On 25 December 2015, Dr Creighton responded to the Board's request for information. The response stated that a patient is only referred to him once the treating dentist had decided to perform the treatment under intravenous conscious sedation, as opposed to being referred to him for an opinion. Dr Creighton stated that he would then assess whether or not a patient was, in his professional opinion, a suitable candidate for intravenous conscious sedation.
   • 2.17 On 9 March 2016, the Board decided under Division 8 of the National Law to commence an own motion investigation into Dr Creighton's conduct.
   • 2.18 On 16 March 2016, the Immediate Action Committee (IAC) of the Board formed the reasonable belief that Dr Creighton posed a serious risk to persons such that it was necessary to take immediate action, and proposed to take immediate action under section 156 of the National Law.
   • 2.19 On 23 March 2016, the Board decided to take immediate action by accepting a signed undertaking offered by Dr Creighton that he would not use a urinary catheter in the provision of conscious sedation services to dental patients and that he would submit to audits of his patient records to ensure compliance with the undertaking.
   • 2.20 Dr Creighton has been regularly audited by AHPRA since 23 March 2016. The audit reports all demonstrate he has been fully compliant with the undertaking.
   • 2.21 On 5 May 2016, AHPRA sent Dr Creighton's legal representatives, Meridian Lawyers a letter providing notice of the investigation and requesting information about the procedure on 5 August 2015, and as to Dr Creighton's usual practice.
   • 2.22 On 3 August 2016, Dr Creighton provided a response to the request for information. Amongst other things, he stated that:
     • (a) at the pre-sedation consultation on 23 July 2015 he informed [the patient] that she would be more comfortable having the procedure undertaken under sedation rather than under local anaesthetic alone, and that it would be easier for Dr Arumugam to do his work while she was relaxed in a dental chair;
     • (b) he advised [the patient] of alternative options if she did not want a catheter, which were that the procedure could be performed in stages (if it was suitable to be broken down into stages) with several visits of less than two clinical hours each, or, she could make inquiries about having the procedure done under general anaesthesia (in which case Dr Creighton would not be involved);
     • (c) the blanket provided by [the patient] was for her warmth and comfort and was to be placed over sterile drapes;
     • (d) [the patient]'s account that she has no recollection of the procedure is normal and desirable;
     • (e) he has experience in intubation from training at the general anaesthesia practice at the Westmead Hospital (Sydney) which was part of his 2009 post-graduate qualification; and
     • (f) he expanded his knowledge and skills in conscious sedation in dental practice from Dr Jeffrey Field (Dr Field), whom he met at the Australian Society of Dental Anaesthesiology (ASDA) Annual Scientific Meeting on 12 October 2013, at which Dr Field presented a lecture on fluid management. Dr Creighton took Dr Field on as his mentor. Dr Creighton learnt the theory and practical elements of urinary catheterisation in conscious sedation from Dr Field and worked alongside him as an assistant seditionist.
3. Referral of Allegations
   • 3.1 On 10 May 2017, the Board determined to refer the matter of Dr Creighton's conduct to the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to section 193(1)(a)(i) of the National Law because it reasonably believed that he had engaged in conduct that constituted professional misconduct.

3.2 The allegations contained in the Notice of Allegation are as follows:

Allegation 1 - Engaging in professional misconduct and/or unprofessional conduct

1. That Dr Creighton engaged in:
   • (a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct contained in section 5 of the National Law, meaning 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;

in that, on or about 5 August 2015, Dr Creighton practised outside the scope of practice of a dental practitioner endorsed in sedation, in that he placed an indwelling urinary catheter in ([the patient]) during the course of a dental procedure.

(i) at all material times, Dr Creighton was a dental practitioner who held endorsement as a conscious sedation practitioner;

(ii) on or about 15 July 2015, [the patient] attended Dr Vinoth Arumugam's (Dr Arumugam's) dental practice and elected to have a full extraction of all existing upper and lower teeth, surgical implants placed and temporary replacement upper and lower immediate dentures (dental procedure);

(iii) between on or about 15 July 2015 and 23 July 2015, [the patient] attended Dr Arumugam's dental practice and was informed about her options for sedation, including local or general anaesthetic as well as intravenous conscious sedation;

(iv) on or about 23 July 2015, [the patient] attended Dr Creighton's practice for a pre-sedation consultation, at which time, Dr Creighton advised her that:

• (A) she was suitable for conscious sedation; and

• (B) a urinary catheter would be required to ensure that she remained stable throughout the duration of the procedure as the dental procedure was estimated to take approximately four hours;

(v) on or about 5 August 2015, [the patient] attended Dr Arumugam's dental practice to undergo the dental procedure. Prior to the commencement of the dental procedure, [the patient]:

• (A) removed her lower garments, sat in the dental chair and covered herself with a blanket;

• (B) was sedated; and

• (C) an indwelling urinary catheter was placed;

(vi) the placement of a indwelling urinary catheter is outside the scope of practice of a dental practitioner endorsed in sedation.

Allegation 2 - Engaging in professional misconduct and/or unprofessional conduct

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct contained in section 5 of the National Law, meaning 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;

in that, on or about 5 August 2015, Dr Creighton failed to provide good patient care to [the patient] during the course of an elective dental procedure, by administering a quantity and combination of medications to sedate [the patient] over an unacceptable length of time.

(i) at all material times, Dr Creighton was a dental practitioner who held endorsement as a conscious sedation practitioner;

(ii) on or about 15 July 2015, [the patient] attended Dr Arumugam's dental practice and elected to have a full extraction of all existing upper and lower teeth, surgical implants placed and temporary replacement upper and lower immediate dentures (dental procedure);

(iii) between on or about 15 July 2015 and 23 July 2015, [the patient] attended Dr Arumugam's dental practice and was informed about her options for sedation, including local or general anaesthetic as well as intravenous conscious sedation;

(iv) on or about 23 July 2015, [the patient] attended Dr Creighton's practice for a presedation consultation, at which time, Dr Creighton advised her that:

• (A) she was suitable for intravenous conscious sedation; and

• (B) given the estimated duration of the dental procedure (four hours), a urinary catheter would be required to ensure that she remained stable throughout;

(v) on or about 5 August 2015, [the patient] attended Dr Arumugam's dental practice to undergo the dental procedure. Prior to the commencement of the dental procedure, [the patient], was sedated and remained sedated for the entire duration of the dental procedure;

(vi) Dr Creighton commenced sedating [the patient] by:

• (A) at 1.29pm administering 2mg of midazolam and 25mcg of fentanyl;

• (B) at 1.32pm administering a further 1mg of midazolam; and

• (C) between 1.35pm and 1.45pm, administering a 20mg of propofol when [the patient] reached a point of sedation. This total was made up of 15mg at 1.35pm and 5mg at 1.45pm. It was not a bolus dose administration of 20mg.

(vii) During the course of the dental procedure, Dr Creighton maintained sedation by:

• (A) administering 10mg doses of propofol approximately every 10 minutes; and

• (B) administering 0.5mg doses of midazolam approximately every 20 to 30 minutes;

(viii) [the patient] remained sedated for approximately seven hours;

(ix) [the patient] was not conscious for the duration of the procedure and did not respond to verbal commands or tactile stimulation; Note- This particular is denied by Dr Creighton. Dr Creighton maintains that [the patient] was consciously sedated for the duration of the procedure. Dr Creighton says she was able to (and did) respond to verbal and tactile commands and stimulation throughout the period of conscious sedation and was not unconscious at any time (see below).

(x) The Board's Guidelines - Conscious Sedation Area of Practice Endorsement (version effective from 4 June 2012 to 26 October 2015) (Guidelines) and the Board's Registration standard for endorsement in relation to conscious sedation (version effective from 1 July 2010 to 26 October 2015) (Standard), provides that:

Conscious sedation - means a drug-induced depression of consciousness during which patients respond purposefully to verbal commands, either alone or accompanied by tactile stimulation. No interventions are required to maintain a patient airway and spontaneous ventilation is adequate. Cardiovascular function is usually maintained.

General anaesthesia - means a drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation. The ability to independently maintain ventilatory function is often impaired. Patients often require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function

(xi) The Australian and New Zealand College of Anaesthetists (ANZCA) Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures PS09-2014 (July 2014), provides that:

Conscious sedation is defined as a drug-induced depression of consciousness during which patients are able to respond purposefully to verbal commands or light tactile stimulation. Interventions to maintain a patent airway, spontaneous ventilation or cardiovascular function may, in exceptional situations, be required. Conscious sedation may be achieved by a wide variety or drugs including propofol, and may accompany local anaesthesia. All conscious sedation techniques should provide a margin of safety that is wide enough to render loss of consciousness unlikely.

2.2 Dr Creighton admits that the conduct set out in Allegations 1 and 2 constitutes unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct contained in section 5 of the National Law.

2.3 Dr Creighton does not admit that his conduct constituted professional misconduct, reserves his right to make submissions before the Tribunal regarding this issue, and wishes that matter to proceed before the Tribunal for its consideration and finding.

2.4 The Board also intends to make submissions to the Tribunal about particular (ix) of Allegation 2 being established having regard to the material contained in the Tribunal Book.

1. Acknowledgements
   • 3.1 Dr Creighton acknowledges and admits that he engaged in a serious error of professional judgment in performing the extended duration procedure for [the patient] and placing a catheter.
   • 3.2 Dr Creighton has not been the subject of previous disciplinary findings relevant to his practice as a conscious sedation practitioner.

WAS THE PATIENT CONSCIOUS AND RESPONSIVE TO VERBAL AND TACTILE STIMULATION DURING THE PROCEDURE?

1. There is an important distinction between conscious sedation and unconscious anaesthesia. The latter is associated with higher risks to the patient, and should be carried out in a hospital setting - where resuscitation procedures are available, in the event of something going wrong - not in the dentist's chair at a suburban dental practice.
2. In contending that the patient was not conscious and not responsive, the Board relied on the evidence of three people: the patient herself, Dr Franzmann, who was assisting during the procedure, and an expert, Dr Greg Mahoney. He is the President of the Australian Society of Dental Anaesthesiology (ASDA) and has been a conscious sedation practitioner since 1997.
3. The Patient said she could not remember anything of the procedure, was groggy afterwards, and could not remember if Dr Creighton had been present at the end of the procedure. As the drugs she was administered have an amnesic effect, her evidence does not particularly assist us in seeking to resolve this issue.
4. Dr Franzmann is another registered dentist who was present during the procedure. He said he assisted by maintaining a throat pack in place and providing suction to protect the patient's airway. In his statement to AHPRA of 15 January 2016, he said:
   • the patient was having REM sleep and dreaming during the sedation
   • Dr Creighton told him that the patient was in REM sleep and that this could be part of an intravenous sedation experience for some patients
   • the patient moved at times during her dreaming and the dental procedure had to stop until she was still again.
5. Dr Mahoney's evidence was to the effect that Dr Creighton used far too much propofol. He said the doses of propofol which were administered to the patient would ordinarily result in unconscious sedation because the drug accumulates in the peripheral tissues, and Dr Creighton did not increase intervals between doses. He expressed the opinion that the effect of the medication given to the patient would be that it was likely that she would have been unconscious for a good portion of the procedure.
6. Dr Creighton, on the other hand, contended that at all times during the procedure, the patient was consciously sedated and not unconscious. He said she was able to (and did) respond to verbal and tactile commands and stimulation throughout the period of conscious sedation.
7. He acknowledged that loss of consciousness in the course of conscious sedation is an undesirable outcome as it places a patient at increased risk of cardiovascular, respiratory or airway compromise. He said the allegation is a serious one, and if made out would further reflect adversely on his management of the patient.
8. Dr Franzmann, in his statements, said his first involvement with the procedure was when Dr Arumugam asked him on the day it occurred, 5 August 2015, if he could assist. Dr Franzmann explained he was not involved in clinical planning for the procedure. He said he helped to keep the patient's airway clear by maintaining the throat pack in place, changing it when necessary and providing suction to protect the airway (under Dr Creighton's guidance) while Dr Arumugam provided dental treatment. He stated he had no part in the clinical aspects of care, other than the limited input described above.
9. When asked subsequently by the Board to confirm that the patient did not respond to verbal commands, and for how long she was not responsive, the reply from Dr Franzmann's solicitors of 3 September 2018 was that given the passage of time, he had no recollection with respect to those questions, and to emphasise that he was not responsible for monitoring the 'anaesthetic procedure'.
10. The result is that we are left in a state of some uncertainty about the effect and strength of Dr Franzmann's evidence. We note that, perhaps as a result of discussions between the parties (and given the agreement as to determinations) this case was conducted by way of submissions only. So there was no cross-examination of Dr Franzmann by Dr Creighton's counsel.
11. For Dr Creighton it was contended that REM sleep is not necessarily inconsistent with loss of consciousness. We received no expert medical evidence on this question.
12. Particular (x) to Allegation 2 (above) includes the definitions of conscious sedation. Dr Creighton's position was emphatically that the patient's condition did not slip from conscious sedation into unconsciousness at any stage. In terms of the key components of those definitions, his position was that no interventions were required to maintain the patient's airway. There is no suggestion to the contrary. Nor - in reference to the definition of 'general anaesthesia' - is there any basis for us to conclude that positive pressure ventilation was required to maintain breathing.
13. Similarly, in relation to the definition of conscious sedation in the ANZCA Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures (July 2014), there is little evidence on which we can conclude that the patient was not able to respond to verbal commands or tactile stimulation. Dr Creighton's position was that she did. He said he recorded her consciousness level every 10 minutes during the procedure and pointed to the observation chart in which there were ten-minutely consciousness checks were recorded, with a tick in each case.
14. At the hearing, on behalf of Dr Creighton, it was asserted that he asked the patient regularly during the procedure if she was okay, and whether she was comfortable. On one occasion, she responded to the effect that she was not, and so an extra piece of padding was placed under her back
15. Just as Dr Creighton's counsel did not seek to cross-examine Mr Franzmann, the Board's counsel did not seek to cross-examine Dr Creighton on these, or any other issues.
16. We note the Board has the onus of proof that the patient did lose consciousness during the procedure. We accept that in terms of the applicable Briginshaw[5] standard, this is a serious question, and so is not to be found proved on the basis of inexact proofs or indirect inferences.
17. In the end, the Board has not been able to satisfy us to the requisite standard that the patient did in fact lose consciousness at some stage(s) during the procedure. We accept there are ample bases for surmising that she may well have, but the evidence overall does not lead us to the required state of comfortable satisfaction that she did. Ultimately, the Tribunal is unable to determine whether or not the patient was unconscious at any time during the procedure.

1. Does Dr Creighton's conduct in each case comprise unprofessional conduct or professional misconduct? This depends on the view the Tribunal forms as to the seriousness of the conduct in each case.
2. The Board contends that Dr Creighton's conduct in relation to both the catheter and the sedation medication constitutes professional misconduct within the meaning of (a) of the definition of that term.
3. Professional misconduct is defined in s 5 of the National Law as follows:

(a) 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 training or experience; and

(b) More than one instance of unprofessional conduct that, when considered together amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) 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. This in turn invokes the definition of unprofessional conduct. Section 5 of the National Law relevantly defines this as 'professional conduct that is of a lesser standard than that which reasonably be expected of the health practitioner by the public or the practitioner's professional peers'.
2. Dr Creighton contends his conduct in both cases amounts to unprofessional conduct, but not professional misconduct.
3. We were provided with a copy of a circular dated 25 March 2016 from Dr Mahoney, in his capacity as president of the ASDA, to all members, headed 'Scope of Practice'. It stated, relevantly:

Recent correspondence from the Australian Health Practitioners Regulatory Agency (AHPRA) has prompted me to write to the membership in regard to our scope of practice.

Presuming that this correspondence was not random and relate specifically to a case before AHPRA, then this is indeed disturbing. The membership is reminded that conscious sedation is a planned elective procedure. Graduate Diploma students are taught that procedures (or treatments) should be planned to take no more than 90 mins. In some cases, small amounts of intravenous fluid may be required. Restricting the length of case (and depth of sedation) will eliminate the need to provide more elaborate fluid management techniques. If a particular treatment required a longer time than prudent then then it should be done in two parts.

One of the issues surrounding the length of a case is the professional competence of the dental operator, especially for those providing sedation services to a wide variety of dentists with varying degrees of experience. As sedation is a planned procedure, sedationists should ensure, to the best of their knowledge, that the dental operator has the necessary skills to perform the planned procedure within the advised time limit.

1. We were told that this document was circulated in response to the ASDA Council becoming aware of the circumstances of the present case involving the procedure carried out by Dr Arumugam and Dr Creighton on 5 August 2015.
2. This circular rightly evinces some alarm at what occurred in this case.

1. Given the analysis in relation to the contested issue of the consciousness of the patient above, it is convenient to deal first with the characterisation of the conduct concerning sedation.
2. As noted, Dr Creighton accepted that he made a serious error of professional judgement in performing the extended duration procedure on the patient. He acknowledged in this regard that he failed to provide good patient care.
3. The Board relied on the evidence of Dr Harrison, an experienced consultant anaesthetist, as well as the evidence of Dr Mahoney.
4. In summary, the evidence of Dr Harrison was:
   • (a) current best practice for dental conscious sedation is no more than two hours of sedation time or 90 minutes of surgical time.
   • (b) if it is anticipated that the procedure will take longer than the timeframes set out in paragraph (a) above, the procedure should be broken into segments or performed in an appropriately equipped day surgery or hospital with a qualified anaesthetist;
   • (c) the risks associated with long procedures performed under dental conscious sedation include:
     • (i) the fact that the drugs used are not designed for long procedures;
     • (ii) the risks of deep vein thrombosis (DVT) increase;
     • (iii) the need for fluid management; and
     • (iv) the fact that dental chairs are uncomfortable over time which may lead to the need for deeper sedation.
   • (d) the doses of medication used by Dr Creighton were 'huge' although the titration of them over the length of the procedure was appropriate; and
   • (e) given the procedure was initially planned to take place over three hours, it should not have been performed in an outpatient setting.
5. We also note the reference in Dr Harrison's report to the apparent lack of a 'team' approach to this procedure. In relation to dental treatment utilising conscious sedation, Dr Harrison's report stated

...there should be a free and frank discussion between all team members before the procedure starts about what is planned and all team members should be actively encouraged to speak up if they have any concerns.

1. Dr Creighton did not advance any explanation as to why he did not raise the issue of the length of the procedure with Dr Arumugam (even though it was planned to take more than twice the maximum time appropriate for procedures using conscious sedation). The Tribunal is left with the impression from the material before it, that there were two separate procedures being carried out - a dental procedure and the sedation procedure - without any indication of a clear plan integrating the two.
2. In summary, the evidence of Dr Mahoney was:
   • (a) conscious sedation procedures should last no more than 90 minutes;
   • (b) The use of continuous bolus doses of propofol to maintain the patient in a sedated state is not taught in the Graduate Diploma of Conscious Sedation and is not acceptable practice for conscious sedation;
   • (c) The medications and dosages used by Dr Creighton would likely lead to unconscious sedation;
   • (d) The procedure was too complex to be performed under sedation because:
     1. it would take too long;
     2. it requires levels of local anaesthetic in the toxic dose range;
     3. it was an invasive and difficult surgery; and
     4. there were issues with a shared airway.
   • (e) Dr Creighton showed poor judgement in seeking and accepting Dr Field's advice when he knew the appropriate sedation technique was limited to 90 minutes duration and that continuous bolus doses of propofol ought not be used; and
   • (f) Dr Creighton's conduct involved him knowingly choosing to ignore his training from the Graduate Diploma of Conscious Sedation, the advice of ASDA and the Board's Guidelines.
3. In the light of this evidence, it is clear that Dr Creighton's actions departed significantly from good practice. There is no doubt, in our view, that Dr Creighton's conduct in relation to administration of a quantity and combination of medications to sedate the patient over an unacceptable length of time was substantially below the standard reasonably expected of a registered health practitioner of his level of training or experience. Hence we find the conduct described above satisfies the definition of professional misconduct.

1. The Board again relied on the evidence of Dr Harrison and Dr Mahoney.
2. Dr Harrison's evidence was that urinary catheterisation:
   • falls outside a dentist's scope of practice
   • falls outside a dentist endorsed in sedation's scope of practice and is not taught in the Graduate Diploma of Conscious Sedation, and
   • is an invasive procedure with significant risks that ought not be done in an outpatient dental setting
3. The expert evidence of Dr Mahoney is that:
   • patients undergoing conscious sedation do not require urinary catheterisation
   • urinary catheters should only be placed in inpatients in hospital by appropriately trained personnel under the direction of a medical practitioner and related hospital protocols
   • the placement of urinary catheters is outside the scope of practice of an endorsed dental sedation is because it is neither dentistry nor a necessary adjunct treatment
   • to the extent that urinary catheterisation was required in should have been placed by an appropriately qualified nurse and not by Dr Creighton
   • Dr Jeffrey Field who has been identified by Dr Creighton as the person from whom he learned the practice of catheterisation, has never been accredited as an Australian Society of Dental Anaesthesiology (ASDA) educator and is not qualified to expand a dentist's scope of practice; and
   • Dr Creighton's conduct in placing the urinary catheter was professional misconduct in that it was well outside his scope of practice.

1. As noted, Dr Creighton has admitted that he engaged in a serious error of professional judgement in placing the catheter. By the time of the hearing, he unequivocally acknowledged that given the invasive nature of, and risks associated with, catheterisation, plus the fact that it was a new approach to fluid management in the context of the practice of dental conscious sedation, he ought to have sought specific guidance from the Board and ASDA on the issue.
2. He went on to say he had read the reports of Dr Harrison and Dr Mahoney and their views as to the scope of practice as expressed in those reports. He said he reflects that he gave inadequate independent consideration as to whether the procedure was within the scope of practice for a dental practitioner endorsed in conscious sedation.

1. Despite these unequivocal statements, a number of matters were put by counsel on his behalf in an attempt to explain why he did the things he did in the course of the procedure in August 2015, and perhaps in support of a contention his conduct should not be characterised as professional misconduct.
2. It was noted that he was introduced to the concept of the use of catheterisation by Dr Jeffrey Field, a dentist who is endorsed to administer intra-venous conscious sedation, whom he met at the ASDA Annual Scientific Meeting on 12 October 2013. Dr Field presented a lecture on fluid management. Dr Creighton said he subsequently viewed Dr Field as a mentor. He understood that Dr Field was well credentialled. He pointed to Dr Field's curriculum vitae, website and ASDA newsletters. These indicated an involvement in as an educator, editor of the ASDA newsletter, past federal Council membership of ASDA, having responsibility until 2015 for ASDA's online continuing education program and having provided 'in office sedation' since 1990.
3. In relation to this, we note the Australian Society of Dental Anaesthesiology (ASDA) is not a regulatory body, and that Dr Mahoney stated 'Dr Field has never held the title of ASDA educator'.
4. On behalf of Dr Creighton, it was put that his rationale for the use of a catheter in the present case included the following:

1. it was anticipated that the dental procedure the patient would undergo (extractions and placements of implants) would be of three to four hours duration; 2. Dr Creighton favoured an approach to fluid management during the conscious sedation which was designed to keep the patient healthy and well throughout the procedure by maintaining her electrolytes, keeping her blood pressure stable and keeping her well hydrated;

1. Dr Creighton favoured an approach to fluid management during the conscious sedation which was designed to avoid risks associated with patient dehydration due to suboptimal fluid management;

1. The fluid management employed by Dr Creighton included fluid replacement consistent with what he believed was clinically indicated and in the patient's best interests, and which he believed was supported by the Westmead Anaesthetic Manual and peer reviewed literature; 2. The use of the catheter provided a solution to the management of fluid input and output during the procedure; 3. The use of the catheter would enable [the patient] to hold the necessary volume of fluids during the procedure to achieve fluid balance whilst negating the need to stop the procedure for a bathroom break; 4. A bathroom break during the procedure would have compromised the sterile environment, been impractical and unsafe in the circumstances.
2. Indeed, in the response sent on behalf of Dr Creighton by his lawyers to AHPRA in August 2016, it was said Dr Creighton:

regarded the placement of catheter is as nothing more and nothing less than a subset or extension of his provision of conscious sedation services, and one which carried the implied endorsement of his regulatory association by reason of Dr Field having provided the education and mentoring in connection with this aspect of his practice.

1. It is clear, however, that by the time of the hearing, Dr Creighton's position had changed significantly. He now accepts that catheterisation is completely inappropriate, and has undertaken never to catheterise patients in the future when conscious sedation is provided.
2. In a similar vein, it was also submitted by Dr Creighton's counsel that it was unclear whether the Board and ASDA had the view in 2015 that urinary catheterisation was not capable of falling within a conscious sedationist's scope of practice irrespective of the practitioner's education training and competence in relation to catheterisation. He said it may be that the issue had received no prior consideration.
3. We note, however, the evidence of Dr Harrison that:

Urinary catheterisation is not taught at all, in any way in the Graduate Diploma of Conscious Sedation. It will be mentioned from now on is something that should not be done.

and the evidence of Dr Mahoney that placement of urinary catheters was, simply, beyond the scope of practice for a dental seditionist, without any reference to this only being a limitation of recent provenance.

1. Also, on behalf of Dr Creighton reference was made to the lack of an expert opinion from a person with the equivalent level of training which addresses his failure to act within his scope of practice in the particular circumstances of this case and whether his conduct was substantially below the standard reasonably expected of a practitioner of an equivalent level of training.
2. In our view however there was never at any relevant time any ambiguity about the fact that catheterisation was not appropriate for dental procedures using conscious sedation.
3. Overall, it was put that Dr Creighton held a bona fide belief at the time that there was a clinical basis and benefit to the patient in employing the fluid management technique he did. It was submitted his decision to use the catheter should not be construed as a deliberate or flagrant transgression by him of his professional obligations. He said it was misguided rather than wilful.

1. That may be so, but the evidence of the two experts is clear, and we accept it. Insertion of the urinary catheter in the patient was, simply, beyond Dr Creighton's scope of practice and that was apparent at all relevant times. It is an invasive procedure which should only be carried out in a hospital by a trained nurse in accordance with hospital protocols, not in a dentist's chair in a suburban practice.
2. We accept Dr Harrison's view that Dr Creighton, who is not a medical practitioner, placed [the patient] at significant risk of infection by inserting a urinary catheter in circumstances where he was not competent to decide whether such a course of action was required. He exposed the patient to a procedure which Dr Harrison described as 'mentally and psychologically invasive'. She was in the in the chair with her legs parted and genitals on display, naked from the waist down (in front of a dental nurse, not a Registered Nurse) with a blanket to cover her nakedness. Catheterisation is normally done by a doctor or nurse in a hospital setting, not at a suburban dental practice.
3. Further, the Tribunal notes and agrees with the point made by the Board in its immediate action decision that

... it is axiomatic that Dr Creighton could only have obtained [the patient]'s consent to treatment that is within his scope of practice. If the placement of a urinary catheter falls outside this, and if [the patient] was not explicitly aware of that fact, she cannot be said to have consented. The absence of consent is particularly significant given the invasive nature of the procedure (placement of a urinary catheter) and that [the patient] was required to be partially undressed and catheterised for approximately 7 hours.

1. In our view, in the light of the above, the only conclusion which can be drawn is that Dr Creighton's conduct in inserting the catheter was substantially below the standard reasonably expected of a registered health practitioner of his level of training or experience. Hence we find Dr Creighton's conduct in inserting the catheter comprised professional misconduct.

1. In summary, what occurred in this case was that an experienced practitioner found himself straying quite some distance from his proper scope of practice. This occurred in two ways.
2. First, he agreed to carry out conscious sedation for a procedure intended to take three - four hours, when he should not have done so for any procedure longer than 90 minutes. In doing so he exposed the patient to undue risks associated with the combination of medications used and the time over which they were administered.
3. Second, he inserted a urinary catheter in his patient. That was beyond his scope of practice. Further, it was done in an inappropriate setting, and one which, again, exposed the patient to undue risk.
4. On behalf of Dr Creighton, reference was made to his 26 years' experience in clinical dental practice. He has not been the subject of any disciplinary complaints or findings, other than the present case. In 2014, he received an Australian Dental Association (Victoria) award for his work in conscious sedation and pain control for people who avoid dental treatment due to anxiety and fear. He has been stung by the circumstances of this case. He has cooperated with the investigation, acknowledging the shortcomings of his conduct, and cooperated with the Board in the preparation of the Agreed Statement. He has acted to improve his practice by obtaining credentialling and registration of his conscious sedation endorsement, refraining from using catheters as required by the Board. We take these matters into account.
5. It is clear that in the time since the procedure was carried out, Dr Creighton has come to the realisation that his conduct was wrong, and a significant departure from his proper scope of practice. This is an important factor in our conclusion that the determinations proposed by the parties here are appropriate. Both parties submitted that the determinations proposed would be consistent with the Tribunal exercising its jurisdiction in a manner protective of the public and public confidence in the profession. We agree.
6. Dr Creighton will receive a reprimand. This carries a sting for any practitioner who values his good name, as Dr Creighton clearly does. It is a serious form of censure and condemnation of Dr Creighton on behalf of the community.
7. It is also appropriate that he complete, at his own expense, a program of education tailored to the particular issues which arose in this case. That is not to teach him that his conduct in using a catheter, and carrying out an extended duration procedure is not to be repeated. He has already become aware of that.
8. Rather, it is to consolidate his knowledge at a fundamental level as to why it is that the rationale he had for his actions at the time (quoted above) was incorrect, why those actions were well outside his scope of practice, and why they exposed his patient to undue risk (and hence comprised professional misconduct). This is so as to minimise the chances of any similar errors of judgement occurring in the future.
9. What really occurred in this case was that the dentist left the dental world and strayed into the medical world, but without the necessary level of training, and without being aware of having done so. In our view, in the circumstances of this case, the best person to provide the education which Dr Creighton requires, would be likely to be an experienced specialist medical anaesthetist. Such a person would be able to assist Dr Creighton to attain the improvements in terms of judgement, and insight which are required. This is because that person could bring a broad, holistic approach, which would consolidate the fundamental distinctions between anaesthesia and sedation.
10. We do not say that such attributes can be found exclusively amongst experienced specialist medical anaesthetists. We are conscious that the Board submitted we should not be too narrow and prescriptive in our orders. We will not mandate that. However, to the extent the Board approves a dental sedationist for this role, it will be necessary for that person have the experience, knowledge and breadth of vision we have referred to above.

[1] A separate disciplinary proceeding was brought against Dr Arumugam in relation to the same procedure. However, the issues in that case were largely separate from those in this case - Dental Board of Australia v Arumugam 2018 VCAT 2063 (21 December 2018).

[2] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[3] Medical Board of Australia v Adams [2017] VCAT 796 at [84]- [85].

[4] [2015] HCA 46; 258 CLR 482; 90 ALJR 113; 326 ALR 476.

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.