1. The complainant bears the onus of proving the alleged conduct. The respondent does not, at any stage of the proceedings, bear any onus.
2. The standard of proof in professional disciplinary proceedings is well-established. The standard is on the balance of probabilities. Allegations must be proved to the reasonable satisfaction of the Tribunal, taking into account the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.

1. The parties filed a book of documents in three volumes, Exhibit C1, and a Statement of Agreed Facts, Exhibit C2. The Statement of Agreed Facts contained agreement as to the allegations in the complaint together with further detail as to the circumstances surrounding the relevant conduct. There were no facts in dispute, although there was some argument as to what inferences should be drawn from the agreed facts.
2. The following is a summary of the facts agreed.
3. The respondent embarked upon a scheme referred to as 'the delayed claiming practice' which involved her employees. The 20 patients listed in the schedule were told by the respondent or her employees at about the time of their first consultation that if they obtained health insurance by joining a private health fund, they would not be charged for their first consultation.
4. The respondent intended to, and did, make a claim on the private health fund for the first consultation, knowing that the claim was not payable because the private health funds had a two-month waiting period.
5. The respondent had a financial interest in the delayed claiming practice in that it enabled the clinic to attract patients by offering a free initial consultation when in fact the respondent would wrongfully receive payment from the private health insurer. It thereby gave the respondent an advantage over other practitioners.
6. As to the alteration of the date of consultation in the clinical records, this was done for the sole purpose of concealing the delayed claiming practice or making it more difficult to detect. The individual records of patients in the book of documents showed that typically, the respondent would perform the first consultation, then wait for two months or a little more, and then make a claim for benefits on the basis that the first consultation occurred on the date that the claim was made.
7. The total amount wrongfully obtained from five private health funds was $8,598.69. After the allegations arose, the respondent repaid this amount to the respective private health funds.
8. The statement of agreed facts noted in paragraph 16.1 that the respondent's conduct in relation to the delayed claiming practice was inconsistent with Clause 1.2 of the applicable professional Code of Conduct in that she acted dishonestly and did not demonstrate the professional values expected of a registered dental practitioner in that she did not act ethically and in a trustworthy manner, and did not display the qualities of integrity, truthfulness and dependability.
9. The respondent admitted that the conduct constituted professional misconduct within the meaning of paragraphs (a) and (b) of the definition of 'professional misconduct' in s 5 of the National Law.
10. The statement of agreed facts also noted that there was no complaint made in relation to the respondent's clinical skill.
11. The statement of agreed facts is lengthy, and the above is not intended to mention all matters contained in it.

Initial response to allegations by the respondent

1. The complainant's counsel made detailed submissions to the effect that we should place significant reliance on the initial response of the respondent where, it was submitted, the respondent did not make full and honest admissions. This submission was put in the context of insight by the respondent.
2. The respondent was provided with detailed allegations on 11 January 2019.[2] By document dated 27 February 2019,[3] the respondent gave her response. At para 4.3, she stated,

Prior to receipt of the Complaint, I did not know the conduct was wrong and in hindsight I acknowledge that it was stupid and naïve and was the result of my inexperience in front of house and practice management duties.

3. The respondent now admits that she knew that the conduct was wrong at all material times, and it is clear to us that this must have been so. Counsel for the respondent emphasised that the seriousness of the conduct became apparent to the respondent over time.
4. The complainant's counsel referred to paras 5.4.3 and 5.4.4 of the response to the notification,[4] which state,

5.4.3 [LV, LJ] and I altered the claim dates of dental treatment to a future date, following the expiration of relevant health fund waiting periods to enable payment of the rebate. > > 5.4.4 the clinical records and particularly the date of consultation were otherwise unaltered.

5. The complainant argues that this is not a true reflection of the process that occurred. In fact the alterations were carried out by a more complex procedure. Ordinarily, alterations can be made to clinical notes, but the fact of alteration is clearly shown. With these alterations, the method used was more elaborate and was intended to conceal the fact that an alteration was made.
6. We do not place any real significance on this statement by the respondent. Whilst the respondent could have made more explicit concessions, we do not regard the respondent's statement as indicating an intention to mislead.
7. The complainant's counsel also referred to para 5.6 of the response to the notification, which stated,

To the best of my recollection, I believe that the first time I found out [about the delayed claiming practice] was in about July 2018 when [LJ] informed me of the process. I am mortified that I did not stop the payments from being processed once I learned it was happening. I simply did not know it was wrong.

8. The fact is that the respondent did know of the delayed claiming practice at all material times, and knew it was wrong at all material times. This was later admitted. We find that the respondent's statement reflects badly on her, even though she later made admissions on this point.
9. The complainant's counsel also referred to a text message sent on 9 August 2019 by an employee of the respondent to a patient[5] after the allegations were made. It states,

G'day [name of patient], I hope you are well. You may remember when you first came in to Prospective Smiles I altered the date of some of the claims so I could claim it back on insurance (as you didn't have insurance on the date of the treatment). We have since learnt that this was incorrect practice (all claims must be made on the day of the treatment) and as a result I have refunded these claims to the health insurer. I can assure you that you have in no way been adversely affected. I'm sorry for this mistake and can assure you it won't happen again. Please let me know if you'd like to discuss it further.

10. We find that this was an overly favourable view of the dishonest conduct. The respondent was at all times aware that it was an incorrect (and dishonest) practice. The statement was made to a patient and not to a representative of the Board, which makes it less significant, but it still reflects badly on the respondent.
11. The complainant's counsel also referred to the respondent's written response[6] to an independent expert's report on the misconduct. At para 2.10 the respondent acknowledges that, as the person ultimately responsible for ensuring her and the clinic's compliance with the code she should have taken greater responsibility in relation to practice management at the clinic, as opposed to reliance on employees.
12. We find that this statement incorrectly gives a clear impression that the employees of the clinic were primarily responsible for the dishonesty and the fault of the respondent could be characterised as a failure to properly supervise them. As such, the response was misleading.
13. Counsel for the respondent argued that this statement did correctly acknowledge that the respondent was responsible for the actions of her employees, which is correct, but we still regard the response as misleading.
14. The complainant's counsel also referred to documents[7] concerning the mentoring of the respondent that took place prior to the hearing. In a summary written by the respondent, she stated,[8]

I am extremely disappointed in what I did in this matter when I learned that I had been completely wrong in setting up the health fund claims.

15. The respondent knew at all material times that the conduct was wrong and dishonest. The respondent does not dispute this.
16. Counsel for the respondent submitted that if the whole document is considered, the respondent has shown significant insight into the wrongfulness of her conduct. We accept that the respondent has undergone mentoring and that the mentoring report by the respondent does demonstrate insight into the wrongfulness of her conduct. Also, the reports by her mentor[9] indicate that the respondent has insight. Notwithstanding this, the statement considered above does cause us some concern.
17. Counsel for the complainant also submitted that the response of the respondent dated 23 May 2022 admitted that the conduct was unprofessional conduct, but denied that it was professional misconduct. The respondent now admits that the conduct amounted to professional misconduct.
18. We do not place any significance on this. A health practitioner should admit allegations of fact which are true, but the legal difference between unprofessional conduct and professional misconduct is subtle and is not a question of fact.
19. Counsel for the respondent submitted that the fact that the respondent accepted a statement of agreed facts showed that the respondent has acknowledged the facts about the conduct. The agreed facts did cover all of the essential points such that there was no need for any oral evidence to be taken from witnesses. We accept that this is a relevant consideration in the context of insight.
20. Where a health practitioner is confronted with allegations of misconduct, the right and proper course for that practitioner to take is to acknowledge the truth of factual allegations in full and not seek to conceal or minimise any wrongfulness by denying relevant facts that the practitioner knows to be true.[10] We find that the respondent did initially seek to minimise the extent of her admitted misconduct, but that she now has appropriate insight into the wrongfulness of her conduct.

Amendment to the National Law - addition of s 3A

1. The National Law was amended on 21 October 2022 to modify s 3 and add s 3A, which contains guiding principles for the national registration and accreditation scheme.
2. We take the view that the amendments have not changed the law as to objectives and guiding principles as related to this matter, but have confirmed the law as previously applied. It is, and has been, clear that the main guiding principle of the national registration and accreditation scheme is that the following are paramount -
   1. Protection of the public;
   2. Public confidence in the safety of services provided by registered health practitioners and students.

Other guiding principles include that restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. Counsel for the complainant referred to various authorities. We set out the relevant considerations arising from those decisions.
2. Medical Board of Australia v Singh.[11] Paragraph 28 of the sanctions portion of that decision (at the end of the main decision) sets out a principle that we accept. The decision of the WA State Administrative Tribunal states,

28. The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations ...

3. In para 30, the decision sets out 12 matters for consideration in decisions about sanctions. It states (omitting authorities cited),

30. In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are: > > 1. Any need to protect the public against further misconduct by the practitioner.

4. The need to protect the public through general deterrence of other practitioners from similar conduct.
5. The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.
6. In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.

5. Whether the practitioner has breached any: > > a. Act; > > b. Regulations;

1. Guidelines or Code of Conduct, issued by the relevant professional body; and

d. whether the practitioner has done so knowingly.

1. Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
2. Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
3. The practitioner's disciplinary history.
4. Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
5. The desirability of making available to the public any special skills possessed by the practitioner.
6. The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice.
7. The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive."

1. We accept the agreed facts as set out in the statement of agreed facts. We have set out some findings above.
2. We also accept that the conduct amounted to professional misconduct.
3. The respondent has admitted that she failed to disclose that she had a potential conflict of interest, namely a financial interest, in the patients purchasing private health insurance.
4. The complainant went further and raised a question as to whether the advice given by the respondent to patients that they should take out private health insurance was good advice and beneficial to the patients.
5. We have considered the facts before us and we accept the submission of the respondent that there is no evidence that the respondent ever gave advice to patients that she did not consider to be in the patient's best interest, or that any advice was not in fact in the patient's best interest.

1. We find that the misconduct comprising the delayed claiming practice was dishonest. Indeed, this has been agreed by the parties. The allegations and admissions cover matters wider than simple dishonesty, but we see that dominant character of the misconduct as dishonesty. We consider some authorities about dishonesty.
2. In Medical Board of Australia v Lal,[12] the WA State Administrative Tribunal said,

Honesty is fundamental to the concept of professionalism. Calculated dishonesty of this magnitude, in such a range of contexts, would seem to be inimical to membership of a profession.

3. In the English case of Nicholas-Pillai v General Medical Counsel,[13] Mitting J of the High Court of Justice said,

Dishonesty and the maintenance of clinical records does go to the heart of the public's trust in medical practitioners. It is, as Mr Spencer acknowledges, a very serious matter for a doctor to be found to have prepared clinical notes with a view to misleading, and dishonestly.

4. In Medical Board of Australia v Win,[14] the Victorian Civil and Administrative Tribunal said at paras 43-44,
   1. The honesty and reliability of health practitioners is essential to ensuring that patients receive proper care and that patients and other practitioners may place trust in the expertise of those providing health care. It is also essential when practitioners are dealing with the Board and other regulatory agencies - those bodies rely on practitioners honestly providing information which is important to decisions regarding registration and other matters.
   2. It is often the case that medical practitioners are asked to provide certificates or opinions in respect of patient's Medicare claims, their capacity to attend work, study or undertake other activities and in connection with workers' compensation and transport accident claims. Medical practitioners are also often asked to witness statutory declarations. Medical practitioners are relied upon by various organisations and the community at large to undertake these tasks honestly, mindful of their seriousness, and responsibly given the reliance that will be placed on their professional obligations and their word.
5. Insofar as these decisions refer to medical practitioners, the point made is equally applicable to dental practitioners. It is important that the public has confidence in the honesty and integrity of all health practitioners.
6. Counsel for the complainant referred to the decision of the SA Health Practitioners Tribunal in Medical Board of Australia v Soo.[15] That case concerned a physiotherapist who backdated the dates of patient visits and dishonestly claimed Medicare benefits. She also misconducted herself by claims splitting to private health insurers. The amount to be refunded to health funds was contested. The amount was somewhere between $8,998 and $31,343.
7. In para 64, the Tribunal said,
   1. The Tribunal will impose its sanctions having regard to Ms Soo's multiple acts of breach of trust towards the health funds including her multiple failures to be honest with her dealings with them and it finds of no weight whether the amounts outstanding are $8,998 or $31,343.
8. We take the view that the Tribunal in the Soo case had no option but to take that course. The extent of the dishonesty had not been ascertained by the time the sanctions decision was made. Counsel for the complainant submitted that the amount of money dishonestly obtained is not a matter of significance. We do not accept that in the present case. Rather, we consider that the amount of money dishonestly obtained is an indicator of the extent of the dishonesty, and is one consideration that we should take into account in our decision as to the appropriate sanction to impose.
9. The Soo decision sets out considerations that arise from the fact that the respondent in that case disputed allegations right up to and during the hearing. That is not the situation in the case now under our consideration.
10. In the context of varying character of dishonesty in differing circumstances, we note the decision of the NSW Physiotherapy Tribunal in Health Care Complaints Commission v Trac Ha.[16] In that case, the practitioner made claims on a health benefit fund for services for fictitious patients that were not treated by him. These comprised up to 10% to 15% of claims made around August 2008 and a further 26 occasions in November 2021 to May 2002 and a further 11 occasions in November 2007 to December 2007.[17]
11. We regard that as a more serious form of dishonesty than in the present case before us, where the services were actually performed for real patients. On the other hand, both involve dishonestly receiving a payment from a health benefit fund to which the practitioner was not entitled. There is a difference in the level of seriousness in the two situations, but the difference is only a matter of degree.
12. The National Law requires us to consider as paramount the protection of the public and public confidence in the safety of services provided by registered health practitioners. Sanctions are not a punishment of the practitioner.
13. Protection of the public has two aspects. Firstly, the sanction imposed has as an objective that the practitioner does not commit the same or similar misconduct in the future. Secondly, the sanction acts as a warning to other practitioners that if they engage in such misconduct, there will be serious consequences.
14. Sanctions also demonstrate to the public that they may have confidence in the scheme for the regulation of practitioners because they can see that misconduct is taken seriously, and appropriate sanctions are imposed whenever misconduct is detected.
15. We are satisfied that the respondent has demonstrated remorse and insight. She has acknowledged her misconduct and accepted the statement of agreed facts, which covers virtually all facts that could potentially be disputed. She has acknowledged that her conduct was professional misconduct.
16. She has undergone mentoring with Dr Ho. She has also undergone mentoring with Dr Milford. She has undergone educational training with Dr McIntosh. All of these resulted in favourable reports. The respondent has written a report about the mentoring by Dr Milford.
17. The fact that a complaint has been issued and proceedings commenced in this Tribunal has undoubtedly brought home to the respondent the error of her ways. We consider that it is most unlikely that the respondent will commit any similar breaches in the future. In short, we consider that she has learned her lesson.
18. The above findings relate to the need to protect the public against further misconduct by the respondent. We now consider the need to protect the public through general deterrence of other practitioners from similar conduct and the need to protect the public by reinforcing high professional standards by indicating disapproval. We consider that this indicates a greater sanction than does the risk of the respondent committing similar breaches in future.
19. We consider the personal circumstances of the respondent. Although we consider these, they cannot override considerations of protection of the public. The respondent is now 40 years old. She obtained her Bachelor of Dental Surgery in 2008 and became registered in January 2009.
20. At all material times relevant to this matter, she has been the owner and only registered dental practitioner of Prospective Smiles Dental Clinic at Prospect. A period of suspension would force her to close her dental practice for the period of suspension, or alternatively pay a locum to perform the dental work, if a locum could be obtained. She employs others in the practice. A suspension is a serious sanction in these circumstances.
21. She has been permitted to continue to practice during the investigations and proceedings for this matter. There is no suggestion of any misconduct prior to the present matter.
22. We note the favourable character reference from the public officer of the Adelaide Nepalese Cricket Association.[18] This is of some relevance, but does not detract from the regard that we must have for the seriousness of the conduct of the respondent.
23. Agreement has been reached between the parties as to the appropriate sanctions, subject to a contest as to the appropriate period of suspension that should be imposed. The agreement is for;

(2) Conditions relating to a quarterly audit of billing practices, as detailed by the parties.

(3) Suspension for a period. The complainant seeks 6 months and the respondent seeks a short period such as one month.

(4) There was no argument against the respondent having to pay costs at the hearing, but since then, the respondent's solicitors have requested an opportunity to make submissions on costs.

1. We will reserve the question of costs and allow written submissions on this point. The Tribunal will consider written submissions and make a decision as to costs based on them, unless it deems it necessary to arrange a further hearing.
2. The parties have also agreed that it would be appropriate to defer any period of suspension for approximately 28 days from the decision to allow the respondent time to make arrangements for the ongoing treatment of her patients. The parties also agree that an appropriate order should be made to ensure that the names of patients and employees are kept confidential.
3. We are not bound to accept the agreement between the parties, but in this case, we are of the opinion that it does reflect both an appropriate approach to sanctions and also appropriate parameters for the period of suspension. We therefore now consider the appropriate period of suspension.

1. It is always difficult to rely upon other cases to indicate an appropriate period of suspension. The considerations in every case are different. Nonetheless, we would be failing in our duty if we did not endeavour to reach a decision that is reasonably consistent with previous decisions.
2. We were referred to various decisions on sanctions. We set out a summary of decisions that we consider may be relevant. We only refer to the suspension and fine components of the sanctions and omit reference to other aspects of the sanctions imposed.
3. In Dental Board of Australia v Lozanova,[19] a dental practitioner obtained payment for treatment that was not provided in the sum of $4,066.60. She refunded this amount after detection. She did intend to provide the treatment later. The practitioner was fined $5,000 and suspended for two months.
4. In Pharmacy Board of Australia v Hopkinson,[20] a pharmacist was convicted of dishonestly obtaining $22,418 and was fined $7,500. He made 71 false claims for items that he did not dispense. He was suspended for six months.
5. In Medical Board of Australia v Mazumdar,[21] a medical practitioner fraudulently obtained $44,539.78 by systematic overcharging under the Victorian Accident Compensation Act 1985. He was prosecuted, convicted and fined $5,000 and given a community service order. The Tribunal suspended his registration for six months. This decision referred to other cases, namely;
   • Psychology Board of Australia v Nguyen[22] - Frauds of $50,684.12 plus $14,770.00 - convicted - three month suspension.
   • Osteopathy Board of Australia v Rowe[23] - Frauds of $10,089.60 plus $3,970.60 - convicted and fined $21,000 - three month suspension.
   • Medical Board of Australia v Bajpe[24] - fraud of $15,435.85 - convicted and fined $56,250 - failed to inform board - negligible remorse or insight - registration cancelled and disqualified for two years.
6. Having regard to our findings and to other decisions on sanctions, we find that the appropriate period for suspension is four months. In reaching this conclusion, we remind ourselves of all of the allegations, including allegation four which is of a different nature to the others, and not as serious.

1. The Tribunal decides pursuant to s 196(1) of the National Law that:

1.a. The respondent has behaved in a way that constitutes professional misconduct.

2. The Tribunal imposes the following disciplinary action:

2.b. The Conditions in the attachment hereto are placed on the respondent's registration to take effect upon expiration of the suspension.

2.c. The review period for the purposes of s 125(6) of the National Law is 14 months from the date of this decision.

2.d. The respondent's registration as a dental practitioner is suspended for a period of four months, commencing at the beginning of Monday 6 February 2023.

3.a. The applicant may file written submissions on costs of the proceedings within seven days of the date of this decision;

3.b. The respondent may file a response within seven days thereafter;

3.c. The applicant may file a reply within seven days thereafter.

1. Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013, the Tribunal prohibits the publication of the name of any patient or employee of the respondent's practice or the notifier of the allegations, or of any information tending to identify such persons.

SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

1. Following the Practitioner's return to practice, the Practitioner must submit to audits of her practice (the audit), including any supporting records, within three months of returning to practice and thereafter on a quarterly basis for a period of 12 months, by permitting an auditor (the auditor) approved by the Dental Board of Australia (the Board) to attend any and all places of practice (public and private) for the purpose of the audits and by permitting the auditor to provide reports in relation to the findings of the audit. The audit and the audit report are to focus on the Practitioner's billing practices and must include a sample of the Practitioner's billing and supporting records.
2. Within one month of returning to practice, the Practitioner must provide to Ahpra:

(a) nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Board > > (b) acknowledgement, on the approved form (HPN12), that Ahpra will seek reports from the approved auditor at the conclusion of each audit, and > > (c) acknowledgement, on the approved form (HPNA12), from the nominated auditor.

3. Within 14 days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the area of concerns for the Board will be addressed. The audit(s) will take the form determined by the auditor.
4. In the event an approved auditor is no longer willing or able to provide the audit required, the Practitioner must notify Ahpra within fourteen days of becoming aware of this and provide a new nomination of a proposed auditor(s) to the Board in the same terms as the previous nomination of auditor(s).

1. Within 21 days of returning to practice the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and the Practitioner will be required to provide the same form:

(a) within seven days of the commencement of practice at each and every subsequent place of practice, and > > (b) within seven days of each and every notice of any subsequent alteration of these conditions.

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

1. [1] The National Law is found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2013 (the Act). Pursuant to s 4 of the Act, the National Law forms part of the law of this jurisdiction.

[9] Book of documents pp 1118-1120 and 1125 to 1127.

[10] Medical Board of Australia v Soo [2017] SAHPT 10 at [23-24].

[11] [2017] WASAT 33.

[12] [2017] WASAT 23 at para 113.

[13] [2009] EWHC 1048 (Admin) at para 25.

[14] [2015] VCAT 1289.

[15] [2017] SAHPT 10.

[16] [2012] NSWPYT 2. The sanctions decision is at [2013] NSWPYT 1.

[17] [2012] NSWPYT 2 at paras 32, 52 and 121.

[19] [2012] VCAT 1943.

[20] [2018] VCAT 982.

[21] [2017] VCAT 1965.

[22] [2011] VCAT 2437.

[23] [2014] VCAT 867.

[24] [2010] VCAT 1439.