Dental Board of Australia v Dr Ho (Review and Regulation) [2019] VCAT 467

Under s 5 and 196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal finds Dr David Ho engaged in professional misconduct and unprofessional conduct as described in the reasons below.

Under s 196(2) of the National Law, the Tribunal makes the following determinations.

1. Dr Ho is required to pay, on or before 29 May 2019, a $7,000 fine to Dental Board of Australia.
2. Liberty to apply for an alteration to the date by which the fine is to be paid.

1. This case results from the Dental Board of Australia (the Board) under the Health Practitioner Regulation National Law (the National Law)[1] in February 2018 referring allegations against Dr David Ho to VCAT.
2. It serves as a stark warning to dental practitioners as to the severe consequences that flow from failing to be assiduous in renewing registration, here greatly compounded by treating patients when knowingly unregistered.
3. In 2015, Dr Ho inadvertently failed to renew his registration. For four weeks, from 7 January 2016, he practised unregistered, not realising his registration had lapsed.
4. In early February 2016, he discovered his registration had lapsed, contacted AHPRA and was advised, on 9 February 2016, that he must not practice dentistry until re-registered. The time allowed for renewal of his previous registration had lapsed.
5. Dr Ho chose to over about two weeks (4 to 19 February 2016), treat patients part way through treatment with his registration lapsed, rather than refer them to colleagues.
6. On 17 February 2016, Dr Ho applied for reregistration. In this context, it was not until 13 July 2016 that he obtained reregistration.
7. For about 6 months, his patients were unable to see him. Dr Ho has experienced remorse and embarrassment. He suffered significant financial harm. His practice presumably suffered significant harm. There is a question as to whether Dr Ho's professional indemnity insurance, although current at the time, covers him for the time he practised without registration, a serious matter for his patients and him.
8. He has had to deal with the Board's investigation, its referral of allegations to VCAT, the stress of this VCAT proceeding and now VCAT's reprimand and that he must pay a fine of $7,000 to the Board.

1. On 15 March 2019, the case came before us for hearing. Both parties were legally represented. The parties proposed that VCAT make findings and determinations concerning Dr Ho's conduct as set out below. This was in the context of a tribunal book of relevant documentary evidence.
2. On 15 March, we made provisional findings of professional misconduct (practising while unregistered) and unprofessional conduct (failure to advise the Board of his change in practice address).

1. We provisionally indicated our intention to reprimand Dr Ho and fine him $7,000, as the parties proposed, with the possibility (which did not eventuate) we would discount the fine given the financial harm he suffered over the months that passed between his application for reregistration and registration.
2. These indications were provisional because an issue had arisen as to whether VCAT has jurisdiction in a case such as this.

1. Under the National Law, VCAT has jurisdiction with respect to allegations arising against a registered health practitioner for conduct while the person was so registered (s 193).
2. VCAT also has jurisdiction with respect to allegations if a person has engaged in conduct while a registered health practitioner and the registration comes to an end (s 138).
3. The question is in the scenario of this case, where Dr Ho:

1. was a registered health practitioner; 2. his registration ended (6 January 2016);

1. he engaged in conduct (7 January to 19 February 2016); and

1. after the conduct in question was once again a registered health practitioner (13 July 2016); and 2. after that the Board referred allegations to VCAT (February 2018).

does VCAT have jurisdiction concerning allegations arising from the conduct engaged in while he was not registered?

1. This is a question of jurisdiction, based on statutory interpretation, being a question of law.
2. Deputy President Proctor has decided[2] VCAT has jurisdiction concerning conduct of a registered health practitioner where the conduct occurred while the person was not a registered health practitioner.
3. This was in accord with the Board's submissions, with which Dr Ho agreed.

1. VCAT only has the jurisdiction the National Law confers on it. In deciding whether it has jurisdiction, VCAT is required to prefer an interpretation of a provision of the National Law that will best achieve its purpose or objective.

1. The objects of the National Law include, in s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
2. Part 8 of the National Law concerns the "Health Performance and Conduct" of practitioners. It provides for a scheme for the protection of the public and the profession, including notification of conduct by registered practitioners, investigation of registered practitioners, and taking regulatory action against a registered practitioner where appropriate.

1. Section 193 confers relevant jurisdiction, relevantly saying:

(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason -

(i) the practitioner has behaved in a way that constitutes professional misconduct; ...

1. The word "practitioner" in s 193(1)(a)(i) apparently means registered health practitioner.
2. Section 5 of the National Law defines "registered health practitioner" to relevantly mean an individual who is registered under the National Law to practice a health profession.
3. The words "has behaved" literally reach back to past behaviour, either while the practitioner was registered or before then. The question is whether "has behaved" with reference to a "registered health practitioner" is limited to past behaviour while a registered health practitioner.
4. Section 193(1)(a)(i) does not appear to contain any express or implied limitation that the behaviour the subject of the referral to VCAT must have occurred at a time that the practitioner was registered under the National Law. If the Parliament had intended such a limitation, it could have easily included that in the legislation.
5. That is unsurprising, given that behaviour by a registered health practitioner, including when the person was unregistered, may give rise to a need to act with respect to the practitioner's registration under Part 8 (see below).

1. The lack of a limitation to the respective reach of the words "has behaved" is in the context that the jurisdiction generally conferred by s 193(1) includes conduct when a person was not a registered health practitioner.
2. This is illustrated by s 193(1)(a)(ii). It says a National Board must refer a matter about a registered health practitioner to a responsible tribunal if it reasonably believes:

the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information of a document that was false or misleading in a material particular; ...

1. This must extend to conduct by a registered practitioner, in the process of obtaining registration, before he or she was registered.
2. This analysis is reinforced by definition (c) of "professional misconduct" in s 5 of the National Law:
   • (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.
3. Meaning (c) includes in its scope conduct, "whether occurring in connection with the practice of the health practitioner's profession or not".
4. This includes in the definition conduct unconnected to the practitioner's profession which may bear on his or her fitness to hold registration and for this reason may be conduct that requires regulatory action under Part 8. There is no reason to limit that 'unconnected conduct' to conduct when the person was a registered health practitioner.
5. Related to this, s 5, in part defines "unprofessional conduct" of a registered health practitioner to mean:

... 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, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and ...

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and

1. In these and in the other elements of this definition, again there is no express limit that the conduct must have occurred at a time that the registered practitioner was registered under the National Law.
2. Concerning meaning (a) and contraventions of the National Law, there appears no reason to exclude from the definition the scenario of a currently registered health practitioner's conduct while unregistered, such as carrying out "restricted dental acts" in contravention of s 121 of the National Law, which, separate to issues of professional misconduct and unprofessional conduct, is a breach of the National Law and is an offence.
3. Concerning meaning (c), the inclusion of "the conviction of the practitioner for an offence under another Act, the nature of which may affect the "practitioner's suitability to continue to practice the profession", there appears no reason to exclude conduct while not registered, leading to conviction which could well be relevant to suitability to be registered.
4. For example, a now registered health practitioner may be, while a registered health practitioner, convicted for historical sex offending, long before being registered. It is unlikely Parliament intended that a conviction with respect to that long-ago conduct could not constitute unprofessional conduct.
5. Further considering context, s 196 concerns the decision that may be made by the VCAT about a registered practitioner following a referral. It relevantly says:
   1. Decision by responsible tribunal about registered health practitioner

(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or ...

1. There is nothing in the above text to indicate that the behaviour in question may only be behaviour undertaken while the registered health practitioner was so registered. Concerning s 196(1)(a)(v), it must refer to behaviour before registration.
2. Turning to another element of disciplinary action, s 156 of the National Law concerns immediate action, first by the Board and then potentially consideration of such by VCAT on review. There is nothing in s 156 to suggest that conduct that may lead to immediate action must be conduct while the person was a registered health practitioner.

1. More broadly, the National Law applies to people who are not registered health practitioners in that it prohibits those not so registered from making claims as registered health practitioners (eg ss 113, 115 & 116). It also specifies certain restricted acts that can only be performed by a registered practitioner (such as some dental acts described in s 121).
2. On the issue of context, the question arises as to whether it is intended that the inclusion of offences such as those discussed above is an indication that conduct while not a registered health practitioner may only be dealt with by an offence provision, rather than by referral to the relevant tribunal.
3. There appears nothing in the text of s 193(1), nor in its surrounding context to indicate such a limitation. In fact, Parliament could well have intended to provide the Board with a variety of mechanisms to achieve the objectives of the National Law.
4. The Board referred me to the decision of the Court of Appeal of England and Wales in Lewis v Prosthetists and Orthotists Board.[3] This concerned a challenge to jurisdiction by an orthotist (Mr Lewis) to a disciplinary proceeding convened under the Professions Supplementary to Medicine Act 1960.
5. Section 9(1) relevantly said:

(a) a person who is registered by a board is convicted by any court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the board, renders him unfit to be registered; or

(b) such a person is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect; or ...

the committee may, if it thinks fit, direct that the person's name shall be removed from the register.

1. Mr Lewis faced allegations of sexual misconduct for his conduct between February 1997 and April 1998. These alleged events occurred before his registration in 1998. A professional board proposed to take disciplinary action against him under paragraph 9(1)(b) above. He challenged the Board's jurisdiction on the basis that the Act applied only to conduct by a registered practitioner, whilst that practitioner was registered.
2. The Court unanimously dismissed his challenge to jurisdiction. Lord Justice Waller (with whom Clarke and Laws LLJ agreed) first noted that s 9(l)(a) entitled the Board to take action after a conviction, but that section did not require the conduct giving rise to the conviction to occur while registered:

When one looks at 9(1)(a), what is required is the conviction by any court in the United Kingdom of a criminal offence. The conviction is the triggering factor. One assumes that that conviction must be after registration, but the conduct can relate to matters prior to registration. It would be somewhat strange if, when one then comes to 9(1)(b) where the triggering event is a finding by the disciplinary committee, the disciplinary committee was not entitled itself to look at conduct prior to registration.

1. While the conviction, the "triggering factor", must take place while the person was registered, the conduct which caused the conviction could have taken place either while the person was registered or beforehand.
2. Section 9(1)(a) is similar to definition (c) of "unprofessional conduct" in the National Law, discussed above.
3. After further discussion, his Lordship concluded at [35]:

Thus it seems to me that simply pointing to the time at which it is suggested the conduct complained of took place [before being registered] cannot lead to the conclusion that the disciplinary committee has no jurisdiction to consider whether Mr Lewis had been guilty of infamous conduct in a professional respect.

1. The same reasoning should apply to the National Law. This approach avoids reading an uncalled for limitation into the words of the National Law and best achieves its purpose.
2. The jurisdiction issue so decided, we turn to the allegations in this case.

1. The Board alleged that while registered as a dental practitioner, Dr Ho behaved in a way that constituted "unprofessional conduct" as defined in s 5 of the National Law in that in September 2015, he engaged in unprofessional conduct within the meaning of subparagraph (a) of the definition of unprofessional conduct in section 5 of the National Law in that he changed his principal place of practice but failed to provide the Board with written notice of that change within 30 days as required by s 131 of the National Law (Allegation 1).
2. The Board alleged (Allegation 2) that while registered as a dental practitioner, Dr Ho behaved in a way that constituted "professional misconduct" as defined in s 5 of the National Law in that Dr Ho:
   1. Failed to renew his registration under the National Law before the expiry of the registration on 6 January 2016, where he knew that he intended to continue practising as a registered health practitioner and knew or ought reasonably to have known that his registration was due to expire and that it was therefore necessary to renew the registration; and/or

1. Continued to practise as a dentist and to hold himself out use the title dentist:

1. between 7 January 2016 and 4 February 2016, in circumstances where he knew or ought reasonably to have known that he was not a registered practitioner under the National Law; and/or 2. between 5 February 2016 and 19 February 2016, in circumstances where he knew or ought reasonably to have known that his registration had expired and that he was not a registered practitioner under the National Law; and/or 3. between 9 February 2016 and 19 February 2016 in circumstances where he had been warned by a registration officer of AHPRA that he was not registered and that it was necessary for him to immediately cease practice; and/or

1. In the circumstances set out above performed "restricted dental acts" during the period 5 February 2016 and 19 February 2016 in contravention of section 121(2) of the National Law; and/or

1. In the circumstances set out above at (a)-(b), failed to ensure that his practice was covered by professional indemnity insurance where he knew, or ought reasonably to have known, that practising whilst unregistered would or might affect his cover under professional indemnity insurance. 2. The particulars to Allegation 2 encompass Dr Ho's conduct which we now describe.

1. We found that the relevant events occurred as alleged and as Dr Ho admits.
2. Dr Ho is a registered dental practitioner who was first registered on 8 December 1997 and from 2010 to 6 January 2016, was registered under the National Law.
3. In September 2015, he changed his principal place of practice from Bridge Street Eltham to Arthur Street Eltham, but until 5 February 2016 failed to notify the Board of this change.
4. About 23 November 2015, the Board sent to Dr Ho an email reminding him to renew his registration. He failed to renew his registration. On 6 January 2016, his registration lapsed.
5. From 7 January to 4 February 2016, he provided services, while not registered, not realising he was not registered, to approximately 88 patients valued at approximately $39,083, payable by patients, before any Medicare or private health fund rebate.[4]
6. About Tuesday 5 February 2016, Dr Ho became aware of his lapsed registration. The time in which an already lapsed registration may be renewed had expired. He continued to practice. On 8 February, he contacted AHPRA regarding renewal of his registration. On 9 February 2016, Dr Ho spoke to an AHPRA registration officer who advised him to immediately stop practising until his registration renewal was approved.
7. Despite this advice, he continued to practice, not registered, until 19 February 2016, aware that he was not registered.
8. From 5 to 19 February, Dr Ho provided services to approximately 66 patients, valued at approximately $27,501, also payable by patients, before any Medicare or private health fund rebate.[5]
9. During the entire time he was not registered, Dr Ho carried out "restricted dental acts" as s 121 of the National Law defines them.
10. While during these times Dr Ho held a professional indemnity insurance, the policy contained an exclusion of liability if practising whilst unregistered.
11. From 20 February 2016, Dr Ho stopped practising and did not practice for almost five months. On 13 July 2016, he was re-registered. Dr Ho has continued to practice since then.

1. The question before us concerning findings was whether, under s 192(1) of the National Law we should find that Dr Ho engaged in professional misconduct and/or unprofessional conduct as defined in the National Law.

1. Section 5 relevantly defines "unprofessional conduct" as 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 and includes a contravention by the practitioner of a condition to which the practitioner's registration was subject.
2. As the parties proposed, we find Allegation 1 (concerning his failure to advise the Board of his change of address) proven and that Dr Ho's conduct constitutes such unprofessional conduct. The need for dentists to keep the Board, and so the public, informed of their place of practice is obvious. Apart from anything else, physical mail from the Board to the practitioner, on critical issues such as registration, may not reach the practitioner at the new address. The dentist who relies on staff to advise the Board of a change of address does so at his or her own peril.

1. We note Dr Ho's explanation for his behaviour, in part set out in a 10 February 2016 letter addressed to, "Dear staff at AHPRA" to which his application for reregistration was attached. He apologised for overlooking the renewal of his registration and explained a sequence of events including the difficult process of him moving dental practice after 15 years at the one surgery. He promised this would never happen again. He attached his application for reregistration, asking that it be fast tracked.
2. Dr Ho's lapse in this respect falls within unprofessional conduct, rather than the more serious category of professional misconduct.

1. Section 5 relevantly defines "professional misconduct" as unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
2. As the parties proposed, we find Allegation 2 (concerning practising while not registered) proven and that Dr Ho's conduct constitutes professional misconduct as described above.
3. Dentists must be registered at all times that they practice. Failure to do so is obviously conduct substantially below that expected of them.
4. That from 7 January to 4 February 2016, Dr Ho was not aware he was practising unregistered is no excuse. Ensuring that one is registered is a fundamental obligation. The dentist who relies on staff with respect to the renewal of registration invites peril.
5. The gravity of Dr Ho's conduct escalated when from about 5 February to 19 February 2016, he knowingly practised unregistered.
6. We do not understand why Dr Ho, a competent experienced dentist, did this, in flagrant disregard of his responsibilities. When he discovered he was not registered, his obligation not to practice overrode any obligation to treat his patients, save in emergency. There was no apparent reason that he could not have referred patients to colleagues.
7. In a 29 February 2016 letter to AHPRA, Dr Ho admitted that while unregistered and aware that he should stop practising, he continued to do so. He wrote he had treated patients in the middle of treatment where procedures needed to be completed in a specific time because he did not want to jeopardise patients' health by his mistake. He said he had cancelled all non-urgent treatment.
8. Turning to the issue of insurance, patients who see a dentist who is not registered may not, if things go wrong, have the benefit of professional indemnity insurance held by the dentist. Therefore, it is an ethical obligation to only practice while registered.
9. Paragraph 8.5 of the Code of Conduct for Registered Health Practitioners dated March 2014 specifically addresses this:

Practitioners have a statutory requirement to ensure that practice is appropriately covered by professional indemnity insurance (see the Board's professional indemnity insurance registration standard).

1. That said, there is no evidence before us of any complaint from any patient concerning the treatment Dr Ho provided while not registered.
2. Neither do we say that Dr Ho's insurance did not cover him during that period. Rather his practising unregistered raises a question, not a conclusion, concerning the operation of his indemnity insurance while practising unregistered.
3. To be clear, Allegation 2 does not refer to Dr Ho providing dental treatment which was inappropriate or prohibited, apart from, relevantly here, the requirement for appropriate registration when providing the treatment.

1. Once VCAT has made findings in a proceeding such as this, the next step is to make the determinations necessary to protect the public and uphold the profession's reputation.
2. VCAT's role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual from repeating the misconduct) and/or general deterrence (to warn others in the profession against such misconduct). VCAT's role is also to uphold the dental profession's reputation.[6]
3. Where the parties present an agreed statement of facts and proposed determinations, while VCAT exercises independent judgement in reaching its decision, the Tribunal should not depart from an agreed sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances.[7]

1. As the parties proposed, under s 196(2)(a) of the National Law we reprimand Dr Ho, as is clearly appropriate following these findings of professional misconduct and unprofessional conduct. Reprimand is a serious form of censure and condemnation.[8]

1. As the parties also proposed, again under s 196(2)(a) of the National Law, we fine Dr Ho the amount of $7,000, payable to the Board.
2. In the hearing before us, we raised with the parties that given the five months that passed before Dr Ho was registered, should the fine be somewhat lower. We did not raise this out of sympathy for Dr Ho. He bought this situation on himself. We did so in the context of a fine levied under s 192, not being punishment.
3. The parties responded that the agreed proposed fine was 'discounted' considering the time from application to reregistration. The Board explained that this was the time it took to consider and decide the issue, and Dr Ho in no way delayed the process. Counsel for Dr Ho made it clear Dr Ho made no criticism of the Board for the time taken.
4. Further, to the extent that different cases and different fines provide a yardstick for the fine in this case, as the Board submitted here, the $7,000 fine is consistent with the reasoning of VCAT in Medical Board of Australia v Willcourt (Review and Regulation) [2018] VCAT 1032. In that case, VCAT reprimanded Dr Willcourt and fined him $7000.
5. While reference was made to the maximum $30,000 fine under s 121 for engaging in restricted dental acts, with VCAT not having jurisdiction to fine under s 121, and determinations such as these not made as punishment, we have not taken that factor into account.
6. After the hearing, we realised the parties had not suggested a time in which the payment should be made. As a matter of convenience, we have made the fine payable in eight weeks' time, with the parties having liberty to apply for the date be changed.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] As presiding legal member and Australian lawyer in this case, see s 107 of the Victorian Civil and Administrative Tribunal Act 1998.

[3] [2001] EWCA Civ 837.

[4] The Board provided a list of procedures which Dr Ho undertook from 11 January 2016 to 4 February 2016.

[5] The Board provided a list of procedures which Dr Ho undertook from 5 February 2016 to 19 February 2016.

[6] See Stirling v Legal Services Commissioner [2013] VSCA 374.

[7] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16] and Pharmacy Board of Australia v Hopkinson [2018] VCAT 982.

[8] We note Marks J's comments in Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6, as quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].