1. Under s 77 of the Health Professions Registration Act 2005 (the HPR Act), the Tribunal finds, concerning the 1st Respondent (Dr Hussain):
   • (a) On 8 February 2010, with respect to each of Patients FK, HF, HL and NT, Dr Hussain engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act by failing to obtain the fully informed consent of each patient or a person authorised to give consent before the giving of treatment; and
   • (b) On 8 February 2010, Dr Hussain engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act by making deficient patient records in respect of each of the 23 patients he examined at a residential aged care facility, save for NT.

1. Under s 77 of the HPR Act, the Tribunal finds, concerning the 2nd Respondent (Dr Singh):
   • (a) With respect to each of Patients FG (9 February and 4 March 2010), FK (4 March 2010) and HL (4 March 2010), Dr Singh engaged in professional misconduct within the meaning of paragraph (b) of s 3(1) of the HPR Act, by failing to obtain the fully informed consent of each patient or a person authorised to give consent;
   • (b) With respect to each of Patients HF (on 4 March 2010) and NT (on 9 February 2010), Dr Singh engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act, by failing to obtain the fully informed consent of each patient or a person authorised to give consent;
   • (c) Dr Singh engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act on:
     • (i) 9 February 2010, by making deficient patient records in respect of each of Patients BL, FG, FQ, GD and NT; and
     • (ii) 4 March 2010, by making deficient patient records in respect of each of the nine patients she saw on 4 March 2010, which included the above five patients;
   • (d) On 9 February 2010 and 4 March 2010, Dr Singh engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act by her failure to make sufficient pre-operative enquiries in relation to Patient FG's Warfarin therapy, which in turn rendered it inappropriate to carry out the treatment in the circumstances.

1. Under s 77 of the HPR Act, the Tribunal determines Dr Hussain:
   • (a) Is reprimanded;
   • (b) Must undertake and complete further education or training consisting of three by three hour sessions covering dental record-keeping and obtaining informed consent with a registered practitioner (the educator) who has been approved by the Board and meets the Board's specific requirements as set out below;
   • (c) Must obtain the Board's approval of the educator prior to the commencement of the education. The educator must:
     • (i) have held general registration as a dentist for a period of not less than seven years; and
     • (ii) not be in a close collegiate, social or financial relationship with Dr Hussain;
   • (d) Must provide the educator with a copy of the restrictions on his registration prior to the commencement of the education and advise the Board in writing within 14 days that a copy has been provided;
   • (e) Must commence the education sessions within one month of being advised that the Board has approved the educator, and conclude the education within six months of that date;
   • (f) Must advise the educator that within 28 days of the completion of the education, the educator is required to provide a report to the Board stating:
     • (i) the dates the education occurred;
     • (ii) what the education comprised of; and
     • (iii) whether or not Dr Hussain has, in the opinion of the educator, satisfactorily participated in the education;
   • (g) Must provide AHPRA's Compliance Department within 28 days of the completion of the education, with a report by him which includes:
     • (i) a written summary of the outcomes and lessons learnt from the education; and
     • (ii) a written summary of how he intends to apply this knowledge to his practice; and
   • (h) Must complete the education at his expense, including the costs of the educator's report and any other associated costs.
2. AHPRA may communicate with the educator in relation to Dr Hussain's compliance.
3. If the Board is not satisfied that the reports provided relating to the further education demonstrate that Dr Hussain has adequately incorporated changes into his practice, he may be required to undergo further education as determined by the Board.
4. Under s 77(e) of the HPR Act a condition is placed on Dr Hussain's registration that, within three months of completing the education, he is to submit to an audit of dental records which meets the following requirements:
   • (a) The audit will take place at Dr Hussain's place of practice by a Board-approved auditor;
   • (b) The auditor will randomly select ten records of Dr Hussain's patients completed after the third education session; and
   • (c) On review of the records, the auditor will determine whether Dr Hussain's record-keeping meets the Board's standards for the creation and maintenance of clinical records as set out in the Board's Code of Conduct and Guidelines on Dental Records, in particular:
     • (i) diagnosis;
     • (ii) treatment planning;
     • (iii) relevant dental and medical history;
     • (iv) referrals to and from other practitioners;
     • (v) informed consent;
     • (vi) details of advice provided and treating practitioner
     • (vii) estimates or quotations of fees; and
     • (viii) the Australian Dental Association (ADA) schedule of dental services item coding.
   • (d) Within two weeks of completing the audit, the Board-approved auditor will provide a report to the Board about the audit and whether or not Dr Hussain's dental record-keeping complies with the Board's standards;
   • (e) The audit report will be relied upon by the Board when determining whether Dr Hussain has complied with the conditions;
   • (f) If the Board is not satisfied that the audit report demonstrates that Dr Hussain's dental record-keeping meets the required standards, Dr Hussain may be required to undergo further audits every six months for a period of two years from the date of the first audit;
   • (g) AHPRA may communicate with the auditor in relation to Dr Hussain's compliance; and
   • (h) The audit, report and any associated costs are required to be undertaken at Dr Hussain's expense.

1. Under s 77 of the HPR Act, the Tribunal determines Dr Singh:
   • (a) Is reprimanded;
   • (b) Must undertake and complete further education or training with a registered practitioner (the educator) who has been approved by the Board and meets the Board's specific requirements as set out below. The training will consist of:
     • (i) three by three hour sessions covering dental record-keeping and obtaining informed consent with a focus on the ethics of patients' rights; and
     • (ii) a minimum one half day session on the management of medically compromised, including elderly, patients on anticoagulant therapy.

• (c) Must obtain the Board's approval of the educator prior to the commencement of the education. The educator must:

• (i) have held general registration as a dentist for a period of not less than seven years; and
  • (ii) not be in a close collegiate, social or financial relationship with Dr Singh;

• (d) Must provide the educator with a copy of the restrictions on her registration prior to the commencement of the education and advise the Board in writing within 14 days that a copy has been provided;
  • (e) Must commence the education sessions within one month of being advised that the Board has approved the educator, and conclude the education within six months of that date;
  • (f) Must advise the educator that, within 28 days of the completion of the education, the educator is required to provide a report to the Board stating:
    • (i) the dates the education occurred;
    • (ii) what the education comprised of; and
    • (iii) whether or not Dr Singh has, in the opinion of the educator, satisfactorily participated in the education;
  • (g) Must provide AHPRA's Compliance Department, within 28 days of the completion of the education, with a report by her which includes:
    • (i) a written summary of the outcomes and lessons learnt from the education; and
    • (ii) a written summary of how she intends to apply this knowledge to her practice; and
  • (h) Must complete the education at her expense, including the costs of the educator's report and any other associated costs.

1. AHPRA may communicate with the educator in relation to Dr Singh's compliance.
2. If the Board is not satisfied that the reports provided relating to the further education demonstrate that Dr Singh has adequately incorporated changes into her practice, she may be required to undergo further education as determined by the Board.
3. In relation to the education about anticoagulation therapy, Dr Singh may, as an alternative to undertaking education with a Board-approved educator, complete at her expense, a Board-approved course that covers the requisite content. In seeking Board approval, Dr Singh must provide details of the course to AHPRA, including the name of the provider and a course outline, prior to the commencement of the course. On successful completion of the course, Dr Singh must within 28 days, provide to AHPRA:

• (a) A certificate of attendance or equivalent evidence; and
• (b) A report about the lessons learnt from the education and how she intends to apply these to her own practice.

Mr A. Clements SC of Counsel with Ms N. Mollard of Counsel

1. Dr Munawar Hussain trained to be a dentist in Australia and overseas. In 2006, the then Dental Practice Board of Victoria (the DPBV) registered him as a general dentist. He established Contempo Dentcare Pty Ltd and decided to offer dental services in aged care facilities, in part using a mobile dental room (a converted van). He promoted the service. An aged care facility in Melbourne invited him to see residents.
2. On 8 February 2010, Dr Hussain made the first visit to the aged care facility. He examined 24 residents over a morning. For the most part he conducted oral examinations and gave advice as to dental hygiene. In five cases he recommended, but did not perform, teeth extractions. Concerning four patients, Dr Hussain failed to obtain informed consent to the treatment. These patients were elderly and suffered cognitive deficits.
3. Dr Hussain contracted Dr Archana Singh to perform the extractions. Dr Singh trained to be a dentist first in India, then in the USA. She passed Australian examinations and on1 January 2010, the DPBV registered her as a dentist.
4. On 9 February 2010, Dr Singh first visited the aged care facility with a dental nurse to see the prospective patients. On 4 March 2010, she extracted the teeth of patients. Concerning four patients, Dr Singh failed to obtain informed consent to the treatment she provided. These patients were elderly and suffered cognitive deficits.
5. The daughter of one patient notified the DPBV that in her view, treatment was being provided without informed consent.
6. The DPBV investigated. In April 2010, Dr Hussain agreed to temporary conditions being placed on his registration requiring him to ensure he sought informed consent and to auditing of the adequacy of his treatment records as to consent. Also in April 2010, Dr Singh agreed to temporary conditions being placed on her registration. She agreed not to provide dental services in aged care facilities and to undertake further education as to gaining informed consent and record-keeping. To the extent they are ongoing, those conditions expired with the making of these orders.
7. With national unification of dental practice regulation, the DPBV was merged into the Dental Board of Australia (the Board). In October 2012, VCAT received a referral from the Board which gave rise to this proceeding. After protracted negotiations, the parties agreed a statement of facts and a joint submission as to determinations.
8. On 1 April 2014, two dentist members of VCAT and I heard the application and reserved our decision.

1. Section 77(1) of the HPR Act confers VCAT's power to make findings, including that a health practitioner has engaged in unprofessional conduct or professional misconduct. While the HPR Act has been replaced by the Health Practitioner Regulation National Law Act 2009 (Vic), the HPR Act remains relevant to conduct in 2010.
2. A finding of, "professional misconduct" involves a more serious departure from accepted standards than a finding of, "unprofessional conduct".
3. Professional misconduct is relevantly for the purposes of this proceeding defined in s 3 of the HPR Act as:

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency;

1. A finding of "unprofessional conduct" involves a less serious departure from accepted standards than a finding of "professional misconduct".
2. Unprofessional conduct is defined under s 3 of HPR Act as including:
   • (a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;
   • (b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner; ...
3. Section 77(4) provides VCAT's powers to make determinations.
4. Our purpose in this proceeding is to protect the public and uphold the standards of the dental profession, not to punish. In doing so, our decisions must be independent of findings and determinations proposed by the parties.

1. In the context of three volumes of evidence in this proceeding, we make the following findings of fact based on the Board's and Dr Hussain's agreed statement.
2. In these orders and reasons, references to patients are made by letters related to their names' initials, not being their initials.

1. On 8 February 2010, Dr Hussain examined 24 residents at an aged care facility over a morning. He failed to obtain informed consent with respect to the following patients:
   1. FK was a 91 year old female resident who had a medical history including dementia and partial paralysis. Her medical notes record that she was "wasted, mute, bed ridden and frail".

Before orally examining her and providing oral hygiene instructions, Dr Hussain failed to take sufficient steps to ensure he obtained fully informed consent from her or a person empowered to give consent on her behalf. He recommended FK have her 43, 42, 41 and 33 teeth extracted. He failed to inform FK's legal guardian, or her treating GP of the recommendations. After the treatment, he arranged an unknown person to sign a Medicare assignment form on FK's behalf. He failed to inform staff that he had not obtained the consent;

1. HF was an 83 year old male resident who had a history, amongst other things, of dementia and Alzheimer's disease. He was often confused and aggressive and was unable to make any reasonable decisions about his medical treatment.

Before orally examining him and providing oral hygiene instructions, Dr Hussain failed to take sufficient steps to ensure he obtained fully informed consent from him or a person empowered to give consent on his behalf. After the treatment, he arranged an unknown person to sign a Medicare assignment form on HF's behalf. He failed to inform staff that he had not obtained the consent;

1. Patient HL was a 90 year old female who had a medical history of chronic mental illness, diagnosed depression and bipolar disorder. Her daughter held a power of attorney.

Before orally examining HL and providing her with oral hygiene instructions, Dr Hussain failed to take sufficient steps to ensure he obtained fully informed consent from her or her daughter. After the treatment, Dr Hussain arranged for aged care facility staff to sign a consent form for HL, telling them that it was for Medicare purposes and without telling them that he had not properly and fully satisfied himself that informed consent to treatment had been given;

1. Patient NT was a 90 year old female resident who had a history of cognitive impairment.

Before orally examining her and providing oral hygiene instructions, Dr Hussain failed to take sufficient steps to ensure he obtained fully informed consent from her or a person empowered to give consent on her behalf. After the treatment, he arranged an unknown person to sign a Medicare assignment form on NT's behalf.

1. With respect to his treatment of each of patients FK, HF, HL and NT, Dr Hussain admits and we find:
   1. By reason of the above, he breached the DPBV's Information Sheet 1002 [2007] "Consent: Assisting patients to make well-informed decisions", as well as his obligations to the patients; and
   2. By not obtaining fully informed consent:
      1. from each of them; or
      2. in respect of each of them a person empowered to give consent, to the treatment he provided treatment to each of them;

he engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act.

1. On 8 February 2010, Dr Hussain treated 23 residents at the aged care facility without:

1. Properly documenting the informed consent of the patients (or persons empowered to give consent) in their respective patient records; 2. Properly documenting the treatment provided to the patients in their respective patient records; and

1. Recording that he was the treating dentist.
2. Dr Hussain admits and we find:
   1. He breached the DPBV's Code of Practice C003 [2007] entitled "Dental Records" (Code of Practice) and the accompanying Information Sheet 1001 [2007], as well as his obligations to his patients; and
   2. With respect to the record keeping he engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act.

1. In the context of three volumes of evidence in this proceeding, we make the following findings of fact based on the Board's and Dr Singh's agreed statement.
2. On 9 February 2010, Dr Singh attended the aged care facility we refer to above. She orally examined six residents, assisted by a dental nurse, either in the facility or in the Contempo dental van parked outside.
3. On 4 March 2010, she treated nine residents (she had seen five of them on 9 February), either in the facility or in the dental van parked outside.
4. She failed to obtain informed consent with respect to the following residents/patients:[1]
   1. Concerning Patient FG, on or around 9 February 2010, Dr Singh orally examined FG without first properly and fully obtaining informed consent from either FG, or a person empowered to give consent, to the oral examination. She recorded in FG's patient record that teeth 45, 44, 43, 32, 33 and 34 be extracted and that she be fitted with an upper and lower full denture.

On or around 4 March 2010, Dr Singh requested and obtained the signature of a registered nurse on a Consent for Dental Treatment form on behalf of FG. Dr Singh knew or ought to have known, the nurse was not authorised to and therefore unable to give such consent.

Dr Singh radiographed FG's teeth and extracted teeth numbered 45, 44, 43, 32, 33 and 34 under local anaesthetic in the dental van and gave her Gelatamp;

1. Concerning Patient FK, Dr Singh requested and obtained the signature of a personal care assistant at the facility on a Consent for Dental Treatment form on behalf of FK. Dr Singh knew or ought to have known, the assistant was not authorised to and therefore unable to give such consent. Dr Singh extracted FK's teeth numbered 41, 42 and 43 and scaled and cleaned FK's teeth without obtaining informed consent;

1. Concerning Patient HF, Dr Singh requested and obtained the signature of a registered nurse on a Consent for Dental Treatment form on behalf of HF. Dr Singh knew or ought to have known, the nurse was not authorised to and therefore unable to give such consent.

She orally examined HF's teeth, radiographed his teeth numbered 47 and 12 and informed him she was going to extract his teeth without obtaining informed consent. At this point HF objected and she did not proceed;

1. Concerning Patient HL, Dr Singh requested and obtained the signature of a personal care assistant at the facility on a Consent for Dental Treatment Form on behalf of HL. Dr Singh knew or ought to have known, the assistant was not authorised to and therefore unable to give such consent. Dr Singh extracted HL's teeth numbered 43, 41, 31, 32, 35 and 27 and carried out a scale and clean of HL's teeth without obtaining informed consent; and
2. Concerning Patient NT, on or around 4 March 2010, Dr Singh requested and obtained the signature of a registered nurse on a Consent for Dental Treatment Form on behalf of NT. Dr Singh knew or ought to have known, the nurse was not authorised to and therefore unable to give such consent. She scaled and cleaned NT's teeth without obtaining consent.

1. With respect to her treatment of each of patients FG, FK, HF, HL and NT, Dr Singh admits and we find:
   1. By reason of the above she breached the DPBV's Information Sheet 1002 [2007] "Consent: Assisting patients to make well-informed decisions", as well as her fundamental obligations to these patients; and
   2. By not obtaining fully informed consent from each of them, or in respect of each of them by a person empowered to give consent to the treatment she provided treatment to each of them, she engaged in:
      1. professional misconduct within the meaning of paragraph (b) of s 3(1) of the HPR Act, (FG, FK and HL); and
      2. unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act, (HF and NT).

1. Concerning each of the nine patients she saw over 9 February and 4 March 2010, Dr Singh practiced as dentist without properly documenting in their patient records:

1. The informed consent of the patients or any person authorised to consent; 2. The treatment provided to the patients in their respective patient records (NT being the exception); and

1. On 4 March 2010, that she was the treating dentist.
2. Dr Singh admits and we find she:
   1. Breached the DPBV's Code of Practice C003 [2007] entitled "Dental Records" (Code of Practice) and the accompanying Information Sheet 1001 [2007], as well as her obligations to her patients; and
   2. With respect to record-keeping, engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act.

FG - Inappropriate treatment and pre-operative care

1. On 17 December 2009, FG's treating general practitioner referred FG to Contempo for unspecified dental services. She provided a Health Summary Sheet which stated "Warnings: Warfarin". Documentation detailing FG's medical history noted her current medication included Warfarin daily.
2. On 4 March 2010, Dr Singh extracted teeth (see above) without pre-operatively:

1. Ascertaining the stability of INR readings (a measure of blood clotting) with the general practitioner to determine the reliability of the previously measured INR to reflect the actual INR on the day of the dental procedure. Dr Singh says she telephoned the general practitioner to be told by staff that FG's INR was 2.5; 2. Agreeing a treatment/management plan with the general practitioner; and

1. Communicating with the general practitioner about how difficult she expected the extractions to be, the number of extraction sites there would be and whether there was a requirement to reduce or stop the Warfarin and to decide whether to re-test the INR the morning after the extractions.
2. Dr Singh admits and we find it was inappropriate to carry out the FG treatment without having made all of the above pre-operative enquiries and she breached her obligations to her patient and so she engaged in unprofessional conduct within the meaning of paragraph (a) of s 3(1) of the HPR Act.
3. After the extractions, all seemed well. Dr Singh instructed facility staff to contact her if FG bled. She was not contacted. The next day she visited FG and discovered some bleeding. The general practitioner also happened to visit. Dr Singh gave further instructions. She was later contacted about further bleeding and on her instructions, on 7 March 2010, FG was admitted to St Vincent's Hospital suffering haematomas to her chin and neck.

Findings under s 77 of the HPR Act - Dr Hussain

1. We set out our findings of unprofessional conduct by Dr Hussain above.

1. We set out our findings of both professional misconduct and unprofessional conduct by Dr Singh above.
2. Given the more intrusive treatment given to FG, FK and HL (teeth extractions), we regard Dr Singh's departure from accepted professional conduct as more serious, compared to the departure concerning HF and NT. The more serious departures merit findings of professional misconduct relating to FG, FK and HL. The less serious, but still serious findings concerning treatment merit findings of unprofessional conduct.
3. Similar to Dr Hussain, we view her shortcomings in record-keeping merit a finding of unprofessional conduct.
4. Dr Singh's shortcomings concerning pre-operative steps for FG, merit a finding of unprofessional misconduct, not professional misconduct. She was aware of the issue and tried to speak to the general practitioner but was only able to speak to a staff member at the practice. We do not criticise her post-operative care. It is not clear the outcome would have been different if there had not been shortcomings in her pre-operative steps.

1. This proceeding came before us following a compulsory conference procedure at VCAT and after that the parties reaching an agreed position as to a proposed outcome. We agree with the observations of the Tribunal in Nursing and Midwifery Board of Australia v Sayers (Review and Regulation) [2014] VCAT 252 (para 10):

The compulsory conferencing of disciplinary proceedings now occurs in many jurisdictions across Australia in a wide range of vocations. Conferencing enables the expeditious resolution of disputes through a narrowing of the issues. It frequently results in notifiers and other vulnerable witnesses being relieved from the stress and inconvenience of giving evidence before the tribunal. It enables regulatory authorities and practitioners to engage in constructive discussions, which are educative and therapeutic rather than adversarial.

The process in this Tribunal is that an independent Member of the Tribunal assists the parties in their endeavours during the conference. The Member may provide their insights and suggestions for dispute resolution but will not make any binding determinations on the parties. The decision as to which allegations the Board proceeds with is a matter for the Board. The decision as to which allegations a practitioner will accept is a matter for the practitioner. Frequently the parties will arrive at a Statement of Agreed Facts and Submissions on determination.

The decision as to appropriate determination, remains a matter for the Tribunal. Accordingly, where a disciplinary matter has been referred to a compulsory conference, it will not conclude at that stage. A differently constituted Tribunal will bring an independent mind(s) to the matter. The reconstituted Tribunal is of course, greatly assisted by submissions made by the parties based on the evidence, comparable cases and other relevant material. However, it is statutorily bound to reach its own conclusions.

1. Given our findings, under s 77 of the HPR Act, we made the determinations, as set out above. These mirror the parties' submissions, except for one important issue.
2. With respect to Dr Singh, the parties jointly submitted a three-month suspension was appropriate, in addition to the determinations we have made. After the hearing, we formed the tentative view that suspension was not needed to protect the public nor uphold the reputation of the profession of dentistry.
3. We were struck by the fact that Dr Singh's conduct occurred over 9 February and 4 March 2010, with her first being registered in Australia on 1 January 2010 and 9 February being her first day at work for Dr Hussain. She was inexperienced. She appears to have gained experience in the area of consent in aged care in a hard way; via a disciplinary process.
4. As we had not at the hearing explored this with the Board and Dr Singh, via VCAT's registry, we wrote to them giving them the option of making further submissions.
5. The Board provided a written submission, strongly putting the case for suspension including referring to:

1. The importance of suspending Dr Singh, "to achieve the important objective of protecting the dental profession and maintaining the professional standards of the profession of dentistry in the eyes of the public"; 2. The gravity of Dr Singh's conduct in the context of aged care; and

1. VCAT's practise of generally making determinations in accord with parties' agreed determinations if in its view the determinations are within the usual range in the applicable circumstances. The Board submitted a three month suspension was within that range. Not suspending could be disincentive to parties "settling" disciplinary cases. The Board cited Secretary to the Department of Planning and Community Development v Muto (General) [2011] VCAT 328, which we discuss below.
2. Dr Frekelton on behalf of Dr Singh responded, submitting it was open to us to not suspend and providing examples of decisions where, in particular circumstances, suspension did not follow serious failings in conduct.
3. In considering determinations proposed by the parties, VCAT has usually in substance, agreed with those determinations. Ross J's decision in Muto, cited above is often quoted:

In proceedings in respect of civil penalties there is now a well established line of authority in support of the proposition that where a regulatory body and a respondent have reached a negotiated settlement and the penalty proposed is, broadly speaking, within the 'permissible range' (having regard to all the circumstances) the court (or in this case the Tribunal) should not depart from the agreed sanction. ...

1. However, the above statement (at paragraph 16) is preceded (paragraph 14) with the words, "Ultimately the question of the appropriate penalty in a particular case is a matter for the Tribunal, though the consent of the parties is clearly a significant consideration."
2. Given that, here we need not consider any implications for proceedings of this type of the decision of the High Court of Australia in the relatively recently decided Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, the majority of the Court decided that in criminal cases, the prosecutor must not proffer an opinion in the form of a submission as to available range of sentences.
3. Returning to the question of the appropriate penalty in this particular case, in our view the uniqueness of Dr Singh's inexperience in the context before us justifies non-suspension. While we agree the proposed suspension is in the usual range, this is not a usual case.
4. There is no need to suspend Dr Singh to achieve specific deterrence, deterring her from similar conduct in the future. Dr Singh is remorseful about the errors she made on her first day practising as a dentist in Australia. The practice environment on that day was unusual, with her being on her own at an aged care facility, in part working in a van, rather than in a practice with a more usual profile of patients, supported by a colleague or colleagues. She has no doubt learnt from this experience. She has been resilient in that she has moved on and still practises dentistry, establishing her own practice with two employee part-time colleagues.
5. In 2010, she agreed to and completed further education related to the issues that arose from her conduct. This will be reinforced by the education set out in our determinations.
6. There is no need to suspend Dr Singh to achieve general deterrence. In these reasons, we emphasise, but for the unusual circumstances in this case, Dr Singh would have faced suspension, probably longer than three months, had she been an experienced dentist. That statement alone is a significant warning.
7. We emphasise, obtaining informed consent from patients is a fundamental basis for providing treatment. Particular care must be taken when treating an elderly person where either it is obvious he or she is unable to consent or his or her capacity appears questionable.
8. The (Victorian) Office of the Public Advocate publishes a helpful Information Sheet titled, "Medical/Dental Treatment for Patients Who Cannot Consent".[2] It says in part:

Registered doctors and dentists (practitioners) cannot treat a patient without valid agreement (consent) from the patient to undertake the treatment.

A person over the age of 18 years can consent to treatment if they can understand the practitioner's information about the proposed treatment and can make an informed decision. If a person lacks this capacity to understand, another person must make decisions on their behalf.

1. The Information Sheet then discusses consent not being needed in medical or dental emergency when treatment is needed and the options in non-emergency situations, being to obtain consent from:

1. A person appointed by the patient under an Enduring Power of Attorney (Medical Treatment) or appointed as an enduring guardian, where that person is available and willing to make decisions; 2. A person appointed by VCAT to make medical decisions on behalf of the patient, where that person is available and willing to make decisions;

1. Where the above does not apply, the patient's spouse, domestic partner or primary carer (paid carers or service providers are not "primary carers" for this purpose); or

1. The patient's nearest relative over the age of 18 years, where that person is available and willing to make decisions.
2. We note also the Code of Conduct for Registered Health Practitioners published by the Dental Board of Australia[3] at "3.5 Informed Consent":

Informed consent is a person's voluntary decision about health care that is made with knowledge and understanding of the benefits and risks involved. A useful guide to the information that practitioners need to give to patients is available in the National Health and Medical Research Council (NHMRC) publication General Guidelines for Medical Practitioners in Providing Information to Patients (www.nhmrc.gov.au). The NHMRC Guidelines cover the information that practitioners should provide about their proposed management or approach, including the need to provide more information where the risk of harm is greater and likely to be more serious and advice about how to present information.

... when working with a patient or client whose capacity to give consent is or may be impaired or limited, obtaining the consent of people with legal authority to act on behalf of the patient or client and attempting to obtain the consent of the patient or client as far as practically possible ...

1. There is no need to suspend Dr Singh to protect the reputation of the profession of dentistry. That is sufficiently protected by the actions of the Dental Practice Board of Victoria and then the Dental Board of Australia and the outcome of these proceedings.
2. Also, in our view, the fact that four years have passed since the relevant events provides some, but not crucial, support for not suspending Dr Singh. In October 2010, Dr Singh agreed to conditions that she not practice in aged care. She has had to live with uncertainty all this time.
3. To an extent, an analogy can be drawn from the decision of the High Court Australia in Mill v The Queen (unreported) 7 September and 8 December 1988, where Wilson, Dean, Dawson, Toohey and Gaudron JJ said in the context of criminal conviction:

Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach -- passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in a matter of sentence; at times this can require what might otherwise be quite undue degree of leniency being extended to the prisoner.

[1] Concerning these patients neither aged care staff nor family were present.

[2] See www.publicadvocate.vic.gov.au. While the commentary is in the context of Victorian law, the law in other Australian States is similar.

[3] See www.dentalboard.gov.au.