Dental Board of Australia v Patel [2025] QCAT 97

• [3] The critical parts of the SOAF follow.
• [4] The practitioner, a dentist holding general registration:

(a) Had conditions imposed by the Board on his registration on 23 June 2021[1] which required him to:

(i) Only practice in places approved by the Board;

(ii) Be supervised by a Board-approved supervisor;

(iii) Be mentored by another registered health practitioner (Conditions);

(b) Was advised of the Conditions in writing on 28 June 2021;

(c) Was reminded by Ahpra not to practice without a Board-approved supervisor on 6 occasions between 1 July 2021 and 28 October 2021;

(d) practised on 25 occasions between 29 June 2021 and 14 July 2021 without a Board-approved supervisor;

(e) practised on 282 occasions between 15 July 2021 and 5 September 2021 without a Board-approved supervisor;

(f) practised on 422 occasions between 6 September 2021 and 8 November 2021 without a Board-approved supervisor and also practised without a Board-approved supervisor in treating patient DB;

(g) had his registration suspended by the Board on 8 November 2021;

(h) sent a letter to Ahpra on 12 January 2022 admitting he had breached the Conditions on 422 occasions as set out in (f); and

(i) Agrees that the conduct in (d) to (f) breached the Conditions.

• [5] The practitioner then provided false information to the Board by:

(a) Stating in an email to Ahpra on 5 November 2021 that he had immediately complied with the Conditions;

(b) Admitting to breaching the Conditions on 422 times in a letter his legal representatives sent to Ahpra on 1 August 2022; and

(c) Admitting that he could not deny the information he provided to the Board up until November 2021 was false.

• [6] The practitioner was 32 - 33 years old at the time of the conduct and is now 36. He graduated as a dentist in the United Kingdom in 2012.[2] He came to Queensland in 2013 where he was initially employed and sponsored by Queensland Health to work as a general dental practitioner in regional Queensland.[3] He was first registered as a dentist with the Board on 30 August 2013 and held continuous general registration until 23 June 2021. At the time of the events the subject of the proceeding he was working as a dentist in private practice.
• [7] The Board's decision to impose the Conditions, the breach of which is the subject of these proceedings, was consequent upon the Board receiving three notifications between 22 May 2019 and 16 July 2019 about the practitioner raising concerns about his billing practices, assessment and treatment of patients and clinical documentation.[4]
• [8] Having suspended the practitioner's registration on 8 November 2021 for noncompliance with the Conditions, on 19 August 2022 the Board decided to revoke the suspension of the practitioner's registration, with the effect that the Conditions remained in effect.[5] In so doing, it noted the insight which the practitioner had displayed and the peer support he had gathered around himself.[6]
• [9] His registration remains subject to the Conditions.

How should the Tribunal characterise the practitioner's conduct?

• [10] The parties jointly submit that the Tribunal may take into account the following matters:

(a) At the time of the admitted conduct, the practitioner was a dental practitioner with 8 years of experience;

(b) The Board imposed the Conditions on the practitioner's registration because it held concerns about his performance of the profession. The concerns related to billing practices, the performance of radiographs, clinical record keeping, his assessment of patients and the performance of dental work. The practitioner's admitted conduct in practising without the supervision he was required to have is objectively serious conduct that placed public health and safety at risk;

(c) By practising without a supervisor, the practitioner prioritised the personal financial impact of the Conditions on him and his family over the safety of his patients;

(d) The practitioner knowingly breached the Conditions despite seeking to clarify their operation and being aware the Board had not agreed to their commencement being delayed;[7]

(e) In addition to receiving notice in the Conditions themselves, Ahpra informed Dr Patel on five additional occasions that he was not to practise without a supervisor and yet he continued to do so;

(f) The practitioner was reckless as to the accuracy of his communications with Ahpra, for the Board, about the extent of his breaches;

(g) It was dishonest of the practitioner to inform Ahpra he had 'immediately' complied with the Conditions;

(h) The conduct amounts to a failure to uphold the requirements of the Code of Conduct that requires practitioners to:

(i) make the care of their patients their first concern and to practise safely and effectively;

(ii) be ethical and trustworthy; and

(iii) to act honestly and with integrity;

(i) the practitioner's admitted conduct amounts to:

(i) breaching the Conditions on 730 occasions over a period of about 4 months;

(ii) continuing to practise before nominating supervisors for approval;

(iii) practising in the absence of supervision by a Board-approved supervisor;

(iv) seeking to defer the impact of the Conditions by asking that they be delayed;

(v) continuing to practise in breach of the Conditions after the Board informed the practitioner it would not agree to delay the commencement of the Conditions;

(vi) falsely informing the Board he had immediately complied with the Conditions and had understanding colleagues, leading the Board to believe he was not practising and his colleagues were aware of the Conditions;

(vii) miscalculating the number of occasions on which he breached the Conditions;

(viii) providing incomplete and false information to Ahpra and the Board about the number of times he breached the Conditions;

(ix) recklessly continuing to provide inaccurate information to Ahpra and the Board about his breaches; and

(x) denying he had breached the Conditions when responding to the Board's proposal to suspend his registration.

• [11] Both parties submit, and the Tribunal readily accepts that the practitioner's conduct should be characterised as "professional misconduct" as defined in section 5 of the National Law.
• [12] Dishonest conduct towards a governing body during an investigation has been observed to reveal a character of a practitioner "... with which any disciplinary body must be concerned".[8] In Wakelin, the Tribunal found that forming a personal and sexual relationship with a former patient, then denying that to the Board and presenting a false affidavit from the former patient in support of that denial, then part acknowledging the relationship but minimising it was held to be unprofessional conduct and conduct which was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[9]
• [13] Thus it is not inevitable that such dishonesty will give rise to characterisation that the respondent is not a fit and proper person to hold registration within the meaning of (c) of the definition of professional misconduct in section 5 of the National Law. Nevertheless, the parties submit that the practitioner's conduct, at the time it occurred and when taken as a whole, is inconsistent with him being a fit and proper person to hold registration[10] and the Tribunal accepts that submission. This is because there is a concerning pattern to the practitioner's conduct, given the duration of the period of the breach of Conditions and the numerous times in which the Conditions were breached, coupled with the repeated misrepresentations made to the Board concerning compliance with the Conditions. The practitioner's communication to the Board on 5 November 2021 that he "... immediately complied..." with the Conditions is a remarkable falsehood, some months down the track and whilst he had been practising without a Board-approved supervisor and had provided more than 700 services.
• [14] Pursuant to section 196(1)(b)(iii) of the National Law, Dr Patel has behaved in a way that constitutes professional misconduct pursuant to sub-paragraphs (a), (b) and (c) of the definition of that term in section 5 of the National Law.

Are the parties' proposed orders appropriate and within the range of permissible outcomes for the practitioner's conduct?

• [15] The purpose of a sanction is to protect the public; it is not to punish the practitioner (although a practitioner may experience a protective action as a punishment, in the sense of negative consequences towards them). The Tribunal's disciplinary jurisdiction is exercised for the paramount purpose of protecting the health and safety of the public[11] and the protection of the reputation of the profession in the public mind.
• [16] There are well established considerations for the Tribunal on a disciplinary referral:[12]

(a) preventing practitioners who are unfit to practice from practising;

(b) bringing home to the practitioner the seriousness of their conduct;

(c) deterring the practitioner from future departure from appropriate standards or others who might be minded to act in a similar way; and

(d) imposing restrictions on the practitioner's right to practice to ensure public protection.

• [17] An assessment of ongoing risk posed by the practitioner is essential to any determination of sanction. In performing that assessment, the degree to which the practitioner has acquired insight will be relevant.[13]
• [18] Having decided that the practitioner has behaved in a way that constitutes professional misconduct, the Tribunal has a wide discretion to impose sanctions ranging from a caution or a reprimand of the practitioner to cancellation of registration.[14]
• [19] The Tribunal will consider a range of factors in a given case including the nature and seriousness of the alleged conduct, the extent to which the practitioner has shown contrition, insight or remorse for their conduct, the need for general or specific deterrence, evidence of rehabilitation and otherwise good character, including co-operation with the disciplinary process and the regulator and any mitigating factors which are personal to the practitioner.
• [20] The orders by way of sanction the parties jointly propose are[15]:

(a) Pursuant to s 196(2)(a) of the National Law, Dr Patel be reprimanded;

(b) Pursuant to s 196(2)(c) of the National Law, Dr Patel pay a fine to the Board of $30,000;

(c) Pursuant to s 196(2)(d) of the National Law, Dr Patel's registration be suspended for 8 months;

(d) The suspension of the respondent's registration is to commence on 23 April 2025;[16]

(e) There be no order as to costs.

• [21] Where the parties have agreed on the appropriate sanction, whilst the Tribunal retains a discretion to impose a different sanction, it ought not readily depart from the parties' agreed position unless the sanction falls outside the permissible range for the established conduct, bearing in mind the purpose of disciplinary proceedings is protective, rather than punitive.[17]
• [22] A reprimand is not a trivial penalty.[18] The Tribunal will impose a reprimand. The Tribunal has no power to specify an end date for a reprimand appearing on the register.[19] The Tribunal can record a view as to what it may regard as an appropriate period for a reprimand to remain recorded on the National Register in a given case, but it is ultimately the Board's decision as to the period of the reprimand.[20] Consideration of any recommendation as to its duration is addressed below.
• [23] The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.[21] The parties have advanced a number of cases in written submissions. Unsurprisingly, none is 'on all fours' but, collectively, they indicate that a period of suspension of some months and a reprimand have been imposed in other cases for conduct which involves breaches of conditions and repeated lack of candour.[22]
• [24] In this proceeding the Board accepts the practitioner has made admissions, has sworn to the steps he has taken for education and mentoring, has manifested a cooperative approach to the proceeding and submits these are relevant factors for the Tribunal in determining the appropriateness of the proposed sanction.
• [25] The Tribunal also takes into account, in a general way, that the practitioner has been suspended for approximately 9 months through the immediate action taken by the Board, in response to his ongoing failure to comply with the Conditions.
• [26] As to current fitness to practice, the practitioner has deposed to complying with the Conditions since the suspension of his registration was lifted on 19 August 2022,[23] a period of approximately 2 and a half years. He has provided a letter from his mentor over the period from when he resumed practise until provision of the final report in July 2023. The practitioner's mentor states the practitioner's clinical records were developed to a high standard, noting that they incorporated all of the points which had been addressed during the mentoring period,[24] his billing practices were accurate and he had been sincere in his efforts to address the Board and Ahpra's concerns.[25] His mentor states his opinion is that the practitioner's provision of treatment is not causing any concern for the health and safety of the public and the practitioner has the inherent qualities required of a registered health practitioner, including maintaining integrity, professional judgment and ethical decision making.[26]
• [27] The respondent deposes to his regret and remorse for his earlier actions. He has also candidly put before the Tribunal the fact of a notification received about him since these proceedings were commenced and his response to that notification, which involves a single patient and issues apparently largely unrelated to those the subject of these disciplinary proceedings. He has deposed to having, in response to this, reached agreement with an experienced prosthodontist who will mentor him in respect of clinical performance and communication issues.[27]
• [28] The Tribunal is satisfied on the evidence that the respondent is not presently unfit to practice, and that a period of suspension as proposed by the parties will adequately reflect the relevant principles here, together with the reprimand and the fine proposed jointly by the parties. Specifically, the insight the practitioner has developed, together with the evidence from his mentor, indicate the practitioner does not pose a significant level of ongoing risk. A period of further suspension and the maximum fine permissible are therefore directed to marking the significant departure from expected standards which the practitioner's conduct demonstrated and to address issues of general deterrence.
• [29] The respondent has submitted the Tribunal should consider whether to make a recommendation as to the period after which the reprimand should be removed from the National Register, recognising that the Board is the determiner of whether to remove the reprimand from the National Register.[28] This is on the basis that the respondent has agreed to a significant period of suspension, the imposition of the maximum possible fine and has demonstrated insight and remorse. The Board has indicated it does not wish to be heard on this issue, which is a conventional position to adopt.
• [30] The Tribunal notes and endorses the comments in Health Ombudsman v Gillespie[29] at [40] as to the adoption of a policy which may operate in a blanket way to prohibit a practitioner from applying for the removal of a reprimand for five years from its date of publication, absent any order for a publication end date given the terms of the National Law.
• [31] It appears, however, from material appearing on the Ahpra website that Ahpra may no longer have such a policy.[30] The Monitoring and Compliance section of the webpage, which is noted as having been updated on 24 July 2024 (post-dating the decisions in Gillespie and HNH),[31] contains no reference to a policy for a five year term for the noting of a reprimand on the National Register.[32]
• [32] In these circumstances, and given the apparently pending additional notifications, the Tribunal considers the timing of any removal of the reprimand is best left to the Board for its fulsome consideration when it receives an application for removal from the practitioner.
• [33] The Tribunal thanks the assessors for their insightful assistance in the determination of this referral.

[1] The notice of the decision to take immediate action is contained in the Hearing Book filed on 7 February 2025 p 45 ('HB').

[7] The Tribunal notes the material the practitioner received within 8 days of the imposition of the Conditions included clear statements that he must not practice until he had an approved supervisor: HB pp 87, 88 and 93.

[8] Psychology Board of Australia v Wakelin [2014] QCAT 516 (Wakelin) at [21] per JB Thomas JM.

[10] Board's submission [108]; practitioner's submissions [25].

[12] Craig v South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553- 555.

[13] Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391 (Lockie) at [71] citing Medical Board of Australia v Bromeley [2018] QCAT 163 at [142].

[15] Board's submissions [11], Practitioner's submissions [2].

[16] The practitioner asks and the Board agrees that the order for the suspension be made effective three weeks from the making of orders, to enable the practitioner to make orderly arrangements for patient management.

[17] Medical Board of Australia v Martin [2013] QCAT 376 at [91] - [93].

[18] Psychology Board of Australia v Cameron [2015] QCAT 227 at [25].

[19] Health Ombudsman v Gillespie [2021] QCAT 54 at [48] - [50].

[20] National Law s 226(3), Health Ombudsman v Veltmeyer [2021] QACT 77 at [36].

[21] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638].

[22] The authorities referred to by the parties include Medical Board of Australia v Pepulani [2021] WASAT 128; Nursing and Midwifery Bord of Australia v Stoksik [2018] VR 110; Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103; Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99; Lockie (n 13); Medical Board of Australia v Shah [2016] QCAT 158.

[28] Respondent's submissions [41] - [49]; National Law s 226(3).

[29] [2021] QCAT 54.

[30] The Tribunal having informed itself of these matters as it sees fit: s 28(3)(c) Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[31] Health Ombudsman v HNH [2021] QCAT 235 at [36].

[32] https://www.ahpra.gov.au/Registration/Monitoring-and-compliance/Removal-of-reprimands.aspx