Dental Council of NSW v Stewart

Circumstances Surrounding the Breach

1. The practitioner has performed sedations on patients at David Cox Dental Surgeries in Queensland, for approximately 30 years. From 26 April 2016 Dr Cox, the manager at those practices, breathalysed the practitioner every day that the practitioner worked for him without incident. These breath tests were conducted for the purposes of condition (11) imposed by the Tribunal on 15 December 2015 which required that, before undertaking any clinical work, the practitioner was to undertake breath-testing for alcohol at his place of employment in accordance with the Council's protocol for breath testing.
2. On 26 May 2016 the practitioner was at Brisbane airport attempting to secure a flight to Sydney to visit his mother who had suffered a heart attack. Whilst at the airport he drank a single glass of wine. Before he was able to secure a flight, he received a phone call from Dr Cox's surgery asking him to work an afternoon shift. The practitioner had not previously been scheduled to work this day.
3. On arrival at the surgery Dr Cox breathalysed the practitioner. The practitioner registered 0.023mg/mL blood alcohol level. The practitioner said "I've stuffed it", and told Dr Cox that his mother had suffered a heart attack and had been in intensive care. He did not think she would make it. Dr Cox told the practitioner that he could not work and suspended him from clinical duties.
4. On 27 May 2016, Dr Cox sent an email to the Australian Health Practitioner Regulation Agency (AHPRA) to notify them that the practitioner had returned a positive alcohol test and that he had been stood down immediately. Several days later the practitioner also confirmed his positive blood alcohol result with AHPRA.
5. Dr Cox subsequently had a telephone call with a compliance officer from AHPRA in Queensland. Arising from those discussions Dr Cox understood the position to be that the practitioner could continue to practice, under the same conditions, unless otherwise notified. It appears that the practitioner worked at Dr Cox's surgery after the breach and continued to comply with the conditions attached to his registration. The evidence is not entirely clear as to when and how frequently the practitioner worked after the breach, but the evidence is to the effect that he did not work as a dental practitioner at any time whilst suspended.
6. In subsequent correspondence with AHPRA on 12 June 2016, the practitioner advised that he had seen Dr Florida and had been on sick leave due to stress. The practitioner reported significant distress and remorse. He advised that Dr Cox had agreed to continue to employ him with AHPRA's approval. He disclosed that in the lead up to the breach in addition to his mother's illness and operations, leading up the breach incident an article had been published in "Bite Magazine" on 16 May 2016 which he believed related to him. Although the article did not name him it contained information which he believed identified him. That article referred to him having "sought solace at the bottom of a bottle", having "spun off on a three-day bender", and that his case was "just one of the many instances of substance abuse among dental practitioners that has come before the HCCC". Further, an email had been sent to all members of the Australian Society of Dental Anaesthesiology which named him, his suspension and termination at Westmead, and which insinuated that he had been responsible for fraudulent misappropriation of funds.

Delay in the Commencement of Proceedings in the Tribunal for the Breach

1. At the time of the breach in May 2016 the practitioner was practising in Queensland. Accordingly his compliance with the conditions previously imposed by the Tribunal were being monitored by AHPRA Queensland. The Queensland version of the National Law does not provide for critical compliance conditions. AHPRA Queensland reported the contravention to the Health Professional Councils Authority on 7 March 2017 and the Council became aware of this information on the same day. It is not clear whether unfamiliarity with critical compliance conditions was a reason for this delay in reporting.
2. On 8 March 2017, the Council convened pursuant to section 150 of the National Law. It determined that the condition had been contravened and suspended the practitioner's registration effective from 13 March 2017. At the time, the Council observed that the contravention had to be referred to the Tribunal. As referral for a breach of critical compliance condition occurs very infrequently, the Council understood that this was to be done by the HCCC. Subsequently the HCCC conducted an investigation.
3. However, and unusually compared with the route which many complaints reach the Tribunal, it is the Council that is obliged to refer the matter to the Tribunal as a complaint: see section 150(3)(b) of the National Law. Once this pathway was properly appreciated, proceedings were commenced by the Council in the Tribunal.
4. As noted above the practitioner's registration was suspended on 13 March 2017. Therefore, as at this time the practitioner has been suspended for some 17 months.
5. It is acknowledged by the Council that the period from the breach until suspension (that is; from 26 May 2016 until 13 March 2017) and then from suspension until the present proceedings has been considerable.

Whether the Complaint is established

1. The Complaint is referred to the Tribunal pursuant to section 150(3)(b) of the National Law. Section 150(3) provides that: (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint.
2. Under section 149, the Tribunal may exercise any power conferred on it by Subdivsion 6, Div 3, Pt 8 of the National Law if it finds the subject-matter of a complaint to have been proved, or if the practitioner admits it in writing to the Tribunal.
3. Section 149C(3) of the National Law provides that the Tribunal "must" cancel a registered health practitioner's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition.
4. The following essential facts are not disputed: 1. on 15 December 2015, the Tribunal imposed a 'critical compliance condition' on the practitioner's registration which required him to abstain completely from the consumption of alcohol 2. the critical compliance condition that the Tribunal imposed on 15 December 2015 remained in force as at 26 May 2016 3. on 26 May 2016 the practitioner consumed one glass of wine 4. on 26 May 2016 the practitioner was breathalysed at his workplace prior to the commencement of duties and registered a 0.023mg/mL blood alcohol level
5. The Tribunal is satisfied that the Complaint is established. The practitioner has contravened a critical compliance condition and the Tribunal must cancel his registration.
6. Under section 149C(7) of the National Law an order cancelling registration may also provide for a period of time before an application for review of the order may be made. In effect this kind of order works to set a preclusion period during which the practitioner is not able to apply for re-registration. It is arguable, and as was submitted by the parties that the use of the word "may" in the legislation suggests that this is a discretionary power.
7. By operation of section 149E(1) of the National Law, once the Tribunal cancels a practitioner's registration, they cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under section 163B of the National Law.

The Hearing

1. It became clear at the hearing that the Council's position was that it did not seek an order pursuant to section 149C(7) of the National Law. In practical terms this meant that it was not seeking the setting of any time period precluding the practitioner from applying for review and seeking a reinstatement order. There being no period of preclusion, there would be no legal impediment preventing the practitioner from immediately applying for a reinstatement order.
2. Further, the Council did not press order number 2 in its Application in which it sought costs. The Council's position is that each party should bear its own costs.
3. The practitioner does not oppose the orders sought by the Council. He submits cancellation must occur but that such an order should not include a period of preclusion.
4. Given that a cancellation order must be made, the Tribunal's primary focus was whether the cancellation order should include a period of preclusion.

The practitioner's evidence

1. The practitioner gave evidence confirming the circumstances surrounding the breach and spoke candidly about his personal circumstances. Since his suspension he has not worked as a dental practitioner. He has not found alternative work and has no income. He has applied for unemployment benefits. If he is re-registered he hopes to find a teaching role.
2. The practitioner gave evidence about the steps he continues to take to deal with his alcohol dependence. This included attending weekly group meetings of Alcoholics Anonymous and Doctors in Recovery. His treating General Practitioner recently retired and he is in the process of identifying another suitable GP. His Clinical Psychologist has also recently retired. He had been seeing an addiction Psychiatrist, Dr Florida, but he could no longer afford the consultation fees.
3. As previously noted the practitioner was not scheduled to be at work on the day of the breach 26 May 2016. The practitioner could not explain why after receiving a telephone call on that day requesting him to work that he agreed to do so. He has not consumed any alcohol since the day of the breach.

Other material

1. The Tribunal does not have any recent evidence before it about the practitioner from a treating health professional. However there is some limited evidence available to the Tribunal which throws some light on the practitioner's progress during the period of his suspension.
2. On 24 October 2016 Dr Florida reported that the practitioner had continued to comply with his restrictions. He suffered a relapse in May 2016 (the breach), in the context of his unwell mother. He recovered quickly. On 10 February 2017, Dr Angus Cottee advised that the practitioner was well and complying with statutory requirements.
3. Similarly, on 10 February 2017, Dr Florida advised that since her last letter of 24 October 2016, she had consulted with the practitioner on 28 November 2016 and 6 February 2017. She observed that he had continued with his restrictions including supervised Disulfiram, twice weekly EtGs, and was being breathalysed before he worked. He attended regular visits with Dr Florida, and with a psychologist. He also attended Doctors in Recovery weekly, and an AA meeting. He remained abstinent from alcohol and his mood and sleep were good. Dr Florida considered that the practitioner was stable at that time.
4. On behalf of both the Council and the practitioner it was submitted that the order of the Tribunal should not include a period of preclusion. However both parties indicated that if the Tribunal thought that it was appropriate to set a period of preclusion they each adopted the position that such a period should be short and in the order of 4-5 weeks.
5. In this regard reference was made to the following factors: 1. The practitioner's circumstances 2. The practitioner's candour 3. The singular nature of the breach 4. The breach did not cause any harm to any person because the protective mechanism (the breath testing) worked and the practitioner did not work 5. The practitioner had voluntary withdrawn from practice for six months prior to the current suspension being imposed 6. It has been some twenty-seven months since the conduct giving rise to these proceedings occurred 7. The current suspension has been in place for seventeen months 8. The mandatory nature of cancellation of registration on the breach
6. On behalf of the practitioner it was submitted that the already long period of suspension suffered by him will be a very serious deterrent not only to him but to other practitioners whose registration includes conditions especially critical compliance conditions.

CONCLUSIONS

1. There is only one reported decision which concerns breach of a critical compliance condition, namely, Medical Council of NSW v Ghannoum [2018] NSWCATOD 6. An earlier decision of Medical Board of New South Wales v Dr Jason Jefferson Martin (NSW No 40030 of 2009) is unreported. The facts of those decisions are not analogous to the present case although they provide some guidance as to the matters the Tribunal has considered relevant.
2. In Ghannoum, the practitioner failed over a period of two months to comply with a critical compliance condition which required him to attend a minimum number and frequency of Continuing Medical Education Courses. There was seven months between the contravention and his suspension. The Tribunal hearing took place approximately twelve months after the contravention. The nature of the critical compliance conditions, the contravention and the circumstances in Ghannoum were very different to the present case.
3. The Tribunal made a short preclusion order of one week after the date of the Tribunal's orders, and which expired about five weeks after the Tribunal hearing. The Tribunal's reasons included that the practitioner had made extraordinary efforts to rectify any deficiencies in his medical education. Reference was made to the fact that the period during which his registration was suspended or cancelled would total six months. Even if he lodged an application for review seeking registration immediately after the preclusion period, it would probably be several months before the application would be determined. The Tribunal considered that the suspension and cancellation would have had serious adverse effects on him over a considerable period. In the circumstances the Tribunal was satisfied that the already six months' exclusion from practice was a sufficient deterrence for the practitioner and other practitioners, and adequate for the protection of the public.
4. In Martin, the conduct involved a failure by the practitioner to attend for urinalysis and not immediately notifying the Board of the failure, contrary to critical compliance conditions on his registration. The relevant drug screening conditions were directed to providing a health framework for the practitioner and protecting the public by verifying that the practitioner was not using addictive drugs. The failures occurred in circumstances where the practitioner's wife had a delivered a baby and had suffered a post-partum haemorrhage and required medical intervention. While he provided a sample the next day, he did not notify the Board until nine days later.
5. There was no period of suspension. A four month preclusion period was imposed. The Tribunal was mindful that the objects of the (then) Medical Practice Act 1992 were to ensure the protection of the health and safety of the public and that medical practitioners are fit to practise medicine. The purpose of requiring urine testing was to ensure that the practitioner was not abusing drugs, was fit to practise, and did not pose a threat to the health and safety of the public. In these circumstances the breach of the condition did not indicate relapse, but of disorganisation and inappropriate response. The Tribunal referred to the most recent medical reports on the practitioner's progress as indicating continuing improvement in his condition, engagement with therapy and compliance with treatment. The Tribunal took his improvements into account in determining a preclusion period.
6. In HCCC v Bours (No 2) [2015] NSWCATOD 80, the Tribunal made observations about the seriousness of critical compliance conditions. The seriousness with which the Tribunal views a practitioner's conduct is reflected in the making of such conditions given their severe effect: at 159.
7. In the circumstances of this case the current suspension has had serious financial consequences on the practitioner. He has exhausted his financial reserves. At the hearing he told the Tribunal that he was not employed, had no income and was still awaiting the outcome of his application for social security.
8. In determining whether to make a period of preclusion, and if so, for how long the Tribunal acknowledges that it is appropriate to take into account the circumstances of the breach, the nature and extent of the breach, whether the breach was such that it was remedied or capable of being remedied, the period of time since the breach and the period of time that the practitioner has already been suspended.
9. However, the objective and guiding principle for the Tribunal in the exercise of its functions, is that the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law.
10. In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
11. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
12. In the Tribunal's view it is essential to the smooth operation of the system of regulation and discipline that practitioners comply with conditions imposed on them. It is this compliance that enables the public to have confidence that a practitioner is conducting themselves properly. It is this compliance that signals to the public that their health and safety is protected.
13. In this case the practitioner has had the benefit of numerous conditions to facilitate his continued practice over a period of some years. Since February 2011 he has been subject to various conditions to abstain from alcohol. He has been subject to suspension on three occasions prior to the current suspension. All these matters led him to a point that culminated in Tribunal proceedings in 2015 which resulted in the imposition of critical compliance conditions.
14. The imposition of a critical compliance condition is by its nature a very serious condition. If contravened the Council must suspend the practitioner and refer the matter to the Tribunal: Section 150(3) of the National Law. If the Tribunal is satisfied that the condition has been contravened it must cancel the practitioner's registration: Section 149C(3) of the National Law. There is no discretion and the circumstances surrounding the breach, no matter how compelling, cannot lead to a different outcome. The only discretion which exists relates to the length of time in which the cancelled practitioner may not apply for reinstatement. It is the mandatory nature of these provisions which makes any contravention so far-reaching and grave.
15. The outcome in this case ought to reflect the seriousness of a contravention of a critical compliance condition. This is because although the extent of the practitioner's breach was singular, the condition which was contravened went to his central problem and was suggestive of a relapse. In the Tribunal's view by not setting any preclusion period at all this could create the unacceptable perception that the Tribunal's approach and treatment of such a serious matter was shallow. This would not engender public confidence.
16. Although both parties submitted that no preclusion period should be set, given the serious nature of a contravention and the practitioner's past history of conditions and suspensions in the Tribunal's view not setting a preclusion period is not an appropriate outcome.
17. Equally, however balancing these matters against the period of time since the breach, the absence of any evidence indicating further breaches, the efforts of the practitioner to address his difficulties and the period of time the practitioner has already been suspended, the preclusion period should be short.
18. Considering that the breach occurred some 27 months ago and the practitioner has been suspended now for some 17 months, in the Tribunal's view an appropriate period before which the practitioner can seek a review and reinstatement is 4 weeks.
19. Both parties submitted that the appropriate review body for the purposes of any application for review is the Tribunal: see section 149E of the National Law.
20. Both parties also agreed and submitted that each party bear its own costs. The Tribunal is satisfied that in the circumstances it is proper to make this order.

ORDERS The Tribunal orders that: 1. The practitioner's registration as a dental practitioner is cancelled. 2. The practitioner is precluded from applying to the NSW Civil and Administrative Tribunal for a re-instatement order for a period of 4 weeks from the date of these orders 3. The Registrar is requested to notify the Australian Health Practitioner Regulation Agency of Orders 1 and 2 above as soon as practicable 4. Each party is to pay their own costs

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2018