Exler v The Dental Practice Board of Victoria

[30]

11 The Applicant was born and educated in Russia. He qualified as a dentist at the Moscow Medical Institute in 1980. He came to Australia in 1982 and obtained registration as a dentist in Victoria in 1990. Commencing practice on his own in 1991, over a period of years, he opened practices in several Melbourne suburbs. In 1994, he established his primary practice at 1A Kent Street, Brighton. However, thereafter he continued to see patients in other suburban locations. Over the years he has been the subject of findings adverse to him after appropriate hearings both by the Panel established by the Dental Practice Board and, its predecessor, the Dental Board.

12 On the 4th December, 1996, the Applicant, having been convicted of a breach of the Commonwealth Financial Transactions Reports Act, appeared before the Dental Board. The Board resolved to remove the Applicant's name from the Register of Dental Practitioners for what was a period of 2 months. In July, 1997, the Applicant was found guilty of what I can conveniently call false advertising, and was fined $6,000. He received also a reprimand and had a condition imposed upon him in relation to advertising.

13 In November, 2001, a Panel, appointed under the Act, found the Applicant guilty of a number of charges of present relevance, with findings that he provided dental treatment to a patient without obtaining her prior consent and that he failed to advise that patient that he was not recognised as a dental provider by HBA. Overall, he was on this occasion fined a total of $34,000 and, in relation to findings of professional misconduct and unprofessional conduct of a serious nature, in the aggregate he was suspended from dental practice for a period of three months. In relation to each of two findings that he was guilty of unprofessional conduct not of a serious nature, he was reprimanded. Finally, the Panel addressed a caution to the Applicant in direct, clear and strong terms, which I shall reproduce hereafter.

14 Insofar as concerns this hearing, the following are the matters alleged against the Applicant. The allegations were contained in a letter to the Applicant dated the 20th July, 2004. I have not set out the detail of the allegations concerning the complainants Vakoussevitch, Williams, and Loke.

[88]

15 Before the Panel, and again before the Tribunal, the Applicant admitted the allegations contained in Clauses (c), (d), (e), (f), (g), (h), (i) and (ss). The admission relating to (ss) is significant that it accepts that there was a failure on the Applicant's part to reply properly and/or adequately to some thirty letters written to him by either the Complainants or the Board between January, 2003 and April, 2004. As I have noted, the Applicant accepts the findings of fact made by the Panel in its reasons. I set out in summary form a number of those findings.

16 Mr Michael Schoenfeld:

That the Applicant knew that he was "derecognised" by HBA and that Schoenfeld was an HBA member when the Applicant treated him on 23rd November, 2002. That the Applicant misled Schoenfeld about the Applicant's relationship with HBA. That the Applicant's behaviour was "particularly serious" because of an earlier Panel finding that he had misled a patient about his relationship with HBA. In that regard, I refer to the findings of the Panel set out on pages 1 and 2 of its findings, being paragraphs 3 to 12 inclusive.

17 Mrs Annetta Moussa:

That the Applicant placed this patient under unreasonable and unprofessional pressure in relation both to proposed treatment and payment of her account. That the Applicant failed to obtain the patient's full and appropriately informed consent before commencing treatment. That the Applicant failed to return the Complainant's telephone calls. The detail of those findings are set out at pages 1 and 2 of the Panel's reasons and are contained in paragraphs 18 to 22 thereof.

18 Applicant's affidavit - that it was false insofar as it contradicted Schoenfeld's evidence (see reasons, page 20 at paragraph 37).

19 Applicant's patient records - that the Applicant falsified his patient records in relation to Schoenfeld (paragraph 37, page 20) and Moussa (paragraph 41, page 20).

20 Correspondence - that there were numerous letters which raised serious matters to which the Applicant did not respond over a lengthy period. When he did respond, often it was "simply to provide a further excuse as to why he should not respond" (paragraph 42, page 21 reasons).

[90]

23 As I have stated above, there were thirty letters to which the Applicant did not respond in a timely or responsive manner.

24 The Applicant has conceded that he engaged in unprofessional conduct. In relation to the Schoenfeld and Moussa complaints, he contended that the conduct was not of a serious nature. In relation to his failure to answer correspondence, he conceded also that it was unprofessional conduct of a serious nature.

25 The Applicant relied, before the Panel, upon an affidavit, sworn on 28th September, 2004. However, although it is clear that he was present during the substantive hearing before the Panel, and, patently, was present at the hearing before the Tribunal, he did not give oral evidence, either before the Panel or before the Tribunal. In his affidavit, he disputes a number of material facts and seeks to excuse his conduct, particularly in relation to his failure to reply to correspondence. He also seeks to excuse his conduct upon the basis that during the relevant period he was suffering health problems, both physical and emotional. He asserted that he was then under the care of a cardiologist, Dr Gelder, and was receiving counselling from a psychologist. As the Applicant did not contest the findings of fact made by the Panel, and as the panel preferred the evidence of the Complainants, tested in cross-examination, to that to be found in the affidavit of the Applicant, the affidavit requires little comment from me, save to say that I regard it as self serving and unsatisfactory as a response to the allegations made against him.

26 Evidence was received, at the Panel hearing on the 4th May, 2004, from Dr Lebeden, the Applicant's general practitioner, and reports were tendered and relied upon by the Applicant from Dr Gelder and the psychologist, Mr Guy Avisar dated 8th December, 2004. None of those materials either satisfy me that he had any health problems before he saw Dr Lebeden on the 26th April, 2004, or that there can be any confident feeling that he realises and intends to correct the errors of his conduct. No attempt was made to put before me any updated material from Mr Avisar notwithstanding that 11 months had passed since the report relied upon was given.

27 As to penalty, Dr Freckleton, counsel for the Applicant, submitted that the suspension of the Applicant's registration for 180 days was excessive and unwarranted and it was unlawful as the Panel did not identify what period of the suspension related to each of the individual findings against the Applicant.

28 Insofar as the monetary penalties were concerned, Dr Freckleton contended that they were excessive and further that s.47 of the Act contemplated the imposition of a single global sum of $10,000, as a maximum monetary penalty, to cover all findings no matter how many findings adverse to the dental practitioner had been made.

29 These submissions contained a significant contradiction between them, concerning the operation of s.47 of the Act, namely, that in relation to suspension there must be a determination directed to each finding, whereas in relation to a monetary penalty the section envisages a single penalty in relation to all findings.

30 The section is in these terms:

Exler v The Dental Practice Board of Victoria - [2005] VCAT 2595 - VCAT 2005 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (111 paragraphs)

Exler v The Dental Practice Board of Victoria (Occupational and Business) [2005] VCAT 2595 (8 December 2005)

Parties

Legislation Cited (1)