Hanna v Dental Council of New South Wales

Hanna v Dental Council of New South Wales - [2023] NSWCATOD 146 - NSWCATOD 2023 case summary — Zoe

[4]

Factual Background

The factual background to this matter is set out in the decision of Deputy President Cole. Her Honour recorded the relevant facts as follows (Hanna v Dental Council of New South Wales [2023] NSWCATOD 71 at [10]-[20]): 10 Dr Hanna was first registered as a dental practitioner on 13 December 2010. 11 Since 2016, Dr Hanna has operated one sole practice and has also been involved in two other dental practices with two business partners. He has also established a business teaching implant surgery in Australia. 12 Dr Hanna has been the subject of five hearings under s 150 of the National Law since 13 July 2021. 13 The first hearing occurred on 13 July 2021. It was prompted by findings against Dr Hanna in the Local Court in relation to a charge of possession of a prohibited drug, namely 6.9 grams of cocaine. Dr Hanna failed to notify the Australian Health Practitioner Regulatory Authority (AHPRA) of the charge as he was required to do under s 130 of the National Law. The outcome of that hearing was the imposition of a condition on Dr Hanna's registration, requiring him to undertake a hair (beard) drug test by 14 August 2021. 14 Dr Hanna did not undertake the test required by the condition, so a further hearing under s 150 of the National Law was held on 1 September 2021. The outcome of that hearing was that a condition was imposed requiring Dr Hanna to undertake a hair (beard) drug test by 23 September 2021. 15 Dr Hanna undertook the hair (beard) drug test on 22 September 2021. The result was positive for cocaine, cocaethylene, benzoylecgonine and promethazine. The test result indicated that Dr Hanna had taken cocaine and alcohol prior to the test, although there was a possibility it could have been months prior to the test (see the report of Dr Dore, Consultant Psychiatrist and Addiction Specialist, dated 28 January 2022 in Exhibit A1). 16 A further hearing under s 150 of the National Law was held on 23 November 2021. Conditions were placed upon Dr Hanna's registration, requiring him to undergo random urine drug screening (UDS) in accordance with the Council's drug screening procedure. Dr Hanna was referred to an Impaired Registrants Panel and was required to undergo an assessment by a Council appointed practitioner in relation to possible impairment. Dr Hanna attended an assessment with that practitioner, Dr Dore, on 28 January 2022. 17 Dr Hanna did not comply with the random UDS conditions. A fourth hearing under s 150 was convened. The information before the delegates of the Council at that meeting indicated that Dr Hanna had only complied with 40% of the UDS testing dates. He had failed to attend two of the three Monday screenings, and the testing on the third Monday returned a positive result for cocaine and its metabolites. The outcome of the meeting was that Dr Hanna's registration was suspended under s 150(1)(a) of the National Law. 18 Dr Hanna appealed to the Tribunal from the decision to suspend his registration. On 12 May 2022, the Tribunal stayed the suspension (see Hanna v Dental Council of New South Wales [2022] NSWCATOD 54). On 26 September 2022, Dr Hanna's appeals against the Council's decision were resolved with the agreement of the parties. Further conditions were imposed on Dr Hanna's registration. Among other things, those conditions required Dr Hanna to attend for random UDS. 19 On 27 February 2023, Dr Hanna attended a UDS. The result was positive for benzoylecgonine, a metabolite of cocaine. The sample was also dilute, meaning that, either, Dr Hanna had drunk a large amount of water before taking the test, or the sample had been diluted. 20 The fifth hearing under s 150 was conducted on 17 March 2023. The outcome of that meeting was that Dr Hanna's registration as a dental practitioner was suspended with effect from 18 March 2023. Detailed reasons for the decision, dated 9 May 2023, were before me.
Both parties accepted at the hearing before us that that statement of the facts was correct. We respectfully adopt it.
The Dental Council has provided the following summary of what it describes as Dr Hanna's "repeated non-compliance with drug testing" as follows: Date Test 27 February 2023 Positive random urine test 22 February 2023 Wrong date - illness 27 January 2023 Wrong date - no collector available 12 December 2022 Forgot to contact testing centre 21 November 2022 Wrong date - no collector available 1 November 2022 Wrong date - no collector available 10 October 2022 Dilute sample provided 18 May 2022 Positive sample but explanation of Panadeine Forte prescription provided. 26 April 2022 Dilute sample provided (after public holiday) 17 March 2022 Wrong date - no collector available 28 February 2022 Did not attend - medical certificate provided 7 February 2022 Positive test result 27 January 2022 Did not attend 25 January 2022 Did not attend 12 January 2022 Did not attend - Covid-19 concerns 5 January 2022 Did not attend - Covid-19 concerns 28 December 2021 Dilute sample provided 20 December 2021 Did not attend 14 December 2021 Dilute sample provided 22 September 2021 Positive hair screen returned

[6]

Relevant law

The main guiding principle of the national registration and accreditation scheme under the National Law is that the protection of the health and safety of the public must be the paramount consideration (National Law, s 3A(1)).
The Dental Council is the Council established for the dental profession (National Law, s 41B(1)).
Section 150 of the National Law, which is in Division 3 of Part 8 of the National Law, relevantly provides as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …
A person may appeal to the Tribunal against a suspension by the Council for the health profession under Division 3 of Part 8 of the National Law (National Law, s 159(1)(a)). The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given (National Law, s 159(3)).
As Deputy President Cole DCJ observed in Hanna v Dental Council of New South Wales [2023] NSWCATOD 71 at [7]: "The outcome of an appeal under s 159 of the National Law will be a fresh decision on the merits, which may be the same as the Council's decision, or may be different. Appeals under s 159 have been described as having a "de novo nature" (Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [11] per Brereton JA (Emmett AJA agreeing) see also Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [8])."
On an appeal under s 159 of the National Law, the Tribunal is required to exercise afresh the administrative discretion in s 150, as if it were the Dental Council, upon the evidence (including any additional evidence that was not before the Dental Council) before it (Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9]).
On an appeal against a decision of a Council, the Tribunal may confirm the decision, set aside the decision or set aside the decision and make a new decision (being a decision that the Council could have made) (National Law, s 159C(1)).
As soon as practicable after making a decision on an appeal under the National Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to the parties (National Law, s 165M(1)(a)). Section 165M(2) provides: (2) The statement of a decision must - (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision.

[11]

Reports of Dr Michael Robertson

Dr Michael Robertson, a pharmacologist and forensic toxicologist at Independent Forensic Consulting, was engaged by the Health Professional Councils Authority to provide two reports. In his first report, dated 20 June 2022, Dr Robertson considered whether Dr Hanna's explanations for positive drug testing results were consistent with the drug test results. Those explanations were that he had been intimate and shared beds with persons who had consumed drugs on one occasion and that he had shared vapes and cigarettes with friends who had used cocaine on another.
Dr Robertson considered that it was possible that an amount of cocaine could have been ingested from sharing vapes and cigarettes, but that it was less likely that it would have been in his urine the following day (when he was tested). However, Dr Robertson could not completely exclude this as a possibility. He could also not exclude the possibility of transfer of cocaine from contaminated bed sheets.
Dr Robertson expressed the opinion that, had Dr Hanna used cocaine a day or two prior to working on a Monday, it was not likely that any material stimulating effects would have persisted that would have affected his ability to practise dentistry. In his view, however, it was possible that symptoms such as low mood, dysphoria, agitation and irritation, which generally follow the "high" caused by cocaine, may have been present at this time.
Dr Robertson provided an additional report on 4 June 2023, having been provided with further instructions concerning events since June 2022. Dr Robertson was asked whether Dr Hanna's explanation of his drug use resulting in a positive test on 27 February 2023 a plausible explanation for the result. Dr Hanna's explanation was that he had shared cigarettes at a friend's house on the Saturday night, prior to the urine test at about 5.15pm on the following Monday, which he later found out had cocaine in them.
Dr Robertson stated that, when smoked, cocaine is only present in urine for a few hours. He also expressed the opinion that, depending on the dose, when smoked, benzoylecgonine may reasonably be detected at or above the 150 ug/L cut-off for 24 to 48 hours. He stated that If a large dose of cocaine was used on the Saturday night, whilst unlikely, he could not exclude the possibility of an amount of BZE being present in the urine on Monday afternoon.
Dr Roberston considered that it was unlikely that, if Dr Hanna used cocaine on the Saturday night, any material effects remained when he worked on the Monday.

[14]

Report of Dr Sadia Saeed

Dr Sadia Saeed, consultant psychiatrist and addiction psychiatrist, provided a reporting letter on 11 April 2023. She stated that Dr Hanna had had two sessions with her since he informed her that he had unintentionally consumed cocaine whilst intoxicated with alcohol (by smoking a cigarette laced with cocaine). She diagnosed him as having an adjustment disorder in the context of ongoing issues with his Dental Council registration.
Dr Saeed provided a report on 30 April 2023 to the applicant's solicitors. She stated in that report that she had consulted with and assessed Dr Hanna six times since 26 October 2022. Her opinion was that there was no evidence of ongoing consumption of any illicit substance. Dr Hanna did not meet the criteria for harmful use or a dependence syndrome of illicit substances and did not meet the criteria of a substance use disorder. She was of the opinion that it was difficult to ascertain whether there had been any specific harm as a result of Dr Hanna's stimulant use. She agreed with Dr Canaris's opinion that he was an "at risk" practitioner rather than an impaired one. Dr Saeed noted that there was no evidence of dependency or any negative impact on Dr Hanna's professional performance.
Dr Saeed was of the view that it was essential to continue monitoring Dr Hanna's situation and provide the necessary support and interventions to ensure both his well-being and the safety of his patients when he is permitted to return to practice. She recommended that Dr Hanna engage with a drug and alcohol counsellor for a year and that he attend local Alcoholics Anonymous meetings or SMART Recovery Group meetings for about a year.
Dr Saeed stated that there was no firm evidence indicating that Dr Hanna is impaired and no evidence of public risk. However, insofar as Dr Hanna was "at risk," it was crucial to manage this risk and to mitigate any future threats he may pose. She stated: "Taking Dr Hanna's case into careful consideration, as there is no evidence suggesting compromise in his dental practice, it is my belief that the council could contemplate reinstation his dental registration with certain conditions in place to mitigate any potential risks to the public. Dr Hanna has shown a significant development in his self-awareness regarding substance use and displays genuine remorse. His understanding of the issue(s) and his approach to them have markedly evolved from the past. He demonstrates a decreased defensiveness and a greater acceptance of the challenges he has faced."
Dr Saeed also expressed the view that, to mitigate potential future risks to himself and the public, it is crucial for Dr Hanna to address and manage his adjustment disorder.

[17]

Consideration

An appeal under s 159 of the National Law is de novo in nature and requires the merits of the matter to be considered afresh as at the date of the Tribunal hearing. The question on appeal is whether, at the time of the Tribunal hearing, it is appropriate to take action under s 150 of the National Law in respect of Dr Hanna for (i) the protection of the health or safety of the public or (ii) otherwise in the public interest. If so, we then have to decide what is the appropriate action to take.
We are not required to make conclusive findings of fact based on the material before the Tribunal: Medical Council of New South Wales v Smithson [2021] NSWCA 53 at 20. The issue is not whether all of the allegations against Dr Hanna are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public: Kirby v Dental Council of NSW [2020] NSWCA 91 at [15].
We have not made findings about the truth or otherwise of Dr Hanna's explanations for positive test results. We note, however, that even if those explanations are accepted, they indicate that he was not acting with appropriate caution or prudence in relation to illicit drug consumption, prior to returning those results. His explanation for the positive test on Monday 7 February 2022 was that he had shared cigarettes and electronic vapes with his friends at a barbecue the day before. This was not long after the s 150 hearing of 23 November 2021 following which a condition was placed on Dr Hanna's registration, requiring him to undergo random urine drug screening. He told Dr Canaris that some of the people at the barbecue "may have been unsavoury." He also told Dr Dore (in January 2022) that he had made "big changes" since the events on 13 November 2020 which led to him being charged with drug possession. Those changes included no longer associating with the group of people for whom he had purchased drugs at that time. In these circumstances, it should have been apparent to Dr Hanna that associating with people who used cocaine, and sharing cigarettes with people who "may have been unsavoury," was unwise and could put him in breach of his conditions.
Dr Hanna's explanation for the positive drug test on 27 February 2023 raises similar concerns. In the letter which he wrote to the Dental Council on 8 March 2023, and which he reproduced in his affidavit, he stated that on the Saturday night prior to the test date he had placed himself in a situation where alcohol and drugs were present, specifically cocaine. He explained that he was stressed and was experiencing difficult and stressful life events, including his mother being in hospital. Dr Hanna said that he consumed a lot of alcohol "and was not capable of clear thought processing." Towards the end of the night, he noticed after sharing cigarettes that they had cocaine in them. He "did not give it any thought as to how it may impact [himself] and [his] testing results" due to his intoxication.
We acknowledge that Dr Hanna was under stress at the time of the party in question. However, in circumstances where sharing cigarettes had (on his explanation) led to a positive test result in the past, it was unwise of him to share cigarettes at a party. That is a form of risk-taking behaviour. Having realized that the cigarettes contained cocaine, he should have told his monitoring officer before being tested. Dr Hanna states that he was too ashamed and scared to do so, but that indicates a tendency not to take responsibility for his actions, particularly in relation to drug use.
We consider that it is appropriate to take action for the protection of the health or safety of Dr Hanna's patients. Dr Hanna has tested positive for cocaine use in the past on a number of occasions, most recently on 27 February 2023. He failed to comply with the testing regime on a number of occasions over the last two years, as set out in the table provided by the Dental Council and reproduced above. We accept Dr Dore's opinion that there is a possibility that Dr Hanna has not been fully transparent with the reporting of his drug use history (particularly in respect of his use of cocaine).
Dr Hanna has not recorded any positive drug test results since his suspension on 17 March 2023 and has complied with his undertaking to the Tribunal and the conditions imposed upon him, since that time. However, in light of the Local Court's findings that he was in possession of cocaine in 2020, the three positive test results in the two years prior to the hearing, the significant number of failures to comply with the drug testing regime (albeit that he has provided some explanations for this), and previous failures to comply with conditions imposed upon him, we consider that there is a risk of him using cocaine again.
We accept the opinions of Dr Canaris and Dr Saeed that, although there is no evidence of ongoing consumption of cocaine or any illicit substance since March this year, Dr Hanna is "at risk." We also accept Dr Saeed's opinion that Dr Hanna displays traits of impulsivity and compulsivity which made it challenging for him to adapt to practice restrictions. As the Dental Council submitted, Dr Hanna's conduct the subjective of the five hearings under s 150 of the National Law raises concerns about his insight. We agree with Dr Saeed's view that it is essential to continue monitoring Dr Hanna's situation and to manage the potential risk to patients and to mitigate any future threats he may pose.
The evidence does not establish that Dr Hanna's drug use has put patients at risk in the past. However, it may have done so and, more significantly, could do so in the future if he were to use cocaine again. Dr Robertson described the effects of a "high" following cocaine use as including elevated sexual arousal, increased self-confidence, reduced inhibitions and a corresponding increase in impulsive behaviour. He described the likely "low," following the initial stimulation which may last between one and four hours, as potentially including tiredness, low mood or mood swings, anxiety and depression. Practising dentistry whilst affected either by a "high" or a "low" could put patients' health and safety at risk.
We do not consider that suspension is necessary to address the risk Dr Hanna poses (as the Dental Council has acknowledged). That is for the following reasons: 1. Dr Hanna has been compliant with the undertaking that he gave to the Tribunal on 25 May 2023; 2. Dr Hanna has not recorded any positive drug test results since his suspension on 17 March 2023; 3. As Dr Canaris, Dr Saeed, Dr Rodriguez and Dr Wilson have opined, he is not impaired and does not meet the criteria for a substance or stimulant use disorder; 4. Dr Saeed has expressed the opinion that Dr Hanna has shown a significant development in his self-awareness regarding substance use and displays genuine remorse, an opinion we accept; 5. There is no evidence that Dr Hanna's past drug use has affected his patients; 6. Dr Saeed has taken steps to address his drug use by attending community counselling and drug and alcohol services.
We consider, however, that allowing Dr Hanna to practise without conditions would involve an unacceptable risk to the health and safety of his patients. That is so, given that his last positive drug test was only six months before the hearing, that he displays traits of impulsivity and compulsivity and that he is at risk of developing a substance use disorder or at risk of using cocaine again, especially if he is experiencing stressful circumstances.
The first two conditions upon which the parties agreed require Dr Hanna to comply with the Dental Council's drug screening policy, to attend for random urine drug screening and to authorise the sharing of the test results with the Dental Council and treating practitioners. Those conditions are appropriate to protect the public (and in particular, Dr Hanna's patients) from the effects of any potential drug use by him, because they make it likely that the Dental Council will be made aware of any such drug use. The sharing of results with his treating practitioners is appropriate so that they may treat him effectively, which is also protective of his patients.
The third condition upon which the parties agreed requires Dr Hanna to attend for monthly treatment sessions with a psychiatrist of his choice specialising in addiction medicine, to inform the Dental Council of the details of the psychiatrist and to authorise that psychiatrist to share certain information with the Dental Council. That condition is appropriate to protect the public, and particularly Dr Hanna's patients, because it is directed towards treating the causes of his past drug use with a view to assisting him not to use illicit drugs in the future. We note also Dr Saeed's opinion that it is crucial for Dr Hanna to address and manage his adjustment disorder in order to mitigate potential future risks to himself and the public. Psychiatric treatment is likely to assist with management of that disorder.
Twelve months is, in our view, an adequate period of time for the conditions to apply for the purpose of addressing the risk Dr Hanna poses to patients.
For these reasons, we have decided to impose on Dr Hanna's registration the conditions upon which the parties have agreed for a period of twelve months. Those conditions are appropriate for the protection of his patients' health and safety and are, in our view, also in the public interest.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (6)

Cited By (1)