Hanna v Dental Council of New South Wales

Section 150 of the National Law

1. The National Law provides, relevantly, in s 150: 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 … (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) … (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) …
2. Section s 159(3) of the National Law provides that an appeal under s 159 "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". 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]).
3. An appeal under section 159B of the National Law is an appeal with respect to a point of law. The outcome of an appeal under s 159B will usually include a decision on a point of law.
4. In both an appeal under s 159 and an appeal under s 159B, the Tribunal has the power to confirm the decision appealed from, set aside the decision or set aside the decision and make a new decision (being a decision that the Council could have made) under s 159C.

Background

1. Dr Hanna was first registered as a dental practitioner on 13 December 2010.
2. 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.
3. Dr Hanna has been the subject of five hearings under s 150 of the National Law since 13 July 2021.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. To date, no Application for disciplinary findings and orders has been filed in the Tribunal in relation to the series of events which began with the s 150 hearing on 13 July 2021.

Principles relevant to an application for a stay

1. The power to impose a stay of the Council's decision in respect of an appeal under s 159B of the National Law is provided for in s 165L(2) of the National Law. There is no power to stay a decision of the Council in respect of an appeal under s 159 (see Medical Council of New South Wales v Lee [2017] NSWCA 282).
2. In Hanna v Dental Council of New South Wales [2022] NSWCATOD 54, the principles relevant to an application for a stay are set out as follows at [6]-[9]: 6. The principles to be applied when considering whether to grant a stay are well established (Ansari v Medical Council of New South Wales [2021] NSWCATOD 138; Hill v Medical Council of New South Wales [2019] NSWCATOD 52; and Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13). 7. Those principles can be summarised as follows: (a) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (b) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (c) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (d) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (e) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (f) The overriding principle in an application for a stay is to ask what the interests of justice require. 8. An appeal on a point of law and the stay application are to be determined under the National Law. As with all applications under the National Law the object in s 3A is relevant, namely, that the health and safety of the public is to be the paramount consideration and is a matter entitled to significant weight once it appears that a professional person has misconducted him or herself to a substantial degree (Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43] to [47] per Boland DP). 9. Each case must turn on its own specific facts. The Applicant bears the onus of establishing that it is appropriate to grant the stay (Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [59] per Boland DP).

The strength of the applicant's case in the s 159B appeal

1. The sole ground of appeal in the original External Appeal Form filed on 6 April 2023 was: 6. Pursuant to s 159B of the National Law (NSW) the appellant appeals on the basis that the Decision is wrong in law and legally unreasonable. It is not the correct or preferable decision.
2. At the hearing of the stay application, a draft Amended External Appeal Form was produced by the applicant, with the following grounds of appeal under s 159B: 6. The appellant appeals against the decision pursuant to s 159B of the National Law (NSW) on the basis that the decision is wrong with respect to points of law in that: a. The Council had no power or authority to conduct the hearing pursuant to section 150(1)(a) of the National Law (NSW) as there was no emergency and no urgency at any time before and during the Council's proceedings on 17 March 2023 (Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [70]); b. There was no evidence before the Council that the appellant was in fact impaired in respect of his dentistry practice or that his dentistry practice was in any way affected by the drug sample results obtained in 2023; c. There was no evidence before the Council that the appellant's drug use posed a real risk to his patients (reasons, page 9, 3rd last paragraph); d. There was no evidence before the Council that there was an unacceptable risk to the health and safety of the public posed by the appellant (page 5, last paragraph); e. The Council erred in law in wrongly finding that (at page 6, 1st paragraph) it was in the public interest to take action which would affect the appellant's practice; that is, the public interest in the protection of the health and safety of the public. There was no evidence that the public interest applied in the case and the Council misunderstood and thereby misapplied the statutory test here; f. The decision was bad in law because it was affected by legal unreasonableness (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68], [70], [71]-[74], [76], [82] and [85] in that: i. The abovementioned grounds also indicate legal unreasonableness; ii. The Council's decision was wholly disproportionate to the evidence of the drug tests that was before it; iii. To close the appellant's dental practice punishes the appellant and his patients at the same time and does not go to addressing the underlying issue; iv. The Council wrongly held that there were no conditions that could be imposed on the practitioner's registration that would sufficiently mitigate the unacceptable risk to the health or safety of the public and the public interest (page 9, 3rd last paragraph). The Council had no evidence before it to this effect. v. The Council wrongly held that the only way to protect public health and safety and public interest was to suspend Dr Hanna's registration (page 9, last paragraph). The Council failed to explore other possibilities, including new conditions. vi. The Council erred in wrongly finding that the suspension should not lift until the appellant can demonstrate changed circumstances, such as abstinence from drugs (page 10, first paragraph).
3. It was conceded, on behalf of the Council, that the External Appeal Form filed on 6 April 2023 amounted to an appeal under both s 159 and s 159B of the National Law.
4. There was no objection to consideration being given to the draft Amended External Appeal Form in the context of the application for a stay of the Council's decision, even though leave has not yet been applied for or given to amend the grounds of appeal.
5. The delegates of the Council, in their reasons, considered the issue of impairment. The Council said that Dr Chehade and Dr Saeed (the treating psychiatrists) do not consider that Dr Hanna is impaired. Dr Dore, the Council Appointed practitioner, in her report of 19 April 2022, said: I consider that there is growing evidence to support an opinion that Dr Hanna meets the statutory definition of impairment in the form of a substance abuse disorder (primarily cocaine). The use of an illicit drug such as cocaine is likely to detrimentally affect Dr Hanna's ability to practise dentistry while this disorder remains active.
6. Dr Canaris, a psychiatrist retained by Dr Hanna to give an expert report, said, in his report of 15 July 2022, that, assuming the accuracy of the history given by Dr Hanna, he does not have a substance use disorder. The delegates, in their reasons, noted that Dr Canaris said, in his report, that "occasional use of cocaine as reported by Dr Hanna does not equate to a substance use disorder".
7. The delegates, in their reasons (p 4) say: … there is evidence to indicate that Dr Hanna has not been fully transparent with either his treating practitioners or the Council Appointed Practitioner, Dr Dore, therefore the Delegates consider that there to be a risk that Dr Hanna may meet the statutory definition of impairment.
8. The delegates, in their reasons (p 5) say: There is no clinical evidence to indicate that Dr Hanna's practice of dentistry has caused harm to his patients.
9. The delegates, in their reasons (p 6) say that subsequent to the positive test on 27 February 2023 two further tests showed the presence of cocaine metabolites in Dr Hanna's system. Although the test results show levels below the cut-off point for a positive test, the analyst considered that they were proof of two further instances of the use of cocaine by Dr Hanna in 2023.
10. The delegates, in their reasons, expressly based their decision to suspend Dr Hanna's registration upon both the risk to the health and safety of his patients and a risk to the health and safety of the public. The delegates further said: "the public interest in a robust regulatory system which promotes … the health and safety of the public is being undermined".
11. The delegates were clearly concerned about Dr Hanna's defensiveness with respect to the data with which he was being confronted. The delegates were also concerned about his technical approach to test results below the cut-off, and his failure to see the implications of the results. Further concerns were expressed about whether Dr Hanna had given full and frank information to the various psychiatrists concerning his drug use. Up until 18 March 2022, Dr Hanna's compliance rate with required attendance for drug testing was only 40%. Several different reasons were given for non-compliance. The delegates' decision to suspend Dr Hanna's registration was based to some extent upon their lack of confidence that he would comply with any conditions they might impose upon his registration, given his history of non-compliance with conditions.
12. The reason that the recreational use of cocaine by Dr Hanna outside of working hours might pose a risk to the health and safety Dr Hanna's patients in the short term was not articulated in the delegates' reasons, nor in the materials placed before me.
13. In all of these circumstances, the applicant has an arguable case on the appeal under s 159B, particularly by reference to the grounds of appeal set out in the draft Amended External Appeal Form.

The balance of convenience and the competing rights of the parties

1. Dr Hanna provided a report dated 24 May 2023 from Mr Fowell, a Certified Practising Accountant, concerning the likely impact upon Dr Hanna's financial position should his dental practice be closed. It is Mr Fowell's opinion that, should the practice remain closed for a period of two weeks, the financial damage would be such that it is likely that it would not be able to open again. Dr Hanna is very highly financially geared, and the impact of an inability to practise for a considerable period of time may force him into bankruptcy.
2. The delegates, in their reasons, acknowledged that action taken under s 150 of the National Law "is intended to be interim in nature and may be reviewed under section 150A".
3. In Pridgeon v Medical Council of New South Wales [2022] NSWCA 60, the Court of Appeal said: 55. Section 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant question for the Council is whether it should act under s 150 where no complaint has been made. 56. The context indicates that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Medical Council to suspend a doctor's registration under s 150 should be reserved for urgent cases. This is confirmed by the Explanatory Note relating to s 150, which refers to the Medical Council's powers "to act where it is necessary to take urgent action for the protection of the public", and the Second Reading Speech for the Health Practitioner Regulation Amendment Bill 2010, which referred to cases of urgency or emergency in the following terms: "The principal definition of 'unsatisfactory professional conduct' in this bill is in proposed section 139B. Sections 139C and 139D go on to set out additional matters relevant to medical practitioners and pharmacists respectively. I further advise the House that, as with the definitions of 'unsatisfactory professional conduct', the other aspects of the existing complaints processes are to be carried over with little change. There is a small number of areas in which there will be change, and many of these changes reflect changes brought about by the national registration system. These areas of change include: changes required to reflect the registration of students in all professions and changes to the council's powers regarding emergency suspensions. … With respect to the changes to provisions concerning emergency suspensions, I advise the House that the changes proposed involve moving from emergency suspensions of not more than eight weeks in duration to emergency suspensions that are not time limited. While this is an extension of the suspension power, it must be noted that a practitioner who is subject to such a suspension may apply for a review of that suspension at any time and as frequently as he or she wishes. Of course, a council will be able to decline to accept an application that is frivolous or vexatious. However the professional and board representatives who have considered this matter agree that it is appropriate and that the right to apply for a review at any time meets any concerns about procedural fairness…" [Emphasis added] 57. Additionally, although there is no definition of "public interest", the content of the expression is informed by the heading to Subdivision 7 that the powers provided by s 150 are to be exercised for the protection of the public. … 68. … in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned. … 70. … the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council's submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from the fact that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the Explanatory Memorandum and the Second Reading Speech. There was no urgency in this matter at any time before or during the Tribunal hearing.
4. It was not apparent from the material before me that, as at the date of the hearing before me, there existed an urgent situation requiring the immediate suspension of Dr Hanna's registration until the resolution of the appeal under s 159B of the National Law. Dr Hanna offered the undertakings set out above at [4] and those undertakings, together with the condition set out in the order made in this matter subsequent to the hearing, should be sufficient to protect any risk to the health and safety of Dr Hanna's patients, given the circumstances and the listing of the hearing of this matter on 27 July 2023.
5. The balance of convenience and the interests of justice favoured the making of the orders made on 26 May 2023.

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: 09 June 2023