Health Care Complaints Commission v Al-Mozany

General background to the proceedings

1. The practitioner is 43 years of age.
2. He was in 2003 first registered as a dental practitioner in New Zealand.
3. In 2010, the practitioner joined Gentle Dental Care (GDC), as a general dentist, and in 2012 commenced working as an orthodontist at GDC.
4. In 2011, the practitioner completed his Doctor of Clinical Dentistry and Orthodontics at the University of Sydney.
5. In 2014, the practitioner entered into partnership with Dr Gennaro Russo and 3 others.
6. From 2012 to late 2017, the practitioner was the only specialist orthodontist employed by GDC.
7. By late 2017, the practitioner was working 6 to 7 days a week across 5 different locations and seeing 80 to 100 patients per day.
8. From around 2017, the practitioner was involved in an ongoing contractual dispute with GDC.
9. On 15 April 2018, the practitioner was terminated by GDC and has not treated any patients in Australia since then. He continued practising in New Zealand until around October 2018, at which time the New Zealand Health Practitioners Disciplinary Tribunal censured the practitioner and cancelled his registration as a general dentist and orthodontist.
10. Following a hearing on 16 November 2018, the Dental Council of NSW (the Council) placed a condition on the practitioner's registration that he not practise dentistry.
11. On 9 August 2021, an appeal of the Council decision was dismissed for want of prosecution: Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 110.

The Commission's position

1. The Commission agitates three complaints involving 14 patients against the practitioner. In its Amended Complaint filed 19 May 2023, at least 74 allegations are made against the practitioner.
2. By way of general summary, these allegations allege that the practitioner, in relation to those 14 patients, some of whom were minors, failed to: 1. conduct appropriate an initial assessment; 2. formulate appropriate treatment plan; 3. obtain informed consent; 4. adequately monitor patients' general dental health; and 5. provide an appropriate course of orthodontic treatment.

The practitioner's position

1. The practitioner alleges that the complaints arose as a result of a corporate dispute with GDC which sought to terminate his directorship and sell his shareholdings. The practitioner alleges that in the fallout of that dispute GDC advised a significant number of his patients to complain about him.
2. The practitioner says that the records produced in the proceedings by GDC relied on by the Commission are incomplete and deficient.
3. The practitioner says that he did not behave in a way that constituted unsatisfactory professional conduct or professional misconduct.

The Amended Complaint

1. There were three complaints made by the Commission in its Amended Complaint filed 19 May 2023.

Background

1. The background to all complaints was as follows: The practitioner was first registered as a dental practitioner in New Zealand in 2008. He completed his Doctor of Clinical Dentistry in Orthodontics at the University of Sydney in 2011. In 2012 the practitioner joined the practice Gentle Dental Care ("the practice") and entered into a partnership with the two practice principals in 2014. The practitioner was the only specialist orthodontist employed by the practice. Initially the practice had two clinics located in Tahmoor and Liverpool, but subsequently expanded to Campbelltown (in 2015), Double Bay (in 2016) and Wetherill Park (in 2016). By the end of 2017, [the practitioner] was working 6-7 days a week across five different locations. On 15 April 2018, the practitioner ceased working at the practice. On 16 November 2018, following a s150 hearing before the Dental Council of New South Wales, the practitioner was prohibited from practising dentistry.

Complaint One - s 139B(1)(a) of the National Law

1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the dental profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. In his summary Reply to the Amended Complaint, the practitioner denies Complaint One.

Particulars

1. There are 23 Particulars of Complaint One, relating to some 14 patients.

Patient A

1. There are 2 Particulars which relate to Patient A. The Commission alleges that: 1. between 19 September 2015 and 14 April 2018, in the course of treating Patient A, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain informed consent from Patient A or their guardian prior to commencing orthodontic treatment including discussing surgical options and extractions; 4. adequately monitor Patient A's general dental health during the course of his orthodontic treatment including organising regular dental check ups when poor oral hygiene was noted at commencement of and throughout treatment; 1. between 19 September 2015 and 14 April 2018, the practitioner failed to provide appropriate orthodontic treatment to Patient A in that: 1. he failed at an early stage of treatment to identify and extract, or arrange to extract, some of Patient A's teeth in order to achieve an acceptable orthodontic result; 2. at the end of 30 months of treatment Patient A's teeth were not aligned correctly and the practitioner had not achieved an acceptable orthodontic result.
2. The practitioner denies each of these Particulars.

Patient B

1. There are 2 Particulars which relate to Patient B. The Commission alleges that: 1. (being Particular (3)), between 19 June 2014 and 5 April 2018 in the course of treating Patient B, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. obtain informed consent from Patient B or their guardian prior to commencing orthodontic treatment. 1. (being Particular (4)), between 19 June 2014 and 5 April 2018 the practitioner failed to provide appropriate orthodontic treatment to Patient B, which resulted in a significant Class 11 Division 1 pattern with an excessive overjet at the conclusion of almost 4 years of treatment.
2. The practitioner denies each of these Particulars.

Patient C

1. There are 2 Particulars which relate to Patient C. The Commission alleges that: 1. (being Particular (5)), between 3 November 2015 and 10 April 2018 in the course of treating Patient C, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. diagnose significant periodontal disease based on Patient C's OPG (x-ray) dated 3 April 2018; 3. formulate an appropriate treatment plan; 4. obtain informed consent from Patient C prior to commencing orthodontic treatment including failing to: 1. obtain a signed consent form; 2. discuss delaying treatment until Patient C's periodontal condition was under control; and 3. advising Patient C of risk they could lose some teeth as a result of the treatment; 1. adequately monitor Patient C's general dental health during the course of their orthodontic treatment when Patient C had obvious periodontal disease. 1. (being Particular (6)), between 3 November 2015 and 10 April 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient C in that he: 1. inappropriately commenced orthodontic treatment before Patient C had concluded treatment for his periodontic disease; 2. took in excess of 30 months to align the upper teeth; 3. commenced orthodontic treatment on Patient C, who had subgingival calculus with significant bone loss in both the upper and lower teeth, which was present on a pre-treatment OPG; 4. created a periodontally compromised result after 30 months of treatment; 5. created an occlusally compromised result after 30 months of treatment.
2. The practitioner denies each of these Particulars.

Patient D

1. There are 2 Particulars which relate to Patient D. The Commission alleges that: 1. (being Particular (7)), between 4 November 2016 and 9 March 2018, in the course of treating Patient D, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan, which should have included removal of the compromised tooth at 63; 3. obtain informed consent from Patient D or their guardian prior to commencing orthodontic treatment, which should have included a discussion of the: 1. options and future restorative requirements; 2. options in relation to keeping a compromised primary tooth or extracting it and closing the space. 1. (being Particular (8)), between 4 November 2016 and 9 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient D in that he: 1. did not place attachments on any of Patient D's teeth during lnvisalign treatment, which relies heavily on attachments to be effective; 2. left tooth 63 in place, which after 15 months had very little root structure still present; 3. failed to achieve an acceptable orthodontic result at the end of 15 months of treatment.
2. The practitioner denies each of these Particulars.

Patient E

1. There are 2 Particulars which relate to Patient E. The Commission alleges that: 1. (being Particular (9)), between 27 September 2013 and 10 March 2018, in the course of treating Patient E, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain informed consent from Patient E or their guardian prior to commencing orthodontic treatment by failing to: 1. obtain a signed consent form; 2. discuss treatment options or risks associated with multiple un-erupted teeth (still in the gum) and impacted teeth (tooth in position that it cannot come through the gum) shown on OPG dated 3 April 2018. 1. adequately monitor Patient E's general dental health during the course of their orthodontic treatment; 1. (being Particular (10)), between 27 September 2013 and 10 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient E as: 1. Patient E sustained root resorption damage to the upper lateral incisors over the course of treatment; 2. the practitioner failed to make any improvement to tooth 43; 3. the practitioner did not attempt to prepare space in the arch for tooth 43.
2. The practitioner denies each of these Particulars.

Patient F

1. There are 2 Particulars which relate to Patient F. The Commission alleges that: 1. (being Particular (11)), between 4 June 2015 and 1 March 2018 in the course of treating Patient F, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain informed consent from Patient F or their guardian prior to commencing orthodontic treatment by failing to: 1. a signed consent form; 2. discuss options to deal with missing teeth, including opening space for the missing lateral incisors and using prosthetic replacements; 1. adequately monitor Patient F's general dental health during the course of their orthodontic treatment in circumstances where Patient F had poor oral hygiene. 1. (being Particular (12)), between 4 June 2015 and 1 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient F by: 1. failing to apply sufficient forces to bring the upper molars forward without moving the upper incisors back and, as a result, these teeth were finished with an upright inclination; 2. making a very constricted upper arch for Patient F with an occlusion with a negative overjet.
2. The practitioner denies each of these Particulars.

Patient G

1. There are 2 Particulars which relate to Patient G. The Commissions alleges that: 1. (being Particular (13), between 31 March 2017 and 16 March 2018 in the course of treating Patient G, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain informed consent from Patient G or their guardian prior to commencing orthodontic treatment by failing to: 1. [Not pressed at hearing]; 2. discuss strategies to deal with the possible unsuccessful management of the impacted 23; 1. adequately monitor Patient G's general dental health during the course of their orthodontic treatment. 1. (being Particular (14)), between 31 March 2017 and 16 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient G in that he failed to open space for tooth 23 in the first 12 months of treatment so that the treatment plan could be reviewed if tooth 23 failed to erupt.
2. The practitioner denies each of these Particulars.

Patient H

1. There is one Particular which relates to Patient H. The Commission alleges (being Particular (15)), that between 7 May 2016 and 2 March 2018 in the course of treating Patient H, minor, the practitioner failed to: 1. conduct an appropriate initial assessment, which included failing to diagnose caries (decay) in tooth 26, which was present on Patient H's OPG and bite wing X-ray; 2. provide an appropriate course of orthodontic treatment by: 1. failing to treat the caries (decay) on tooth 26 before commencing orthodontic treatment; 2. placing orthodontic fixed appliances on untreated caries that was present on tooth 28; 3. failing to deal with Patient H's complaints of pain in tooth 26 during the course of treatment. 1. adequately monitor Patient H's general dental health during the course of their orthodontic treatment.

Patient I

1. There are 2 Particulars which relate to Patient I. The Commissions alleges that: 1. (being Particular (16)), between 27 November 2014 and 22 February 2018 in the course of treating Patient I, a minor, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain informed consent from Patient I or their guardian prior to commencing orthodontic treatment, which should have included discussing treatment alternatives such as extraction of teeth to relieve crowding; 4. adequately monitor Patient l's general dental health during the course of their orthodontic treatment. 1. (being Particular (17)), between 27 November 2014 and 22 February 2018, the practitioner failed to provide an appropriate course of orthodontic treatment to Patient I in that the practitioner: 1. [Not pressed at hearing]; 2. failed to re-assess the treatment plan when Patient l's open bite developed; 3. attempted to close Patient l's iatrogenic open bite without first investigating the cause.
2. The practitioner denies each of these Particulars.

Patient J

1. There is one Particular which relates to Patient J. The Commission alleges (being Particular (18)), that between 12 November 2016 and 7 March 2018 in the course of treating Patient J, a minor, the practitioner failed to: 1. obtain informed consent from Patient J or their guardian prior to commencing orthodontic treatment by failing to: 1. obtain a signed consent form; 2. discuss alternative treatments such as treating the upper arch at the same time as the lower arch; 3. discuss the treatment plan for tooth 35 and the risks attached. 1. provide an appropriate course of orthodontic treatment by failing to align tooth 35 after 15 months of treatment; 2. adequately monitor Patient J's general dental health during the course of their orthodontic treatment.
2. The practitioner denies this Particular.

Patient K

1. There is one Particular which relates to Patient K. The Commission alleges (being Particular (19)), that between 16 October 2017 and 24 March 2018 in the course of treating Patient K, the practitioner failed to: 1. conduct an appropriate initial assessment; 2. formulate an appropriate treatment plan; 3. obtain a signed consent form from Patient K prior to commencing orthodontic treatment.
2. The practitioner denies this Particular.

Patient L

1. There is one Particular which relates to Patient L. The Commission alleges (being Particular (20)), that between 8 July 2014 and 21 February 2018, when treating Patient L, a minor, the practitioner failed to obtain a signed consent form from Patient L or their guardian prior to commencing orthodontic treatment.
2. The practitioner denies this Particular.

Patient M

1. There are 2 Particulars which relate to Patient M. The Commissions alleges that: 1. (being Particular (21)), between 10 January 2017 and 17 March 2018 in the course of treating Patient M, the practitioner failed to: 1. a. conduct an appropriate initial assessment in that he: 1. i. failed to recognise and document the labial recession involving tooth 31; 2. [Not pressed at hearing]; 1. formulate an appropriate treatment plan, which included developing a strategy to deal with Patient M's open bite, crowding, and the recession involving tooth 31; 2. obtain informed consent from Patient M prior to commencing orthodontic treatment including failing to: 1. [Not pressed at hearing]; 2. ii. discuss the risks of treatment, in particular, the risk of further recession of tooth 31 and a worsening of the open bite. 1. (being Particular (22)), between 10 January 2017 and 17 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient M in that: 1. he failed to treat the periodontal disease and caries before fitting fixed appliances to Patient M; 2. he failed to ensure that Patient M was dentally fit before commencing orthodontic treatment; 3. at the end of 14 months of treatment Patient M had an incisor open bite and periodontal status that were worse than before treatment was commenced.
2. The practitioner denies each of these Particulars.

Patient N

1. There is one Particular which relates to Patient N. The Commission alleges (being Particular (23)), that between 21 September 2016 and 17 March 2018 when treating Patient N, the practitioner failed to: 1. conduct an appropriate initial assessment by failing to: 1. take comprehensive notes of his assessment; 2. [Not pressed at hearing]; 1. obtain informed consent from Patient N prior to commencing orthodontic treatment by failing to: 1. [Not pressed at hearing]; 2. discuss the risks associated with the treatment and the importance of cooperation required from the patient.
2. The practitioner denies each of these Particulars.

Complaint Two - s 139B(1)(a) of the National Law

1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the dental profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. In his summary Reply to the Amended Complaint, the practitioner denies Complaint Two.

Particulars

1. The Particulars to Complaint Two are: 1. between 19 September 2015 and 14 April 2018, when treating Patient A, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 1. between 19 June 2014 and 5 April 2018 when treating Patient B, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 1. between 3 November 2015 and 10 April 2018 when treating Patient C, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 1. between 4 November 2016 and 9 March 2018 when treating Patient D, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 1. between 27 September 2013 and 10 March 2018 when treating Patient E, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 5. [Not pressed at hearing]; 1. between 4 June 2015 and 1 March 2018 when treating Patient F, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 1. between 31 March 2017 and 16 March 2018 when treating Patient G, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 1. between 7 May 2016 and 2 March 2018 when treating Patient H, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 1. between 27 November 2014 and 22 February 2018 when treating Patient I, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 1. between 12 November 2016 and 7 March 2018 when treating Patient J, the practitioner failed to maintain adequate records by failing to record: 1. detailed initial assessment notes; 2. [Not pressed at hearing]; 3. [Not pressed at hearing]; 4. [Not pressed at hearing]; 5. [Not pressed at hearing]; 1. [Not pressed at hearing]; 2. [Not pressed at hearing]; 3. between September 2013 and April 2018 the practitioner failed to maintain adequate records for his treatment of Patients A - I [1] and in doing so breached section 3 of the Dental Board of Australia's 'Guidelines on Dental Records' (2010) (the Guidelines).
2. The practitioner denies each of the Particulars to Complaint Two.

Complaint Three - s 139E of the National Law

1. Complaint Three is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
2. The practitioner denies Complaint Three.
3. The Particulars to Complaint Three are Complaints One and Two and the Particulars thereto which are relied on individually and cumulatively.
4. The practitioner denies the Particulars to Complaint Three.

The non-expert evidence

1. The Commission relies on the following non-expert evidence: 1. three volumes of materials filed 9 February 2022 comprising 257 Tabs. These materials included patient complaints, correspondence between regulators and the practitioner, the Dental Board of Australia (the Board) Code of Conduct (Code of Conduct) and Guidelines on Dental Records (Guidelines), documents produced under notices and summonses issued to the practitioner's former practice Gentle Dental Care (GDC), documents produced under summons by Invisalign(the Invisalign Records); statements of Patients C, D, H, K and L; statements of the mothers of Patients A and E; DICOM data; patient records from the s 150 proceedings; the transcript of the s 150 proceedings and subsequent decision; statements of Dr Michael Russo and Dr Gennaro Russo; reports of Council Professional Officer, Dr Robert Smith respectively appearing behind Tab 35 (in relation to patients A to J) and behind Tab 44 (in relation to Patient B). 2. three volumes of materials filed in reply on 25 May 2022, 17 May 2023, 27 June 2022 and 17 May 2023.

Summary of evidence

1. We will briefly summarise the relevance of the lay evidence of the subject Patients relied on by the Commission. The expert evidence we will summarise and consider later in these reasons.

Patient A

1. Patient A's mother provided a statement in the proceedings dated 12 March 2021.
2. Relevantly, Patient A's mother states that she was never provided with a document called a treatment plan by the practitioner. She says that the only document she was provided with at the commencement of her son's treatment was a schedule of fees.
3. In addition, the Commission relies on a complaint Patient A's mother made to the Commission about the practitioner's treatment of Patient A on 12 June 2018. Relevantly, Patient A's mother stated: [Patient A's] last appointment with Dr Al-Mozany was on 14 April 2018. At that appointment, Dr Al-Mozany advised that [Patient A] would need several teeth taken out because of an underbite. He also advised [Patient A] would need a clean (which was not scheduled).

Patient B

1. Neither Patient B nor anyone on his behalf filed a statement in the proceedings.
2. The Commission relied on the complaint of her mother to the Australian Health Professional Regulatory Authority (AHPRA) dated 10 May 2018 where she states: [Patient B] got Brace's on the 5-0-2014. When she got them off she constantly said to the dentist that retainers didn't fit and making gum's bleed of a night. Then was given Invisaligne's which were so uncomfortable and was made to were them away. Which lead to a more clicking jaw as when he took off braces we found out he has caused her to have temporomandibular joint disorder. So hes put Braces back on to correct it. (typographical and other errors as in original).

Patient C

1. Patient C provided a statement in the proceedings dated 2 March 2021.
2. Patient C does not recall receiving a treatment plan, but was provided with a patient consent form and a quotation for his orthodontic treatment.
3. In addition, the Commission relied on the complaint of Patient C to the Council dated 17 May 2018 where he states: Am complaining about my braces. When I first got them done DR saad told me will take around & months and now it's been 2 and half years and they still not done properly. The main issues I am concerned about are: On the last session his boss Dr Russo who wants RH clinic Just mention as per Dr requirements I have to do gum treatment first which never been advised from Dr Saad. also my teeth hasn't moved much especially my incisors so now I have left in middle of the treatment so dont know what do also how can be fixed. (spelling and other errors as in original; emphasis added by Commission)

Patient D

1. Patient D provided a statement in the proceedings dated 12 March 2021.
2. Relevantly, Patient D did not recall signing a consent form and did not have a copy of one. She denies receiving a treatment plan or any other document other than a quotation for her treatment.
3. In addition, the Commission relied on the complaint of Dr Michael Russo to the Council dated 18 May 2018 where he states in relation to Patient D: Patient had consulted Dr Saad 4/11/16, advised Invisalign 16 months.

Patient E

1. Patient E's mother, provided a statement dated 24 February 2021.
2. Relevantly, she denied receiving a treatment plan She said that she was given a payment plan and a patient consent form.
3. In addition, the Commission relied on the complaint of Dr Michael Russo to the Council dated 2 July 2018. In relation to Patient E, Dr Russo gives a very detailed account as to why he and Dr Sambevski considered that the practitioner's treatment planning was poor. Dr Russo concludes by stating: This case yet again demonstrates very poor treatment planning and poor execution of treatment which has resulted in inappropriate treatment for a large portion of this patient's teenage years. Also, the alternate treatment option of extractions was never offered to the patient.

Patient F

1. Neither Patient F nor anyone on his behalf filed a statement in the proceedings.
2. The Commission relied on the complaint of Dr Gennaro Russo to AHPRA dated 2 July 2018. Dr Russo is extremely critical of the practitioner's use of "Powerchain" to "close up the diastemas between" certain teeth.

Patient G

1. Neither Patient F nor anyone on her behalf filed a statement in the proceedings.
2. The Commission relied on the complaint of Dr Gennaro Russo to AHPRA dated 18 May 2018. Relevantly, the complaint stated: • The patient had an examination with one of our dentists on 09/03/2017 where it was noted that tooth 23 was missing. • A CBCT [2] was taken and showed that 23 was impacted, the patient was offered the option of seeing an orthodontist. • [Patient] was seen by Dr Al-Mozany on the 31/03/2017 where he notes crowding and an overbite. No mention is made of the impacted. • [Patient] was banded n the 28/04/2017. • [Patient] attended regularly until the time of Dr Al-Mozany's suspension. • She was reviewed by Dr Chai on 03/05/2018 where he notes the patient is class II div 1, 23 impacted and an AOB. [3] • Dr Chai has recommended de-banding and removal of the 14 and the impacted 23 by an oral surgeon and re-banding with twin brackets. (footnotes added for ease of understanding)

Patient H

1. Neither Patient H nor anyone on his behalf filed a statement in the proceedings.
2. The Commission relies on the complaint of Dr Gennaro Russo to AHPRA dated 2 July 2018. In the complaint, Dr Russo makes a number of critical comments about the practitioner's treatment of Patient H, including the length of treatment.

Patient I

1. Neither Patient I nor anyone on his behalf filed a statement in the proceedings.
2. The Commission relied on the complaint of Dr Michael Russo to AHPRA dated 2 July 2018. In the complaint, Dr Russo makes a number of critical comments about the practitioner's treatment of Patient I, including that "the maltreatment in this case" was "very likely the result of poor mechanics applied by" the practitioner.

Patient J

1. Neither Patient J nor anyone on her behalf filed a statement in the proceedings.
2. The Commission relied on the complaint of Dr Michael Russo to AHPRA dated 2 July 2018. After setting out his interpretation of the practitioner's treatment notes of Patient J Dr Russo states: Since Dr Al-Mozany's suspension, the patient has seen two clinicians (one of them an orthodontist). Both of these clinicians do not believe it possible to pull the 35 into position although there will be an attempt to do so. The most likely scenario is that this tooth will be removed and the space closed or an implant placed.

Patient K

1. Patient K provided a statement in the proceedings dated 2 March 2021.
2. Relevantly, she denies receiving a document setting out her treatment but does acknowledge reviewing a quotation for the practitioner's services. She does not recall being given or signing a consent form. She denies receiving a treatment plan or ever seeing one.
3. In addition, the Commission relied on the complaint of Patient K to the Commission dated 25 May 2018. Relevantly, Patient K states: I attended the Double Bay, Gentle Dental clinic in November 2017 to discuss the possibility and feasibility of using Invisalign to align my lower teeth. Dr Al Mozany advised it would be possible and proceeded to take moulds and X-rays required for the treatment. (I paid $300 after this appointment) I was informed it would take 8- 12 months for the process to be complete with the possibility of a fixed wire to be added behind my lower front teeth to prevent future movement. Since the suspension of Dr Al Mozany i have since understood, on a routine appointment in April 18, that I should have had additional fixtures to the aligners that had not been mentioned or applied, the aligners were also not tracking correctly due to this lack of attention. Up to this point i had paid a further $1400 Further to this, I received a re consultation at Gentle Dental, May 18, based on my X-rays and notes, it was confirmed i had been miss informed by Dr Al Mozany that my lower teeth could be aligned by the use of Invisalign. In fact, I would require 2 lower teeth to be removed and a fixed brace on my upper and lower teeth for a minimum of 18 months. I have since stopped the Invisalign treatment and considering the options that would be suitable to me.

Patient L

1. Patient L provided a statement in the proceedings dated 3 March 2021.
2. Relevantly, she states that: 2. Around February 2021, I was contacted by Lucy Cannon, Legal Officer, at the Health Care Complaints Commission. 3. Ms Cannon asked for a copy of the treatment plan I received from Dr Al-Mozany. 4. In 2014 when I commenced treatment with Dr Al-Mozany, I was given a quote which briefly set out the treatment I would have and how much it would cost. The first page was a quote, the second page was a payment plan and the third page was a signature page that was never signed. I was given these documents at the Liverpool Office. 5. I was also given a Patient Consent Form which I didn't sign. I have a copy of that document too. 6. I never received any other documents about my treatment. I had a lot of questions about my treatment and what was planned for me but the only document I had to refer to about what was going to happen to me was the quote. 7. At my first appointment, Dr Al-Mozany only popped in very briefly to tell me what he was planning on doing to my teeth and then he left the room. I never really knew what was happening to my teeth and found it difficult to obtain information.
3. Patient L was required for cross-examination by the practitioner.
4. In addition, the Commission relies on the complaint of Patient L's mother to the Commission of 2 July 2018, in which she stated that in July 2014 Patient L visited GDC for some cavities and was told she needed braces. By the time of the practitioner's suspension Patient L had been seeing the practitioner for nearly 4 years. Both Patient L and her mother had raised concerns with the practitioner that the braces had been on too long.

Patient M

1. Patient M did not provide a statement in the proceedings.
2. The Commission relied on Patient M's complaint to the Commission dated 1 July 2018. Patient M relevantly stated: I came to Gentle dental care in Liverpool as a new patient with misaligned teeth problem I had on my upper and lower teeth. An assessment of all my teeth was carried out which concluded that I need an upper and lower orthodontic (braces) I started the treatment on January 2017 with photographs and x-ray and then applying orthotic brackets for my upper and lower teeth with Dr Saad Al-Mozany. The doctor informed me that I need to attend monthly appointment to examine my progress and apply any appropriate adjustments. After 1.5 years of treatment I discovered that Dr [S]aad has been discharged from his position in Gentle dental care- Liverpool and after several phone calls I got refereed to another orthodontist Dr John Sambevski in Gentle dental care-Wetherill Park to examine my case. In June 2018 l had an appointment with Dr John after examining my teeth he told me that my teeth are not aligned and the treatment was incorrect and there were additional steps required to be done before starting the treatment back in January 2017 to avoid having the present consequences. Currently [which are the "main issues" Patient M says he is concerned about are]: 1 My lower and upper teeth are not aligned. 2 I cannot fully close my teeth. 3 There is a gap between my upper and lower teeth. 4 After removing the braces, I started having problems with eating. Because of the current teeth misalignment my upper canine tooth implants my upper lip which causes to bleed. 5 After removing the braces I started getting headaches which causes loss of concentration especially during working hours.

Patient N

1. Patient N did not provide a statement in the proceedings.
2. The Commission relied on her complaint to the Commission dated 2 July 2018. Patient N relevantly stated: I am an [I]nvisalign patient at Gentle Dental Liverpool. I began my treatment on 21 September 2016 and was provided approximate treatment time for stage 1 of 15 months and stage 2 of 12 months = 27 months total. [The practitioner] was my orthodontist until he was suspended recently (April 2018). The major inconveniences it caused is evident. I was advised the day of the appointment with [the practitioner] that he was suspended and from then saw three different dentists/orthodontists in a space of several months. This led to a poor experience for me and contributed to the poor progress of my [I]nvisalign. Each appointment was pointless and unprofessional with the first orthodontist (and each dentist orthodontist after) not knowing what stage / was up to or prepared my file in advance and just checked my mouth and I left within less than 5 minutes. Also should note I waited for one hour after arriving at 5.40pm for my appointment
3. The balance of the complaint relates to Patient N's experience of being treated by other practitioners at GDC.

Dr Michael Russo

1. Dr M Russo provided mandatory notifications to the Council: 1. on 18 May 2018, relating to multiple patients relevantly including Patients D and G; 2. on 2 July 2018, relating to multiple patients relevantly including Patients E, I and J.
2. In addition, Dr M Russo provided a statement to the Tribunal dated 18 August 2022. The statement relates to the summonses and s 34A Notices issued to GDC to produce documents both to the Council and to the Tribunal. In summary, Dr M Russo states that: 1. he conducted a comprehensive search of all surgery, administrative, reception and server computer hard drives utilising various search words so that he would capture any treatment proposals that the practitioner says he saved in Microsoft Word on computers in various treatment rooms; 2. the searches he performed were "comprehensive and exhaustive" and should there have been any files matching the description these would have been discovered but no such files have been found; 3. in relation Orthotrac, there does not appear to be any treatment proposals belonging to the practitioner saved in this software; 4. he had spoken with former staff members (those who worked day-to-day with the practitioner) who confirmed that he delegated the writing of treatment proposals to them, and they were produced via an edited template in PracticeWorks; 5. PracticeWorks automatically saves printed treatment proposals in the patients' records; 6. as part of his searches in 2019, when he reviewed the hard copies of Treatment Proposals for other patients of the practitioner which are not the subject of these proceedings, all of these documents match digitally saved copies within the PracticeWorks system. Dr Russo can find no signed hardcopy of any Treatment Proposal or Treatment Plan or Consent Form or any other documents for any patient of Dr Al-Mozany which does not have a paired digital version saved in the PracticeWorks System; 7. this appears to suggest that all of the practitioner's documentation was produced exclusively in the PracticeWorks System at Liverpool, Campbelltown and Tahmoor; 8. in addition to this, many of the computers in the consulting rooms did not have Microsoft Word installed on them at the time of the practitioner's employment. Dr Russo has searched the surgery and administration computers for evidence of any word or text documents, but no such documents have been located; 9. for Patients K and N treatment proposals were produced.
3. In conclusion, Dr M Russo notes that the practitioner had accused him of intentionally withholding patient records as part of some attempt to influence the proceedings. Dr M Russo says that this is untrue, and that he: went to great lengths, spending many hours, to search our records and to explain that all records had been produced. I have attempted to leave no stone unturned and have not attempted to withhold records from the Commission or the Tribunal.
4. Dr M Russo was cross-examined by the practitioner.
5. Relevantly, he stated in cross-examination that: 1. in selecting the patient records to accompany his complaint to the Council, he did not send all the patients' records but: Basically, I pulled the bulk of what I considered at the time to be the significant records which were the ortho track notes, practice works records, 2D shots of Cone 25 beam CTs, photos - I think that covers almost everything. Maybe the quotes as well. I can't quite remember but we basically pulled together what I thought was, well, this tells a story. 1. at the time he did not have access to the Invisalign system, and had not used the system himself; 2. he did not go back to x-rays more 10 than five years old, but did select what he thought were relevant documents; 3. in selecting the documents to produce to the Commission, he did provide all the Invisalgn records. In relation to those records he said: I saw what I could see and I sent what I could send off, which was, as far as I was concerned, was everything. I didn't see any, you know, videos or aligner schedules. I just sent what was there. … As far as I know, I sent all the Invisalign material through that I could s that he "vaguely" knew what metadata was; 1. did not search the Wetherill Park practice "in detail"; 2. did the searches "mostly" at the Liverpool, Tahmoor and Campbelltown practices and not "as such" at Wetherill Park and Double Bay; 3. undertook the searches alone and did not consult anyone to assist him.
6. The cross-examination concluded as follows: SENIOR MEMBER. I'll tell you what I think, what I understand the evidence is so we can all be clear about this. You did comprehensive thorough detailed searches on all of the computers which were in Liverpool, Campbelltown and Tahmoor because 5 that's where eight out of the 14 - ten out of the-- RUSSO. 12 out of-- SENIOR MEMBER. --12 out of the 14 patients. RUSSO. Well, at least ten, yeah, yeah. SENIOR MEMBER. That's the surgeries they attended. Because of the results you'd gotten with these comprehensive word streams that you'd used for the initial ten patients for the remaining four - or is it just two of the remaining four-- RUSSO. Four. Four. SENIOR MEMBER. --you conducted a-- RUSSO. I'm not sure where the other two were. SENIOR MEMBER. --less comprehensive - you had a smaller suite of word searches? RUSSO. Sure, yeah, sure, sure. Yeah. Yeah. I'd agree with that, yeah, sure. SENIOR MEMBER. That's what I understand the evidence is. And you did the lesser suite because the results you were getting was consistent with what you'd got when you'd done the comprehensive range of searching from the initial team. RUSSO. Correct. And I have limited hours to do this stuff but yeah, yeah, exactly.
7. In a brief re-examination the following questions were asked and answers given: PETRIE. Just to clarify, Dr Russo, with [Patient K] at the Double Bay practice, and I don't want to put - did you or did you not search her name for Word documents? RUSSO. For Word documents, I didn't personally go there and search for her name for Word documents, no, because when - when I basically went there and got the documents out, what I got, so the - the - the document that came out of the computer - so normally if you do a Word document it should be saved on the Practice Management Software, so the document that came out for [Patient K] was consistent with everything else and I'm like, well, here it is, this is - this is it, sent that over. I didn't then go and search for other Word documents that might have been sent for [Patient K], no. PETRIE. For [Patient K] you - what did you search at the Double Bay practice? RUSSO. So, like, everything, like, you know, DICOM data, photos, treatment records, all that, so when - when I'm gathering the records together, it's all the, you know, X-ray data, the - everything on the list, essentially, and, you know, as part of that - came out was a document signed by [Patient K]. And I'm like, well this is, you know, consistent with everything else I'm seeing. There we go. I didn't then go and form all these word document searches like I've done at the other practices. PETRIE. Did you or did you not search PracticeWorks? RUSSO. Practiceworks is not at Double Bay. PETRIE. What about OrthoTrac? RUSSO. OrthoTrac, yes. I did. PETRIE. Did you search that for [Patient K]? RUSSO. Yes. PETRIE. What about in relation to [Patient N]? RUSSO. Yes.

Dr Gennaro Russo

1. As noted, Dr G Russo provided a mandatory notification to the AHPRA on 2 July 2018 relating to multiple patients but relevantly including Patients F, G and H.
2. The practitioner did not require Dr G Russo for cross-examination.

Dr Smith's reports

1. Dr Smith prepared a report for the Council for the s 150 hearing (see Tab 35). He commences that report by stating: Preliminary comments In compiling these reports, I believe that there may be documentation for each of the cases (and all others) that have not been supplied by Gentle Dental Care. These include, but are not limited to, Medical Histories, written treatment plans, quotations for treatment, consent forms and warnings regarding treatment. I have endeavoured to select 10 cases which give an overview of some of the types of complaints that have been submitted. These include diagnostic issues, failure to monitor dental conditions including caries and periodontal disease, providing options to ensure informed consent before commencing treatment and undesirable results. Other complaints in the group could have been used to highlight each type of problem. I have selected those, initially, that I believe have the most complete documentation at this stage.
2. After setting out his comments on the documents he reviewed in relation to each of Patients A to J, he concludes with the following final comments: Final comments I am of the belief that the standard of record keeping in all these cases as well as the majority of the cases included in this review) is significantly below the standard expected of a Specialist Orthodontist. Each of the treatments detailed in this document, to varying degrees, represent a departure from accepted Specialist Orthodontic outcomes. The patients have been significantly impacted in terms of the need for ongoing treatment, risk of undesirable sequelae and often financial cost.
3. There was extensive correspondence between the practitioner's solicitors and the Councils about Dr Smith's report prior to the s 150 hearing. By way of a very brief summary, his solicitors noted in a letter dated 15 November 2018: Record Keeping In his report, Dr Smith states his belief that the records on which he is opining are incomplete and that GDC is likely to also be in possession of medical histories, treatment plans, quotations, consent forms, and warnings. Dr Al-Mozany can confirm that such records were created and ought to have been provided to the Dental Council by GDC. In addition, Dr Al-Mozany is also of the view that financial materials, radiographs, and progress notes are missing from the patient files thus rendering them severely deficient. Accordingly, we would submit to the Dental Council that it should refrain from making any interim or final decisions until such time as it has the records and can properly assess matters such as record keeping, treatment planning, consent, and the actual orthodontic services provided by Dr Al-Mozany.
4. Then, in relation to Patient D, but the same submission could be made in respect of all patients, the practitioner's solicitors say: 3.16 … whilst we appreciate that Dr Smith is attempting to give the delegates an overview of complaints made, we would submit that: it is not appropriate to make any generalisations, but rather each case should be reviewed on its individual merits; in any event, there does not appear to a any supporting records provided by GDC in this matter or in any other Invisalign matter. As the Dental Council would be aware, the Invisalign process requires documentation and "Clincheck" treatment plans to be completed at various times before the treatment can be advanced. For this reason, those materials ought to exist and it is disappointing that the Dental Council and Dr Al-Mozany cannot access and reflect upon them; further, Dr Smith's opinion appears to be based on the subjective allegations that have been raised by GDC as the de-facto complainant, absent him having any objective records to opine upon. 3.17 Accordingly, we submit that it would inappropriate for the Dental Council to accept the complainant's allegations as true without any inquiries to determine the veracity of those allegations. Further, in this matter, an adverse inference against the complainant might be drawn by the Dental Council given that it is the complainant which is refusing to provide the records to establish his own allegations. 3.18 Ultimately then, where an unsubstantiated allegation has been made by the complainant, and the complainant refuses to substantiate that allegation, we would invite the Dental Council to discontinue these matters for want of the complainant providing any evidence of any wrongdoing.
5. At least in relation to Patient C, the Commission says that Dr Smith's evidence should be accepted by the Tribunal, so we assume that the Commission wishes us to take into account Dr Smith's various opinions in relation to all patients.
6. We decline to do so. Dr Smith provided no statement in these proceedings. We assume that he is a dentist, but there was no evidence of his training, study or experience before us. Dr Smith was not qualified as an expert in these proceedings, and in those circumstances we place no weight on his opinions about the practitioner's treatment the subject of the Amended Complaint. The fact that the Council did so for the purposes of the s 150 proceedings was entirely a matter for the Council.
7. As to the second report of Dr Smith (Tab 44), these were entirely irrelevant save for Patient B. But, for the above reasons, we place no weight on this report.

The s 150 proceedings

1. On 16 November 2018, proceedings were held by the Dental Council of New South Wales (Council) against the practitioner pursuant to s 150 of the National Law and the following condition was imposed on the practitioner's registration effective from 19 November 2018: 1 Not to practice dentistry until review by the Dental Council of NSW and this condition is removed."
2. The practitioner remains the subject of this condition.
3. As noted, an appeal of the s 150 decision was later dismissed for want of prosecution: Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 110.
4. The s 150 proceedings considered 10 complaints from 6 patients including Patients A, B and C, two other patients not the subject of the Amended Complaint and complaints of Dr M Russo and Dr G Russo..The s 150 proceedings also considered the practitioner's conduct in relation to Patient G.
5. In summary, the complaints received by the Council related to the practitioner's clinical care regarding orthodontic treatment, including inappropriate or inadequate clinical care, treatment plans/procedures and options, diagnosis, failure to refer to specialists in other dental disciplines and inadequate record keeping practices.
6. The first complaint about the practitioner's conduct was by Patient C on 17 May 2018.
7. Further complaints were made by: 1. Dr M Russo (being a mandatory notification by in relation to multiple patients), including Patients D and G on 19 May 2018; 2. Patient K on 25 May 2018; 3. Patient A's mother on behalf of Patient A dated 12 June 2018; 4. Dr M Russo (being a mandatory notification) on 2 July 2018 relating to multiple patients relevantly including Patients E, I and J. 5. Dr G Russo (being a mandatory notification) in relation to multiple patients, including Patients F and H on 2 July 2018; 6. Patient N dated 2 July 2018; 7. Patient M dated 2 July 2018; 8. Patient L's mother on behalf of Patient L on 2 July 2018; 9. Patient B's mother on behalf of Patient B on 25 July 2018.
8. At the s 150 hearing, the practitioner gave evidence including that: 1. he would see 80 to 100 patients a day, but "it could be less, it could be more"; 2. in relation to the complaints before the Council: … I do realise that, you know, there have been a lot of mistakes with regards to treatment mostly due to breakdown in communication, treatment loads, being very very busy as well. … I would like to improve on everything. I do realise things have gone wrong. I - I want to correct everything. … I acknowledge that the morning session has been about 10 cases that were chosen from a whole cohort of patients and there are clear instances of suboptimal treatment and I fully admit to that. I acknowledge that I did perform work on work on patients with periodontal disease and dental decay which was a mistake and I can't escape your comments, Dr Fryer, that it's as bad as it gets through there. But today it's been about the ten cases. I do realise the Council thinks this is a very systemic thing and there are more cases to come. However, I do want to continue the practice of orthodontics. Moving forward, after leaving GDC I acknowledge that whether further education, mentoring or supervision is required I do want to continue as an orthodontist and I do realise that the practice of orthodontics should be patient-focused rather than the business of orthodontics so I do acknowledge all of that. I have made mistakes and I completely admit to that. However, I'm looking forward to Council's proposal, how we can work through things and what I need to do to get there. (emphasis added)
9. On 10 January 2019, the Council provided its Reasons for Decision relevantly stating: BACKGROUND Since 18 April 2018, the council has received multiple complaints against [the practitioner] related to his practice at Gental Dental Care. Most of the complaints were made by two other principals in the practice. The majority of the complaints are in relation to concerns regarding orthodontic treatment including inappropriate or inadequate clinical care, treatment procedures, diagnosis, failure to refer to specialists and inadequate record keeping practices. The Council Professional Officer, Dr Robert Smith undertook a review of all the complaints and identified 10 which he believed both represented the most serious clinical concerns and for which the Council held sufficient records and information on to proceed. In the report, Dr Smith commented that in all cases record keeping was significantly below the standard expected, and furthermore the treatment in the cases reflected, to varying degrees, a significant departure from accepted specialist orthodontic outcomes. … Oral Evidence … [The practitioner] realised that there had been issues with treatment due to a breakdown in communication and too heavy a workload that resulted in not carrying thorough checks and poor record keeping. He would like to improve. In his closing remarks, Dr Al-Mozany noted that only 10 cases were the focus of the hearing and he did not think there were systemic issues with his practice as it did not represent the whole volume of his cases although he did acknowledge that there were clear instances of sub-optimal treatment. CONCLUSIONS Following the discussions with Dr Al-Mozany and after considering the documents contained in the hearing papers, the Delegates considered that Dr Al-Mozany had: (i) failed to adequately assess the dental health of patients before and after initiating orthodontic treatment as admitted in the case of [Patient C]; (ii) failed to conduct appropriate orthodontic treatment to patients as in the case of [Patient G and Patient C]; (iii) failed to maintain adequate dental records including treatment plans, consent forms and monitoring notes as evidenced by Dr Smith's report and his own admissions above; (iv) failed to adequately inform patients about appropriate dental hygiene practices necessary during orthodontic treatment. Dr Al-Mozany had until the day of the hearing, shown neither any admission of inadequate treatment or documentation nor a major reflection or need for change. In his written submission provided the day before the hearing he sought to justify his treatment. At first reading the majority of the complaints concern serious breaches of clinical care. The Delegates also considered that the complaints justified investigation by the Health Care Complaints Commission. As a result, the delegates considered that Dr Al-Mozany did pose a risk to the health or safety of the public.
10. On 10 May 2019, the Council resolved to refer a number of complaints relating to the practitioner to the Commission. The present proceedings relate to 14 of those patients.

The expert evidence

1. The Commission relies on expert evidence from Dr Joseph Geenty, an Orthodontist, as follows: 1. Dr Geenty's report dated 16 January 2020 in relation to Patients A to J (the First Geenty Report); 2. Dr Geenty's report dated 14 April 2020 in relation to Patients K to N (the Second Geenty Report); 3. Dr Geenty's supplementary expert report dated 23 May 2022 (the Third Geenty Report); 4. an email from Dr Geenty to the Commission dated 23 May 2022 relating to Patient L and two emails dated 6 July 2022 (one relating to Patient M); 5. Dr Geenty's supplementary expert report dated 24 June 2022 (the Fourth Geenty Report); and 6. Dr Geenty's supplementary expert report dated 7 September 2022 (the Fifth Geenty Report);.
2. As noted, the First and Second Geenty Reports related respectively to Patients A to J and Patients K to N.
3. For the purposes of the Third Geenty Report, Dr Geenty was provided with the three expert reports of Dr Kosy (the practitioner's expert), and statements of the practitioner relating to Patients C, D, G, H, I and J. Dr Geenty states that: Responses to Questions: After reviewing the additional records my opinions have changed with respect to some of the patients as set out in the Template. After reviewing the expert reports of Dr Kosy for the 6 patients my opinions have changed with respect to some patients as set out in the Template. After reviewing the statements of Dr Al-Mozany for the 6 patients, none of my opinions have changed. Comments: 1. The further evidence that you have provided has not made a significant difference to my previous two (2) reports. 2. The Dicom Files that you have provided were all from CBCT imaging carried out between 29/05/2018 and 3/10/2019. Dr Saad Al-Mozany ceased practice at GDC during April 2018, so the files cannot be included in the records taken by or used by him while treating the patients in question at GDC. 3. Except for patients (Patient B) and (Patient H) there are no documented treatment plans. 4. A diagnosis was not recorded for any of the patients. 5 For all patients there are scant or no pre-treatment records of history, complaint and clinical findings.
   6. In most cases the photographic records are poor quality making them almost useless. 7. The clinical treatment notes are sketchy and do not contain adequate detail of progress in treatment; making it impossible to track and monitor changes between visits in response to treatment. Comments 3, 4, 5, 6 and 7, in combination, help explain the poor outcomes and prolonged treatments we have seen in this group of patients.
4. In summary, the only substantive change in an opinion is a change to Dr Geenty's opinion in relation to Patient L, Dr Geenty now stating: the records are inadequate where as I previously said that they were adequate. This is because I did not see the correct date on some files and this became evident when I looked at the extra records sent by Dr Saad Al-Mozany. … there was no treatment plan recorded before the treatment and I had not noted this previously. … now I cannot find good reason for the extraction of the upper second molar teeth. This became evident from the new records sent by Dr Saad Al-Mozany.
5. For the Fourth Geenty Report, Dr Geenty is asked to explain what each of an DICOM file, OPG, [4] CBCT and Lateral Cephalogram is, and whether of any of Patients A to N had any pre-treatment CBCTs taken to produce OPGs or Lateral Cephalograms while patients of the practitioner.
6. For the Fifth Geenty Report, Dr Geenty was sent extracts of the practitioner's cross-examination, and asked to answer some nine questions relating to: 1. the practitioner's remarks about the role of the dentist in the practice and their reliance on practice protocol; 2. the practitioner's reliance on a dentist to diagnose caries or periodontal disease rather than himself; 3. whether Patient F's photographs depict him jutting out his jaw so they do not actually depict what his bite would look like; 4. what the practitioner had said in relation to his workload having regard to Patients A to J and M; 5. the practitioner's responses in relation to a lack of progress in Patient A's treatment; 6. what the practitioner said in relation to the use of consent forms; 7. what the practitioner said in relation to the use of dental records needed to have been stored in one place; 8. the practitioner seeing 80 or 100 patients a day; 9. the practitioner's evidence in relation to his standard practice with treatment proposals.
7. The practitioner made a number of objections to Dr Geenty's evidence. We will consider those objections below.
8. Dr Geenty was required for cross-examination by the practitioner.

The non-expert evidence

1. In addition to his own evidence, the practitioner relied on the evidence of Ms Shannon Bliss and Mr Rami Fahmy.

The practitioner's statements

1. The practitioner relied on many statements filed throughout the course of the proceedings. These included but were not limited to his statements respectively dated 22 November 2019, 14 November 2019, 11 February 2020, three statements each dated 12 June 2020 which respectively related to his treatment of Patients B, E and F, 28 October 2020 (concerning a proposed program for supervision with Dr Michael Hyde), 30 October 2020 (concerning proposed conditions on the practitioner's registration), and 1 July 2022.
2. As noted, there was also before the Tribunal the statements of the practitioner relating to Patients C, D, G, H, I and J.
3. Some of this material is relevant to the Stage 2 proceedings. Some was only relevant to the various interlocutory applications of the practitioner.
4. Of particular importance were his "General Statement" dated 15 November 2019, his "Statement concerning 27 Treatment Proposals" also dated 15 November 2019, a statement dated 11 February 2020, and a statement dated 1 July 2022.

Practitioner's General Statement

1. The practitioner's General Statement is 30 pages not including annexures. It is divided into the following topics.
2. First, "My Background", which sets out the practitioner's professional background and education. Relevantly, he first started working for GDC as an orthodontist in 2012. Initially he worked at the GDC Tahmoor and Liverpool practices.
3. In June 2014, he became a shareholder in the GDC companies.
4. GDC opened practices in Campbelltown in 2014, Wetherill Park in 2015 and Double Bay in 2016. The practitioner practised in each of these practices. He was the only orthodontist in the GDC practices until Dr John Sambevski who had been working with GDC as a dentist, graduated as an orthodontist.
5. Secondly, "Record Keeping Systems at Gentle Dental". Here the practitioner describes the different patient records and practice management software systems in the GDC practices. These were: 1. Practiceworks, which was the primary program for storing patient information at the Liverpool, Campbelltown and Tahmoor practices; 2. SIDEXIS, which was the system used in all practices to store patient imaging including cone beam computer tomographs (CBCTs); 3. Orthotrac, a specialised orthodontic program, introduced to all GDC practices in 2015, and used to store patient records, including patient scheduling information, patient imaging and patient appointment information. Orthotrac records were stored on a server at the Liverpool practice, but were accessible from all practices; 4. Ultimo Dental, being a system used only in the Wetherill Park practice; 5. Dental 4 Windows, being a system used only in the Double Bay practice; 6. Invisalign. For patients that the practitioner treated with the Invisalign system (being a type of thin clear aligner used in orthodontic treatment), all records were stored on the Invisalign Doctor Site, into which was entered a treatment plan by the practitioner. The practitioner states: 38. For patients that I treated with the Invisalign system, all records concerning Invisalign treatment were stored on the Invisalign Doctor Site. These included patient treatment plans, tooth movement assessments and Clincheck 3D simulation records. 39. Scans and/or impressions and photographs are uploaded by the Orthodontic Treatment Coordinator or Dental Hygienist/Therapist to the Invisalign Doctor Site. A treatment plan is then entered by me into the Invisalign Doctor Site. The treatment plan involves selecting from a set of pre-set treatment options and also uploading a written description of the proposed course of treatment to the website. The impressions are then posted to Invisalign in El Paso, Texas. Upon receiving this information and imaging and impressions, Invisalign would use this information to create a 3D digital model. It is not possible to start a course of Invisalign treatment without a complete set of patient imaging. Invisalign would then create an animation of the teeth moving in accordance with my treatment plan. This animation is called a Clincheck 3D Simulation. It usually takes about two weeks for Invisalign to create the Clincheck 3D Simulation. After two weeks, the Clincheck 3D Simulation is available for the patient and I to view. The patient, having viewed the Clincheck 3D Simulation, approves the treatment plan by clicking an 'Approve' button on the website. Invisalign then manufactures a complete set of aligners and mails them back to the practice. 40. The Invisalign records and Clincheck 3D Simulation were available from any practice by logging into the Invisalign Doctor Site using a unique username and password. 1. Hard copy records. There were several records that were kept in hard copy only at Gentle Dental Care practices. These records were stored in lever arch folders ordered by patient in the administration area of each practice. They included: 1. Medical/Dental History Forms 2. Signed Orthodontic Treatment Proposals 3. Signed Orthodontic Treatment Quotes 4. Signed Patient Consent Forms to Begin Orthodontic Treatment 5. Signed Dental Treatment Quotes for Dr Gennaro Russo's implant patients.
6. Thirdly, GDC's Orthodontic Practice Model.
7. Fourthly, the practitioner then sets out the typical treatment schedule for a patient undergoing orthodontic treatment at GDC. The schedule included: 1. An initial orthodontic consultation comprised of: 1. Stage 1, meeting and initial discussion with patient. The practitioner states that the length of this initial consultation varied depending on the number of Orthodontic Assistants available. At the Double Bay practice, with only one Orthodontic Assistant available, this appointment was booked in for 30 minutes of the practitioner's clinical time. The practitioner would spend a minimum of 15 and up to 30 minutes with the patient. At the other Gentle Dental Care Practices, where there are additional Orthodontic Assistants available, this appointment was booked in for 15 minutes of the practitioner's clinical time. "The Orthodontic Treatment Coordinator then takes over and spends as long as required with the patient to ensure that all of the information required is given to the patient and all of the patient's queries are answered. If I am required to answer any further questions I return to the surgery". The practitioner states that prior to entering the surgery, the patient would fill out a Medical/Dental Patient History Form which the Orthodontic Treatment Coordinator would view and which would be entered by the Receptionist into either the Practiceworks, Dental 4 Windows, or Ultimo Dental systems depending on the practice. Upon entering the surgery, he and the patient would then have a brief discussion with the Orthodontic Treatment Coordinator about the patient, their main concerns, their medical and dental history including any relevant allergies, medical conditions or medications, or other significant medical issues, and the patient's preferred treatment options. 2. Stage 2, visual assessment; 3. Stage 3, advising the patient on treatment options; 4. Stage 4, discussion with the Orthodontic Treatment Coordinator and making a decision whether or not to go ahead with the treatment; 1. Stage 5; the pre-orthodontic treatment dental examination; 2. Stage 6, the pre-orthodontic treatment teeth cleaning and oral hygiene assessment; 3. Pre-treatment review by the orthodontist, being Stage 7; 4. Subsequent appointments comprising: 1. Stage 8, commencement of orthodontic treatment; 2. Stage 9, second hygiene assessment; 3. Stage 10, ongoing orthodontic check-ups to progress treatment; 4. Stage 11, removal of orthodontic appliances; 5. State 12, issuing of retainers; 6. Stage 13, first retention appointment (1 month post treatment); 7. Stage 14, second retention appointment (3 months later); 8. Stage 15, third retention appointment (6 months later); 9. Stage 16, fourth retention appointment (1 year later). 1. "The role of auxiliary staff" at GDC. These staff included the orthodontic treatment coordinator, the orthodontic assistant/nurse, the dental hygienist/therapist, and the receptionist.
8. Of particular relevance was the work of the orthodontic treatment coordinator. The practitioner says that the orthodontic treatment coordinator would: 1. ensure that an initial orthodontic consultation was correctly booked in; 2. ensure that the patient had completed the "Medical/Dental History"; following which the practitioner would complete a clinical examination (the orthodontic treatment coordinator and the orthodontic assistant being present, during which they would enter information into the computer in the surgery for the purpose of preparing the Treatment Proposal Word document, while the practitioner dictated the patient's main concerns and then his clinical findings to the orthodontic treatment coordinator to enter into the Treatment Proposal; 3. at the end of the examination, once all of the relevant information was entered into the Treatment Proposal Word document, print out the Treatment Proposal; 4. present the patient with the Treatment Proposal, Treatment Quote and Patient Consent Form to begin Orthodontic Treatment, and "take" the patient through each of these forms, page by page. If the patient wished to sign the Treatment Proposal, Treatment Quote and Patient Consent Form to begin Orthodontic Treatment at this time, the orthodontic treatment coordinator would allow the patient to do so. If the patients would not wish to sign these Forms at this time, the orthodontic treatment coordinator would allow the patient to take the Forms home for further consideration; 5. once the Forms sere signed, and following "full scale and clean" by a dental hygienist, the orthodontic treatment coordinator would book an appointment for the patient with the practitioner.
9. The practitioner says that he would always view the signed Forms before commencing any treatment.
10. Fifthly, "My work patterns at [GDC]". In relation to the Liverpool practice the practitioner says that when the practice was at its busiest, he would see 80 to 90 patients a day.
11. The practitioner then sets out details of how much he would work at each GDC on a calendar basis.
12. Sixthly, "Plans to reduce my workload. From around 2017, the practitioner wished to reduce his workload. With GDC, he began to plan how he could do so. The plan was to for two dentists working at GDC train as Orthodontists. These two dentists were Dr John Sambevski and Dr Chris Costello.

Practitioner's statement concerning 27 Treatment Proposals

1. In this statement, consisting of 5 pages and 137 pages of annexures, the practitioner relevantly says: 1. Gentle Dental Care have not provided the Treatment Proposals for any of the Six Patients referred to by the Delegates. I have recently located 27 Treatment Proposals relating to other patients. I attach these. 2. I have not had access to either the computers, or the administration areas at any Gentle Dental Care practice since I was forced to stop working at Gentle Dental Care on 14 April 2018 by Dr Gennaro Russo. As such, I have relied on Gentle Dental Care to produce complete sets of patient records. Gentle Dental Care has not done this. 3. The Treatment Proposals for the Six Patients were in the Gentle Dental Care records. 4. My Treatment Proposal is a very important document. It is a document that is produced during my initial consultation with a patient. It consists of (1) a cover letter, (2) the Treatment Proposal document. The Treatment Proposal contains information under headings such as these, "Main Concerns', 'Clinical Findings', "Treatment plan', 'Appliances', 'Treatment benefits', "Treatment discomfort', "Treatment risks', *Communication during treatment', 'Patient cooperation', "Treatment fee', 'Health fund item numbers', 'Presented', and 'Acceptance'. 5. I prepared Treatment Proposals for all patients whom I see in the initial orthodontic consultations. This was my practice. 6. On Wednesday, 12 November, I searched my emails by searching a tab "Treatment Proposals' and I found emails with copies of 27 Treatment Proposals relating to other patients attached. On Wednesday 12 November 2019, I recalled that there were occasions on which I drafted Treatment Proposals on my personal computer. I did this on days on which the Orthodontic Treatment Coordinator, to whom I would usually dictate my Treatment Proposal, was on holiday or sick. On these occasions I drafted my Treatment Proposal myself, during or just after the consultation, on my personal computer and sent them by email to the practice manager at the relevant Gentle Dental Care practice. These Treatment Proposals were then printed at the practices and handed to the patients in hard copy. After a patient signed a Treatment Proposal, the Treatment Proposal was filed in hard copy in a lever-arch folder in the administration area of the practice. (emphasis added)

Practitioner's statement dated 11 February 2020

1. This statement including annexures is 99 pages in length, and is in part evidence and in part submission. It responds to letters of Dr G Russo to the practitioner's solicitor in relation to the production of GDC records.
2. For instance, in a letter dated 14 October 2019 from Dr G Russo to the practitioner's solicitor, Dr G Russo states: Treatment Plan Consent Forms The majority of the discussion in your letters is centered around items described in the original Summons schedule as: All Treatment Plan Consent Forms. I have made specific comments regarding each consent form for each patient below, but it is worthwhile discussing these forms in a general matter first. I have had discussions with a number of Dr Al-Mozany's former auxiliary staff and, combined with my knowledge of the Practice management software's, I can confirm for you the following: 1. With regards to Dr Al-Mozany's Treatment Plan Consent Forms (for the patients indicated in the Summons) including any letters outlining the Treatment Plan and any Patient Consent Forms, these were exclusively produced via the Practice Works Software by Dr Al-Mozany after the initial consultation. 2. Upon production and printing of these documents through Practice Works a digital copy is automatically produced and saved in the patients file, with a note inserted into the treatment records to record the printing of a document. 3. Upon acceptance of the treatment plan/quote, the patient was to return the signed form to Dr A-Mozany prior to the commencement of orthodontic treatment. 4. As you have mentioned in your letter, the signed forms were stored in lever arch folders at each practice. 5. Often Dr Al-Mozany commenced treatment without signed forms in place. As you can envisage from the points above, a record of all of the treatment plan consent forms is contained within the Practice Works notes. These records are retrospectively immutable. I have provided you with the complete records from the Practice Works software and as such you can confirm the number and dates of the documents printed from this system for each of the patients. Coupled with the fact that no other software, system or method was used by Dr Al-Mozany to produce Treatment Plan Consent Forms, you have a complete record of the documents produced for each patient mentioned in the Summons. I have personally inspected the lever arch folders containing the returned and signed orthodontic consent forms and can confirm that they appear intact and complete. Therefore, where a digital (unsigned) copy of the consent form has been provided this is due to the fact that a Treatment Plan Consent Form was issued to the patient (as evidenced by its production and retention in the Practice Works Software) but a signed copy was not in place prior to Dr Al-Mozany commencing treatment. Nevertheless, I have undertaken a second and thorough search of all of the lever arch folders containing the signed orthodontic consent forms at all of the practices and also conducted an exhaustive search of other areas and folders where said consent forms may have accidentally been stored and can find no evidence of the existence of any further signed forms for these patients. The only conclusion that can be drawn is that Dr Al-Mozany commenced treatment on some of these patients without signed consent forms in place. (emphasis added)
3. In response to those statements, the practitioner says: 13. My Treatment Proposals were documents that were created using Microsoft Word at each of the practices. These were printed out from Microsoft Word and given to the patient in hardcopy. These hard copies were given to the patient at the initial consultation to take home and review. When the patient wished to begin treatment, these documents were returned, signed. The signed copies, when returned, were stored in lever-arch folders in the practice. These documents were not, as Dr Michael Russo asserts, produced by the Practiceworks System. 14. The Orthodontic Treatment Quote and Patient Consent Forms to Begin Orthodontic Treatment were created in the manner described by Dr Michael Russo above using the Practiceworks System in practices where the Practiceworks System was the primary program used. These were the Campbelltown, Tahmoor and Liverpool practices. However, at the Double Bay practice patient records including the Orthodontic Treatment Quote and Patient Consent Forms to Begin Orthodontic Treatment were produced by DentalWindows. At the Wetherill Park practice these documents were produced by Ultimo Dental. These were printed out and given to the patient in hardcopy along with the Treatment Proposal. These hard copies were given to the patient at the initial consultation to take home and review. When the patient wished to begin treatment, these documents were returned, signed. The signed copies, when returned, were stored in lever-arch folders in the practice. These documents were not, as Dr Michael Russo asserts, produced exclusively by the Practiceworks System. … 19. What Dr Russo says … is not correct. I did not commence treatment on patients without having viewed the signed Treatment Proposal, Orthodontic Treatment Quote and Patient Consent Form to Begin Orthodontic Treatment. Patients were required to provide signed copies of their Treatment Proposal, Orthodontic Treatment Quote, and Patient Consent Form to Begin Orthodontic Treatment to Gentle Dental Care staff prior to commencing orthodontic treatment. When patients arrived at a Gentle Dental Care practice to commence orthodontic treatment they either (1) brought with them signed copies of these forms or (2) if the patient had misplaced or forgotten their signed forms, new copies were printed for them to sign by the Orthodontic Treatment Coordinator. I was shown these signed documents at the beginning of the appointment, prior to commencing orthodontic treatment. These documents were then stored in hard copy in lever-arch folders in the practice. (emphasis added)
4. Similar statements are made in response to other letters of Dr G Russo attached to the practitioner's statement.

Practitioner's statement dated 1 July 2022

1. This statement was prepared for the practitioner's application to vacate the final hearing. It sets out the practitioner's then current personal circumstances, including in particular that he did not have the funds at that time to afford legal representation.
2. The application to vacate the final hearing was dismissed on 4 July 2022: Health Care Complaints Commission v Al Mozany (No 3) [2022] NSWCATOD 75

Statement of Ms Bliss dated 15 November 2019

1. Ms Bliss worked at GDC from later 2016 to April 2018. Her primary role was as an orthodontic treatment coordinator assisting the practitioner. That role included creating patient treatment documents including the proposed treatment plan, the treatment proposal and the consent form.
2. Ms Bliss primarily worked at the Double Bay practice, but also worked at the Liverpool and Campbelltown practices as required.
3. Ms Bliss relevantly states: 35. It was my role to listen and document the different options within the treatment plan that Dr Al-Mozany would discuss with the patient. I would type up the Treatment Proposal as Dr Al-Mozany was explaining to the patient the different orthodontic treatment options, together with the risks and benefits of the different treatment options. 36. At the initial consultation, I created three documents being the Treatment Proposal, the Treatment Quotation and the Consent Form. Dr Al-Mozany would review the draft Treatment Proposal and the draft Treatment Quotation. If Dr Al-Mozany wanted changes to be made, I made those changes before Dr Al-Mozany reviewed the document again. After I finished creating these documents, I saved them firstly as an unsigned copy in PDF form in Dental4 Windows. Dr Al-Mozany only signed the Treatment Proposal and the Treatment Quotation once he was happy with them. 37. I then gave Dr Al-Mozany's signed Treatment Proposal and Treatment Quotation to the patient for the patient to review, and if they were happy with the documents, they then signed the documents. This sometimes occurred at the initial consultation. However, generally, the patients took the documents away and when they returned for their next appointment would bring signed copies of those documents. I refer to this further below. I would save the signed the documents as scanned PDF versions in DentalWindows and on my desktop computer located at the reception desk. … 41. After Dr Al-Mozany left the room, the patient would move to my desk which was in the corner of the surgery. It was my role to take the patient through the three documents I prepared. The first being the Treatment Proposal, the second the Treatment Quotation and the third document, the Consent Form. I would ask the patient if they had any questions on all of the documents as we went through each of them. … 50. There was no time during my employment at Gentle Dental Care When a patient did not return the signed Treatment Proposals, Treatment Quotation or Consent Form. It was my role, when a patient would arrive for their first treatment appointment after the initial consultation, that I would request from them the signed Treatment Proposal, Treatment Quotation and Consent Form. If a patient had forgotten to bring their Treatment Proposal, Treatment Quotation or Consent Form with them, that were provided to them at the initial consultation, then I would print out further copies at the second appointment and request that they sign them on the spot after explaining to them that treatment cannot start unless the documents were signed. 51. It was a policy as I knew it of the practice, that no orthodontic treatment would commence until these three documents were signed by the patient. It was my role to issue these documents and then have them returned signed by the patient. At the commencement of the first Treatment Appointment I would always lay out the signed Treatment Proposal, Treatment Quotation and Consent Form for Dr Al-Mozany to sight upon him entering the surgery prior to commencing treatment with a patient. 52. There was no time I recall when a patient's orthodontic treatment commenced without these forms being signed. If that was to have happened, the management team of Gentle Dental Care and Dr Al-Mozany would have questioned me as to why I was not performing my role. (emphasis added)
4. Ms Bliss also provides detailed observations of the practitioner's note taking during patient treatment and consultations, in summary stating: 75. If patients experience delays in the progression of treatment and the treatment plan needs to be adjusted timewise, then Dr Al-Mozany would make that notation (through his orthodontic nurse) in the Orthotrac notes. Other notations in the notes would include, if he saw poor oral hygiene and requested that they see a general dentist, if he saw any obvious carries, or if things were not moving according to plan or as expected. Generally, the Treatment Proposal would not be updated unless the patient requested an alternative treatment plan. 76. Dr Al-Mozany's notes were of sufficient detail to allow me to know the next steps for each patient. Dr Al-Mozany's notes were clear to allow me to plan the next appointments and stages for the patient, answer questions when they arose from patients, or their guardians, regarding their treatment and the process of their treatment. I never found the record keeping of Dr Al-Mozany, including his notes, to have ever been missing or lacking the detail required by me to allow me to perform my work properly and be able to adequately advise or inform patients.

Statement of Ms Bliss dated 3 October 2022

1. This statement describes the practitioner's assessments of Patient K, noting that Patient K (whom she remembered "clearly), signed her Treatment Proposal, Consent Form and Treatment Quotation.
2. In addition, Ms Bliss sets out general observations about the practitioner's practice.

Cross-examination

1. Ms Bliss was briefly cross-examined by Ms Petrie. Relevantly, the cross-examination included the following exchange: Q. Just hold that there for one moment. But in relation to (Patient K), it's fair to say that you don't actually remember (Patient K), do you? A. I don't remember her? Q. Yes. A. You mean, I don't remember meeting her? Q. Well, you don't remember expressly assisting Dr Al-Mozany with her treatment. A. No. Q. So where you say at paragraph 10, the records are incomplete, you don't have a specific memory of what all of the records for (Patient K) were, do you? A. Not specifically for (Patient K), no, I can only recall the general procedure that I would follow for each patient. 35 Q. And if I can take you to paragraph 26, you don't actually remember (Patient K) returning a signed treatment proposal consent form or treatment quotation, do you? A. I can't speak to the specifics of each patient, considering it was five years 40 ago now but I can only speak to the - the procedures that I would follow every day so I can't imagine starting a treatment without having those documents in place.

The expert evidence of the practitioner

1. The practitioner relied on three expert reports of Dr Kosy respectively dated 15 November 2019, 16 January 2020 and 28 January 2020. These reports related to six of the patients referred to in the Amended Complaint, namely Patients C, D, G, H, J and L.
2. Dr Kosy said in cross-examination that he had no knowledge of the other 8 patients the subject of the Amended Complaint.
3. Dr Kosy was required for cross-examination. His evidence will be considered below.

Dr Gennaro Russo

1. Dr Russo was not required for cross-examination. Accordingly, his evidence will be accepted by the Tribunal where relevant and not contradicted by other evidence before the Tribunal.
2. However, Dr G Russo was not relied on as an expert witness by the Commission in these proceedings, and we give no weight to his statement in his complaint that the lack of referral to a general practitioner indicated to him evidence of the practitioner's consciousness of guilt in terms of the treatment carried out and the poor result which Dr Russo believed was a wide departure from acceptable standards.

Dr Michael Russo

1. By and large we accept the evidence of Dr M Russo that he conducted comprehensive searches of the GDC practices to locate dental records and that he did so the best of his ability.
2. There are a number of caveats to that assessment. These are that Dr M Russo: 1. is not a computer specialist; 2. was not familiar with the Invisalign program (and here we note that of the 14 patients, Patients B, D, K and N were Invisalign patients); 3. did not search the Wetherill Park practice "in detail"; 4. did the searches "mostly" at the Liverpool, Tahmoor and Campbelltown practices and not "as such" at Wetherill Park and Double Bay; 5. said he had limited time to undertake his searches.
3. Accordingly, while we accept that Dr M Russo has undertaken to produce to the Commission all the relevant records to the best of his abilities, we are not positively persuaded that all the relevant records have in fact been produced, and cannot ignore the possibility that not all the dental records were made available to the Commission and its witnesses, including in particular Dr Geenty.

The mother of Patient A

1. The mother of Patient A was not required for cross-examination. Accordingly, we accept her evidence where relevant and if not contradicted by other evidence.

The mother of Patient C

1. The mother of Patient C was not required for cross-examination. Accordingly, we accept her evidence where relevant and if not contradicted by other evidence. Accordingly, we accept her evidence where relevant and if not contradicted by other evidence.

Patient D

1. Patient D was not required for cross-examination. Accordingly, we accept her evidence where relevant and if not contradicted by other evidence.

Patient E

1. Patient E's mother was required by the practitioner for cross-examination. The Commission submits that she was not challenged in relation to her evidence in her statement by the practitioner and the Tribunal should accept her evidence. The Commission submits that Patient E's mother was a truthful witness, and that nothing fell from Patient E's mother in oral evidence that should in any way affect the Tribunal's determination of the Complaint in relation to Patient E.
2. We agree, and we accept her evidence where relevant and if not contradicted by other evidence.

Patient K

1. Patient K was not required for cross-examination. Accordingly, we accept her evidence where relevant and if not contradicted by other evidence.

Patient L

1. Patient L was required for cross-examination by the practitioner. The Commission submits that she gave evidence that she had provided all of her notes that her mother had obtained from GDC subsequent to her treatment with the practitioner to the Commission; that she was unable to comment as to whether the notes that she provided to the Commission were consistent with the evidence available in the proceedings, and that the notes are consistent and no additional documents having been provided to her.
2. We see no reason not to accept the evidence of Patient L.

The practitioner

1. The practitioner was extensively cross-examined by the Commission's counsel.
2. As a result of that cross-examination the Commission submitted: 1. the practitioner was an unreliable witness and an unreliable historian. 2. the practitioner's assertion that there was a ransomware attack on GDC's dental records in 2018 should be rejected; 3. the practitioner's case is premised on missing documents and a business dispute, and does not give any meaningful evidence in relation to the evidence which criticises his treatment of patients, with his alleged absence of notes not addressing this issue in any meaningful way; 4. the practitioner inappropriately focused on those two issues to an extent that he was unable to properly explain other deficiencies in his case in relation to his care and treatment of the fourteen patients.
3. The Commission submitted that the Tribunal should find on the evidence that all of the records had been produced for the 14 patients by GDC. The Tribunal should find the practitioner an unreliable witness who is willing to do or say anything in the proceedings to assist his case, including asserting that all of the 14 patients had comprehensive treatment plans tailored to the individual patients treatment that met with the requirements for each treatment plan.
4. The Commission criticised the practitioner resiling from his comments at the s 150 hearing that: … I do realise that, you know, there have been a lot of mistakes with regards to treatment mostly due to breakdown in communication, treatment loads, being very very busy as well. … I would like to improve on everything. I do realise things have gone wrong. I - I want to correct everything. … I acknowledge that the morning session has been about 10 cases that were chosen from the whole cohort of patients and there are clear instances of suboptimal treatment and I fully admit to that. I acknowledge I did perform work on patients with periodontal disease and dental decay which was a mistake and I can't escape your comments, Dr Fryer, that it's as bad as it gets through there. … I have made mistakes and completely admit to that. However, I'm looking forward to Council's proposal, how we can work through things and what I need to do to get there."
5. The basis of the practitioner resiling from the above statements was the absence of records and the advice of his lawyers. This in particular is said to be a basis on which to find that the practitioner was unreliable.
6. The Commission also submitted that the practitioner attempted to mislead Dr Geenty during cross-examination. We reject that submission.
7. We also reject the submission there was a ransomware attack on GDC's dental records in 2018. This assertion was not supported by any independent evidence.
8. The Commission also submitted that the fact that the practitioner did not take Dr Geenty to any other patient dental records evidences that there were no records in the practitioner's material for the patients to cavil with Dr Geenty's expert opinions. The Commission submits that this is further supported by the fact that the Commission prior to Dr Geenty's evidence raised with the practitioner and the Tribunal the need for the practitioner to take Dr Geenty to relevant documents in the event that he wished to challenge Dr Geenty's findings about the patient records.
9. The Commission submits that the practitioner's failure to be candid about the different storage procedures for treatments plans at different practices also evidences that he was an unreliable witness.
10. Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; cited with approval by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at [142].
11. We accept that the practitioner's evidence needs to be approached with caution. But we are not prepared to make the blanket conclusion that the practitioner was unreliable. We consider that he was telling the truth and was not misleading the Tribunal. In particular, we accept his evidence that he would not have treated patients without having conducted an appropriate initial assessment, formulated an appropriate treatment plan and obtained an informed consent. In short, we believed the practitioner, who consistently and persuasively denied the allegations put to him by Ms Petrie, and was able to give credible evidence about his treatment of them and/or explain why the treatment may not have concluded successfully.
12. For instance, in relation to Patient C, the practitioner said in cross-examination: I believe the treatment with Patient C is sound, and I say that because he started off just wanting his upper teeth straightened, and then as adults do, and a lot of orthodontists would attest to, their expectations do change. Suddenly it's, "Hold on, can you do this, can you do that." So his treatment - my critique of myself in this patient was I finished him in the time period that we wanted, we booked him in to have his braces off, and then he said, "No, I don't want my braces off this day, let's keep going. Can you move this? Can you tip this? Can you do that?" and then the treatment went on and So, yes, that treatment was prolonged, which happens with every orthodontist, you know, they have treatment that does extend out. But I should have just said, "Look, that's as far as we can go." So, yeah. In orthodontics, no treatment can be perfect all the time. There are so many factors - biological factors, factors on patient compliance, hygiene. It all comes into play, you Know. Not every patient can be finished perfectly, and any orthodontist will say that to you.
13. In relation to Patient K, the practitioner said: (Patient K), to give you an example, she's an adult patient, just wanted her lower teeth straightened. We were going ahead with it. Three months into the treatment get asked to leave Gentle Dental Care. She gets taken over by an orthodontist that doesn't do any Invisalign, hasn't been trained in Invisalign, does not have Invisalign accreditation, and said, "Invisalign doesn't work, you need braces on your teeth." So there's another orthodontist saying that.
14. In addition, the practitioner, either personally or through his legal representatives has consistently maintained that the documents before the Council were incomplete, and he has consistently before the Council, in his correspondence with the Commission, in various interlocutory applications and before the Tribunal itself maintained his position that he did undertake detailed initial assessments of patients, that he did prepare treatment plans and always obtained an informed consent before treating a patient.
15. The Commission relies on the following evidence given in cross-examination: PETRIE. Dr Al-Mozany, you can't actually remember writing the treatment proposals for each of the 14 patients can you? PRACTITIONER. I do not treat a patient unless I have a treatment proposal written for them. PETRIE. Yes. But I'm asking you whether you actually recall writing each treatment proposal for each patient, the subject of the complaint? PRACTITIONER. I. know that they were written because / wouldn't have started treatment but you're asking me to have super human recollection of treatment proposals that were written years ago, I can't answer that question. PETRIE. And in terms when you say to the tribunal that your treatment proposals for the patients contained all of the things that were necessary for them to contain, you're relying on your standard practice as opposed to your actual recollection for these patients, aren't you? PRACTITIONER. As I mentioned before, every single patient has a treatment proposal and a consent form. PETRIE. I'll ask you again. You are relying on your standard practice and not your actual recollection for each of these patients? PRACTITIONER. Sorry: Ms Petrie, you're trying to twist this around, with all due respect. Every single patient - my comment and my answer to you in response is every single patient will have a treatment proposal. PETRIE. Yes. And I'm saying to you that in relation to what you say to this tribunal about each of those proposals saying everything that they needed to do, you're relying on your standard practice as opposed to actually recalling writing those things for each of the patients? PRACTITIONER. So are you suggesting that I should remember what day I wrote it and what I wrote in it and every entry in it? Sorry. …. Do I remember sitting down on that day and specifically what I wrote. No. But every patient has a treatment proposal. I know. So that's the answer.
16. The Commission says that on the basis of that evidence the Tribunal should reject the practitioner's evidence that there were treatment plans for Patients A to I, K, M and N. We decline to do so. We see nothing remarkable in the practitioner's inability to recall whether specific treatment plans were prepared given the volume of patients seen by the practitioner (a matter not being agitated in the Amended Complaint) and given the passage of time.
17. We reach the same conclusions in relation to the initial assessments and consent forms. That is to say, it is up to the Commission to prove its case, it is not up to the practitioner to disprove an allegation. As the Tribunal noted in Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 at [8]: The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. (emphasis added)
18. Ovchinnikov was referred to with approval in Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 at [23].
19. Accordingly, by and large we will be rejecting the Commission's allegations that the practitioner failed to conduct an appropriate initial assessment of patients, failed to formulate appropriate treatment plans or failed to obtain informed consents from patients or their guardians, save for where there was positive evidence from a patient that this was the case.
20. For these reasons, we will also be rejecting Dr Geenty's various statements that, where there is no treatment plan "recorded (he means appearing in the materials provided to him; it is not within his knowledge whether a treatment plan was actually recorded or not), "[i]t must be assumed that one was not prepared".
21. In short, for these reasons, we reject the Commission's submission made on the second day of the hearing (5 July 2022) that where the documents are not available they do not exist (T p 7 ll 15-16).
22. We wish to make some further observations on the consent allegations. The Commission alleged in respect to Patients A to G and L to N that the practitioner failed to obtain an informed consent from the patients or their guardian.
23. We note that the evidence establishes that Patient H or their guardian signed a consent to treatment. [5]
24. However, the evidence also positively demonstrates that: 1. Patients A or their guardian signed a consent to treatment, despite the Commission alleging otherwise; [6] 2. Patient B or their guardian signed a consent to treatment, despite the Commission alleging otherwise; [7] 3. Patient E or their guardian signed a consent to treatment, despite the Commission alleging otherwise; [8] 4. Patient J's guardian signed a consent to treatment, despite the Commission alleging otherwise; [9] 5. Patient M or their guardian signed a consent to treatment, despite the Commission alleging otherwise; [10] 6. Patient N or their guardian signed a consent to treatment, despite the Commission alleging otherwise. [11]
25. The patient consents appear to be attached to or forming part of the patient's "quotation for Orthodontic treatment". We note that a quotation and consent were prepared for Patients C and F. We find that, despite neither document being signed, it is consistent with the practitioner's evidence that he would not have treated patients without having conducted an appropriate initial assessment, formulated an appropriate treatment plan and obtained an informed consent.

Ms Shannon Bliss

1. Ms Bliss was required for cross-examination.
2. The Commission submits that: 1. Ms Bliss did not corroborate the practitioner's evidence that the patients' treatment plans were kept in lever arch folders at the Double Bay practice near the reception area and that they were saved as word documents on the practice reception computer. She created and saved the treatment plans, treatment proposals and consent forms in PDF in Dental4windows and Orthotrac and shredded the originals; 2. the practitioner only conceded the above evidence after hearing Ms Bliss' evidence and at no stage prior gave evidence that the treatment plans were not stored in hard copy at the GDC Double Bay practice. Patient K was a patient at the Double Bay practice.
3. Be that as it may, we see no reason to reject Ms Bliss' evidence which is summarised above.

Mr Fahmy

1. The Commission made no submission about Mr Fahmy's evidence which we accept, noting that it has little relevance to the proceedings.

Submissions

1. In addition to any oral submissions made at the hearing by Ms Petrie on 18 October 2023, the Commission relied on Ms Petrie's written submissions in chief dated 31 May 2023 (118 pages) and the submissions in reply dated 18 October 2023 (28 pages).
2. In addition to any oral submissions made at the hearing by the practitioner on 18 October 2023, the practitioner relied on his written submissions undated but filed 5 October 2023 (277 pages, not including annexures of approximately 100 further pages).
3. In other words, there were over 500 pages of written submissions. This reflects the thousands of pages of evidence filed by the parties, and the complexity of the Complaint which originally involved some 124 separate allegations against the practitioner.

The Patients

1. Patients A, B, E, F, G, H, I, J and L were minors when treated by the practitioner.
2. Patients C, D, K, M and N were adults when treated by the practitioner.
3. Patients B, D, K and N were Invisalign patients of the practitioner.

Approach to consideration

1. In summary, the allegations made against the practitioner in relation to the 14 patients can be summarised diagrammatically as follows: Patient Failure to conduct an appropriate initial assessment: Failure to formulate an appropriate treatment plan Failure to obtain an informed consent Failure to adequately monitor general dental health Failure to provide appropriate orthodontic treatment A � � � � � B � � � C � � � � � D � � � � E � � � � � F � � � � � G � � � � � H � � � I � � � � � J � � K � � � L � M � � � � N � �

1. Accordingly, Complaint One can be divided into two sub-sets of allegations in respect of the 14 patients.
2. The first sub-set of allegations are the allegations that: 1. the practitioner failed to conduct appropriate initial assessments of Patients A, B, C, D, E, F, G, H, I, K, M and N; 2. the practitioner failed to formulate appropriate treatment plans for Patients A, C, D, E, F, G, I, K and M; 3. the practitioner failed to obtain informed consents from Patients A, B, C, D, E, F, G, I, J, K, L, M and N (or their guardians where appropriate).
3. In addition, there was an additional allegation in respect of Patient C, namely failing to diagnose significant periodontal disease.
4. The second sub-set of allegations relate to: 1. the failure of the practitioner to adequately monitor the general dental health of Patients A, C, E, F, G, H, I and J; 2. the failure of the practitioner to provide appropriate orthodontic treatment to Patients A, B, C, D, E, F, G, H, I and J and M.

The first sub-set of allegations: failure to conduct appropriate initial assessments; failure to formulate appropriate treatment plans, failure to obtain informed consent

Failure to conduct appropriate initial assessments (Particular (1)(a))

Failure to formulate appropriate treatment plans (Particular (1)(b))

Failure to obtain informed consent (Particular (1)(c))

1. At any initial consultation, the practitioner says that he would assess the patient and then prepare a treatment proposal. The treatment proposal would be printed and a copy provided to the patient to take home and review.
2. The Commission's allegations concern treatment plans, but this appears to be synonymous with the treatment proposal. When the Tribunal asked the practitioner what the difference between the two documents were, he stated that: … the proposal, which is in my evidence, is patient's complaint, the clinical findings, medical history, what's wrong with the patient, what are the options that are available and then it goes into how we will treat the patient. So it gives them options, it gives them risks, it gives them benefits, it gives them different options with their treatment. So, for instance, this patient we would say, "Look, we'll bring the canine down. There'll be a surgical exposure if necessary." If the tooth doesn't move, you have to look at other treatment options with an extraction of the tooth or placing implants afterwards or closing the space by bringing the back teeth forward. So it's a detailed examination of the patient. It's the detailed options that we give the patient and then it goes into the risks and benefits.
3. In the case of Patient A, there was positive evidence of Patient A's mother who states that she was never provided with a document called a treatment plan (that is, proposal) by the practitioner, and that the only document she was provided with at the commencement of her son's treatment was a schedule of fees.
4. In those circumstances, we find Particulars (1)(a) and (b) established.
5. However, included in the Commission's materials was a Patient Consent Form signed by Patient A's mother. Given that evidence, we do not find Particular (1)(c) established.

Failure to conduct an appropriate initial assessment (Particular (3)(a))

Failure to obtain informed consent from patient or their guardian (Particular (3)(b))

1. Patient B did not provide a statement in the proceedings.
2. Given our approach to the evidence, we do not find either Particular established.
3. In addition, as noted above, the evidence positively establishes that Patient B or their guardian signed a consent to treatment.

Failure to conduct an appropriate initial assessment (Particular(5)(a))

Failure to diagnose significant periodontal disease (Particular 5(b))

Failure to formulate appropriate treatment plan (Particular (5)(c))

Failure to obtain informed consent from patient or their guardian (Particular (5)(d))

1. Patient C has provided a statement stating that he did not recall receiving a treatment plan, but was provided a patient consent form and a quotation for his orthodontic treatment.
2. In those circumstances, we find Particulars (5)(a) and (c) established, but not Particular (5)(d).
3. As noted above, in the case of Patient C there was an additional allegation, namely failing to diagnose significant periodontal disease (Particular 5(b)). Failing to diagnose significant periodontal disease prior to orthodontic treatment potentially can lead to significant and irreversible complications during the course of orthodontic treatment. Bone and soft tissue (that is, connective tissue) attachment loss could result in aesthetic and functional stability being compromised. Ideally the patient needs to be assessed and treated by their hygienist, dentist or specialist periodontist prior to the commencement of orthodontic treatment. A maintenance programme then needs to be initiated whereby the patient is assessed routinely (either 6 monthly or as necessary).
4. Dr Geenty notes that the pre-treatment OPG shows subgingival calculus with significant bone loss in both upper and lower dentition. He says that to initiate orthodontic treatment in the presence of active periodontal disease is inappropriate and significantly below standard, and that the practitioner should have had the periodontal condition treatment and stabilised prior to orthodontic treatment.
5. Given that opinion, we find Particular 5(b) established.

Failure to conduct an appropriate initial assessment (Particular (7)(a))

Failure to formulate appropriate treatment plan (Particular (7)(b))

Failure to obtain informed consent from patient or their guardian (Particular (7)(c))

1. Patient D did not recall signing a consent form and did not have a copy of one. She denies receiving a treatment plan or any other document other than a quotation for her treatment.
2. In the circumstances, we find Particulars (7)(a), (b) and (c) established.

Failure to conduct an appropriate initial assessment (Particular (9)(a))

Failure to formulate appropriate treatment plan (Particular (9)(b))

Failure to obtain informed consent from patient or their guardian (Particular (9)(c))

1. Patient E's mother denied receiving a treatment plan. She said that she was given a payment plan and a patient consent form.
2. In the circumstances, we find Particulars (9)(a) and (b) established. We do not find Particular (9)(c) established.
3. In addition, as noted above, the evidence positively establishes that Patient E or their guardian signed a consent to treatment.

Failure to conduct an appropriate initial assessment (Particular (11)(a))

Failure to formulate appropriate treatment plan (Particular (11)(b))

Failure to obtain informed consent from patient or their guardian (Particular (11)(c))

1. Patient F did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particulars (11)(a), (b) and c) established.

Failure to conduct an appropriate initial assessment (Particular (13)(a))

Failure to formulate appropriate treatment plan (Particular (13)(b))

Failure to obtain informed consent from patient or their guardian (Particular (13)(c))

1. Patient G did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particulars (13)(a), (b) and (c) established.

Failure to conduct an appropriate initial assessment (Particular (15)(a))

1. Patient H did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particular (15)(a) established.

Failure to conduct an appropriate initial assessment (Particular (16)(a))

Failure to formulate appropriate treatment plan (Particular (16)(b))

Failure to obtain informed consent from patient or their guardian (Particular (16)(c))

1. Patient I did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particulars (16)(a), (b) and (c) established.

Failure to obtain informed consent from patient or their guardian (Particular (18)(a))

1. Patient J did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particular (18)(a) established.
3. In addition, as noted above, the evidence positively establishes that Patient J or their guardian signed a consent to treatment.

Failure to conduct an appropriate initial assessment (Particular (19)(a))

Failure to formulate appropriate treatment plan (Particular (19)(b))

Failure to obtain informed consent from patient or their guardian (Particular (19)(c))

1. Patient K she denies receiving a document setting out her treatment but does acknowledge receiving a quotation for the practitioner's services. She does not recall being given or signing a consent form. She denies receiving a treatment plan or ever seeing one.
2. In the circumstances, we find Particulars (19)(a), (b) and (c) established.

Patient L

1. The only allegation made in respect of Patient L was that the practitioner failed to obtain a signed consent form from her. Patient L gave evidence that she given a Patient Consent Form which she did not sign.
2. Accordingly, we find this Particular, Particular (20) established, but will be placing no reliance on it for any finding of unsatisfactory professional conduct of professional misconduct. That is because the Guidelines do not require the practitioner to obtain a signed consent.

Failure to conduct an appropriate initial assessment (Particular (21)(a))

Failure to formulate appropriate treatment plan (Particular (21)(b))

Failure to obtain informed consent from patient or their guardian (Particular (21)(c))

1. Patient M did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particulars (21)(a), (b) and (c) established.

Failure to conduct an appropriate initial assessment (Particular (23)(a))

Failure to obtain informed consent from patient or their guardian (Particular (23)(b))

1. Patient N did not provide a statement in the proceedings.
2. Given our approach to the evidence explained above, we do not find Particulars (23)(a) and (b) established.

Conclusion re first subset of Particulars

1. For the above reasons we find the following sub-particulars established: (1)(a) and (b); (5)(a), (b) and (c); (7)(a), (b) and (c); (9)(a) and (b); (19)(a), (b) and (c) and (20).
2. This means a total of 14 sub-particulars are established in respect of 6 patients, being Patients A, C, D, E, K and L.
3. As noted, we will not be taking Particular (20) in relation to Patient L into account in our assessment of whether Complaint One is established.

The second subset of Particulars: the failure to adequately monitor the general dental health of Patients A, C, E, F, G, H, I and J; the failure to provide appropriate orthodontic treatment to Patients A to J and M

1. We turn now to the second sub-set of allegations in Complaint One.
2. This is where we come to consider the expert evidence before us.

Dr Geenty's evidence

1. It is convenient to commence with a consideration of Dr Geenty's evidence.
2. In Health Care Complaints Commission v Al-Mozany (No 4) the Tribunal dealt with various criticisms of Dr Geenty's First to Fourth reports raised by the practitioner's then senior counsel. These included criticisms that: 1. the Commission failed to comply with s 30(2A) of the Health Care Complaints Act 1993 (NSW) (the HCC Act), by failing to provide Dr Geenty with all of the material for the purposes of preparing his Reports; 2. Dr Geenty's failure, in each of his reports, include in, or annex to it (being the words used in the provision) a statement in the form required by s 30(3) of the HCC Act; 3. Dr Geenty wrongly communicating in preparing his first report with: 1. Dr Shane Fryer, who was a delegate of the Dental Council and presided over the s 150 hearing concerning the practitioner; 2. Associate Professor Jim Hawkins; 1. Dr Geenty failing to properly articulate reasons for his assertions and conclusions in his reports; 2. Dr Geenty's fourth report of 24 June 2022 going beyond the order of Deputy President Boland AM of 20 June 2022; 3. the Commission's letters of instruction to Dr Geenty being "flawed"; 4. the Commission providing irrelevant and prejudicial material in the documents that it provided to Dr Geenty, going beyond the patients concerning which the Commission sought Dr Geenty's reports.
3. In the circumstances, the practitioner submitted that the Commission ought not be allowed to rely on the first to fourth reports of Dr Geenty.
4. This submission was made at a time when the Stage 1 hearing had already proceeded over five days from 4 to 8 July 2022. The practitioner was unrepresented throughout those hearings and on 8 July 2022, the matter was adjourned part-heard to 17 and 18 October 2022 for further hearing. What remained to be completed on 17 and 18 October 2022 was the Commission's evidence in reply.
5. At the conclusion of the hearing, the Tribunal gave directions for the filing of Stage 1 submissions.
6. The Commission filed its outline of submissions in relation to the Stage 1 hearing on 29 August 2022. Those submissions were 122 pages in length.
7. However, commencing on 30 September 2022, the practitioner, now represented, filed three (interlocutory) applications for miscellaneous matters. These were: 1. an application filed on 30 September 2022 (First Interlocutory Application); 2. an application filed on 13 October 2022 (Second Interlocutory Application); 3. an application filed on 16 October 2022 (Third Interlocutory Application).
8. The practitioner then filed his Stage 1 submissions on 5 October 2022. Those submissions are (apparently) 397 pages in length and go to substantive Stage 1 matters, as well as (in part) to the First, Second and Third Interlocutory Applications.
9. In addition, the practitioner filed a Reply of some 197 pages, a folder of 15 documents described as "High Level Documents" and further bundles of authorities, legislation and Reading Speeches.
10. The Commission filed 28 pages of Stage 1 submissions in reply on or about 17 October 2022.
11. The adjourned Stage 1 hearing then came on for hearing on 17 October 2022. The practitioner wished to agitate the First, Second and Third Interlocutory Applications before the Stage 1 hearing continued. The Commission was not in a position to deal with the Second and Third interlocutory Applications on 17 and 18 October 2022.
12. In those circumstances, Health Care Complaints Commission v Al-Mozany (No 4) relevantly considered First Interlocutory Application. For the reasons given, the application was refused and the criticisms of Dr Geenty's reports rejected for the reasons stated. As noted, in any event, Dr Geenty's reports had already been admitted into evidence without objection.
13. By and large, these submissions were repeated in the practitioner's submissions filed 5 October 2022. We see no reason to revisit them.
14. Generally speaking, we accept that Dr Geenty was a reflective and careful witness. In this respect, we accept the Commission's submissions that: Dr Geenty was a reliable expert. It was apparent from his evidence that he had carefully considered the extensive material in the matter and had proper, genuine and realistic regard to the evidence in coming to his views and conclusions in the matter.
15. But we note that in a final comment in the First Geenty Report, Dr Geenty states: 6. 1 Of the ten cases reviewed, [12] eight have no pre-treatment records or records that are of limited use and there is no documented treatment plan for eight cases. Also the treatment notes are lacking information about the progress of treatment. It is not surprising therefore that treatments were prolonged and had poor outcomes because Dr Al-Mozany appears to have had no reliable information upon which to base his clinical decisions during treatment. All of the ten patients were already patients of Gentle Dental before they started orthodontic treatment and were internal referrals. For this reason I think that some of the responsibility for monitoring general dental health of the patients must rest with the Practice and its systems of recall.
16. We also note that in the Third Geenty Report, Dr Geenty states that: Dr Kosy correctly notes that there was evidence of advanced decay in tooth 26 on Bite Wing xrays taken 27/2/16. The patient was banded on 20/5/16 and had extractions done by a Gentle Dental practitioner who should have noted the decay. So a degree of culpability rests with that Practitioner.
17. We consider it important to recall that Dr Geenty has relied on the records provided to him by the Commission, and that we cannot ignore the possibility that the records are incomplete, particularly given the consistent denials of the allegations by the practitioner and the, in some cases, very detailed evidence about his treatment of patients, and here we refer in particular to the practitioner's three statements each dated 12 June 2020 which respectively related to his treatment of Patients B, E and F and his statements in relation Patient J, dated 10 November 2019, Patient D, dated 8 November 2019, Patient H, dated 14 November 2019, Patient C, dated 14 November 2019, Patient I, dated 14 November 2019 and Patient G, dated 11 November 2019 which were provided to Dr Geenty for the purpose of preparing the Third Geenty Report.

Dr Kosy's evidence

1. Dr Kosy's reports related to Patients C, D, G, H, I and J. There were three reports respectively dated 15 November 2019 (which related to Patients D and J), 16 January 2020 (which related to Patients H and I) and 28 January 2020 (which related to Patients C and G).
2. Dr Kosy had not been provided with the GDC materials that Dr Geenty had access to, and the Commission submits that the Kosy reports place significant emphasis on what the practitioner said about the available records as opposed to the records actually being made available to him.
3. In those circumstances, the Commission submits that where the evidence differs between Dr Kosy and Dr Geenty, Dr Geenty's evidence should be preferred.
4. In relation to Patient C, Dr Kosy's comments are of no particular assistance to the Tribunal.
5. In relation to Patient D, Dr Kosy concluded: … with the benefit of further records supplied under Summonses by Gentle Dental Care I feel the treatment of [Patient D] by Dr Al-Mozany is reasonable and satisfactory under the circumstances. I do not feel confident that all the records pertaining to this case have at this time been supplied and that makes the situation and evaluation more complicated and difficult. I am confident, however, that Dr Al-Mozany has treated [Patient D] according to her wishes and that the original treatment plan she initially agreed to was attainable if she was compliant with the original plan she agreed to.
6. In relation to Patient G, Dr Kosy was critical of extractions undertaken by Dr G Russo.
7. In relation to Patient H, Dr Kosy concluded that no conclusive evidence or conclusions that could be made other than there being a misdiagnosis of the bitewing xrays by a Dr Boag.
8. In relation to Patient I, Dr Kosy concluded that the practitioner's treatment was satisfactory and appropriate, and commented that the practitioner was not given the opportunity to "finish the case".
9. In relation to Patient J, Dr Kosy concluded: 96. In conclusion, based upon the records which were provided to the Delegates and Dr Smith (10 pages), without the benefit of the further 35 pages provided under Summons, I do not believe that any definitive conclusions could or should have been made concerning Dr Al-Mozany's treatment of [Patient J]. 97. With the further provision of 35 pages of records a more complete picture and assessment is possible. It is still obvious that some very important records may still not have been provided by Gentle Dental Care. It is also the case that this patient has had treatment stopped mid-treatment.

The role of the professional members of the Tribunal

1. We note that there were a number of submissions of the Commission which related to the role of the professional members constituting the Tribunal.
2. The first submission was that the Tribunal should not be swayed by the opinions of its professional members (namely Drs Xouris and Labour) as to why Dr Geenty's evidence should be rejected, as Dr Geenty's expert evidence was not the subject of any challenge in this regard by any other expert evidence.
3. In this respect, the Commission referred to Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 where the Tribunal stated: 237 As presently advised, we do not consider that proceedings under the National law are strictly inquisitorial. Nor are they strictly adversarial. We are also of the view that although a Tribunal, which is multi-disciplinary, can inform itself of any matter in the way it thinks fit, that process must be in accord with principles of natural justice and procedural fairness. That is, the Tribunal cannot form an opinion based on evidence it has gathered not disclosed to the parties (see Hall v The University of New South Wales [2003] NSWSC 669 at [353]). 238 In reaching this conclusion, however, we do not overlook the primary reason for the constitution of the Tribunal that includes two professional members of the same division as the practitioner the subject of the proceedings. That primary reason is so that the specialist members of the Tribunal can apply their knowledge and expertise to the evidence before them (see Kalil v Bray [1977] 1 NSWLR 356 per Street CJ at [261-262]; Minister for Health v Thomson (1985) 8 FCR 213 at 224). However, prudence will dictate that where there is a "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal (Kalil v Bray per Moffitt P). Although the decisions to which we have referred were determined prior to the introduction of the National Law, we are satisfied that the principles espoused in those decisions remain apposite to proceedings under the National law.
4. We accept that submission. It is also consistent with Ghosh v Health Care Complaints Commission [2022] NSWCA 229 where Adamson JA (with whom Ward P and Basten AJA agreed) said at [57]: the Tribunal in the present case is "arbitral and adjudicative". It is to "choose between competing arguments" and "to opine on the correctness of other opinions on the medical question". It is not "to form and give its own opinion on the medical question by applying its own medical experience and its own medical expertise." (emphasis as in original)
5. See too Basten AJA who said (footnotes omitted): 10. … While it true that at least two members of the Tribunal were required to be medical practitioners, and their professional training and expertise constituted an institutional characteristic of the Tribunal, that professional expertise was to be put to effect in assessing the evidence and other material placed before the Tribunal by the parties. Whether the appellant suffered an 74 affecting her ability to practise medicine was an element of the case. However, psychiatric diagnosis was a matter to be addressed on the basis of expert evidence. The function of assessing the quality and reliability of an expert opinion is, in principle, different from forming one's own expert opinion based on the presentation of a witness in the course of giving evidence. 11. Judges may also gain familiarity with particular areas of medicine by hearing similar cases over many years. It is, nevertheless, not appropriate for such a judge to make findings based upon his or her own assessment of the circumstances without relevant expert evidence capable of supporting the conclusion. That principle is not subverted by the circumstance that the dissenting member was a psychiatrist with expertise in forming psychiatric diagnosis. If not a mistaken view of his function, it was certainly wrong in principle for the dissenting member to rely upon such an opinion without giving notice of his intention to the Commission, which had presented evidence supporting a different conclusion. For present purposes, it is sufficient to say that had the majority relied upon the opinion of the dissenting member, it would have been a legal error on its part. (emphasis added)
6. The second submission was that it was not appropriate for the professional members of the Tribunal to impose their personal views of standard practice "prevailing over adherence with Guidelines". Here the Commission invoked s 41 of the National Law. That provision provides: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.
7. We observe that s 41 does not support the Commission's submission, which appears to be a non-sequitur. Nevertheless, we accept that the relevant standard or Guideline existing at the time of the alleged conduct must be applied where relevant in determining the complaints.

Failure to adequately monitor general dental health (Particular (1)(d))

1. In Particular (1)(d) the Commission alleges that the practitioner failed to adequately monitor Patient A's general dental health during the course of his orthodontic treatment including organising regular dental check ups when poor oral hygiene was noted at commencement of and throughout treatment.
2. The evidence establishes that Patient A was first seen on 19 September 2015 and saw a hygienist the following day. The evidence supports the practitioner's submission that: 1. at an appointment on 30 September 2015 with a GDC dental hygienist, the dental hygienist advised Patient A and his mother that Patient A should use a mouth rinse two times a day for two weeks. The dental hygienist discussed also gave oral hygiene instructions including brushing and flossing and reinforced the importance of attending regular dental hygiene appointment recalls; 2. at an appointment on 21 October 2015 with the practitioner, the practitioner gave Patient A oral hygiene instructions and emphasised the importance of brushing; 3. on 17 February 2018, Patient A of his mother was asked to book an appointment with the dental hygienist, however no booking was made.
3. Dr Geenty's opinion in relation to whether or not the practitioner adequately monitored Patient A's general dental health was as follows: There was a file note at the start of treatment highlighting need for vigilance with oral hygiene because of the poor oral hygiene evident. There is no evidence of follow up or further monitoring during treatment. In this case this is below standard. Dr Al-Mozany should have organised regular dental check ups.
4. That is the totality of Dr Geenty's reasoning on this matter. Putting aside the adequacy of Dr Geenty's reasoning, we note that Dr Geenty does not refer to the Patient Consent Form signed by Patient A's mother, which relevantly stated: The patient's responsibility: It is the patients responsibility to follow the brushing and oral hygiene instructions that are given, so that no harm will come to the teeth and surrounding tissues; to come to all appointments on the proper day and time; to adhere to the list of food restrictions in order to keep from damaging the teeth and orthodontic appliance; to wear headgear, elastics and retainers, if they are necessary, so that treatment time will be as short as possible and so we can achieve the best results; and to visit the dentist at least every six months for an examination and cleaning. There will be additional orthodontic charges for replacement of appliances (such as retainers or braces) that are lost or damaged due to repeated patient neglect, or any excessive extension of treatment due to lack of patient co-operation. 100% patient co-operation is very, very important. Oral hygiene: Decalcification (permanent marking), decay or gum disease can occur if patients do not brush their teeth properly and thoroughly during treatment period. Excellent oral hygiene and plaque removal is a must. Sugar and between meal snacks should be reduced as much as possible. Visit your dentist regularly. (emphasis added)
5. Dr Kosy did not express an opinion in relation to Patient A.
6. In an oft-quoted passage, Heydon JA (as his Honour then was), in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, referred to the prime duty of experts in giving opinion evidence as furnishing the Court (or in this case the Tribunal) with criteria to enable the evaluation of the validity of the expert's conclusions. His Honour referred to the judgment of Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 where the Lord President stated that the role of the expert was: to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (emphasis added)
7. As Makita notes, ultimately any decision is for the decision maker.
8. We are not persuaded that there is sufficient reasoning or substance in Dr Geenty's report to establish that the practitioner failed adequately to monitor Patient A's general dental health in circumstances where: 1. Patient A's mother had signed the Dental Consent Form informing her: 1. of Patient A's responsibility to follow the brushing and oral hygiene instructions; 2. that Patient A should visit a dentist regularly; 1. Dr Geenty did not refer to the appointment of 17 February 2018; 2. Dr Geenty does not appear to take into account that some of the responsibility for monitoring general dental health of the patients must rest with the Practice and its systems of recall.
9. In these circumstances, we do not find Particular (1)(d) established.

Failure to provide appropriate orthodontic treatment (Particular (2))

1. Particular (2) was that between 19 September 2015 and 14 April 2018, the practitioner failed to provide appropriate orthodontic treatment to Patient A in that: 1. he failed at an early stage of treatment to identify and extract, or arrange to extract, some of Patient A's teeth in order to achieve an acceptable orthodontic result; 2. at the end of 30 months of treatment Patient A's teeth were not aligned correctly and the practitioner had not achieved an acceptable orthodontic result.
2. Dr Geenty's opinion in relation to this issue was that: 30 months of treatment with no correction evident. Being a class 3 case with severe crowding, extraction of teeth was indicated. This was not an appropriate treatment. It is significantly below standard. Dr Al-Mozany should have extracted some teeth as part of the treatment at an early stage.
3. Again, we are not persuaded that there is sufficient reasoning or substance in Dr Geenty's report to establish that the practitioner failed to provide appropriate orthodontic treatment to Patient B.

Failure to provide appropriate orthodontic treatment (Particular (4))

1. The Commission alleges in Particular (4) that between 19 June 2014 and 5 April 2018 the practitioner failed to provide appropriate orthodontic treatment to Patient B, which resulted in a significant Class 11 Division 1 pattern with an excessive overjet at the conclusion of almost 4 years of treatment.
2. Dr Geenty's view was that: It is difficult to follow the treatment because the file notes lack information. The outcome was poor because at deband she still had class 2 molars, increased incisor overjet and recession on the 31.
3. Dr Kosy did not express an opinion in relation to Patient B.
4. We find that Dr Geenty's very short opinion does not support the allegation as pleaded.
5. In the circumstances, we do not find Particular (4) established.

Failure to adequately monitor general dental health (Particular (5)(e))

1. The Commission alleges that the practitioner failed adequately to monitor Patient C's general dental health during the course of their orthodontic treatment when Patient C had obvious periodontal disease.
2. The Commission also alleges that the practitioner failed to diagnose significant periodontal disease based on Patient C's OPG (xray).
3. Dr Geenty's view was that "there is no evidence of any monitoring of the patient's general health during treatment which is below standard".
4. We find that this very short opinion does not support the allegations as pleaded. We also note that there was evidence in the practitioner's notes that the patient's oral hygiene was lacking, and referral to a hygienist/dentist was advised.
5. As noted above, we did not find Dr Kosy's opinion to be of assistance.
6. In the circumstances, we do not find Particular (5)(e) established.

Failure to provide appropriate orthodontic treatment (Particular (6))

1. The Commission alleges that between 3 November 2015 and 10 April 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient C in that he: 1. inappropriately commenced orthodontic treatment before Patient C had concluded treatment for his periodontic disease; 2. took in excess of 30 months to align the upper teeth; 3. commenced orthodontic treatment on Patient C, who had subgingival calculus with significant bone loss in both the upper and lower teeth, which was present on a pre-treatment OPG; 4. created a periodontally compromised result after 30 months of treatment; 5. created an occlusally compromised result after 30 months of treatment.
2. Dr Geenty states in relation to the length of treatment generally: 5.1 c) The usual course and average duration of orthodontic treatment involving fixed appliances is as follows: • Maintenance/Adjustment appointments usually at 6 weekly intervals over an average period of 24 months • Removal of the appliances and issue of retainers Post treatment record taking • Follow up review appointments at 3 or 6 monthly intervals for 24 months. The 24 month length of active treatment is based on research by Skidmore, KJ et al (2006) who reported that a consecutively recruited group of fixed appliance patients treated in Auckland New Zealand took a mean of 23.5 months to treat with a range of 12 to 27 months and standard deviation of 4.7 months. The other information above is based on personal knowledge and experience and while I believe that it is accurate, it is anecdotal. 5.1 d) The usual course and average duration of orthodontic treatment involving Aligners is as follows: Initial consultation(s) Record taking (can be at initial consultation appointment) • Discussion of treatment plan, quotation of fees and consent (can be at initial consultation appointment) • Referral for pre orthodontic treatment for restorative and periodontic treatment if needed • Intra oral scan • Receive and approve digital alignment sequence from aligner manufacturer • Bond attachments and issue of the first aligners • Referral for teeth extraction if needed • Maintenance/Adjustment appointments usually at 6 weekly intervals over an average period of 18 to24 months • Removal of the appliances and issue of retainers • Post treatment record taking • Follow up review appointments at 3 or 6 monthly intervals for 24 months. There is no reliable data describing treatment time for aligner therapy. On the basis that aligner treatment is used more often for minor non extraction treatments when compared to fixed appliance treatment, the average treatment time is likely to be on average shorter. The information above is based on personal knowledge and experience and while I believe that it is accurate, it is anecdotal. (emphasis added, noting that Patients B, D, K and N were Invisalign patients.)
3. Dr Geenty states in relation to Patient C: The treatment to align the upper teeth took in excess of 30 months which is prolonged. Also the pre-treatment [Orthopantomogram (OPG)] shows subgingival calculus with significant bone loss in both upper and lower dentition To initiate orthodontic treatment in the presence of active periodontal disease is inappropriate and significantly below standard. Dr Al-Mozany should have had the periodontal condition treated and stabilised prior to orthodontic treatment.
4. The Commission's allegations can be considered in two parts. The first is the length of time of treatment, "in excess of 30 months", the second part being the results of the treatment.
5. Dr Geenty's confirmed his view that the practitioner's initiation of orthodontic treatment in the presence of active periodontal disease was inappropriate and significantly below standard.
6. Given the admissions made by the practitioner at the s 150 hearing, and regardless of his later retreat from those admissions, we consider that Particulars (6)(a) and (c) are established.
7. As noted above, we did not find Dr Kosy's opinion to be of assistance.
8. We do not accept that Dr Geenty's opinions, or his reasoning for those opinions, are persuasive enough to establish Particulars (6)(b), (d) and (e).

Failure to provide an appropriate course of orthodontic treatment (Particulars (8)(a), (b) and (c))

1. The Commission alleges that between 4 November 2016 and 9 March 2018, the practitioner failed to provide an appropriate course of orthodontic treatment to Patient D in that he: 1. did not place attachments on any of Patient D's teeth during lnvisalign treatment, which relies heavily on attachments to be effective; 2. left tooth 63 in place, which after 15 months had very little root structure still present; 3. failed to achieve an acceptable orthodontic result at the end of 15 months of treatment.
2. Dr Geenty's view was that: The treatment that was planned did not involve removal of the compromised 53 [sic 63]. The plan was not robust and failed because of this and poor patient cooperation. This treatment and its outcome was below the expected standard.
3. The issue of attachments came from Dr Smith. As indicated we will not place any weight on Dr Smith's report.
4. We find that Dr Geenty's short opinion does not support the allegation as pleaded.
5. In the circumstances, we do not find Particular (8) established.

Failure to adequately monitor general dental health (Particular (9)(d))

1. The Commission alleges that between 27 September 2013 and 10 March 2018, the practitioner failed adequately to monitor Patient E's general dental health.
2. Dr Geenty states: No evidence of monitoring the dental condition. This is significantly below standard because of the risk of root resorption of the upper incisors. Dr Al-Mozany should have been checking for damage at least every 6 months during the time traction was being applied to the 13 23 and 43.
3. Dr Kosy did not express an opinion in relation to Patient E.
4. In circumstances where we cannot be certain that all the dental records were made available to Dr Geenty, we do not find Particular (9(d)) established.

Failure practitioner failed to provide an appropriate course of orthodontic treatment (Particulars (10)(a), (b) and (c))

1. The Commission alleges that between 27 September 2013 and 10 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient E as: 1. Patient E sustained root resorption damage to the upper lateral incisors over the course of treatment; ` 2. the practitioner failed to make any improvement to tooth 43; 3. the practitioner did not attempt to prepare space in the arch for tooth 43.
2. Dr Geenty's view was that: The initial management with extraction of three primary teeth and expansion was appropriate. The decision to attempt to correct the imp acted canines was appropriate (at least initially. 30 months of orthodontic traction had achieved significant improvement in 13 and 23 position. There was no improvement in 43 or any attempt to prepare in the arch for it. This is significantly below the expected standard. Dr Al-Mozany should have reviewed progress after and reconsidered his objectives after 12 months.
3. Dr Kosy made no comments in relation to Patient E.
4. In the circumstances, we find Particulars (10)(b) and (c) established. We do not find Particular (10)(a) established.

Failure to adequately monitor general dental health (Particular (11)(d))

1. The Commission alleges that the practitioner failed adequately to monitor Patient F's general dental health during the course of their orthodontic treatment in circumstances where Patient F had poor oral hygiene.
2. Dr Geenty's view was that: There is a file note at the start of the treatment highlighting need for vigilance with oral hygiene. There is no evidence of follow up or further monitoring during treatment. This is below standard in a case with poor oral hygiene.
3. Dr Kosy made no comments in relation to Patient F.
4. In circumstances where we cannot be certain that all the dental records were made available to Dr Geenty, we do not find Particular (11)(d) established.

Failure to provide appropriate orthodontic treatment (Particulars (12)(a) and (b))

1. The Commission alleges that between 4 June 2015 and 1 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient F by: 1. failing to apply sufficient forces to bring the upper molars forward without moving the upper incisors back and, as a result, these teeth were finished with an upright inclination; 2. making a very constricted upper arch for Patient F with an occlusion with a negative overjet.
2. Dr Geenty's view was that: The photographs and Lateral Ceph indicate a skeletal 1 jaw relationship. There was mild upper spacing and mild lower crowding. The incisors were edge to edge. The apparent plan to close upper spaces was appropriate in this case. However the forces applied to the teeth were not correct to achieve the necessary outcome. I suspect that the post treatment photos are postured and exaggerate the severity of the incisor crossbite. This treatment was below standard. Dr Al-Mozany should have applied forces to bring the upper molars forward without moving the upper incisors back.
3. Dr Kosy did not express an opinion in relation to Patient F.
4. In the circumstances, we find Particular (12)(a) established. We do not find Particular (12)(b) established.

Failure to adequately monitor general dental health (Particular (13)(d))

1. The Commission alleges that the practitioner failed to adequately monitor Patient H's general dental health during the course of their orthodontic treatment.
2. Dr Geenty's only comment is that there is: No evidence of monitoring of general dental health. This is below standard in a case with an impacted tooth.
3. In circumstances where the records are incomplete and the allegation is strongly denied by the practitioner, we do not find Particular (13)(d) established.

Failure to provide appropriate orthodontic treatment (Particular (14))

1. The Commission alleges that between 31 March 2017 and 16 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient G in that he failed to open space for tooth 23 in the first 12 months of treatment so that the treatment plan could be reviewed if tooth 23 failed to erupt.
2. Dr Geenty's view was that: The apparent plan was to open space for the impacted 23 (without extractions) so that the 23 could erupt without the need for surgery. This was ambitious in view of the lack of space and age of the patient. No evidence of an attempt to open space for the 23 during the first 12 months of treatment. This treatment was significantly below standard. Dr Al-Mozany should have attempted to open space for the 23 early in treatment so that a timely review could have been carried out.
3. Dr Kosy's opinion was of no assistance to us.
4. We find Particular (14) established.

Failure to provide appropriate orthodontic treatment (Particular 15(b))

1. The Commission alleges that between 7 May 2016 and 2 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment by: 1. failing to treat the caries (decay) on tooth 26 before commencing orthodontic treatment; 2. placing orthodontic fixed appliances on untreated caries that was present on tooth 26; 3. failing to deal with Patient H's complaints of pain in tooth 26 during the course of treatment.
2. Dr Geenty's view was that: It is not possible to comment on the treatment plan because there are no records of the presenting malocclusion. There is evidence of caries in the tooth 26 in a bite wing xray taken on 27/2/16 which was 3 months before the fixed appliance was fitted. Placing orthodontic fixed appliances with untreated caries present is significantly below the standard. Dr Al-Mozany should have had ensured that all caries was treated prior to starting treatment.
3. Dr Kosy's opinion was of no assistance to us.
4. We find Particular (15)(b) established.

Failure to adequately monitor general dental health (Particular (15)(c))

1. Dr Geenty's view was that: There is evidence that Dr Al-Mozany did not monitor the patient's general health. This is below standard.
2. In circumstances where Dr Geenty does not identify the evidence which supports his conclusion, we do not consider that this opinion is adequate to support a finding that the practitioner failed to adequately monitor Patient H's general dental health. Accordingly, we do not find Particular (15)(c) established.

Failure to adequately monitor general dental health (Particular (16)(d))

1. The Commission alleges that, between 27 November 2014 and 22 February 2018 in the course of treating Patient I, the practitioner failed adequately to monitor the patient's general dental health.
2. Dr Geenty's view was that there was no evidence of monitoring general dental health.
3. We noted above that Dr Kosy concluded that the practitioner's treatment was satisfactory and appropriate, and commented that the practitioner was not given the opportunity to "finish the case".
4. In circumstances, and where we cannot be certain that all the dental records were made available to Dr Geenty, we do not find Particular (16)(d) established.

Failure to provide appropriate orthodontic treatment (Particulars (17)(b) and (c))

1. The Commission alleges that between 27 November 2014 and 22 February 2018, the practitioner failed to provide an appropriate course of orthodontic treatment to Patient I in that the practitioner: 1. [Not pressed at hearing]; 2. failed to re-assess the treatment plan when Patient l's open bite developed; 3. attempted to close Patient l's iatrogenic open bite without first investigating the cause.
2. Dr Geenty's view was: The case was severely crowded. It is not surprising that an incisor open bite developed. A Lateral Cephalometric radiograph should have been taken ideally before treatment or at least when the open bite developed to determine the best way to recover the situation. The open bite was improved as seen in the photographs taken 29/5/18. It may be that given more time Dr Al-Mozany may have managed the problem. It is difficult to assess whether the treatment was appropriate in the absence of a Lateral Cephalometric radiograph. To attempt to close the iatrogenic open bite without investigating the cause is below standard.
3. Given this evidence, which we find to be more persuasive and reasoned than Dr Kosy's, we find Particular 17(c) established. We do not find Particular (17)(b) established.

Failure to provide appropriate orthodontic treatment (Particular (18)(b))

1. The Commission alleges that between 12 November 2016 and 7 March 2018 in the course of treating Patient J, a minor, the practitioner failed to provide an appropriate course of orthodontic treatment by failing to align tooth 35 after 15 months of treatment.
2. Dr Geenty states: It appears that Dr Al-Mozany fitted the lower fixed appliance on or after 18/1/17. The next recorded appointment was on 23/1/18, an unexplained gap of 12 months. He last saw the patient on 7/3/18. With so few appointments it is not surprising that the 35 had not been attached to the appliance. Therefore the treatment was appropriate.
3. We assume that this last sentence contains a typographical error, and Dr Geenty meant to conclude that the treatment was not appropriate.
4. While the reasoning is short, we find that Particular (18)(b) is established.

Failure to adequately monitor general dental health (Particular (18)(c))

1. The Commission alleges that between 12 November 2016 and 7 March 2018 in the course of treating Patient J, a minor, the practitioner failed to adequately monitor Patient J's general dental health during the course of their orthodontic treatment.
2. Dr Geenty's view was that there was no evidence of monitoring general dental health.
3. In circumstances where we cannot be certain that all the dental records were made available to Dr Geenty, and what we have set out is the totality of Dr Geenty's reasoning on this issue, we do not find Particular (18(c)) established.

Failure to provide appropriate orthodontic treatment (Particulars (22)(a), (b) and (c))

1. The Commission alleges that between 10 January 2017 and 17 March 2018 the practitioner failed to provide an appropriate course of orthodontic treatment to Patient M in that: 1. he failed to treat the periodontal disease and caries before fitting fixed appliances to Patient M; 2. he failed to ensure that Patient M was dentally fit before commencing orthodontic treatment; 3. at the end of 14 months of treatment Patient M had an incisor open bite and periodontal status that were worse than before treatment was commenced.
2. Dr Geenty's view was that: The treatment provided to this patient by Dr Al-Mozany was not appropriate because the case was crowded, had protrusive and proclined incisors and lower incisor periodontal problems. The outcome of a worse incisor open bite and compromised periodontal status is not unexpected. Also on presentation the patient had multiple advanced interproximal carious lesions. The periodontal disease and caries was not addressed before the fixed appliances were fitted. The caries treatment was initiated on the day of fitting the fixed appliances and continued at subsequent visits. This is significantly below the expected standard. Dr Al-Mozany should have ensured that the patient was dentally fit before commencing orthodontic treatment.
3. Dr Kosy did not express an opinion in relation to Patient M.
4. In the circumstances, we find Particulars (22)(a), (b) and (c) established.

Conclusion re second sub-set of Particulars

1. For the above reasons we find the following sub-particulars established: (6)(a) and (c), (10)(b) and (c), (12)(a), (14), (15)(b), 17(c) and (18)(b) and (22)(a), (b) and (c).
2. This means a total of 12 sub-particulars are established in respect of 6 patients, being Patients C, E, F, G, H, I and M.

Conclusion re Particulars of Complaint One

1. For the above reasons we have found a total of 26 sub-particulars of Complaint One to be established.

Consideration of Particulars of Complaint Two

1. As set out above, there are 11 Particulars pressed against the practitioner. In summary each of Particulars 1 to 10 is a sole allegation that the practitioner failed to maintain adequate records by failing to record detailed initial assessment notes in respect of Patients A, B, C, D, E, F, G, H, I and J.
2. The eleventh Particular is that the practitioner's failure to maintain adequate records also breached section 3 of the Guidelines.
3. Given our observations above in relation to the dental records we find none of these Particulars established. It follows that Complaint Two is not proven.

Relevant law and authorities

1. We will next consider whether the established conduct the subject of Complaint One amounts to unsatisfactory professional conduct, and whether Complaint Three, namely that the practitioner is guilty of professional misconduct, is established.
2. Before doing so, it is appropriate to set out the relevant provisions of the National Law. These are as follows.
3. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and …
4. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
5. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision.
6. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
7. Section 139E of the National Law (again, an additional provision for NSW), provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Consideration of Complaint One

1. We found 26 of the alleged sub-particulars established, 25 of which we will take into account. We consider that the conduct established demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Consideration of Complaint Two

1. As noted, as we have found none of the Particulars of Complaint Two to be established, it follows that Complaint Two is not proved.

Consideration of Complaint Three

1. We have found a total of 26 sub-particulars established, of which we will take into account 25 sub-particulars in relation to determining whether the Commission has established Complaint Three.
2. Of those 25 sub-particulars: 1. 5 sub-particulars related to the practitioner's failure to conduct an initial assessment; 2. 5 sub-particulars related to the practitioner's failure to formulate an appropriate treatment plan; 3. 2 sub-particulars related to the practitioner's failure to obtain an informed consent; 4. 1 sub-particulars related to the practitioner's failure to diagnose significant periodontal disease; 5. 12 sub-particulars related to the practitioner's failure to provide an appropriate course of orthodontic treatment.
3. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA, with whom Leeming JA agreed, stated: 19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …" (emphasis added)
4. We note that the seriousness of the conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638.
5. We do not consider that any individual proven Particular is of such a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
6. However, we do consider that when the 25 instances of unsatisfactory professional conduct we have found established are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Conclusion

1. For the above reasons we have found: 1. Complaints One and Three to be established; 2. Complaint Two is not established.
2. The matter will be listed for directions for a Stage 2 hearing.
3. Costs are reserved.

Orders

1. The Tribunal orders: 1. Complaint One is established; the respondent is guilty of unsatisfactory professional conduct. 2. Complaint Two is not established. 3. Complaint Three is established; the respondent is guilty of professional misconduct. 4. Costs are reserved.

Endnotes

1. Here we note that in the Commission's submissions in reply it agreed to remove the words "and Patients M - N" from this Particular.
2. Cone Beam Computed Tomography
3. Anterior Open Bite
4. Orthopantomogram
5. Tab 58, p 6
6. Tab 49, p 18
7. Tab 50, p 28
8. Tab 53, p 13
9. Tab 61, p 15
10. Tab 67, p 6
11. Tab 69, p 7
12. being Patients A to J 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

Amendments 21 June 2024 - 21 June 2024 - Paragraph 336 corrected. "12" replaced with "9(d)".

Paragraph 400 corrected. "18" replaced with "25". 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: 25 June 2024