Health Care Complaints Commission v Carr

The submissions of the applicant

1. The applicant made the following submissions: 1. the guilty finding of the respondent in respect of the offence referred to in paragraph 1 of the particulars of complaint one is established by documents in the 2016 proceedings; 2. the conviction of the respondent in respect of the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one is established by the certificate of conviction; 3. the challenge by the respondent to the findings made by the Local Court establishing the assault referred to in paragraph 3 of the particulars of complaint one should be disregarded; 4. even if the Tribunal were to consider the whole of the evidence in relation to the assault referred to in paragraph 3 of the particulars of complaint one, it would not accept the respondent's version in view of the fact that he chose not to give evidence and allow the testing of his assertions through cross-examination.

Consideration

1. Pursuant to cl 5(1)(a) and (f) of Sch 5D of the National Law we have been entitled to receive as evidence the judgment of the Local Court in the 2016 proceedings in relation to the offence referred to in paragraph 1 of the particulars of complaint one, and the certificate of conviction in relation to the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one.
2. We are satisfied on the basis of the judgment of the Local Court in the 2016 proceedings in relation to the offence referred to in paragraph 1 of the particulars of complaint one that the respondent has been made the subject of a criminal finding within s 144(a) when read with the definition of criminal finding in s 138(1) of the National Law in relation to this offence.
3. If the respondent's version in the 8 September 2020 objections of the circumstances in which the assault occurred is intended to impeach the conviction in relation to the offence referred to in paragraph 3 of the particulars of complaint one, then we reject the submission that this conviction can be impeached. Accordingly, it is unnecessary to consider the evidence in the 2016 proceedings.
4. We are satisfied on the basis of the certificate of conviction having regard to s 178(1)(a), (2)(a) and (3) of the Evidence Act that the respondent has been convicted of the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one within s 144(a) of the National Law.
5. Accordingly, we find that the applicant has established that the respondent has been convicted of and had a finding of guilt for offences within the meaning of s 144(a) of the National Law, and has thereby proven complaint one.

Whether the respondent engaged in the conduct constituting complaint two

Introduction

1. The respondent in the 8 September 2020 objections disputes complaint two on the basis that in the 2017 proceedings Magistrate Covington dismissed the charge that he committed an aggravated act of indecency towards Person A under s 61O(1A) of the Crimes Act for the reason that he was not satisfied beyond reasonable doubt that the respondent committed the offence.

Person A

1. Person A gave the following evidence at the hearing: 1. in the course of assisting the respondent with a dental procedure, he dropped a willand on the floor. The practice at the surgery was that dropped tools had to be recovered, and the assistant had to de-glove and re-glove. The reason for this practice was that the respondent was concerned to ensure that dropped tools were not damaged by being "rolled over". When she bent over to pick up the willand, she saw his testicle hanging out of the fly of his jeans, and to the best of her recollection, his semi-erect penis. She was in a state of shock and asked another dental nurse to take over from her. She immediately reported the incident to Ms Grey; 2. the respondent typically wore, and wore on that day, jeans and a scrub shirt or gown that fell past his groin, with the result that when he was standing or seated, his groin was not visible. When she bent over she was able to see the groin of the respondent underneath the fall of his scrub shirt or gown.
2. Person A gave a substantially similar account on this incident on the following prior occasions: 1. in her interview in the BDC investigation; 2. on 12 April 2017, in her statement to the police; 3. on 1 March 2018, in her examination in chief in the 2017 proceedings; 4. on 2 March 2018, in her cross-examination, she said that she did see his penis.

Ms Grey

1. Ms Grey gave substantially similar account that Person A informed her that the respondent had just exposed himself to her in the surgery on the following occasions: 1. on 7 July 2017, in her statement to the police; 2. on 2 March 2018, in her examination in chief in the 2017 proceedings. She was not cross-examined about this conversation.

Ms Di Mauro

1. Ms Di Mauro, in her statement to the police on 18 July 2017, said that in late May or early June 2016 Person A told her that the respondent had exposed himself to her while he was working on a patient in the surgery. She was not cross-examined about this conversation in the 2017 proceedings.

Ms Zouppas

1. Ms Zouppas, in her statement to the police on 21 July 2017, said that in August 2016 Person A told her that the respondent had exposed himself to her in the surgery.

The respondent

1. The respondent gave the following different accounts of this alleged incident: 1. on 7 March 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he said some trousers have buttons and he may have forgotten to secure the buttons because he was in a hurry after going to the bathroom. He did not always wear undergarments or underclothes; 2. on 3 August 2017, at his interview by the police he said that he did not recall the incident; 3. on 18 August 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he said that he did not wear undergarments or underpants; 4. on 26 March 2018, in his examination in chief in the 2017 proceedings he said he customarily wore underwear at the practice. In cross- examination, he said he always wore underwear.

The submissions of the applicant

1. The applicant made the following submissions: 1. Person A's evidence is unchallenged as the respondent chose not to cross-examine her; 2. the respondent did not suggest any motivation for Person A to give false or untrue evidence; 3. Person A's evidence is not on its face implausible; 4. the fact that Magistrate Covington in the 2017 proceedings was unwilling to make findings to the criminal standard that the event occurred is not relevant to the task to be undertaken by the Tribunal. Further the case theory apparently put in the 2017 proceedings involved the respondent withdrawing his penis during the performance of the surgery, which Magistrate Covington found was not likely to have occurred given that no other person in the room saw his penis. Magistrate Covington did not appear to have considered the possibility that he had entered the room with his penis and testicles already outside his jeans, but covered by his tunic, which on Person A's evidence is a plausible account of how the incident occurred; 5. Person A's evidence to the Tribunal is consistent with her prior evidence on the issue; 6. the respondent's evidence on this issue at the two hearings under s 150 of the National Law before the delegates of the Council was inconsistent with his evidence in the 2017 proceedings; 7. Person A's account is also supported by complaint evidence made immediately after the incident to Ms Grey as well as her complaints to Ms Di Mauro and Ms Zouppas; 8. Person A's evidence is also corroborated by the fact that she moved immediately onto reception duties following the incident, so that she would no longer have to assist the respondent.

Consideration

1. Having regard to the principle in Briginshaw and the second aspect of the rule in Browne v Dunn, we are satisfied that the respondent engaged in the conduct set out in paragraph 1 of the particulars of complaint two for the following reasons: 1. Person A gave her oral evidence, including answering questions asked by the Tribunal, in a straight forward manner; 2. Person A's oral evidence was not inherently implausible, and was unchallenged and uncontradicted; 3. Person A's oral evidence was consistent with her statements in the BDC investigation and to the police, and her evidence in the 2017 proceedings; 4. Person A's oral evidence was corroborated by her contemporaneous complaint to Ms Grey. It is unlikely that the Person A would have made such a complaint unless it had occurred; 5. the respondent gave inconsistent accounts about wearing underwear at the two hearings under s 150 of the National Law before the delegates of the Council, and in the 2017 proceedings.
2. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraph 1 of the particulars of complaint two.

Whether the respondent engaged in the conduct constituting complaint three

Introduction

1. There is no dispute by the respondent to the following parts of complaint three: 1. that 4 doses of 0.25 mg of Triazolam were administered to Patient B; 2. that the fourth 0.25 mg dose of Triazolam was administered by way of nasal inhalation through a rolled up bank note; 3. that Patient B's wrists and legs were restrained.
2. The respondent in the 8 September 2020 objections disputes the following parts of complaint three: 1. that Patient B failed or was incapable of giving informed consent to the third and fourth doses of Triazolam; 2. that the use of computer cables to restrain Patient B's wrists and legs was in the circumstances inappropriate; 3. that he lacked adequate training to safely administer Triazolam.
3. The respondent in his various accounts of the procedure on Patient B disputes the disclosure, or the extent of the disclosure, of the use of Stilnox by Patient B.
4. In its written submissions the applicant accepted that the restraints used on Patient B were not "cable ties" but computer cables.

Person A

1. Person A in her interview in the BDC investigation said that Patient B had advised staff at the practice that she had consumed Stilnox that morning.

The respondent

1. The respondent gave the following different accounts about the disclosure or the extent of the disclosure of the use of Stilnox by Patient B: 1. on 7 March 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he: 1. said that Patient B admitted "to using Stilnox on a regular basis, like really regular basis"; 2. answered questions on the basis that there had been no disclosure by Patient B as to whether she had taken Stilnox; 3. admitted that in hindsight he could have done a number of things differently in relation to Patient B: 1. "In retrospect, I agree, maybe I should have sent her away"; 2. his fourth administration of Triazolam to Patient B via a rolled up bank note was "a poor judgement call"; 3. his management in tying up Patient B's wrists was an error of judgement; 1. in his undated written response attached to an email he sent to the applicant on 1 March 2019 (the 1 March 2019 response), he: 1. stated that Patient B's "reference to Stilnox was a passing reference"; 2. denied that Patient B said she was a "regular user"; 1. in the 8 September 2020 objections, he stated that Patient B told him she had been fasting since midnight so as to enhance her uptake of Triazolam.
2. The respondent in the 1 March 2019 response states that: 1. Patient B requested him to tie her hands and legs together as she would be more comfortable; 2. he was "alerted to the use of Triazolam by Dr Kevin Todes, who explained that both he and Dr David Grossberg found it was ideal for dental sedation/premedication"; 3. Dr Kaplan had used nasal supplementation of medication.

Dr Kaplan

1. Dr Kaplan in the 20 July 2017 Kaplan letter states that he mentioned to the respondent on a few occasions that he had given Midazolam intranasal to children for a premed on a few occasions. He never mentioned using that technique on adults or mentioned the words snorting or inhaling. This was specific to Midazolam and not to any other drugs, which he used for sedation.
2. Dr Kaplan in the 27 July 2017 Kaplan letter indicates that he did not use Triazolam for sedation purposes at the practice.

Dr Mansour

1. Dr Mansour expresses the following opinions about the respondent's conduct in the Mansour report: 1. in the absence of adequate training, the respondent was not qualified to administer Triazolam and his use and method of administering Triazolam in his general dental practice was not appropriate as he was not a dentist endorsed to perform conscious sedation, and fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct; 2. administering 4 doses of 0.25 mg of Triazolam to Patient B was above the maximum recommended dose of 0.5 mg, fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct, and warranted strong criticism; 3. failing to obtain informed consent from Patient B (assuming she had informed the respondent she was a regular user of Stilnox) fell significantly below the standard of care, and warranted strong criticism because of her diminished ability to provide informed consent while under the influence of a drug; 4. in the alternative, failing to obtain informed consent from Patient B (assuming she had not taken a dose of Stilnox but was an irregular user) was inappropriate, and fell below the standard of care due to the risk of over sedation and possible overdose in administering the third and fourth doses of 0.25 mg of Triazolam; 5. administering the fourth dose of 0.25 mg of Triazolam to Patient B by way of inhalation through a banknote fell significantly below the standard of care, and warranted strong criticism irrespective of whether such administration had been recommended to him by Dr Kaplan or not; 6. tying Patient B's wrists and legs together with computer cable ties was totally inappropriate behaviour, fell significantly below the standard of care, and warranted strong criticism.
2. In the Mansour report Dr Mansour refers to the Policy Statement 6.17 - Conscious Sedation in Dentistry (Including the ADA Recommended Guidelines for Conscious Sedation in Dentistry and Guidelines for the Administration of Nitrous Oxide Inhalation Sedation in Dentistry) of the Australian Dental Association which relevantly provides: "Position Summary Dentists must comply with the Dental Board of Australia registration standards to practise conscious sedation. It must remain available as a treatment option for relief of dental patients' anxiety and pain. 1. Background 1.1. Conscious sedation in dentistry has been safely practised in Australia for many years under various levels of regulation dependent upon jurisdiction. 1.2. A Registration standard for conscious sedation has been adopted by the Board. … 1.7. BOARD is the Dental Board of Australia. 1.8. CONSCIOUS SEDATION is a technique in which the use of a drug or drugs by any route or routes produces a state of depression of the central nervous system enabling treatment to be carried out, and in which: • verbal contact with the patient can be maintained or the patient responds appropriately to tactile stimulation throughout the period of sedation, and • the drugs and techniques used have a margin of safety wide enough to render unintended loss of consciousness unlikely. … 2.5. Only dentists who have been endorsed by the Board should practise conscious sedation."

The submissions of the applicant

1. The applicant submits that the respondent's contentions to the extent they are made should be rejected, and complaint three should be found to be made out.

Consideration

1. We accept the opinions of Dr Mansour expressed In the Mansour report.
2. We prefer the evidence of Person A to the respondent that Patient B had advised staff at the practice that she had consumed Stilnox that morning having regard to her evidence being unchallenged and the inconsistency of accounts given by the respondent.
3. We prefer the evidence of Dr Kaplan to the respondent that he had not recommended inhalation of Triazolam having regard to his evidence being unchallenged and the absence of any specific evidence by the respondent.
4. We are satisfied for reasons given by Dr Mansour in the Mansour report that the respondent: 1. inappropriately: 1. administered a total of four 0.25 mg capsules of Triazolam to Patient B before the procedure and within approximately a two hour period in circumstances where the recommended dose in a 24 hour period was 0.5mg; 2. administered the third and fourth 0.25 mg capsule of Triazolam to Patient B in circumstances where Patient B was unable to give proper informed consent due to over-sedation caused by the interaction between Stilnox and Triazolam; 3. administered the fourth 0.25 mg capsule of Triazolam to Patient B via inhalation through a rolled up bank note; 1. on or around 3 November 2016 conducted dental surgery on Patient B in the circumstances where he inappropriately tied Patient B's wrists and legs together with computer cables during the procedure; 2. administered Triazolam on a regular basis when treating anxious patients at the practice which was inappropriate in that he: 1. had not undertaken adequate training to ensure he was able to safely administer the drug; 2. was not endorsed to perform conscious sedation.
5. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint three.

Whether the respondent engaged in the conduct constituting complaint four

Introduction

1. It appears that the following facts are not in dispute: 1. the respondent failed to notify the Dental Board of Australia (the Dental Board) that he had been charged with an offence punishable by 12 months imprisonment or more, namely, having a prohibited drug in his possession under s 10(1) of the DMT Act within 7 days of being charged by NSW Police on 29 February 2016; 2. the respondent failed to notify the Dental Board that he had been found guilty of an offence punishable by 12 months imprisonment or more, namely, having a prohibited drug in his possession under s 10(1) of the DMT Act within 7 days of being found guilty on 3 May 2016; 3. the respondent's application for renewal of registration on 1 October 2016 did not include any reference to the finding of guilt of the offence of having a prohibited drug in his possession under s 10(1) of the DMT Act.
2. The respondent in the 8 September 2020 objections disputes complaint four on the basis that "at law and equity" he was not required to report the matters that arose on 29 February 2016.

The evidence

1. On 14 August 2017, the applicant in its letter to the respondent (the 14 August 2017 letter) relevantly stated: "On 2 August 2017, the Commission notified the Dental Council of NSW of additional issues and it was agreed that the following issues would be added for investigation in line with S20A of the (Health Care Complaints Act 1993): 1) That in 2016 you were arrested, charged and found guilty of possession of a prohibited drug (cocaine). Information obtained by the Commission raises the following concerns in relation to this criminal charge and guilty verdict: • That you failed to notify AHPRA of this criminal charge within 7 days of being charged, as is required under Section 130 of the Health Practitioner Regulation National Law (NSW) No 86a (the National Law). • That you failed to notify AHPRA of your guilty court finding and court conditions within 7 days of the hearing, as is required under Section 130 of the National Law. • That you failed to declare the change to your criminal history in your annual AHPRA registration renewal in 2016 (application received by AHPRA on 10 November 2016), as is required under S 109 of the National Law. • That you provided a false declaration to AHPRA by not declaring the change to your criminal history since your previous AHPRA registration renewal. … You are required to provide your response to the above allegations on or by close of business 28 August 2017."
2. On 6 September 2017, Mitry Lawyers, who were then acting for the respondent, in their letter to the applicant (the 6 September 2017 letter) relevantly stated: "Failure to declare criminal history Dr Carr was charged in February 2016 with a count of possession of a prohibited drug. We are instructed that at the time he was charged, he was not arrested, but rather (after meeting with a NSW Police representative) received a Court Attendance Notice by post. At that time, regrettably, Dr Carr was not aware of the requirement under s 30 of the Health Practitioner Regulation National Law (NSW) No 86a (National Law) to notify of a charge within 7 days. Of course, he is now aware and has made the required notification to AHPRA. When the matter came to a conclusion, it was not based upon a finding of guilt (after a hearing) as stated in your letter. Rather, Dr Carr (through his solicitor) pleaded guilty and no conviction was recorded pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He understood, on this basis, that there was no change to his criminal history to report as no conviction (or arrest) had been recorded. In his mind, he did not consider (because there was no arrest, he received the Notice by post, and had no conviction recorded) that his criminal history had changed. It was on this basis that he made a declaration to AHPRA which did not disclose a change to criminal history. It was not deliberately misleading. He understood that if he contravened the bond that would result in a conviction which was required to be disclosed to AHPRA. Of course, he now understands (having taken confidential and privileged legal advice on the matter, after receipt of your letter) that, even with a slO bond, this does involve a change to his criminal history for the purpose of the National Law. He is very remorseful that this occurred in the manner that it did, and now being fully aware of his obligations under the relevant provisions of the National Law, will ensure that he remains fully compliant with it."

The submissions of the applicant

1. The applicant submits that complaint four should be found to be made out.

Consideration

1. Section 21 of the DMT Act since its enactment has relevantly provided that the penalty for an offence under s 10(1) is a fine of 20 penalty units or imprisonment for a term of 2 years, or both.
2. We do not understand on what basis the respondent contends that he was not required to report the matters that arose on 29 February 2016. It is clear from the response in the 6 September 2017 letter to the 14 August 2017 letter that the respondent accepted that he had failed to notify the AHPRA of the charge for the offence of possession of a prohibited drug under s 10(1) of the DMT Act.
3. We are satisfied that on 29 February 2016 the respondent was charged with the offence of possession of a prohibited drug under s 10(1) of the DMT Act which was punishable by 12 months imprisonment or more, and that he contravened s 130(1) when read with s 130(3)(a)(i) of the National Law by failing to give written notice of the charge to the Dental Board within 7 days of that date.
4. We are satisfied that on 3 May 2016 the respondent was the subject of a finding of guilt for the offence of possession of a prohibited drug under s 10(1) of the DMT Act, and that he contravened s 130(1) when read with s 130(3)(a)(ii) of the National Law by failing to give written notice of the finding of guilt to the Dental Board within 7 days of that date.
5. We are satisfied that on 1 October 2016 the respondent did not include in his application for renewal of registration any reference to the finding of guilt on 3 May 2016 of the offence of having a prohibited drug in his possession under s 10(1) of the DMT Act, and that he contravened s 109(1)(b) when read with paragraph (b) of the definition of criminal history in s 5 of the National Law by failing to include any reference to this finding of guilt.
6. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint four.

Whether any such proved conduct for complaints two, three and four constitutes unsatisfactory professional conduct

1. The Code of Conduct for Registered Health Practitioners of the Dental Board of Australia, which was published in March 2014 (the code of conduct), relevantly provides: "Overview This Code seeks to assist and support registered health practitioners to deliver effective health services within an ethical framework. Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. Maintaining a high level of professional competence and conduct is essential for good care. The Code contains important standards for practitioner behaviour in relation to: • providing good care, including shared decision making • working with patients or clients • working with other practitioners … 2 Providing good care 2.1 Introduction Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes: … d) recognising the limits to a practitioner's own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients … 2.2 Good care Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves: a) recognising and working within the limits of a practitioner's competence and scope of practice … 3 Working with patients or clients … 3.5 Informed consent Informed consent is a person's voluntary decision about health care that is made with knowledge and understanding of the benefits and risks involved. … Good practice involves: … b) obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving patients or clients in teaching or research, including providing information on material risks … 4 Working with other Practitioners … 4.4 Teamwork Many practitioners work closely with a wide range of other practitioners. … When working in a team, good practice involves: … f) understanding the nature and consequences of bullying and harassment and seeking to avoid or eliminate such behaviour in the workplace."

The submissions of the applicant

1. The applicant made the following submissions: 1. complaints two and three involve conduct of the respondent which was "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" within meaning of s 139B(1)(l) of the National Law. While the terms "improper" and "unethical" are not defined, the conduct complained of in each of those complaints plainly falls within the ordinary meaning of those terms. They also both concern conduct that the respondent engaged in while performing a dental procedure; 2. complaint three also involves conduct of the respondent which fell below the standard "reasonably expected of a practitioner of an equivalent level of training or experience" within meaning of s 139B(1)(a) of the National Law; 3. complaint four involves conduct of the respondent which was a breach of the National Law within meaning of s 139B(1)(b) of the National Law.

Consideration

1. In approaching this issue we are satisfied that the following legal principles are applicable: 1. the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]; 2. an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].
2. We have relied on the opinions of Dr Mansour expressed in the Mansour report.
3. We are satisfied that the respondent in engaging in the conduct set out in paragraph 1 of the particulars of complaint two engaged in "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" within meaning of s 139B(1)(l) of the National Law. This conduct clearly breached the standards for practitioner behaviour in relation to working with other practitioners in section 4.4(f) of the code of conduct.
4. We are satisfied that the respondent in engaging in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint three engaged in: 1. conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within meaning of s 139B(1)(a) of the National Law; 2. improper or unethical conduct relating to the practice or purported practice of dentistry within meaning of s 139B(1)(l) of the National Law. This conduct clearly breached the standards for practitioner behaviour in relation to providing good care in section 2.2(a) of the code of conduct, and in relation to working with patients or clients in section 3.5(b) of the code of conduct.
5. We are satisfied that the respondent in engaging in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint four contravened ss 109(1)(b) and 130(1) of the National Law within meaning of s 139B(1)(b) of the National Law.
6. Accordingly, we find that the respondent is guilty of unsatisfactory professional conduct in respect of complaints two, three and four.

Whether any such proved conduct for complaint two, or for complaints two, three and four, constitutes professional misconduct

Introduction

1. The particulars of complaint five are paragraph 1 of the particulars of complaint two individually, and the particulars of complaints two, three and four cumulatively.

The applicable legal principles

1. In Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [19]-[20] Basten JA relevantly said: "[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. 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. …"

The submissions of the applicant

1. The applicant made the following submissions: 1. the conduct of the respondent constituting complaint two, which took place in the performance of his professional duties, is entirely incompatible with the practice of dentistry; 2. in the alternative, the conduct of the respondent constituting complaints two, three and four taken together, constitute professional misconduct.

Consideration

1. We are satisfied that the unsatisfactory professional conduct of the respondent constituting complaint two is of a sufficiently serious nature to justify suspension or cancellation of his registration within s 139E(a) of the National Law for the following reasons: 1. the conduct is entirely incompatible with the practice of dentistry; 2. the conduct was engaged in towards a young female member of the staff at the practice who worked under his supervision.
2. We are satisfied that the unsatisfactory professional conduct of the respondent constituting complaints two, three and four taken together is of a sufficiently serious nature to justify suspension or cancellation of his registration within s 139E(b) of the National Law for the following reasons: 1. they involved a substantial departure from fundamental obligations of a dentist; 2. they placed Patient B at the risk of harm; 3. the two convictions for the aggravated indecent assault of Person A under s 61M(1) of the Crimes Act and the conviction for the assault of Person A under s 61 of the Crimes Act occurred in relation to a young female member of the staff at the practice who worked under his supervision.
3. Accordingly, we find that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law.

The further course of the proceedings

1. Consequent upon our findings that the respondent: 1. has been convicted of or made the subject of a criminal finding for an offence within s 144(a) of the National Law; 2. is guilty of unsatisfactory professional conduct within s 139B(1)(a), (b) and (l) of the National Law; 3. is guilty of professional misconduct within s 139E(b) of the National Law; 4. there will need to be a stage 2 hearing to determine what protective orders should be made.

Orders

1. We make the following orders: 1. the applicant is to inform the respondent of what protective orders it seeks within 7 days; 2. the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; 3. the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; 4. the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2020