Health Care Complaints Commission v Carr

NCAT Occupational|2021-02-23|Before: Blake AM

Introduction

These reasons for decision should be read with, and use the same abbreviations as in, our decision in the stage 1 hearing of these proceedings: Health Care Complaints Commission v Carr [2020] NSWCATOD 131 (the stage 1 decision).

Summary

On 18 November 2020, we made the stage 1 decision which included the following findings: 1. that the respondent has been convicted and made the subject of a criminal finding for offences within s 144(a) of the National Law; 2. that the respondent is guilty of unsatisfactory professional conduct within s 139B(a), (b) and (l) of the National Law; 3. that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law.
We have decided in the stage 2 hearing of these proceedings to cancel the respondent's registration, to fix a non-renewal period of one year, to order the respondent to pay the applicant's costs, and to dismiss the applicant's application for a prohibition order.

The issues

The following issues arise for determination: 1. whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8 Division 3 Subdivision 6 of the National Law; 2. the costs of the proceedings.
Before considering these issues it is appropriate to set out the applicable provisions of the National Law and legal principles, and summarise the evidence and the submissions of the parties.

The applicable provisions of the National Law

Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 5 contains definitions, and relevantly provides: 5 Definitions In this Law - … health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if - (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or …
Section 149A specifies the general disciplinary powers of the Tribunal, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - … (d) order the practitioner to complete an educational course specified by the Tribunal; …
Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or … (5) If the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

The applicable legal principles

In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21], the Court of Appeal set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21]-[22], the majority of the Court of Appeal considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [72]-[74] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal at [74] relevantly held: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"
The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]: "[19] Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."

The evidence of the applicant

On 3 May 2016 in the 2016 proceedings Magistrate Farnan in directing the respondent to enter into a good behaviour bond for 12 months under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) made the following comments: "Having said all of those things, at 71 years of age, I would accept that Mr Carr is entitled to draw on his many, many years of good character. Whether [sic] I consider what the appropriate penalty to be imposed is, it was certainly not an aggravated offence. The quantity, as I said, was particularly small, but it is immediately after purchase and clearly was a relatively unsophisticated purchase of this drug on the street from a person who apparently was under police surveillance at the time.
On 31 August 2018 in the 2017 proceedings Magistrate Covington in sentencing the respondent made the following comments: "Community Corrections assessed him, and they found that he would benefit from some supervision. But they find that he is someone who is a below average risk of reoffending. He is unlikely to be suitable for various programs, due to his low risk of offending, and I have had regards to that."

The respondent

The bundle of documents of the respondent which was admitted into evidence in the stage 1 hearing relevantly includes: 1. an undated personal statement (the Carr statement) in which the respondent relevantly states: "… My patients were of tantamount importance to me and I was overworked and over stressed. l had never had to handle so much on my own and my life was falling apart. Not being accustomed to failure, I just pushed myself harder, and harder - I stayed back every night in the lab milling ceramics for the next day till midnight, always feeling the financial pressure building daily. lt was in this environment that I made an error of judgement and listened to people who were not true friends and I made that fateful decision to go out that Thursday evening as an escape - joining some people who suggested I should join them and they suggested I should join their party by purchasing some illicit substances from a friend of theirs, which led to to [sic] the situation where I was observed by plainclothes police purchasing the illicit substance, and as soon as they spoke to me and said they wanted me to collaborate with them in catching the seller whom they had been stalking for 3 months but they needed a sworn statement before they could arrest him. I collaborated with them and signed my statement and they said -'if you help us with a statement and give us your phone as evidence we will not arrest you and will not charge you - but will instead, let you go home.' You can imagine the state of shock that I was in at that moment, and that I drove home immediately, and tried to come to my senses. l went to work the next day and proceeded to bury myself in my work, and vowed to never associate with those people again. I have definitely stayed away from those type [sic] of people and live a clean healthy life as was my norm up till then, and since then. My doctor advised me that because I had a stroke a few years ago, it was fortunate that I did not try the drug as it would probably have brought on a heart attack, especially considering the amount of stress I was suffering. So I am a sadder and wiser person who had a close encounter with drugs but I was saved in time by Fate, and vowed to never err again. … In conclusion, I have had three years in the wilderness to contemplate what I have done in the past, and I apologise for any hurt that I have caused. My intention in every instance was never to harm or to hurt anyone. My wish was always to help and heal using all my skills to the best of my ability. … Now The HCCC has lodged a complaint on behalf of BUPA who seem to be intent on destroying me ultimately. I wish to point out that these are the same issues that arose 4 years ago which caused me to lose my practice and yet they attack as if they [sic] happened yesterday as if I have not reformed, not improved, not had any remorse over all these years. I am asking you to be reasonable, and think about what has transpired. I am not the same person that behaved in that stressed out manner in 2016, as I am no longer under an onerous contract that forces me to generate $500,000 profit for BUPA every year! I would like you [to] think about the 50 years where I had devoted myself to the profession and to healing my patients, which I did with my whole heart and with only the finest thoughts towards an excellent result for every tooth. I am asking you to consider that I have always been, in my whole life, in the pursuit of excellence in whatever task I was faced with. In the face of adversity I rose to the challenge and created six-handed-dentistry after being close to death! I ask you to consider how much I have been punished and how much disgrace I have been faced with, with my trial-by-media all across the newspapers and the nightly news on every TV channel You understand I have been financially destroyed, being unable to earn a living for over two years since my suspension, and yet BUPA are still trying to beat me to a pulp! I am a new person, who has been to hell and back, but my Dentistry is my saviour And so, I do beg your forgiveness, and I ask you to consider the good things that I have done over the last 50 years and that I have represented my Profession as well as representing my Country in my pusuit [sic] of excellence in all things. I am 75 years old and had devoted myself to dentistry four [sic] over fifty years and I was not afforded the presumption of innocence until proven guilty in August 2017 which stopped me being able to earn an income which resulted in me losing my home and all my possessions and it has taken this long for me to reason with you and to endeavour to defend myself against all your accusations which carried a total assumption of guilt which was classically displayed by Prof Fryer in the August section 150 emergency hearing when he uttered the words to me 'Dr Carr you are a self prescribing drug addict' I need to earn a living or I will be again out in the street I rest my fate in your hands" 1. 23 character references; 2. the report of Mr Collingwood dated 20 August 2020 (the 20 August 2020 Collingwood report).
In the respondent's stage 2 submissions, the respondent relevantly states: 1. in relation to the conduct constituting paragraph 1 of the particulars of complaint one: "10 There is acknowledgement by the Respondent that he was found guilty of the 3 Assault charges as well as the Section 10 non conviction in relation to 2 grams of cocaine. This was a period of extreme financial and emotional stress suffered by the Respondent, … The Respondent acknowledges that his reactions and behaviour were less than exemplary and understands the concerns raised as to the appropriateness of his behaviour and the need to protect the public. ... At the time of all of the offences, the Respondent was not seeking any professional advice or assistance as to how to deal with his emotions and psyche and the immense financial stress that he was under dealing with BUPA, which may in part explain the inappropriate responses of the Respondent. The Respondent is now seeking professional assistance from a trained psychologist Dr Chris Collingwood and a consultant psychiatrist Dr Errol Jacobson in Edgecliff." 1. in relation to the conduct constituting paragraph 2 of the particulars of complaint one: "17 By way of background, without seeking to diminish the seriousness of the charges, the Respondent provides a commentary - for each a. Aggravated indecent assault - Kissing of staff member - [Person A] - there was no complaint made at the time but acknowledge that it was inappropriate behaviour. The Respondent is not able to change the past. It is unfortunate for all involved that at the time of the incident that it was not contemporaneously acted upon so that all parties could work to resolve, in particular, the Respondent so that he could modify his behaviour. The Respondent relies upon text messages provided by [Person A] = "a great place to work". These text messages were provided at or after the incidents. It was the normal practice of the Respondent to provide a happy place to work, it was not David's intention to provide a difficult and toxic place to work." 1. in relation to the conduct constituting paragraph 3 of the particulars of complaint one: "17 By way of background, without seeking to diminish the seriousness of the charges, the Respondent provides a commentary - for each … b. Aggravated indecent assault - Slapped the backside of [Person A] - I acted in a situation where my phone had been hacked and my charger taken and my personal information disseminated. My phone was out of battery and my reaction was totally inappropriate in the circumstances and did not in any way justify my reaction; 1. in relation to the conduct constituting paragraph 4 of the particulars of complaint one: "17 By way of background, without seeking to diminish the seriousness of the charges, the Respondent provides a commentary - for each … c. Assault - background, I had done an impression for jaw and teeth - [Person A] would not assist by bringing the impression back to treat patient. Her actions were delaying all clients and the surgery (about 30 minutes behind schedule). I tried to maintain her attention a number of times and I grabbed her shirt adjacent to her shoulder and she tried to pull away and the press studs came undone. [Refer to the testimony of [Person A] on this issue] [l did not grab her shoulder]. I acknowledge that any attempt to restrain staff in such a manner is totally wrong and inappropriate. I have learnt from this experience." 1. in relation to the conduct constituting complaint two: "15. Complaint 2 - I seek to rely upon the findings of the criminal proceedings, where the magistrate found my testimony under oath to be more believable than [Person A] and [name omitted]" 1. in relation to the conduct constituting complaint three: "19. Complaint 3 - Unusual circumstances - never requested in 50 years of practice and will never do again; There were always 2-3 people in the room and there was supervision & ability to assist. No complaint by the client as she had brought to our attention that her arms were dropping by her side. There was a normal procedure in the Double Bay practice, where a thick woollen scarf was attached under the elbows and over the chest (unfortunately on that day the woollen scarf could not be located and the office manager [name omitted] located computer cables which I determined would suffice & that is what I did). At no time did the patient ever complain. Appreciate that it was now not appropriate & will never do again. Have organised to practice under supervision at Balmain. I refer to the reference of my supervisor Dr John Hua. I do not ever intend to administer or prescribe medicines. In relation to the Drug - Triazolam - By way of background, I have over 40 years of experience with Nitrous oxide & 10 years' experience with specialist anaesthetist Dr Alan Kaplan - (who is the expert utilised by the HCCC). In addition, I was personally selected by Dr. Kaplan to be his personal dentist. Dental Board of Australia - There is a guideline on the issues of anxiolysis (reducing anxiety) - delivery of There are guidelines on the issues of sedation - varying degrees of depth eg light sedation, medium sedation & Heavy sedation - There would appear to be a grey area … Depth of experience - I am aware that Triazoloam [sic] has such a short half life in this patient - after 1 hour she showed no signs of sedation - 2 hours later - issued further Trizolam [sic] to no effect; … Dr Kaplan advised used Midazolam up the nose of recalcitrant children using a plastic syringe with good effect - immediate effect 98% absorption; I had discussions of effective delivery rates for Triazolam by different methods - eg Intranasal - 98% BIOAVAILABILITY - sublinguaL 53% BIOAVAILABILITY - ORAL 44% BIOAVAILABILITY When I thought about administering the sedative "intranasally" to the patient, I was simply trying working on a proposition that inhaling the sedative through the nose would be more effective and give an immediate effect as compared to sedation under normal oral methods with the client. … The HCCC complain that the use of nitrous oxide and triazolam - means sedation whereas in this case it was anxiolysis with a combination of Triazolam and Nitrous Oxide under my constant observation with cooperation from the patient at all times. As previously indicated, I have no intention of ever administering sedatives or medicines. With the benefit of hindsight, I now understand that the combination of tying up the patient with computer cables and the ingesting of the sedative nasally (as compared to drug ingestion) was inappropriate and I will never do again." 1. in relation to the conduct constituting complaint four: "20. Complaint 4 - Failure to Notify the Dental council of either being charged with the Drug offence & second count of being convicted of the Section 10. I totally acknowledge that I did not initially advise the Dental council of either point. I refer to the transcript of the plea in the Local Court and the submission of then lawyer Brett Galloway, which in essence submitted that any conviction may have consequences on my practicing certificate. I was advised by my lawyer, after the Section 10 was given by the Magistrate, that was the end of the matter. I am now aware that I had obligations to provide information on both charge and the conviction to the Dental Council and I apologise profusely. This occurrence will not occur again, I am aware of my obligations." 1. in relation to the conduct constituting complaint five: "21. Complaint 5 - accumulated offences of Unsatisfactory professional conduct which become professional misconduct; I submit that taken as a whole my conduct during this period of 2016 and 2017 was far from satisfactory and not in keeping with my prior professional standards. I rely upon my prior professional record which I submit was exemplary for almost 50 years. It is not my intention to make any excuses for my conduct but rather look towards the circumstances which lead to the relevant situations and my conduct. This period in time, was highly stressful with my ongoing dispute with BUPA about the management of the Double Bay practice as well as the financial stresses of the Double Bay practice including the need to pay $156,000 to BUPA in respect of the decline in profit of the practice."
In his evidence in chief, the respondent relevantly said: 1. that the facts contained in and opinions expressed in the respondent's stage 2 submissions are true and correct; 2. in relation to the conduct constituting complaint two, that he had no recollection of that incident, did not intentionally expose himself and apologised to everyone.
In cross-examination, the respondent gave the following evidence: 1. the conduct constituting paragraph 2 of the particulars of complaint one never happened; 2. he accepts that the conduct constituting paragraph 3 of the particulars of complaint one happened; 3. provided an explanation as to his practice of conscious sedation when he had never been endorsed by the registration authorities to do so: "In other words, the Triazolam fixes things very quickly, so I started using Triazolam and over time, I've used it many, many times and to me I was using it for anti-neurosis, to reduce the anxiety before taking the chair and then once in the chair, all sedation was - was nitrous oxide, conscious for that, but my whole practice is based on I attract people who are very nervous, who are very stressed, so the whole practice is really based on nitrous oxide, conscious sedation, for 40 years, and then the addition of Triazolam was just a - a premedication just to calm then [sic] down in the waiting room, to make the whole thing more comfortable but in the - when your expert witness made a long statement and he actually quoted the statutes of the anaesthetist's guidelines, they said that yes, there is formal accreditation but there also is usefulness where people become acquainted with sedation over many, many years and they allow that side of their accreditation. I don't claim to have accreditation for intravenous sedation or for conscious sedation, I use triazolam purely as a pre-medication to reduce anxiety in my patients, then I use nitrous oxide as my sedative."

Mr Collingwood

In the 20 August 2020 Collingwood report Mr Collingwood: 1. sets out his qualifications and experience: " … I have a degree in psychology from Macquarie University. I've have [sic] a private practice using Psychology, Ericksonian Hypnosis and Neuro-Linguistic Programming (NLP) since 1982. I'm also the managing director of a Registered Training Organisation and co-creator of the nationally accredited 10250NAT Graduate Certificate in Neuro-Linguistic Programming." 1. indicates that he is aware of the allegations of sexual harassment and charges of assault against the respondent; 2. states that the respondent was "seriously traumatised by this devastating fall from grace"; 3. states that the respondent was slowly responding to his ongoing therapy and eventually was able to cope with the loss of income and loss of activity.
In the 21 February 2021 Collingwood report Mr Collingwood relevantly states: "I have been seeing David once per week for counselling and therapy for approximately the last 2 years, assisting him to slowly regain his self-esteem and fitness to handle stress. This has been particularly relevant when dealing with the HCCC in these proceedings. … I repeat that I am acquainted with the specific complaints brought against him in the Tribunal by the Applicant - HCCC. Further, I am acquainted with the criminal charges against him, which composed three allegations of sexual harassment and three charges of assault. During our counselling session we discussed the actions related to staff and the findings of the Tribunal. David and I in my consultations have worked through many issues. David acknowledges that restraining the staff members was not appropriate and that it is not something that he would do again. It was out of frustration and not malicious, without diminishing what he did was wrong, David was trying to look after the interests of the patient. I have counselled David in dealing with the timing and issues of the complaint. David acknowledges that his behaviour has been less than exemplary. David has found it difficult that he was not contemporaneously advised of the effect of his actions upon his staff, and given a chance to rectify his behaviour and to work with staff to improve the morale of all people working there. David has advised me of the difficult financial stresses under BUPA due to the need to pay over $150,000 back to BUPA in order to satisfy their performance contract where he must provide them with $500,000 profit or make up his shortfall. I reiterate that David has responded well to the therapy. Please note that the models I use focus on assisting clients to attend to the reality of their current situation and potential desired futures and to actively take steps to learn from their mistakes and to put their life in order. David has primarily been developing his skills in managing his psychological and emotional states. The states that we have been chrisworking [sic] with are; anxiety, perfectionism and depression. Recognising patterns in past behaviour and actively developing new patterns more appropriate to contexts he currently inhabits and the contexts [he] is likely to engage with in the future. This in my opinion allows me to offer an opinion that David is not likely to act in his past patterns of perfectionism and inherent stressors. He has made significant progress starting about eighteen months ago. I consider this to be a combination of the counselling and the fact that about eighteen months ago he told me that he had started assisting a significantly depressed lawyer friend in turning his life around. It is well known that one significant way that some people improve their psychological and emotional functioning is through helping others. David's empathy with and actively engaging in helping his depressed friend has in my opinion assisted David in putting his situation in perspective."
In his evidence in chief, Mr Collingwood relevantly said that the facts stated and opinions expressed in each of the 20 August 2020 Collingwood report and the 21 February 2021 Collingwood report are true and correct.
In cross-examination, Mr Collingwood gave the following evidence: 1. he was not provided with any documentation to review when he prepared the 21 February 2021 Collingwood report; 2. he had not discussed the conduct constituting paragraph 2 of the particulars of complaint one and complaint two with the respondent; 3. he accepted that there is no real connection between the trait of perfectionism and conduct such as indecent exposure and sexual assaults at the workplace.

Dr Hua

In the 21 February 2021 Hua letter, Dr Hua, who is a dentist at Dentist & Co in Balmain, refers positively to the work undertaken at this practice by the respondent under his supervision, and states: "I strongly believe Dr Carr has understood his forthcomings and has done everything in his power to reform. I believe he has taken on board the criticisms of the Dental council and will act professionally going forwards."

Dr Saade

In the 22 February 2021 Saade letter, Dr Saade, who is the principal dentist at Dentist & Co in Balmain, refers positively to the work undertaken at this practice by the respondent, and states: "Dr David Carr's enthusiasm and dedication is truly missed and we would welcome him back to our practice with open arms."

The submissions of the applicant

In the applicant's stage 2 submissions, the applicant makes the following submissions: 1. it is seeking the following orders: "Cancellation 1.1. Under section 149C(1)(b) and (c) of the Health Practitioner Regulation National Law, an order that the Tribunal cancels the respondent's registration. 1.2. Under section 149C(7) of the Health Practitioner Regulation National Law, an order that an application for review by the respondent may not be made until after 3 years from the date of this decision. Prohibition 1.3. Under section 149C(5) of the Health Practitioner Regulation National Law, an order that the respondent is prohibited from providing any "health service" as defined by section 4 of the Health Care Complaints Act 1993 for a period of 3 years from the date of this decision." 1. under the heading "Insight - Indecent Assaults/ Exposure": 1. the respondent's continued denial of parts of complaint one and complaint two leads strongly to an inference that he has little insight into, or contrition for his conduct vis-a-vis junior employees at the practice for which he was the principal, and in particular any real conception of maintaining proper and appropriate boundaries in the workplace. The 8 September 2020 objections both minimises the conduct that led to his conviction for the common assault (notwithstanding that the conviction was maintained on appeal), and wholly denied complaint two; 2. there is no evidence filed by the respondent that addresses his conduct vis-a-vis the other offences, with the result that the Tribunal does not know if he now accepts that he did commit them, or have any knowledge as to his motivation in engaging in that conduct. In all the circumstances, the Tribunal can have little confidence that the respondent does in fact accept his culpability as an offender; 3. the respondent's material shows an appalling lack of insight into the harm that his conduct likely had on Person A. A consistent message in the materials is that the real victim in all this is the respondent himself; 4. the sum of those matters is that, notwithstanding that the respondent has now had since early February 2017 (being when his employment at BUPA was terminated following an investigation into the conduct underlying the indecent assault convictions) to consider his position, the Tribunal can have no confidence that he has yet accepted any responsibility into this offending behaviour; 1. under the heading "Professional Competence": 1. the respondent's denial of parts of complaints three and four strongly indicates that he has little respect for professional boundaries or regulations as they relate to therapeutic care, where such boundaries do not align with his personal views; 2. the service of the expert report of Dr Kaplan and the Policy Statement 6.17 - Conscious Sedation in Dentistry by the applicant do not appear to have provoked any reflection on the respondent's part as to what would appear to be long standing and obvious deficiencies in his practice. Indeed the tenor of the 8 September 2020 objections to this aspect of complaint three (unnumbered pages 4-8) make clear that his personal views were that there were no deficiencies in his practice at all; 3. the respondent's conduct with respect to complaints three and four gives rise to considerable concern as to the likelihood that he would, if allowed to practice at present, do so in a manner in accordance with his professional obligations where his personal views differ. They provide an additional basis for the orders sought by the applicant, and in particular the prohibition order; 1. as to the appropriate non-review period, it relies upon: 1. Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 (Hanna) where the medical practitioner was reprimanded, his registration was cancelled and a non-review period of one year imposed. This followed a conviction for aggravated indecent assault of a 17-year-old employee, including kissing, grasping buttocks and rubbing her groin area. The practitioner admitted the conduct after having lied to the Local Court; 2. HCCC v Abraham [2013] NSWDT 2 (Abraham) where the dentist's registration was cancelled and a non-review period of two years imposed following his conviction of three counts of aggravated indecent assault and one count of common assault against three employees at his dental practice.
In his oral submissions, Mr Chatterjee made the following submissions: 1. the Tribunal would give very little weight to the opinion expressed by Mr Collingwood as the conduct constituting complaints one and two were not raised in his counselling sessions with the respondent; 2. by his denial of the conduct constituting paragraph 2 of the particulars of complaint one the respondent demonstrated that he had entirely failed to appreciate and grapple with what had been found to have happened; 3. the Tribunal should reject the respondent's evidence that the conduct constituting complaint two was non-malicious and accidental; 4. the Tribunal should give the 23 character references received into evidence in the stage 1 hearing no weight because most do not refer to the complaints, and those that do refer to the complaints should be taken to understand the complaints from the perspective of the respondent; 5. the Tribunal should give the character references of Dr Hua in the 21 February 2021 Hua letter and Dr Saade in the 22 February 2021 Saade letter no weight because they do not refer to the stage 1 decision; 6. notwithstanding the respondent's acceptance that any future practice would be carried out under supervision, he has not shown any real recognition that his prior practice was deficient, or that he was not endorsed to perform conscious sedation and should not have been doing so; 7. as to the protective order, he conceded that he could not point to evidentiary material in support of the prohibition order, as opposed to the cancellation order.

The submissions of the respondent

In the respondent's stage 2 submissions, the respondent makes the following submissions: 1. he is seeking the following orders: "6 The Respondent seeks the following Orders; a. Under Section 149C(1)(b) of the Health Practitioner Regulation National Law, an Order that the Tribunal continues the suspension of the Respondent's registration for a further period of 6-12 months; b. Under Section 149A(1)(d) of the Health Practitioner Regulation National Law, an Order that the Tribunal orders the Respondent to undertake a minimum of 20 hours of Professional Development Courses including courses in the following: Ethics, Sexual Boundaries, Emergency Dentistry and Sedation with the appropriate professional body such as ADA and or AMA. Such course works to be undertaken in a period of 6-12 months or as determined by the Tribunal; c. Under Section 149C(5) of the Health Practitioner Regulation National Law, an Order that that Respondent is prohibited from providing any "health service" as defined by Section 4 of the Health Care Complaints Act 1993 for a period of 6-12 months from the date of this decision. It is noted that the Respondent [has] not provided any "health service" from August 2017 to date, a period of 3.5 years; 7 In the Alternative, the Respondent seeks the following Orders; a. Under Section 149C(1)(b) of the Health Practitioner Regulation National Law, an Order that the Tribunal continues the suspension of the Respondent's registration for a further period as determined by the Tribunal; b. Under Section 149A(1)(d) of the Health Practitioner Regulation National Law, an Order that the Tribunal orders the Respondent to undertake a certain number of hours of Professional Development Courses as determined by the Tribunal; c. Under Section 149C(5) of the Health Practitioner Regulation National Law, an Order that that Respondent is prohibited from providing any "health service" as defined by Section 4 of the Health Care Complaints Act 1993 for a period as determined by the Tribunal from the date of this decision." 1. the Tribunal should take into account the following actions of the Council affecting his ability to practise as a dentist: 1. on 7 March 2017, the Council imposed conditions on his registration requiring practice under supervision; 2. on 18 August 2017, the Council suspended his registration; 1. he relies on the 21 February 2021 Collingwood report as to "many issues that I was suffering as well as more particularly, my response to ongoing treatment and therapy as well as improved reaction to the stressful situations of life and practice"; 2. he is seeking to practise under supervision which will eliminate the issues raised by the applicant including: "a. Prescription of medicines; b. Administering medicines; c. Supervision; d. Power imbalance." 3. is willing to submit to regular blood and urine tests as a condition of his registration; 4. he wishes to mentor his daughter who is in her final year of a dentistry degree at an Australian university.
In his oral submissions, the respondent made the following submissions: 1. the Tribunal should have regard to the Carr statement and character references by highly qualified professionals, who all attest to his good nature and his professionalism; 2. he is "a completely different person"; 3. a period of non-renewal of his registration of three years would operate as a punishment.

Whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8 Division 3 Subdivision 6 of the National Law

The respondent's position with respect to the complaints is as follows; 1. he accepts that he engaged in the conduct constituting paragraphs 1, 3 and 4 of the particulars of complaint one, paragraphs 1(c) and 2 of the particulars of complaint three, and complaint four, and that this conduct was inappropriate. He is remorseful for this conduct; 2. while accepting that he may have engaged in the conduct constituting complaint two, he asserts that this conduct was unintentional; 3. notwithstanding our finding that the respondent engaged in the conduct constituting paragraph 2 of the particulars of complaint one, he continues to deny this conduct; 4. he has not responded to our finding that he engaged in the conduct constituting paragraphs 1(a), 1(b) and 3 of the particulars of complaint three.
As to the conduct constituting paragraph 1 of the particulars of complaint one we have taken into account the findings of Magistrate Farnan on 3 May 2016 in the 2016 proceedings in directing the respondent to enter into a good behaviour bond for 12 months under s 10(1)(b) of the CSP Act. We accept that the respondent was under considerable financial pressure in early 2016 and that the stress of this situation resulted in him purchasing cocaine. We also accept that the respondent has sought professional assistance of Mr Collingwood with respect to this stress.
As to the conduct constituting paragraphs 2, 3 and 4 of the particulars of complaint one we have taken into account the finding of Magistrate Covington on 31 August 2018 in the 2017 proceedings in sentencing the respondent that there is a low risk of him reoffending. We note that in his counselling sessions with Mr Collingwood that the respondent has not raised this conduct and the conduct constituting complaint two. There is an absence of an explanation in the respondent's evidence as to why he abused the position of power he had over young female members of his staff in engaging in this conduct. In these circumstances we consider that there continues to be a low risk of him reoffending.
As to the conduct constituting complaint two, we are not satisfied that this conduct was intentional. However, the respondent at all times had a responsibility to ensure that he was properly dressed after attending the bathroom.
As to the conduct constituting paragraphs 1(a), 1(b) and 3 of the particulars of complaint three, we reject the respondent's submission that there was "a grey area". The respondent has provided no adequate explanation as to why he administered Triazolam on a regular basis in his dental practice when treating anxious patients during dental surgery in the course of his practice when he was not endorsed to perform conscious sedation, and why he administered a total of four capsules of Triazolam 0.25 mg to Patient B before the procedure and within approximately a 2-hour period in circumstances where the recommended dose in a 24-hour period was 0.5mg.
We are satisfied that unless the respondent undertakes training as to the sedation of patients there is a risk of the respondent providing unsafe sedation of patients. Uncertainty as to whether the respondent understands that he should only administer conscious sedation when he is endorsed to do so, and has insight as to why he ignored his professional obligations as to the sedation of patients, leads us to determine that the respondent's registration should be cancelled pursuant to ss 149(a) and 149C(1)(b) of the National Law.
We are satisfied that the circumstances of the offences in paragraphs 2 and 3 of the particulars of complaint one render the practitioner unfit in the public interest to practise dentistry. There was no excuse for the respondent indecently assaulting Person A when she was a person under his authority. We are also satisfied that unless the respondent undertakes training as to appropriate professional boundaries there is a low risk of the respondent reoffending by sexually harassing staff. Uncertainty as to whether the respondent understands the importance of maintaining appropriate professional boundaries, and has insight as to why he breached appropriate professional boundaries with Person A, leads us to determine that the respondent's registration should be cancelled pursuant to ss 149(a) and 149C(1)(c) of the National Law.
In determining the length of cancellation, we have taken into account not only the time it may take for the respondent to address the underlying issues, but also the need to denounce such serious misconduct. We acknowledge that no order should be made which has more serious consequences for the respondent than is reasonably necessary in execution of the protective purpose of the National Law. Consistent with the reasoning of the Court of Appeal in Qasim at [74] we have taken into account the period of the respondent's suspension since 18 August 2017, when the Council suspended his registration in circumstances where the respondent has sought the help of Mr Collingwood and Dr Errol Jacobson, a consultant psychiatrist. A period of one year is sufficient to enable the respondent to undertake training as to appropriate professional boundaries and the sedation of patients, and to seek professional help as to the underlying causes of his conduct. This period is also commensurate with the level of seriousness of his conduct. We have not found either Hanna or Abraham helpful in determining the appropriate non-review period as the relevant circumstances for those practitioners were materially different to those of the respondent. Accordingly, we have decided that the respondent may not make an application for review of the order for cancellation of his registration for one year from the date of this decision pursuant to ss 149(a) and 149C(7) of the National Law.
As to the prohibition order sought by the applicant, we have concluded that there is some risk of the respondent re-offending, but not that that risk is substantial. The applicant has not discharged its onus of satisfying us that a prohibition order should be made.

The costs of the proceedings

The Tribunal may order the respondent to pay the applicant's costs: National Law, Sch 5D, cl 13(1). As the applicant has been successful, the general rule is that the practitioner should pay the applicant's costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
As neither party made any submissions on costs, we will make an order for costs in favour of the applicant, but give the parties leave to make an application within 14 days to vary this order.

Orders

We make the following orders: 1. the respondent's registration is cancelled; 2. the respondent may not apply for review of order 1 for one year from the date of these orders; 3. the proceedings are otherwise dismissed; 4. the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed; 5. if either party seeks to vary order 4, they shall within 14 days notify the other party and request the Registry list the proceedings for directions.

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: 10 May 2021

At a glance

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