Health Care Complaints Commission v Coutinho

Background

1. The practitioner graduated with the degree of Bachelor of Dentistry from Mangalore University in India in 1998. In 2001 he was awarded Master of Dental Surgery in Conservative Dentistry and Endodontics from Manipal University in India. In October 2004 he sat and passed the Australian Dental Council Examination. In 2013 he was admitted as a Fellow of the Royal Australian College of Dental Surgeons. In 2016 he was awarded a Masters of Science in Endodontics (Pass with Merit) from King's College, London. In October 2016, he completed a postgraduate Certificate course in Advanced Oral Implantology at Manipal University in India.
2. The practitioner was first registered as a dentist in New South Wales on 17 November 2006, having practised in Western Australia between 2005 to 2007. At the time of the offences the subject of Complaints One and Two, the practitioner was in practice in several towns in northern New South Wales. His then wife is also a registered dentist, and she was in partnership with the practitioner in some of those practices.
3. On 11 and 15 December 2017 a hearing was held under s 150 of the National Law to consider whether the practitioner's registration should be suspended. Section 150 of the National Law relevantly provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …
4. On 18 December 2017 the practitioner was notified that his registration as a dentist was suspended effective from 18 December 2017, with reasons published on 10 January 2018.
5. The practitioner appealed to this Tribunal under s 159(1)(a) of the National Law. Following a hearing of that appeal on 25 May 2018, the Tribunal made an order that the appeal be allowed, and set aside the order to suspend his registration. Reasons were subsequently published: Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98.
6. In these proceedings the HCCC is seeking the following orders: 1. Under s 149A(1)(a) of the National Law, that the practitioner be reprimanded; 2. Under s 149C(1)(c) of the National Law, that the practitioner's registration be suspended for a period of 1-3 months; and 3. Pursuant to cl 13, Sch 5D of the National Law, that the practitioner pay the HCCC's costs as agreed or assessed.
7. The practitioner submits that the appropriate order is a reprimand, and not suspension of his registration.

Tribunal proceedings

1. The documents tendered by the HCCC (ex A1) include details of the s 150 proceedings of the Dental Council, including the reasons for decision, and the criminal charges and conviction, including sentencing remarks of the Local Court magistrate on 1 September 2017.
2. The practitioner provided a Reply, and an affidavit sworn on 15 November 2019 (ex R2), to which were annexed documents including emails, and details of courses he has undertaken.
3. Both parties provided written submissions. The practitioner gave sworn oral evidence.
4. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The standard of proof is the civil standard on the balance of probabilities. Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, in making its findings the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

Relevant legislation

1. Section 144 of the National Law provides for complaints to be made against a registered health practitioner: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
2. It is not in dispute, and confirmed by the documents in evidence (ex A1, tabs 11, 12 and 13), that the practitioner: 1. Was on 23 January 2014 found guilty of the offence of Drive middle range PCA - 1st offence committed on 15 December 2013, and without proceeding to a conviction received a good behaviour bond for two years pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999; 2. Was charged on 8 July 2017 with the offence of Assault occasioning actual bodily harm domestic violence related under s 59(1) of the Crimes Act 1900; and 3. Was convicted of that offence on 1 September 2017 and directed to enter into a good behaviour bond for 12 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 1 September 2017.
3. Complaints One and Two are admitted, and established.
4. Complaint Three alleges that the practitioner failed to comply with the obligations imposed by s 130 of the National Law, which are: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or …
5. Complaint Three is that as a consequence of the failure to notify, the practitioner is guilty of unsatisfactory professional conduct as defined in s 139B(1)(b) of the National Law: 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 - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. …
6. The maximum penalty for the offence under s 110(4) of the Road Transport Act was, at the time the offence was committed, 20 penalty units or imprisonment for 9 months or both (in the case of a first offence). The maximum penalty for the offence under s 59(1) of the Crimes Act was and is a term of imprisonment for five years. The finding of guilt for the PCA offence, and the charge and the conviction for the Assault offence, were each a "relevant event" as defined in s 130(3) of the National Law that was required to be notified.
7. The practitioner failed to notify the National Board that he had been found guilty of the PCA offence, and failed to notify the National Board that he had been charged with the Assault offence, within the seven day period specified by s 130(1) of the National Law. Particulars 1(a) and 2(b) of Complaint Three are admitted, and established.
8. It is not in dispute that a telephone call was made by the practitioner to AHPRA on 1 September 2017, the date on which he was convicted of the Assault offence, and that he subsequently provided a statutory declaration dated 16 October 2017 which addressed both the PCA charge and the Assault charge and conviction. Whether the practitioner failed to notify the conviction for the Assault offence as alleged in particular 2(a) of Complaint Three depends on the content of that telephone conversation.
9. The practitioner's affidavit evidence was that he telephoned AHPRA the same afternoon as the court case and advised them of his conviction. He spoke to a person who identified himself as "Mark" and was informed he would be required to make a full disclosure when his registration became due for renewal. He received notification of the renewal requirements in the first week of October 2017. When applying for renewal he provided a statutory declaration which outlined all offences, charges and convictions. He was not aware until 16 October 2017 that he was required to disclose all and any arrests/charges as well as non-convictions recorded, believing (incorrectly) that his duty was to report matters of conviction only. Once apprised of his obligations he made full and frank disclosure by statutory declaration. He provided the original statutory declaration to AHPRA on 27 October 2017 when requested to do so by AHPRA. He provided further information to AHPRA when requested on 20 November 2017.
10. The transcript of the s 150 hearing (ex A1, tab 7) records that the practitioner said then that he told Mark he had a conviction with a section 9, he was asked whether he was going to be incarcerated for 12 months or more, and when he replied it was a good behaviour bond was told to fill out the form when it arrived.
11. In oral evidence to the Tribunal about the phone call on 1 September 2017, the practitioner said that his lawyer told him he needed to report the conviction. He said he told Mark he had a good behaviour bond, and was asked whether he had a sentence of 12 months. He denied being asked to fill out a notice of events form, stating that he had never heard of that form before. In the last few seconds he also told Mark of the PCA offence.
12. Annexure A to the practitioner's affidavit is a telephone call log showing a call to the AHPRA number lasting 7 minutes. The HCCC tendered a Service Request document dated 1 September 2017, duration 3.10 minutes, with an officer named Mark, which states: Hp called as has been issued a good beh bond. Advised is has lvl of impresment must submit NOCE, if not would declare at the time of renewal.
13. While initially denying that the word "impresent" could mean "imprisonment", the practitioner conceded that it could be read as that. The record in the Service Request document is consistent with the practitioner having advised AHPRA that he received a good behaviour bond, but had not received a prison sentence.
14. The Tribunal accepts that on 1 September 2017 the practitioner contacted AHPRA and notified that he had a good behaviour bond. In the absence of evidence from Mark, or a more detailed record, the Tribunal is unable to be satisfied that more was discussed than that. The record provides limited support for the practitioner's position that he had informed AHPRA on that date that he had a conviction. However, on the available evidence the Tribunal is not satisfied that particular 2(a) of Complaint Three has been established to the requisite standard.
15. The finding that the practitioner failed to notify that a finding of guilt had been made for the PCA offence, or when he was charged with the Assault offence, means that he contravened s 130 of the National Law. As the practitioner concedes, s 139B(1)(b) of the National Law means that that contravention is unsatisfactory professional conduct: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173.

What protective orders can be made?

1. As a consequence of the practitioner's admissions to Complaints One, Two and Three, and the Tribunal's agreement that those complaints, other than in respect of particular 2(a) of Complaint Three, are established, the Tribunal has power to make orders under s 149A(1) of the National Law. Those orders include a power to reprimand the practitioner.
2. Section 149C(1) of the National Law enables the Tribunal to suspend or cancel a practitioner's registration, relevantly in the following circumstance: 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 - … (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
3. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3 of the National Law. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
4. In considering what protective orders are appropriate, the relevant principles are as stated in Lee v Health Care Complaints Commission [2012] NSWCA 80, where the Court of Appeal held: 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 (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
5. The protective effect of an order can operate either in its direct effect on the practitioner, or by acting as a deterrent to repetition, both by the practitioner and as a deterrent to others: Health Care Complaints Commission v Litchfield (1997) NSWLR 630.

What protective orders should be made?

1. The practitioner's evidence as to his current circumstances, the circumstances of the PCA offence and the Assault offence, and his failure to notify the National Board of the PCA offence or the charge for the Assault offence, was as follows.
2. The practitioner stated that while he is still legally married to his wife they have finalised the Family Court proceedings. In 2017 they were living in the same house, but on different levels. He now lives in a rented granny flat on the Gold Coast, and in a house he owns in Tenterfield when he is working there. The situation has stabilised and they have a good working relationship, and talk about work and their two children. In 2017 he and his wife were in partnership with two others. He and his wife still have a partnership interest in three practices with another couple. He owns the Tenterfield practice, and the building in which it is conducted, and he works there on Monday, Tuesday and a half day on Wednesday. Another dentist works there on Monday, Tuesday and Wednesday, and some Fridays. He works as a contractor on Thursday in Mt Tambourine, Friday in South Tweed, and Saturday in Coomera on the Gold Coast.
3. The practitioner's registration was suspended from 18 December 2017, under s 150 of the National Law, to 25 May 2018, when his appeal under s 159 of the National Law was allowed and the order to suspend his registration was set aside, a period of approximately 5 months. The practitioner stated in his affidavit that on becoming aware of the suspension on 20 December 2017 he notified Dr Santosh Joy, the Director of all Happy Smiles Dental Surgeries under which he performed duties. An email dated 20 December 2017 annexed to the practitioner's affidavit confirms that Dr Joy notified the practices that the practitioner would not be working. The practitioner stated that he could not get work while suspended, and he started the Leadership and Management course and did volunteer work.
4. In his affidavit the practitioner maintained that he believed that his actions in July 2017 were in self-defence, and he pleaded this defence at the hearing. He accepts the findings of the court and is sincerely remorseful for his actions.
5. The transcript of the Local Court proceedings on 1 September 2017 (ex A1, tab 14) includes evidence given by the practitioner, his wife, her mother, and a neighbour. In his evidence the practitioner stated that on Saturday 8 July 2017 he had left the house between 9.30 to 10.00am, returning around 3.00pm. His wife ran towards his car where he was sitting in the passenger seat and smashed onto the window of the right hand side. She was angry and abusive. He got out of the car without his phone and wallet which were in the right side compartment next to the driver's seat. He walked to the house and she grabbed him by the neck, he pushed her back, and she grabbed his shirt. She ran back to the car and was flinging stuff inside the car. He realised he had left his phone and wallet and walked back towards the door. He reached for his phone and wallet, and as he bent down to put his hand in to try to get it his wife grabbed the door on the driver's side with his head and hand inside. He used his arm as he could see her pulling the door towards him. He pushed her back and walked away. He went into the house. The police came and asked him to show them his knuckles, saying his wife was bleeding from the nose. He went outside and there were neighbours, his sons and others, and his wife had a tissue or hanky. She handed back his phone and wallet and he went back into his room.
6. The practitioner denied punching his wife. In cross examination he stated he did not see blood, and corrected his evidence to be that he had been sitting in the driver's side of the car. His wife suspected him of having affairs. He denied trying to open the car door while his wife was sitting in the car, stating the car door was halfway open. He pushed her body back away from the door. It was possible he pushed her in the face. He denied striking her twice with a fist to her nose. His wife was screaming and yelling as she got out of the car. His son said her nose was bleeding.
7. The Local Court accepted that there was no issue that there was an injury, and that injury would amount to actual bodily harm, and rejected the self-defence submission. The magistrate noted some difficulties with the complainant's evidence, however was satisfied that there was immediate complaint to her mother and the neighbours that the practitioner had hit her. There was no cross examination of the neighbour or the mother or of the complainant that there was not profuse blood. The magistrate noted the differences between the account given by the practitioner to police and that given in court, and commented that she found the practitioner in terms of his credibility and reliability "an unhelpful witness, untruthful witness", stating that he was at pains to paint his wife as a crazy woman. The magistrate did not accept the practitioner's evidence about the way he pushed his wife away.
8. The charge was found proven. In sentencing the practitioner, Magistrate Denes accepted that the practitioner was of previous good character; stated that the offence was not trivial; and stated that she accepted the complainant's evidence as to what occurred, which was that the practitioner had punched her twice in the face causing the injuries. Magistrate Denes declined to dismiss pursuant to s 10 of the Crimes Act, and convicted the practitioner, placing him on a good behaviour bond and making an interim AVO for a period of 12 months.
9. In the Tribunal proceedings, the practitioner stated that he agreed with the findings of the court. However, when taken to specific passages in the sentencing remarks, the practitioner denied he had punched his wife in the face. His evidence was that he had pushed her with an open hand and not a fist. He had not seen the blood. He had heard his wife screaming, and had seen a crowd including his wife's mother. In hindsight, he accepts that her injury was probably because he pushed her.
10. It is clear from the practitioner's evidence to the Tribunal that while he states that he accepts the decision of the Local Court, he does not accept the underlying findings, maintaining he did not punch his wife but used an open hand. He maintained that his wife had been acting crazy, and said that he has sent video footage of his wife to the HCCC, to show that she can fly off the handle, and to explain the person he was dealing with.
11. The practitioner confirmed to the Tribunal that he had undertaken courses in Anger Management and Conflict Resolution (12 March 2018), Building Connections (6 March 2018), a Diploma Course in Leadership and Management (22 May 2019), and a course in Ethics and Governance (28 March 2018). He was able to do the courses while he was suspended from practice and had no work. He has not completed any course since those courses, and has not seen a psychologist or psychiatrist.
12. The practitioner's evidence as to the PCA offence was provided in his statutory declaration of 16 October 2017. He and his wife had attended a Christmas party on the evening of 15 December 2013. Their original intention was to spend the night at the residence where the party was held, his wife later changed her mind and was insistent for them to return home, and he drove at her request. In evidence to the Tribunal the practitioner denied he was blaming his wife for that offence.
13. The practitioner stated that he had not notified the finding of guilt for the PCA offence because advice he received in January 2014 was that he did not need to tell anyone because he had not been convicted. There was no mention of AHPRA, he was told there was no need to discuss it with anyone, and that he would not get a second chance. He could not recall if he had been aware of the need to disclose any criminal history as part of his original registration or as part of his application for a visa. After 2010 he was aware there was a body called AHPRA, and agreed that by the time of the 2014 PCA offence he had filled out re-registration forms two or three times. He did not look to see whether the PCA offence might affect his registration, or check with AHPRA.
14. The Tribunal is unable to place significant weight on the practitioner's evidence as to his understanding of his obligation to notify relevant events. His evidence as to his understanding in 2014 of the notification obligations relating to the finding of guilt for the PCA offence is not consistent with his evidence that he had, at the end of his telephone conversation with Mark on 1 September 2017, decided to tell him about that offence. While the practitioner denied knowing about a Notice of Certain Events form, the record (ex A3) confirms that that was mentioned in the conversation. The Tribunal considers that the practitioner's failure to notify the finding of guilt for the PCA offence in 2014, and the failure to notify the charge on the Assault offence, demonstrates a failure by the practitioner to attend to the obligations imposed on him as a registered health practitioner to inform the regulatory authorities of all matters relevant to continuing fitness to practise. While the practitioner stated that he reads forms including re-registration forms to a reasonable extent, his evidence was that he did not check to see how the finding of guilt for the PCA offence could affect his registration. The Tribunal concludes that the evidence does not support a finding that the failure to notify was deliberate or dishonest; however, the practitioner's professed ignorance of the requirements over the years in which he has been registered was reckless.
15. Of most concern to the Tribunal is the attitude demonstrated by the practitioner to the two offences the subject of Complaints One and Two. While he states that he accepts the findings of the court on the Assault offence, it is clear that he does not accept the central finding that he punched his wife in the face. While expressing remorse, his evidence including the evidence that he has sent a video to the HCCC, demonstrates that he continues to regard his wife as responsible for the events of 8 July 2017. That same attitude was expressed in relation to his decision to drive home after the Christmas party in 2013, leading to the PCA offence.

Submissions

1. The HCCC seeks a reprimand, and the practitioner accepts that that is an appropriate order.
2. The HCCC seeks suspension of the practitioner's registration, based on the fact that he has twice breached s 130 of the National Law, and under s 149C(1)(c) of the National Law, that the circumstances of the Assault offence render him unfit in the public interest to practice in his profession.
3. In support of that position, the HCCC submits that the practitioner was reckless in not disclosing the PCA offence and Assault charge, and turned a blind eye to his obligations. The nature of the breach is serious, the practitioner breached the obligation to notify twice, he knew or ought to have known that he had to disclose, there was a lengthy delay in disclosure of the PCA offence, and there is no evidence that the practitioner understands why disclosure is necessary.
4. In relation to the Assault offence, the HCCC submits that the Tribunal can rely on the findings of Magistrate Denes, and have regard to the circumstances of that offence which were that the practitioner punched his wife to the face twice, that she sustained facial injuries (her mouth was swollen) and was bleeding immediately and profusely from the punch, that the practitioner's motivation for violence was a benign disagreement, and that he must have seen the blood and heard his wife's screams and did not react or attend to his wife's medical needs. Although the offence was labelled "domestic violence" the practitioner engaged in violence directed at his wife, and on seeing the injuries he showed no sign of compassion or desire to promote her health. The HCCC submits that the courses undertaken by the practitioner do not go far enough and are not meaningful in addressing his behaviour.
5. The HCCC submits that suspension serves to denounce, to deter the practitioner, and to deter other practitioners from such behaviour, and promotes public confidence in the profession. Suspension for a short period is warranted, taking into account the previous period of 5 months.
6. The practitioner opposes an order suspending his registration. He submits that such an order would be excessive in the circumstances particularly having regard to the rehabilitative and protective steps he has taken and the 5 months suspension he has been subjected to. He submits that his failure to report was not intentional or deliberate, and the failure to notify the PCA offence and the Assault charge was out of ignorance. He does not dispute that the Assault offence was reprehensible, however he otherwise has an unblemished record. The argument occurred in context of marital disharmony, and the practitioner extricated himself from a volatile situation, and his wife was being attended to by neighbours. He reported the conviction on the day the matter was finalised. His relationship with his wife is now better than it was. His practice in Tenterfield is the only practice in that town.

Consideration

1. The importance of compliance with the reporting obligations for the maintenance of the integrity of the system for disciplining of health practitioners established by the National Law was emphasised in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173, where the Tribunal said at [34]: …In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners.
2. For those reasons the Tribunal is satisfied that a protective order is warranted in relation to the failure to comply with s 130.
3. In considering whether a protective order is warranted and appropriate in the circumstances of the conviction on the Assault offence, the Tribunal notes the requirement in s 149C(1)(c) of the National Law that it be satisfied that the circumstances of that offence render him "unfit in the public interest" to practice his profession. The words "in the public interest" require the Tribunal to consider what the public expects of health practitioners in the context of the objects of the National Law.
4. In that regard, we note the comments of the Tribunal in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87] reflecting on the seriousness of domestic and family violence in the Australian community and the need for urgent action. In contrast to the circumstances found in Haasbroek, the Tribunal is not satisfied that in these proceedings the practitioner has reflected on the findings of the court in the Assault offence proceedings, or that he has insight into his failings. While professing remorse, he continues to blame his wife for the incident on 8 July 2017, and he continues to dispute the findings of the court. He has not, as recommended in the s 150 proceedings, sought assistance by means of a Health Assessment; and he has not undertaken any other courses or self study, or any other rehabilitative steps, since the s 150 determination. There is no evidence in support from the practitioner's former wife, or from others who might attest to his character.
5. The Tribunal is satisfied that a protective order should be made. The Tribunal agrees that the practitioner should be reprimanded. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99].
6. In considering whether the practitioner's registration should be suspended, the Tribunal notes that in the appeal proceedings in Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98, the Tribunal was not satisfied on the material then before it that it was in the public interest that the practitioner's registration be suspended. The Tribunal acknowledged at [47] the protective nature of the jurisdiction exercised under s 150 of the National Law, and that it was required to balance the exercise of that jurisdiction with considerations of the draconian nature of a suspension and other matters raised in the authorities. As confirmed by the Tribunal at [47], the Tribunal was not then making conclusive findings of fact, or deciding whether the practitioner was a fit and proper person to practice as a dentist.
7. As discussed at [21] in those proceedings, the jurisdiction of the Tribunal in an external appeal under s 159 of the National Law from a decision to suspend the practitioner's registration under s 150 is directed to the immediate action that is needed to be taken to protect the health and safety of any person or persons or the public interest; and the consequences of suspension. Because of the circumstances under which the power under s 150 is to be exercised, which may be without any formal complaint having been made, or where an investigation may not have been commenced or completed, it is not necessary for the Tribunal hearing such an appeal to embark on a detailed inquiry, or make conclusive findings of fact, and not otherwise necessary to determine whether conduct is professional misconduct or unsatisfactory professional conduct: an order made under s 150 is in the nature of an interlocutory order, often made on the basis of limited information.
8. Those principles are reflected in the statement by the Tribunal in the earlier proceedings as to the nature of the inquiry: 22. In this case, there is no suggestion that the appellant poses a danger to any member or part of the public such that we must consider the protection of the health and safety of any person or persons. Rather, our task is to consider, on the material before us, whether the conduct of the appellant involves a risk otherwise not in the public interest such that his registration should be suspended. The authorities inform us that the scope of that inquiry includes the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.
9. That statement of the relevant principles confirms that while the paramount consideration under s 3A of the National Law in both types of proceedings is the protection of the health and safety of the public, the context in which s 150 proceedings, and an appeal under s 159, are conducted and determined is different to that engaged in these proceedings. In particular, the Tribunal in these proceedings brought under s 145D of the National Law is required to make findings as to whether the complaints referred to it are established to the requisite standard.
10. We acknowledge, as the Tribunal did in the appeal proceedings, that while the Assault offence was a serious offence, it was the first such offence committed by the practitioner. We also acknowledge that there is no evidence to suggest that there is any issue with his competence as a practitioner, or that there have been any previous complaints against him. He provides specialist dental treatment in rural and regional parts of New South Wales. However, as discussed above the Tribunal is troubled by the practitioner's continuing lack of insight as to the seriousness of his conduct on 8 July 2017, his reluctance in oral evidence to acknowledge that he had hit his wife in the face, and his continued blaming of his wife for the events on that day. That is not consistent with the need to uphold standards of practising health professionals and maintain the high regard in which they are held by their patients, their peers, and the public generally, or with the requirement that a health practitioner act both professionally and personally with integrity and respect for the law.
11. The Tribunal is satisfied that the circumstances of the offence render the practitioner unfit in the public interest to practise in his profession, and that a period of suspension is an appropriate protective order. Such an order operates as a deterrent both to the practitioner and others in the profession, but most importantly signals to the public that those whose conduct does not meet the required standards will not be permitted to practice.
12. In determining an appropriate length of suspension, the Tribunal agrees with the HCCC that a short period is appropriate, having regard to the fact that the practitioner was suspended under s 150 of the National Law for a period of five months. The Tribunal acknowledges that any further period of suspension would impact on the delivery of dental services in the areas in which he works, however the practitioner's evidence was that the other practitioner working in his Tenterfield practice has flexibility, and there is no evidence as to the likely impact on the other practices in which he currently works as a contractor. The Tribunal considers that in the context of the seriousness of the Assault offence, and the absence of demonstrated rehabilitative steps since the appeal proceedings, suspension for a period of six months would be appropriate. Taking into account the earlier period of suspension, the Tribunal concludes that suspension for a period of one month will both provide an appropriate deterrent, and promote public confidence in the profession.

Costs

1. The HCCC seeks an order for costs. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles as summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282 are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The Tribunal is satisfied that it is appropriate to order that the practitioner pay the costs of the HCCC.

Orders

1. The Tribunal orders: 1. Under s 149A(1)(a) of the Health Practitioner Regulation National Law the Tribunal reprimands the respondent. 2. Under s 149C(1)(c) of the Health Practitioner Regulation National Law the Tribunal suspends the respondent's registration for a period of one month from the date of this decision. 3. The respondent is to pay the costs of the Health Care Complaints Commission as agreed or assessed.

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: 31 March 2020