Health Care Complaints Commission v Fraser

Complaints

1. The Commission raises two complaints against Dr Fraser in support of the orders sought. The Commission and Dr Fraser relied only on written documentation. Patient A was not required for cross examination. Dr Fraser declined a request from the Commission to be cross examined.
2. The Complaints as set out in a further amended complaint of 6 December 2023 and the Reply to the amended complaints by Dr Fraser are as follows.

Complaint One

1. The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper and/or unethical conduct relating to the practice or purported practice of dentistry.

Particulars of Complaint One 1. During 2019, the practitioner permitted George Pegios, an unregistered person, to use facilities and resources at the Practice to perform root canal therapy on Patient A. Dr Fraser has admitted Particular 1 of Complaint One. 1. On the following occasions, George Pegios performed root canal therapy on Patient A: 1. 13 September 2019; 2. 20 September 2019; 3. 30 October 2019; and 4. 6 November 2019. Dr Fraser has admitted Particular 2 of Complaint One (although we note that according to the health insurance claim made for 6 November 2019 the work on that day was a direct post and provisional crown). 1. The practitioner knew, or ought to have known, that a staff member of the Practice submitted HiCAPS claims for dental services purportedly provided to Patient A by the practitioner on the following occasions: 1. On 20 September 2019, four HiCAPS claims totalling $890.00 to Patient A's [to] private health insurer, CUA, in circumstances where the practitioner had not provided the services claimed to Patient A. 2. On 30 October 2019, four HiCAPS claims totalling $1,000.00 to Patient A's insurer, CUA, in circumstances where the practitioner had not provided the services claimed to Patient A. Dr Fraser has admitted Particular 3 of Complaint One. 1. On 23 September 2019, the practitioner improperly received the following HiCAPS payment: 1. $250 in relation to a claim for dental services provided to Patient A on 20 September 2019. Dr Fraser has admitted Particular 4 of Complaint One and in his Reply to the complaint has stated that he has withdrawn the claims made to the health insurers identified in Particular 3 for the services provided on 20 September 2019 and 30 October 2019, and reimbursed Patient A's insurer for the $250.00 received in respect of the claim made for services on 20 September 2019. 1. The practitioner breached the Dental Board Code of Conduct, March 2014 (the Code) as follows: 1. by his conduct in Particulars 1 and 2, the practitioner has breached clauses 2.2, 4.3 and 6.3 of the Code; 2. by his conduct in Particulars 3 and 4, the practitioner has breached clause 8.12 of the Code. Dr Fraser has admitted Particular 5 of Complaint One with the reservation that the complaint ought to identify which sub paragraphs of each part of the Code are sought to be relied upon and how they are relied upon. 1. Withdrawn. 2. At the time of Particulars 1 and 2, the practitioner knew that George Pegios' registration as a dentist had been cancelled for reasons including that one of George Pegios' patients had died as a result of treatment that he had provided. Dr Fraser has admitted Particular 7 of Complaint One.

Improper or Unethical Conduct

1. The terms "improper" and "unethical" conduct set out in s 139B(1)(l) are not defined in the National Law. They should be given their ordinary meaning (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 at [16]-[18]).
2. The relevant ordinary meanings of improper include "not in accordance with truth, fact, reason or rule, abnormal, irregular, incorrect, erroneous, wrong" (Parker v Controller of Customs [2009] HCA 7).
3. Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.
4. It has also been held that the use of the word "or" in s 139B(1)(l) suggests that the words "unethical" and "improper" should be read disjunctively and do not carry the same meaning. However, their meanings may overlap.
5. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [26], the Tribunal held that: "The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."
6. We are satisfied based on the evidence before us, and the admission made on the part of Dr Fraser that Particular 1, Particular 2, Particular 3, Particular 4 and Particular 7 have been made out.
7. We have set out in some detail the evidence concerning the introduction of Patient A to Dr Fraser, Patient A's acceptance of the treatment by Mr Pegios because of her view of Dr Fraser, Dr Fraser's knowledge of what was occurring, his complicity in the unregistered person performing the dental procedures on Patient A, and also his knowing of the health insurance claims being made in his name. The evidence does not persuade us that Dr Fraser was prevailed upon by Mr Pegios with any undue pressure or influence so as to lessen his culpability for what occurred.
8. Counsel for Dr Fraser, in our view, also properly acknowledged that the evidence does not support a finding that Dr Fraser was left with no choice.
9. Counsel also accepted on behalf of his client that Patient A was Dr Fraser's patient at the time of the four occasions that Mr Pegios carried out the procedures referred to above, and that Patient A remained his patient after those events.
10. It was acknowledged that Dr Fraser should never have permitted the treatment to have been carried out by Mr Pegios on Patient A.
11. In Particular 5 to Complaint One the Commission relies on clauses 2.2, 4.3 and 6.3 of the Code. Clause 2.2 is concerned with "good care" and states in the introduction that maintaining a high level of professional competence and conduct is essential for good care. There is then set out a number of matters which involve good practice. The Commission did not identify with any specificity which listed aspects of good care have particular relevance to the complaint.
12. Clause 4.3 of the Code involves taking reasonable steps to ensure that any person to whom a practitioner delegates, refers or hands over the patient has the qualifications and/or experience and/or knowledge and/or skills to provide the care required.
13. Clause 4.3 of the Code stipulates that "delegation" involves one practitioner asking another person or member of staff to provide care on behalf of the delegating practitioner while that practitioner retains overall responsibility for the care of the patient or client.
14. In the letter of 29 September 2022 from the Commission addressed to Dr Fraser outlining the complaints to him, it was stipulated that by allowing Mr Pegios to provide Patient A with dental health treatment on 20 September 2019 and 30 October 2019, clause 4.3 was breached because of the breach of the good practice provision. In our view, that was sufficient particularisation provided to Dr Fraser to put him on notice of that alleged breach.
15. Clause 6.3 of the Code is concerned with practitioner performance and provides that the welfare of patients or clients may be put at risk if a practitioner is performing poorly. The clause provides that if there is a risk, good practice involves, amongst other things, taking steps to protect patients or clients from being placed at risk of harm posed by a colleague's conduct, practise or ill health.
16. Clause 8.12 of the Code requires practitioners to be honest and transparent in financial arrangements with patients or clients including being transparent in financial and commercial matters relating to work, including dealings with employers, insurers and other organisations or individuals.
17. It is clear to us that by making the claims and receiving the benefit as particularised in Particulars 3 and 4 of Complaint One for dental services which he did not provide, Dr Fraser was not honest and transparent in his financial dealings with his patient and the relevant insurers in breach of clause 8.12 of the Code.
18. We are, accordingly, satisfied and find that Particular 5 to Complaint One has been made out.
19. In our view, and we find, that the conduct set out in Complaint One as particularised and established as set out above was both improper and unethical conduct as those terms have been interpreted and applied by the Tribunal relating to the practice or purported practice of dentistry and amounts to unsatisfactory professional conduct under s 139B(1)(l) of the National Law. In our view, Dr Fraser deliberately flouted significant professional standards or showed wilful blindness to his official obligations.
20. Complaint One has thus been proven to the requisite standard of certainty whilst recognising the serious consequences of our findings.

Complaint Two

1. Complaint Two is framed by the Commission as follows: 1. The practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

Particulars of Complaint Two

1. Each particular of Complaint One justifies a finding of professional misconduct. In the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified.

Professional Misconduct

1. In relation to what constitutes professional misconduct, it was held in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] by his Honour Justice Basten as follows: "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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."
2. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 41 at [82] per Sterling J). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards (Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638).
3. In Health Care Complaints Commission v Robinson [2022] NSWCA 164 Kirk JA (Leeming JA agreeing) held (at [34]) that the focus is on the character of what occurred which is the subject of the complaint. The categorisation exercise involves "an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct" (Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]). Further, his Honour held at [35] that "the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred". The example set out by his Honour was that conduct undertaken for an improper purpose may be a very significant factor in determining whether suspension or cancellation is justified.
4. His Honour also accepted that the risks of harm that the conduct was apt to create could be a relevant consideration (at [36]-[37]).
5. The evidence relied upon by the Commission for Complaint Two is the evidence for Complaint One.
6. Dr Fraser does not admit Particular 1 of Complaint Two but does accept that his conduct amounted to unsatisfactory professional conduct.
7. Thus the real and contested issue between the parties in the proceedings before us relates to whether the unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of Dr Fraser's registration. We accept in assessing its gravity that the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which the conduct departs from proper standards (Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638).
8. In support of the complaint of unprofessional conduct, the Commission in written closing submissions before the Tribunal argued that a finding of professional misconduct was justified because of the following: "a. The practitioner's conduct was not just improper, it was unethical. Unethical conduct is more serious than just improper conduct. b. The practitioner permitted an unregistered dentist to perform root canal therapy on Patient A in 2019. c. He knew that Mr Pegios' registration had been cancelled because one of his patients had died after treatment by Mr Pegios. d. There is no evidence that he made any enquiries to find out the circumstances of Mr Pegios' cancellation, such as conducting google searches or locating the publicly available Tribunal decision. e. Given his knowledge of why Mr Pegios' registration was cancelled, he ought to have realised that Mr Pegios was someone whom the Dental Council had lost faith in, someone who had breached professional standards. f. He knew that Mr Pegios was unregistered and so must have known that Mr Pegios had no legitimate recent dental practice and would not have the required recency of practice. g. He knew that Mr Pegios was unregistered and so must have known that he would not have professional indemnity insurance. h. He knew that Mr Pegios was unregistered and so must have known that he would not have recent professional development in relation to dentistry. i. The practitioner knew that Patient A was vulnerable, in that she was in a romantic relationship with Mr Pegios and thus there was a conflict of interest. Patient A was not in a position to make informed decisions surrounding her care. j. The practitioner did not consider the balance of benefit and harm in his clinical management decisions. The risk of harm arising from the practitioner's conduct was high. The practitioner knowingly allowed Patient A's health and safety to be compromised by allowing an unregistered dentist to perform root canal therapy on Patient A. He did not take steps to protect Patient A from being placed at risk of harm posed by Mr Pegios' conduct. The practitioner had to refit a crown because the first one fit by Mr Pegios did not fit properly. k. The practitioner's knowledge, skill and training meant the practitioner had to have known that his conduct was unethical. The practitioner was first registered as a dentist on 15 December 1983. At the time of the complaint, the practitioner had been a dentist for approximately 36 years, who owned his own practice. He must have kept up-to-date with professional development in order to renew his registration every year. l. The practitioner's version that he was prevailed upon must be rejected. It was implausible that someone with the knowledge, skill and practice of the practitioner allowed someone such as Mr Pegios to practise unsurpervised. If the practitioner felt "prevailed upon" he could have called the police, called the dental association to report Mr Pegios, called the Dental Council, called AHPRA, called the HCCC. The practitioner had opportunities to report Mr Pegios and he did not. m. The practitioner knew, or ought to have known, that false claims were being submitted to Patient A's insurance company. If Patient A had not come forward and submitted a complaint to AHPRA, the fraud would have been perpetuated. Similarly, the practitioner returned money he had received from the insurance company but this was only after he was made aware of Patient A's complaint. n. The practitioner recklessly flouted professional standards. He breached the following clauses of the Dental Board of Australia Code of Conduct: 2.2 Good care: maintaining a high level of professional competence and conduct is essential for good care. 4.3 Delegation, referral and handover: the delegating practitioner remains responsible for the overall management of the patient or client and for the decision to delegate. 6.3 Practitioner performance: the welfare of patients or clients may be put at risk if a practitioner is performing poorly. 8.12 Financial and commercial dealings: practitioners must be honest and transparent in financial arrangements with patients or clients. o. The practitioner did not display a standard of behaviour that warrants the trust and respect of the community, including observing and practising the principles of ethical conduct. The practitioner breached his duty to make the care of Patient A his first concern and to practise safely and effectively."
9. Counsel for Dr Fraser did not seek to downplay the seriousness of the conduct the subject of Complaint One. Counsel argued that Dr Fraser's conduct was at the borderline between unsatisfactory professional conduct and professional misconduct and that, in this case, the finding to be made by the Tribunal did not meet the higher bar of being so serious as to justify suspension or cancellation.
10. We do not accept such an outcome. In our view, and we find, the conduct on the part of Dr Fraser as admitted and supported by the evidence was so serious as to justify suspension or cancellation of his registration. We do so in particular for the following reasons: 1. At all relevant times, Patient A was Dr Fraser's patient, he treated her, both prior to the conduct of Mr Pegios complained of, and thereafter. 2. Dr Fraser clearly owed Patient A a duty to ensure that she received care and attention commensurate with the standards required of a registered dentist. 3. It is clear that Patient A placed her trust in Dr Fraser and regarded him as a reputable person which allayed her concerns about some, at least, of suspicions she had about Mr Pegios and his ability to perform the proposed root canal treatments. 4. At all relevant times, Dr Fraser knew that Mr Pegios had been deregistered as a dentist in 2010 by the Dental Council. He knew that the registration had been cancelled for reasons including that one of Mr Pegios' patients had died as a result of treatment that he had provided, knowledge which at any level should have ensured that every measure was taken to avoid Mr Pegios coming anywhere near Patient A for dental treatment. 5. Dr Fraser knew in advance that Mr Pegios was to perform the root canal treatments on Patient A. He raised no objection, concern or warnings about the proposed treatments. Root canal treatment is an irreversible process and is complex dentistry involving administration of anaesthetics and drilling requiring particular skill, care and attention. Dr Fraser clearly must have had a full appreciation of what was required and the risks associated with such treatment. He would not do the root canal treatment himself. 6. Dr Fraser must have known that Mr Pegios could not, by reason of his deregistration, be up to date and have currency of practice and full compliance with all his continuing professional development requirements that registered dentists must have. He was putting his patient in the hands of a person who had been deregistered 9 years earlier. 7. There is in our judgment no doubt that in the circumstances, placing Patient A to whom he owed a duty of care into the hands of this person for the treatments proposed exposed Patient A to risks as to her health and safety. By his own admission Dr Fraser was aware that Mr Pegios was proposing the treatment on "his partner", Patient A, placing Patient A in a very difficult position. 8. Dr Fraser's conduct was far below proper standards required of registered practitioners and also involved breaches of the Code of practice. 9. Dr Fraser's conduct is also compounded by the knowledge he had, at least in respect of the two occasions, namely 20 September 2019 and 30 October 2019, that claims against Patient A's health care insurers were being made in his name and we do not regard the repayment after the complaints having been made as mitigating the seriousness of that conduct. Dr Fraser was thus by this improper means also seeking financial gain for himself.
11. In our view and judgment taking all the conduct together, this was very serious, unsatisfactory professional conduct and well below the standards required of a registered dentist.
12. We are, therefore, satisfied and find that the degree of seriousness of Dr Fraser's conduct justifies or warrants suspension or cancellation of Dr Fraser's registration and amounted to professional misconduct.
13. Complaint Two has been made out.

Orders 1. The practitioner is guilty of unsatisfactory professional conduct. 2. The practitioner is guilty of professional misconduct. 3. The proceedings are to be listed for directions in respect of a Stage 2 hearing at a date to be determined 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: 19 December 2023