Health Care Complaints Commission v Fraser

NCAT Occupational|2024-10-31|Before: Dr J, Coolican AM

reasons for decision

On 19 December 2023, the Tribunal handed down its decision in the Stage I hearing of the application dated 31 March 2023 and made orders that Dr Fraser was guilty of unsatisfactory professional conduct and professional misconduct (see [2023] NSWCATOD 187) ("Reasons").
These reasons deal with Stage II of the application to consider what protective orders, if any, should be made as a result of the established conduct and must be read in conjunction with the Reasons published on 19 December 2023.

Protective Orders

The Applicant seeks an order pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") that Dr Fraser's registration be cancelled with a non-review period of 12 months in that he has been guilty of professional misconduct.
The Applicant also seeks a non-review period of 12 months and an order under clause 13 of Schedule 5D of the National Law that the Respondent pay its costs as agreed or assessed.

Policy and Key Protective Principles

Having found that the Complaints were established, and that the Respondent is guilty of professional misconduct, the Tribunal's power to make protective orders under s 149C of the National Law in the form of suspension or cancellation of registration is enlivened.
In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s 3B, formerly s 3A).
In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA (with whom Basten and Emmett JJA agreed) held at [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."
The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35]). It is an error for the Tribunal to focus only on the protection of the public from further malpractice or misconduct by the particular practitioner. The Tribunal must also address the public interest in having a practitioner's conduct denounced as unacceptable (Do at [39]).
The relevant principles to be applied have also been set out in a number of decisions of the Tribunal. For example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c) The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possessed by the practitioner."
In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]): "(1) the protection of public safety and health is paramount; National Law, s 3A; (2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); (3) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; (4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; (5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Wales Bar Association v Meakes [2006] NSWCA 340; (6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];"
The finding of professional misconduct exposes the Respondent to the possibility of his registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [14] per Basten JA. The Tribunal's choice of appropriate order following a finding of professional misconduct involves a "matter of degree and judgment" of seriousness sufficient to warrant deregistration (see, e.g. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). The decision is thus discretionary.
In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65, the Tribunal considered the question of denouncement of misconduct and the impact of a reprimand. It was held at [104]-[105]: "The real issue is whether a suspension, as opposed to a reprimand, adequately serves to denounce Dr Kesserwani's conduct. A reprimand is self-evidently a "lighter" disciplinary measure than suspension. There is no doubt that Dr Kesserwani's conduct ought to be denounced. These proceedings are, in effect, denunciatory. An order to issue Dr Kesserwani with a reprimand, which will appear on the public record of his registration maintained by the Australian Health Practitioner Regulation Agency, also serves to denounce his conduct. While in exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). In our view, the orders proposed by Dr Kesserwani serve to denounce his conduct and, in addition, take into account the objective and subjective features of this case. In addition, they take into account that four and a half years have now passed since the Council imposed a series of conditions on Dr Kesserwani's registration with which he has fully complied."
Further, in Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100, the Tribunal drew attention to the need to also take into account an individualised and proportioned approach at [17]: "There can be no argument that Mr Yildrim's conduct must be denounced. The issue is whether as the Commission implicitly submits, any order short of cancellation, fails to achieve that objective. In exercising the power to make protective orders, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed): Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105]. We have concluded that in the circumstances of this case, cancellation would amount to what Basten JA described in Chen at [14], as an "unreasonable or disproportionate exercise of the power" conferred on the Tribunal."
In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA): "The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]."
The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383.

Respondent's Evidence

Dr Fraser provided a written statement. He stated that he deeply regrets that he allowed the de-registered practitioner, Mr Pegios, to perform root canal therapy on Mr Pegios' girlfriend, Patient A, who was at the time Dr Fraser's own patient. He stated that whilst he cannot now recall the content of discussions with Mr Pegios or Patient A, he understood at all times that Patient A was aware that Mr Pegios was a de-registered dentist.
Dr Fraser stated that he offered Patient A a referral to an endodontist to perform a root canal therapy. He typically refers root canal therapy involving a molar tooth to a specialist. However, Patient A told him that she could not afford it. He had discussed with her that tooth extraction was an alternative but that with her anterior open bite it would not have been optimal. She informed him that she did not wish to have an extraction, and he was not aware at that time of any lower cost services for Patient A.
Dr Fraser said he should never have agreed to Mr Pegios performing the root canal treatment in his rooms and that the decision was misguided and wrong.
Significantly, he says that he did not consider the risk to Patient A or the possibility that the procedure would not go well, and he would not make the same mistake again.
In explaining his conduct, Dr Fraser said he now recognises that he empathised with Patient A as she was a single mother, like his own mother, and he thought that he was helping her. He has previously been very sensitive to rejection, wanting to please and help people and not wanting to disappoint his patients.
Dr Fraser was cross examined. In that evidence he stated that at the time he did not think of allowing the de-registered practitioner to perform the work as an ethical issue but now recognises that it was the worst decision of his life.
Dr Fraser said he knew that Mr Pegios had been de-registered as a practitioner in 2010, and he knew that the patient under Mr Pegios' care had died whilst under treatment, leading to the cancellation of his registration.
Mr Pegios performed treatment in Dr Fraser's practice over some months on four different occasions. Dr Fraser was planning to be present, and he was present some of the time.
He said there was no discussion with Patient A as to the risk of Mr Pegios being up to date in his practice requirements and he now understood what he should have done.
Dr Fraser gave no consideration to whether Mr Pegios was or was not insured. He wished to refer Patient A to a specialist because he did not do that work himself (evidence which we return to below).
Dr Fraser had never seen Mr Pegios perform any dental work before but knew he was not a specialist. In fact, he knew nothing of Mr Pegios' dental skills. His decision was not about Mr Pegios, he said, but it was about Patient A.
Dr Fraser now accepts that he should have warned Patient A of the risk of allowing someone like Mr Pegios to perform dental work for her but at the time he empathised with the fact that she was a single mother.
Dr Fraser was fully aware of all the work that was carried out over the four-month period and, in fact, he cemented the crown of the tooth after the root canal treatment had been carried out by Mr Pegios.
He accepted all the findings of the Tribunal at [64] of the Reasons.

Expert Evidence

For the purposes of these proceedings Dr Fraser consulted Dr Anthony Samuels, a consultant psychiatrist, who also prepared a report dated 3 April 2024 which was tendered into evidence ("the Samuels Report"). Dr Samuels is a well-respected consultant psychiatrist who regularly gives evidence in the Tribunal.
The Samuels Report records some of the information provided by Dr Fraser to him during a consultation on 20 February 2024, the only consultation which occurred with Dr Fraser.
We do not set out all aspects of that report but note some matters which are significant in light of the evidence given by Dr Fraser set out above. The Samuels Report includes a statement that Dr Fraser said that he believed that Patient A knew that Mr Pegios was a de-registered dentist and he reluctantly agreed to the proposal. It recorded that Dr Fraser works as a general dentist, it is mainly a family practice, and he does "some orthodontic work". Dr Fraser is reported as saying he would do "simple root canal work but will generally refer more complex procedures to specialists".
Dr Fraser had reported that he knew Mr Pegios as a colleague and from conferences, but they had never been friends. Mr Pegios had, in fact, been treated by Dr Fraser on about two occasions in the past.
Dr Fraser is recorded as stating that "he did not really want to accede to this request (by Mr Pegios) and does not really understand why he said yes, but he did, he said he felt "a bit bamboozled" he was trying to help which was stupid".
Dr Samuels recorded that he spent some time trying to understand if Mr Pegios had any particular influence over Dr Fraser. In that regard, the Report proceeds as follows at paragraph 55: "Dr Fraser made it clear that he did not have a particularly close relationship with George Pegios and although it was in his nature to please people, he could not really understand why he acceded to George Pegios' request. He does think that the major factor that influenced him was his concern for the patient and that he wanted to help her. He indicated to me that he could have done the procedure but he did not want to do it because it would have been very time consuming and he had shoulder problems relating to prior surgery and it would have taken a long time. He said this was not the type of root canal treatment that he would normally undertake because it was complex, and it was the type of procedure he would normally refer but he did feel that it would have been within his skill set. He told me that George Pegios did not have special skills in the area, he was a general dentist."
When asked whether he had any concerns for the patient's welfare at the time Dr Fraser is recorded as saying that because the work was not being done under intravenous sedation (a reference, we assume, to a factor in the deregistration of Mr Pegios), that was not particularly an issue that he worried about at the time.
The Samuels Report records that Dr Fraser expressed remorse continually for what he had done and his "stupidity". It records that Dr Fraser said that he did have a vulnerability in regards to single mothers, given his own mother's experience and that it was in his nature to try and assist.
He acknowledged that he probably had not given due thought to Mr Pegios' past history in relation to the patient, nor in relation to the patient's welfare and that he had not given consideration to the fact that Mr Pegios had been a patient of his in the past, the latter issue concerning the maintaining of professional boundaries.
It does seem to Dr Samuels that these underlying personality vulnerabilities contributed to Dr Fraser acceding to the request made by Mr Pegios and Patient A.
Dr Samuels expressed the view that he was positive that Dr Fraser is now beginning to address the issues that culminated in these events with his psychologist and that he is committed to continuing seeing her. In light of what has occurred, he expressed the view that he would see the risk of repetition of similar events in the future as being very low. It has undoubtedly been a very sentinel event for Dr Fraser.
Dr Samuels expressed the opinion that Dr Fraser is genuinely remorseful and regretful about what has happened but Dr Fraser is still struggling to understand why he accepted the request but believes that he ultimately agreed to it because of concerns for the patient who was experiencing pain at the time and that he believed that he was assisting the situation. Dr Fraser is now well aware of the potential risks of such a situation, the inappropriateness and the need to maintain professional boundaries.
Dr Samuels says that it is his impression that at the time of the events in question Dr Fraser did not understand the significance of allowing a former patient of his, regardless of registration status, to use his facilities but he has now a much clearer understanding of professional boundaries and believes he would not allow something like this to occur ever again in the future. Dr Fraser should continue to work with his psychologist in regards to the various issues raised to ensure that he has a good understanding of his own personality vulnerabilities and responsibilities in the context of a professional setting.
Dr Fraser also relied on the evidence of his psychologist, Ms A McCredie, who provided a written report dated 19 August 2024 ("the McCredie Report").
The McCredie Report deals quite extensively with the treatment which Dr Fraser is undertaking with this psychologist.
In relation to the unsatisfactory professional conduct which the Tribunal addressed in the Reasons the following is stated: "Dr Fraser reflected that he was genuinely concerned for Patient A, her dental pain and financial hardship. In retrospect, he rationalised that his heightened sense of empathy toward single mothers was the driver of his decision to allow Mr Pegios to treat Patient A. When explored in session, he asserted "I like helping people" and "I remember helping my mother for many, many years, I felt bad for her, she was on her own, a single mother and a holocaust survivor". Commonly termed as countertransference, it would appear, Dr Fraser found himself identify with Patient A as a single mother, an unconscious bias and personal connection toward Patient A as his own mother was a single mother. Dr Fraser lost his father at the age of three years old, leaving his mother to take care of three young children. She and her brother were the only holocaust survivors in their family. She was 19 years old at the time. Countertransference occurs when a healthcare professional's personal experiences influence their emotional response to a patient, potentially leading to boundary violations. This is especially relevant when a practitioner's unresolved personal conflicts, such as those related to Dr Fraser being raised by a single mother, resonate with a patient's circumstances."
During the psychological sessions undertaken, Dr Fraser is said to have recognised that he has a tendency to want to please people. He admitted he finds it hard to say "no" as he does not want to disappoint people.
Dr Fraser is recorded as describing Mr Pegios as a strong, charismatic character, once a "high-flying dentist". It is recorded that in retrospect Dr Fraser recognises that he struggles to assert himself and set boundaries, especially with strong and confident individuals. He said he can become overly submissive and avoidant, particularly when feeling overwhelmed.
Ms McCredie records that Dr Fraser expressed sincere regret and remorse for his actions, continuing to feel a profound sense of shame and embarrassment for having compromised patient safety and the integrity of his role as a healthcare professional.
Dr Fraser is undertaking therapeutic intervention which includes learning assertiveness and boundary-setting skills and understanding the risk of countertransference and recognising how his personal experiences interfered with his clinical objectivity.
His goals include recognising that his identity as "the helpful one" established in childhood has become deeply ingrained in his adult life. That tendency often overrides his own needs and rational thought processes, adversely affecting his wellbeing and leading to decisions that have been detrimental to both a patient's wellbeing and his professional responsibilities.
Dr Fraser has expressed the commitment to his psychologist to ongoing psychological intervention. In that regard, Ms McCredie concludes that Dr Fraser appears to have made "considerable progress in understanding the underlying psychological factors contributing to his unsatisfactory professional conduct". She regards his risk of breaching the Dental Board Code of Conduct (2014) as low or negligible and recommends that he continues to undertake various therapies and study.
Ms McCredie's notes of her consultations with Dr Fraser record that he had known Mr Pegios for a long time and had worked on his teeth in the past. Dr Fraser was aware that Mr Pegios "had his problems", someone died in his chair and there was negligence on his part. In relation to a discussion concerning Mr Pegios and Patient A, her notes record that Dr Fraser did not want to treat root canal because he does not like to do "difficult root canal".

Character References

Dr Fraser tendered into evidence seven character references from patients, friends and colleagues. The theme running through these references is that in the experience of those patients Dr Fraser is concerned with the welfare of his patients and is motivated by a desire to help patients, that he is not motivated by money, that he is ethical and that his conduct as described in the Reasons is "out of character". In addition, the referees describe him as having shown deep remorse for his conduct or "lapse of judgment". He is regarded by fellow dentists as highly skilled and capable of upholding the highest standards of care.

Education Program

Dr Fraser has undertaken an education program formulated for him by Dr Craig Brown, a qualified dentist, lecturer and fellow of the Academy of Dentistry International. The program involves learnings in respect of foundations of professional practise, and ethics and ethical decision-making. The learning program for the foundations of professional practice required Dr Fraser to demonstrate an understanding of the legislation that relates to the regulation of dental practitioners in Australia, the role of the Board in protecting the public through ensuring all registered dental practitioners practise in a competent and ethical manner and discussions as to the eligibility requirements, including suitability and fitness, for registration as a dental practitioner in Australia.
The ethics and ethical decision-making component included identifying key resources that provide guidance in relation to ethics and ethical decision-making and the need to demonstrate an understanding of health practitioner obligations, patient rights and the law in healthcare.

Absence of Personal Gain?

Dr Fraser has attempted to emphasise that he was not motivated by financial gain. His referees also talk about his practice not being motivated in that regard.
However, it is difficult to reconcile those sentiments with what Dr Fraser is reported of having told Dr Samuels. He did not wish to help Patient A to the extent of his having to conduct what he regarded as very time-consuming treatment. He could have performed the work and made a legitimate claim on Patient A's health insurance.
Instead, the helping extended to allowing a de-registered person to perform the work and then Dr Fraser's practice making the claims on Patient A's health insurance for his benefit.
We are also not persuaded that the action taken by Dr Fraser after the complaints were made against him to cancel or repay the health insurance claims are in any way mitigating factors. He should never have allowed such a fraudulent practice to operate under his watch.

Findings

For the purposes of this Stage II, and our consideration of whether to make protective orders, we make the following findings: 1. The dentistry work which Dr Fraser allowed Mr Pegios to perform was regarded by him as complex or difficult. Dr Fraser usually referred such work to a specialist. 2. However, the root canal treatment which was undertaken was within Dr Fraser's skill set. 3. Dr Fraser was in part motivated to help Patient A because she had told him she could not afford treatment by a specialist. 4. Dr Fraser himself could have helped Patient A, the single mother, by performing the work which was within his skill set. 5. Dr Fraser, however, chose not to do so for the reasons he expressed to Dr Samuels, namely that it would be too time consuming. The "help" he was extending to Patient A was thus very much qualified. It consisted in essence of passing onto Mr Pegios the task of helping, with consequential risk. 6. Dr Fraser did so whilst he held the view that Mr Pegios did not have special skills in that area as he had been a general dentist not equipped for complex dentistry. 7. Dr Fraser believed that Mr Pegios could do the work but had no valid basis for such belief, never having seen Mr Pegios perform any dentistry before. 8. Dr Fraser had the belief that Patient A knew that Mr Pegios had been struck off from the Register of Dentists but does not state the basis for that belief and made no enquiry of Patient A to verify the extent of her knowledge. 9. Dr Fraser also held the view that Mr Pegios had been negligent in the treatment of his previous patient who had died. 10. Dr Fraser gave no consideration to the fact that Mr Pegios did not and could not have professional indemnity insurance, the absence of which could severely impact on Patient A if what Mr Pegios was proposing to do, and was doing, went wrong. 11. Dr Fraser exposed Patient A to risk but did not consider the question of risk, did not warn Patient A of the risk of Mr Pegios performing the work, and did not warn her of the consequences of Mr Pegios not having professional indemnity insurance. 12. By allowing Mr Pegios to perform dental work on his patient, Dr Fraser was fundamentally undermining the action taken by the regulatory regime in 2010 to protect the public from someone who was considered a risk to the public. Dr Fraser gave no consideration to that issue. 13. Dr Fraser did not consider the inappropriateness of allowing someone who was his patient to treat one of his own patients. 14. Dr Fraser did not reconsider his poor judgment after the treatment commenced but allowed the dental work to be performed, to his knowledge, over a period of some months and a moment of reflection should have alerted him to the fact that he should not be allowing this to continue. 15. Dr Fraser did not reflect on the need to ask colleagues, such as those who have provided references for these proceedings, and all of whom appear to have the view that his conduct breached professional standards and was unacceptable, about the appropriateness of the course that he was about to engage on. 16. The poor judgment displayed by Dr Fraser thus extended to multiple layers including undermining the regulatory regime, undermining the safety of his own patient, breaching codes of conduct and not recognising professional boundaries vis a vis his patient and Mr Pegios. 17. In addition, Dr Fraser permitted what was fraudulent conduct, namely, claims against Patient A's health fund to be made in his own name for work performed by Mr Pegios. 18. Dr Fraser has shown limited insight into the improper and unethical fraudulent claims he allowed to occur against Patient A's health insurer. His evidence was that the claims made for four treatments "should not have occurred", an understatement, and that he had reimbursed the payments received. That evidence falls short of demonstrating the requisite insight into this element of his conduct even taking into account the ethics and ethical decision-making program subsequently undertaken. 19. The evidence before us does not satisfy us that this fraudulent conduct is, or could be, attributed to the countertransference identified by Ms McCredie.
We accept that Dr Fraser is remorseful and sincerely regrets the conduct which he himself described as "stupid".
There is some tension between the character evidence and the evidence of Ms McCredie. Ms McCredie attributes Dr Fraser's desire to help people to countertransference, an unconscious bias towards helping a single mother. To that extent it appears to be a character trait identified by her.
On the other hand, the character references speak of Dr Fraser's conduct as found by the Tribunal as "out of character".
As a result, we are not assisted by those opinions by the character witnesses who also did not have the explanations given by Dr Fraser for not performing the treatment himself as described to Dr Samuels.
We also accept that Dr Fraser has taken some steps to avoid a repeat of his conduct. He is unlikely to repeat the conduct the subject of the established complaints.
However, the degree to which Dr Fraser has overcome his need to help others in conflict with his professional obligation and the countertransference identified by Ms McCredie appears from the evidence of both Dr Samuels and Ms McCredie to remain a work in progress even though he has made considerable progress in understanding the underlying psychological factors contributing to his unsatisfactory professional conduct.

Suspension or Cancellation

The Applicant submitted that cancellation is needed to denounce the practitioner's gravely serious misconduct as found by the Tribunal at [64].
It was also submitted that cancellation is needed because the Tribunal cannot be satisfied that the practitioner has demonstrated genuine insight and that the Tribunal cannot be satisfied that the practitioner's character is truly reformed.
The Applicant further submitted that cancellation is needed because the Tribunal cannot be satisfied that Dr Fraser has completed meaningful rehabilitation to address risk taking behaviour and drew attention to the fact that Dr Fraser took a risk when he permitted a de-registered person to use his practice on 13 September 2019, a further risk when he permitted Mr Pegios to use his practice on 20 September 2019, a further risk when he permitted Mr Pegios to use his practice on 30 October 2019 and the fact that he did not consider the risk or the possibility that the procedure would not go well.
The Applicant drew attention to the evidence that Dr Fraser is beginning to address his issues with his psychologist and that he is struggling to understand why he acceded to the de-registered person's request.
The Applicant stressed that the conduct engaged in by Dr Fraser was high risk.
Dr Fraser argued that the reasons for any departure from the required standard of conduct is important and that here Dr Fraser suffered from previously unrecognised vulnerabilities (as identified in the psychologist evidence we have quoted above).
It was argued that there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective orders including a reminder to other members of the profession and the public interest in maintaining high professional standards.
Dr Fraser also argued that in determining the appropriate orders the Tribunal is required to consider the whole of his conduct (Gad v Health Care Complaints Commission [2002] NSWCA 111 (at [55])).
Dr Fraser also submitted that it ought to be noted that general deterrence is an element, not the object of the protective orders to be made. A period of suspension from participation in the profession (and of income earning activity), and the ignominy of adverse findings on the public record are all matters that would deter other practitioners from engaging in like conduct.
Attention was drawn to other examples where a serious failure to adhere to standards of required conduct did not result in cancellation but suspension. The cases referred to, namely, Health Care Complaints Commission v Soper [2019] NSWCATOD 168 and Health Care Complaints Commission v Selim [2021] NSWCATOD 27, were relied upon. In our view, neither of those cases are of any assistance as there are very different circumstances applicable in each case.
The essential contest here is thus, whether suspension as opposed to cancellation will meet the protective purpose of the National Law.
We have concluded, on balance, that suspension will not do so for the following reasons: 1. The seriousness of the conduct as identified in the Reasons at [64] which warrants cancellation. 2. The findings we have made in this Stage II proceeding at [62] including the risk, physical and financial, of harm to the patient in Dr Fraser's care, the fraudulent conduct not accounted for by the vulnerabilities relied upon all of which adds to the seriousness of the conduct. 3. The direct and significant disregard for, and undermining of, the regulatory regime, namely, the cancellation of the registration of Mr Pegios meaning that he was not entitled to practise as a dentist but Dr Fraser knowingly allowing that to occur, conduct which was completely at odds with what is expected of a registered dentist. The degree of departure from the standards is expected from registered practitioners is significant. 4. The significant weight to be given to the component of upholding public confidence in the profession and the regulatory regime, in this case sending a message that the regulatory regime is there to uphold public confidence in the profession and reinforcing high professional standards. 5. The weight to be given to general deterrence which in this case looms large, a very clear and firm message to the profession that conduct of the kind engaged in is regarded as very serious and will result in cancellation of registration if engaged in. 6. We reject Dr Fraser's submission that suspension and the ignominy of adverse findings on the public record would be sufficient to deter other practitioners from engaging in like conduct. In our view, a stronger message is required to ensure such conduct does not occur. 7. The subjective circumstances or features identified in the evidence, the tendency to want to be helpful are, in our view, outweighed by the matters identified above. 8. Although it is unlikely that Dr Fraser will do precisely the same thing in the future there is, in our view, an element of specific deterrence required whilst he continues his therapy to avoid his apparent inability to say no in circumstances where he wishes to be helpful and completely overcome the vulnerabilities that have been identified in the therapy received. 9. The absence of real insight into the seriousness of the fraudulent conduct engaged in. 10. The need for strong denouncement of all of the conduct by cancellation.
An order short of cancellation in the circumstances of this case will not, in our view, achieve all the elements of the protective jurisdiction to be considered consistent with the provisions of the National Law directed at the protection of the public from the misconduct of health practitioners. The principles outlined above support cancellation. A combination of factors in the findings that have been made in Stage I and Stage II mean that when considering the whole of Dr Fraser's conduct cancellation is not, in our view, unreasonable or disproportionate in the circumstances.

Non-review Period

The purpose of a non-review period is to protect the public.
The Tribunal is permitted by s 149C(7) of the National Law to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] per Payne JA, Basten and Leeming JJA agreeing).
The fixing of a non-review period does not lend itself to an arithmetical process. It is a process of instinctive synthesis in which relevant factors are identified and then weighed as a whole using the specialist experience and knowledge of the Tribunal (see Shelley v Nurses and Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 at [37] - [39]).
As to setting the period in which an application for re-registration is prohibited the Tribunal in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94] ("Luque") noted: "The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307." ("Chen")
The Applicant submitted that a 12 month non-review period is needed to send a clear message of denouncement of the practitioner's conduct, particularly exposing his patient to risk of harm on four separate occasions, compromising patient safety and the integrity of his role as a health professional. A 12 month non-review period would also act as a deterrent to other members of the profession and maintain public confidence and professional standards. A non-review period of 12 months will also allow the practitioner further time to demonstrate whether he has gained genuine insight, completed meaningful rehabilitation and demonstrated reformation of character to practise in a competent and ethical way.
Dr Fraser argued that even if cancellation of registration were determined to be appropriate the additional order that Dr Fraser not be entitled to apply for re-registration for a period of 12 months was not demonstrated as necessary. It was submitted that were the Tribunal minded to propose an order of cancellation, it would not also impose a non-review period.
In support of that submission it was said that even where there is no period of non-review, the duration of the cancellation would not be insignificant. Once a cancellation order is made it endures (s 149E of the National Law) until a successful application for reinstatement order, a lengthy process involving a hearing before the Tribunal, a successful application to re-register is made pursuant to s 163B of the National Law.
We do not accept these submissions. This is a case which, consistent with our findings, and the principles outlined above requires a non-review period.
We consider a period of 12 months as the appropriate period. An order to that effect will be made. First, that period reflects the seriousness of the Respondent's conduct (Chen at [88]).
It will also allow Dr Fraser to continue his treatment program to strengthen his ability not to be influence by others, and further time for reflection and development of his insight into his fraudulent conduct. It will also add to the deterrent effect of the Tribunal's orders. Dr Fraser should also be in a position to ensure that he is in a position to apply for a reinstatement order at the end of the period of cancellation so that the delay thereafter should not be extensive.
Dr Fraser no doubt has patients currently under his care and although he has, as stated in evidence, recognised that suspension or cancellation of his registration could occur he nonetheless will need some time to make arrangements for the care of those patients. We will therefore allow a period of 21 days before our orders take effect.

Costs

The Applicant seeks an order for costs. The Tribunal has the power to order that the practitioner is to pay its costs and the general rule is that costs will follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] - [46]).
Dr Fraser did not challenge the Applicant's application for an order for costs.
In our view, there is no disentitling conduct on the part of the Applicant to warrant a departure from the general rule, and accordingly, there will be an order that the Respondent pay the Applicant's costs as agreed or assessed.

Orders 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the registration of Dr Cary Anthony Fraser as a Dentist is cancelled within 21 days of this order with a non-review period of 12 months. 2. The Respondent is to pay the costs of the Applicant pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 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: 29 November 2024

Medical Practice Act 1992(NSW)

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