Health Care Complaints Commission v Gupta - [2019] NSWCATOD 29 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Gupta

[2019] NSWCATOD 29

NCAT Occupational|2018-10-15

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Court

NCAT Occupational

Decision date

2018-10-15

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Introduction

Dr Hitesh Gupta is a registered dentist practising in Broadmeadow NSW. He graduated with the degree of Bachelor of Dental Surgery from the University of Sydney in 2004. After graduating he worked at dental surgeries in Sydney and Toronto, and, from November 2007 to October 2015, at Charlestown Dental Centre. In October 2015 he set up his own practice, where he now works with two other dentists.
On 28 November 2017 the Health Care Complaints Commission (the HCCC) applied to the Tribunal for disciplinary findings against Dr Gupta under the Health Practitioner Regulation National Law (NSW) (the National Law).
The HCCC relied on three complaints, complaints 1 and 2 being that Dr Gupta was guilty of unsatisfactory professional conduct in respect of his treatment of two young patients, and in relation to the adequacy of his clinical records. Dr Gupta admitted the particulars of both complaints, and admitted that as contended in complaint 3 based on the particulars of those complaints he was guilty of professional misconduct.
The HCCC was granted leave to amend the complaints to add two further complaints. On 7 September 2018 we published reasons, finding that additional complaint 3 was not proven, and additional complaint 4 was established: Health Care Complaints Commission v Gupta [2018] NSWCATOD 153.
A further hearing was held in respect of protective orders. The HCCC is seeking orders cancelling Dr Gupta's registration, and that he not be entitled to apply for reregistration for a period of at least 12 months, and that he receive a reprimand. The following are our reasons for the protective orders we have decided to make, which are that Dr Gupta be reprimanded and that conditions continue to be placed on his registration.

[2]

Background

Complaints 1 and 2 made by the HCCC were that Dr Gupta was guilty of unsatisfactory professional conduct under s 139B of the National Law in relation to the treatment he provided to Patient A on 14 and 18 November 2015, and to Patient B on 11 and 19 November and 9 December 2014, respectively. As detailed in the particulars to each complaint, the allegation in both cases related to Dr Gupta's prescription and/or administration to those patients of the drug Lorazepam in the course of his treatment, and his failure to keep adequate clinical records. Patient A was aged 2 and Patient B was aged 7 at the time of treatment. Both patients suffered an adverse reaction to the drug which required hospitalisation. The third complaint was that if the particulars of the two complaints were established Dr Gupta was guilty of professional misconduct under s 139E of the National Law.
As noted above, in his Reply to the complaints filed 9 May 2018 Dr Gupta admitted each of the three complaints brought by the HCCC and the particulars of each complaint. The hearing on 9 July 2018 proceeded as a stage 2 hearing, with the hearing of evidence relevant to the issue of what protective orders should be made under Part 8 of the National Law. Oral evidence was given on 9 July 2018 by Dr Gupta, and by Dr Edward Kosy, a specialist orthodontist with whom Dr Gupta had worked.
Conditions had been imposed on Dr Gupta's registration by the Dental Council (the Council) under s 150 of the National Law on 9 February 2016 following a hearing on 21 December 2015. Those conditions included conditions that he not prescribe Schedule 8 or Schedule 4D drugs to patients under the age of 15 receiving dental treatment; and that he practise under supervision, consult his supervisor as required and meet with his supervisor at least monthly, and ensure that his supervisor provided a report to the Council at least every three months.
On the second day of the hearing the HCCC sought, and was granted, leave to amend the application to add two additional complaints relating to Dr Gupta's compliance with the conditions imposed on his registration under s 150 of the National Law.
Additional complaint 3 was that Dr Gupta was guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law in failing to comply with the condition that he meet with the appointed supervisor at least monthly to review his practice. Additional complaint 4 was that Dr Gupta was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in failing to inform the Council when he became aware that a number of the supervision reports submitted to the Council, as required by those conditions, contained false information. The original complaint 3, asserting that Dr Gupta's conduct constitutes professional misconduct under s 139E of the National Law, became complaint 5, that relying on the particulars of complaints 1, 2, 3 and 4 Dr Gupta is guilty of professional misconduct under s 139E of the National Law in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, or had 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 suspension or cancellation of his registration.
The hearing proceeded on 10 July 2018 as a stage 1 hearing on the additional complaints 3 and 4, hearing oral submissions from the parties' representatives. No further evidence was led. The matter was adjourned on the basis that the Tribunal would make findings on those additional complaints, with further written submissions from the parties, and the matter would then be re-listed for hearing and determination of the appropriate protective orders.
On 7 September 2018 we published the reasons for our decision to grant leave to amend to add the additional complaints, and for our findings that additional complaint 3 was not made out, and that additional complaint 4 was proved: Health Care Complaints Commission v Gupta [2018] NSWCATOD 153.
The hearing resumed on 15 October 2018 as a stage 2 hearing, the parties' representatives having provided written submissions in respect of protective orders and costs. As discussed at paragraphs [30]-[32] in the reasons published on 7 September 2018, the supervisor appointed in March 2016 pursuant to the conditions imposed by the Council under s 150 of the National Law had notified the Council shortly before the first hearing that he was withdrawing as supervisor. Dr Rouel Vergara was appointed as Dr Gupta's supervisor on 23 July 2018, and his supervisor report to the Health Professional Council Authority dated 27 September 2018 and a statement dated 5 October 2018 were tendered. Dr Vergara and Dr Gupta gave oral evidence at the hearing on 15 October 2018.
The parties' representatives made submissions as to the appropriate protective orders. The decision was reserved, with directions for the parties to provide written submissions as to what conditions might be appropriate to impose on Dr Gupta's registration. Those submissions have been provided.
The reasons of 7 September 2018 provide the full particulars to the original and additional complaints; the background to the proceedings, including the circumstances in which the Australian Health Practitioner Regulation Authority (AHPRA) was notified of the allegations concerning Patient A, and the s 150 proceedings in December 2015 in which the Council imposed conditions on Dr Gupta's registration; the applicable legislation; and the evidence as to the supervision relationship and reporting by Dr Kurian to the Council. Those reasons should be read together with these reasons.
Dr Gupta had admitted all the particulars of complaints 1, 2 and the original complaint 3. The reasons of 7 September 2018 do not address in detail the evidence relating to complaints 1 and 2, and it is necessary to confirm our findings in relation to those complaints.

[3]

Complaint 1

On 23 November 2015 AHPRA received a mandatory notification by a paediatric dentist, Dr Cornwell, alleging that in November 2015 Dr Gupta inappropriately prescribed Lorazepam (Ativan) to a two year old patient who later presented at John Hunter Hospital Emergency Department exhibiting a reaction consistent with an overdose (Patient A). Dr Cornwell stated that the medication prescribed is a long-acting antianxiolytic used for adults, for whom the recommended dose is 2-3mg per day as a divided dose. Its use in paediatrics at any dose is not considered routine within the dental or anaesthetic community, and MIMS advice states that its safety and effectiveness have not been established in children less than 16 years of age. The result of the administration of two 1mg tablets to a 2 year old was a reaction consistent with overdose, which MIMS describes as usually manifested by degrees of central nervous system depression ranging from drowsiness to coma. In her notification Dr Cornwell said that a review of her own clinical notes for other patients who had seen Dr Gupta in another location suggested that this was not an isolated instance and that a hospital admission had been required for another patient as well.
The Emergency Department Discharge notes from John Hunter Hospital (ex A1, tab 47) confirm that Patient A was admitted on 18 November 2015, having an adverse reaction to Lorazepam, and was discharged early the following day.
On 21 December 2015 the Dental Council of NSW (the Council) held a hearing in proceedings under s 150 of the National Law in response to the notification of 23 November 2015. Dr Gupta was legally represented at those proceedings.
Dr Gupta gave oral evidence to the Council as to the circumstances in which he prescribed Lorazepam to Patient A, his reasons for not referring Patient A to a paediatric dentist or a hospital, his prescribing practice, and his record keeping. That evidence, as recorded in the transcript of the Council proceedings (ex A1 tab 32), was consistent with his evidence to the Tribunal.
In the Tribunal proceedings Dr Gupta provided a statement dated 30 April 2018, and gave oral evidence on 9 July 2018. In his written statement Dr Gupta stated that Patient A had been brought to the practice on 14 November 2015 by her mother, stating that she was in pain and could not eat. It was difficult to assess Patient A as she was wriggling. He told Patient A's mother he could not treat her because she was moving too much and suggested referral to a paediatric dentist; the mother said she could not afford that treatment. He discussed the treatment required and that Patient A would need to be sedated. He wanted to help but could not safely perform any procedure while the patient was moving around, and he could not administer a sedative through a mask given Patient A's active nature. He looked up the Australian Medicines Handbook and it seemed Lorazepam was the most suitable option because in limited circumstances it could be used pre-surgically, and he prescribed 1mg Lorazepam to be taken 1 hour before Patient A's dental appointment. He prescribed oral antibiotics to treat the infection under the tooth.
On attending the surgery on 18 November 2015 Patient A was very energetic despite having taken the 1mg Lorazepam tablet. He suggested a second tablet which was given to Patient A by her mother. The treatment did not proceed because there was no sedative effect after 60 minutes. Patient A's mother phoned the surgery 5 days later to say that Patient A had been treated at hospital and had recovered.
Dr Gupta addressed in his statement each of the particulars to the first complaint, conceding each of them. In doing so, he acknowledged that he did not adequately assess Patient A when prescribing the medication, based on age and weight; he did not have adequate knowledge in relation to benzodiazepines, or provide instructions explaining the nature and risk of that treatment; he did not arrange adequate follow up care; he was not aware of his limitations regarding the pharmacological aspects of treating paediatric patients; he made an incorrect assumption that if Lorazepam was unsuitable for paediatric use the pharmacist would not have administered the medication or would have informed him; and he failed to make and keep adequate clinical records.
Dr Gupta stated that he has since undertaken further training and studies, providing in Annexure A to his statement a list of courses undertaken. Those courses include the Australian Dental Association (ADA) courses Managing Patients with Drug Allergies, Pain and Anxiety Control in the Dental Office, Paediatric Dentition, Therapeutic Dental Prescribing Guidelines Update, Comprehensive Pharmacotherapeutics within the Scope Of Dentistry, Safer Prescribing for General Dental Practitioners, and Paedodontics Update. He stated that he now provides printed instructions on all medications prescribed including the Consumer Medication Information and an information sheet for treatment with nitrous oxide; he obtains informed consent; and he now provides his personal mobile number for after-hours emergencies and contacts the parent/carer the day after treatment for follow up. He will never again attempt to provide treatment on paediatric patients who cannot be treated under nitrous oxide and need treatment under general anaesthesia, and now refers to a paediatric dentist. He has changed the way in which patient records are updated during an examination and at the end of an appointment.
Dr Gupta stated that he recognises that in prescribing Lorazepam to Patients A and B he made serious errors of judgment, with serious consequences for the patients. Since he was confronted with these issues by the Council on 21 December 2015 he has worked hard and believes he has taken all steps open to him to ensure he never again makes such a serious error of judgment.
In oral evidence to the Tribunal on 9 July 2018 Dr Gupta was taken through his prescribing practice for paediatric patients. He acknowledged that he had not referred to weight for age tables for Patient A, and that he now consults the Australian Medicines Handbook paediatric dosing companion to be able to get the right dose. He previously would base his prescription on what is readily available and from talking to other dentists. When asked about what he would do if faced with a 2-3 year old with similar symptoms to Patient A, Dr Gupta outlined the references he could use. He can do a lot of treatment with the aid of nitrous oxide and that is where he will stop. He administers nitrous oxide once or twice a week, very rarely for adult patients, on discussion with the parents.
Asked how he arrived at the decision to prescribe Lorazepam to Patient A, Dr Gupta said that he was not able to look in her mouth or take x rays or clinical photos, and he knew that he would not be able to use nitrous oxide because she was not going to be compliant. He had used benzodiazepines for adult patients before, and most are not suitable for paediatric use. The Australian Medicines Handbook said that Lorazepam can be used in certain circumstances, 1mg was the lowest you could prescribe. He did not consult weight for age tables.
The HCCC relied on an expert report dated 11 March 2017 provided by Dr Gautam Sridhar (ex A1, tab 8). Dr Sridhar commented: 1. Dr Gupta's assessment of Patient A was cursory, and his clinical notes did not record any discussion about her asthma status, which would require additional precautions prior to all sedation; or whether there was any discussion about the use of the oral sedative; and there was no record of what Dr Gupta stated to be a swelling adjacent to one of her teeth, information that would have been critical to the formation of a treatment plan; 2. Dr Gupta's overall management plan was completely inappropriate as he had not assessed the patient's age, medical history, signs and symptoms and potential complications; 3. In his choice of the medication Lorazepam for Patient A Dr Gupta was unaware of appropriate guidelines of various training organisations, sought out only basic information, and did not analyse the clinical situation scientifically. The primary booklet used in Australia, Therapeutic Guidelines (Oral and Dental) does not advocate the use of Lorazepam. Through his lack of scientific knowledge and lack of training in medical emergencies he placed the life of a two year old child at risk; 4. Dr Gupta did not follow the most basic steps in oral sedation in provision of information, obtaining informed consent, and monitoring, and departed from all current safe and accepted protocols; 5. Dr Gupta's decision not to proceed with treatment of Patient A was appropriate; 6. Dr Gupta's decision to treat Patient A under oral sedation without referral to a paediatric dentist was significantly below an acceptable standard; and 7. Dr Gupta had little in the way of follow up care for Patient A and did not recognise the seriousness of the situation, and this aspect was significantly below the standard expected of someone with his training and experience.
Dr Sridhar graduated B.D.S (Hons) from the University of Sydney in 1999, and obtained a graduate certificate in Dentistry from the University of Adelaide in 2006, and he has had academic experience and has been in practice since 2003. The documents provided to Dr Sridhar included the mandatory notification relating to Patient A, Dr Gupta's clinical notes, and hospital records for Patients A and B, and the transcript of the s150 proceedings. Dr Sridhar was not required for cross examination.
The Tribunal accepts Dr Sridhar's evidence that Dr Gupta's conduct was significantly below the standard expected from a practitioner of equivalent level of training or experience. Dr Gupta acknowledged to the Council in December 2015 that he had failed to provide adequate care for Patient A in relation to his prescription and administration of Lorazepam on two occasions. His admission in his evidence to the Tribunal to all the particulars of complaint 1, including the inadequacies in his clinical records, is consistent with that acknowledgement. The Tribunal is satisfied that Dr Gupta's conduct was, as he accepts, significantly below the standard of knowledge, skill and judgment possessed and care exercised that is reasonably expected of a practitioner of an equivalent level of training or experience, and the complaint that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law is made out.

[4]

Complaint 2

Patient B was the other paediatric patient referred to in Dr Cornwell's notification to AHPRA. In a statement provided to the Council before the s150 hearing Dr Gupta said he recalled having prescribed a benzodiazepine for another child in 2014 when he was at his previous place of practice as an employed dentist. In his oral evidence at the Council hearing Dr Gupta provided some details of his treatment of Patient B, stating that he had seen this patient at the previous surgery where he worked and did not have access to his records. He recalled that Patient B was five to ten years old; he prescribed benzodiazepines; and the mother came back saying she had lost the script, and another dentist at the practice provided a script. Patient B took the medication an hour before the treatment, and he did the treatment, and discharged the patient.
The clinical notes from Charlestown Dental Care, where Dr Gupta worked from 2007 to October 2015, confirm that Dr Gupta saw Patient B on 11 November 2014, and carried out treatment on 19 November 2014 and 9 December 2014, both times using nitrous oxide; and that another dentist prescribed Temazepam at the request of Patient B's mother on 19 November 2014 (ex A1, tab 48). Medical records from John Hunter Hospital (ex A1, tab 50) confirm that Patient B presented at Emergency on the evening of 9 December 2014, with what was recorded as side effects of Lorazepam, and was discharged on 10 December 2014.
In his statement of 30 April 2018 Dr Gupta stated that he had prescribed Lorazepam for Patient B after her mother said she would prefer that he treat her rather than referring to a paediatric specialist, as she could not afford it. He could not recall how much medication Patient B had had on the first date of treatment on 19 November 2014. On the second day, 9 December 2014, he administered Lorazepam rather than Temazepam since that had had very little sedative effect. Until he received correspondence from the HCCC he was not aware that Patient B had been taken to hospital or had suffered any adverse reaction. He accepted that once the paediatric referral was refused he should have referred Patient B to hospital rather than attempting to treat her himself.
In oral evidence to the Tribunal on 9 July 2018 Dr Gupta said that he had no independent recollection of how he came to treat Patient B with Lorazepam, but assumed it would have been the same process as for Patient A.
In his expert report of 11 March 2017 Dr Sridhar addressed Dr Gupta's treatment of Patient B in November and December 2014. In Dr Sridhar's opinion: 1. Dr Gupta's decision to perform the procedure on 19 November 2014 on Patient B, in isolation, was appropriate, however it was extremely concerning that the patient had been given an oral sedative agent whose name and dosage could not be identified by Dr Gupta. Dr Gupta had prescribed 2mg of Lorazepam, and Dr Agarwal prescribed Temazepam, both prescriptions being entirely inappropriate without having protocols in place for written information, informed consent, dispensing and monitoring; 2. In his choice of the medication Lorazepam for Patient B Dr Gupta was unaware of appropriate guidelines of various training organisations, sought out only basic information, and did not analyse the clinical situation scientifically. The primary booklet used in Australia, Therapeutic Guidelines (Oral and Dental) does not advocate the use of Lorazepam. Through his lack of scientific knowledge and lack of training in medical emergencies he potentially placed the life of a seven year old child at risk; 3. Dr Gupta did not follow the most basic steps in oral sedation in provision of information, obtaining informed consent, monitoring the dispensation and compliance with the use of oral sedatives, and monitoring after the procedure had been completed. It was unknown if Dr Gupta analysed Patient B's suitability for using inhalation sedation, or whether he analysed if it was appropriate to use oral and inhalational sedation in combination in a child whose weight he did not know. Dr Gupta departed from all current safe and accepted protocols; 4. Dr Gupta did not record in his clinical notes any mention of the patient's history of osteomyelitis and associated long term antibiotic usage and if an appropriate history had been taken that may well have prompted a referral to a paediatric dentist. He also failed to recognise the limitations of his skill set regarding oral sedative medication and if he felt Patient B required oral sedation then a referral would have been appropriate. Dr Gupta's clinical judgment in treating the patient under oral sedation without referral was action significantly below an acceptable standard; 5. Dr Gupta's clinical records were manifestly inadequate, with no record of discussion of medical history, clinical findings, diagnostic tests, medications prescribed or any of the discussion part of the informed consent process, and little recording of what happened in the treatment appointments.
The Tribunal accepts Dr Sridhar's evidence. Based on that evidence, and Dr Gupta's admissions and evidence to the Tribunal, the Tribunal is satisfied that complaint 2 is made out. Dr Gupta's failure to provide adequate care for Patient B in relation to his prescription and administration of Lorazepam in the course of his treatment, and his failure to maintain and keep adequate clinical records, is conduct that was, as Dr Gupta accepts, significantly below the standard of knowledge skill and judgment possessed and care exercised reasonably expected of a practitioner of an equivalent level of training or experience. That conduct constitutes unsatisfactory professional conduct under s 139B(1)(a) of the National Law.

[6]

Complaint of professional misconduct

Original complaint 3 was that Dr Gupta is guilty of professional misconduct under s 139E of the National Law, relying on complaints 1 and 2 and the particulars of those complaints. After the amendment to the complaints, complaint 5 is that Dr Gupta is guilty of professional misconduct, relying on complaints 1, 2, 3 and 4 and the particulars of those complaints.
The Tribunal is satisfied that findings of unsatisfactory professional conduct in relation to complaints 1 and 2, as admitted, are justified on the evidence and the Tribunal accordingly confirms those findings. The Tribunal found, for the reasons provided on 7 September 2018, that complaint 4 was proven and that Dr Gupta is guilty of unsatisfactory professional conduct.
Professional misconduct is defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: 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).
Dr Gupta's conduct as particularised in complaints 1 and 2 put two small children at significant risk, and resulted in their hospitalisation. Dr Sridhar concluded in his expert report that Dr Gupta's knowledge of and his practice of dentistry in relation to oral sedation of children was manifestly inadequate; that despite being subject to conditions imposed by the Council, he had shown little in the way of initiative to correct his significant deficiencies including paediatric risk management and use of sedation; and that his overall management of Patients A and B was completely inappropriate. Having regard to the comprehensive failures in Dr Gupta's management of his treatment of Patients A and B, his lack of knowledge as to appropriate sedation, and his failure to maintain and keep clinical records that provided sufficient information to ensure informed consent, and in the context of the serious adverse consequences for his two patients, the Tribunal finds that Dr Gupta's conduct was unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration in respect of each of complaints 1 and 2.
At paragraph [74] of the reasons of 7 September 2018 we found that we were satisfied that the unsatisfactory professional conduct found in relation to complaint 4 may not of itself be of a sufficiently serious nature to fall within the definition of "professional misconduct" under s 139E. While Dr Gupta did not actively contribute to the provision of inaccurate information to the Council, and as accepted by the HCCC did not create the inaccurate records sent to the Council, his failure to inform the Council when he became aware of that was a failure to conform to expected ethical standards. When that failure is considered together with the instances in complaints 1 and 2, we are satisfied to the requisite standard that Dr Gupta is guilty of professional misconduct as contended in complaint 5.

[7]

What protective orders could be made

Having found that complaints 1, 2, 4 and 5 against Dr Gupta as set out in the original complaint filed on 28 November 2017 as amended on 10 July 2018 have been proved, the Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
The Tribunal may suspend or cancel Dr Gupta's registration, as it has found that he is guilty of professional misconduct: s 149C(1).
The power to make protective orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 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.
In Health Care Complaints Commission v Piper [2014] NSWCATOD 62, the Tribunal said: 48. The Tribunal's power to make protective orders when a complaint is proven is set out in sections 149A-C of the National Law. The Tribunal's jurisdiction is protective rather than punitive. As such, the object of protection includes deterring the practitioner from repeating the conduct and significantly, in this case, deterring others who may consider engaging in similar conduct (NSW Bar Association v Hamman (1999) NSWCA 404. As noted by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340: "There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding the vulnerability of many who may require such services."
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 s3. 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: s3A.
The principles guiding the determination of the appropriate protective orders were summarised in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 in the following terms: 88. In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - 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 v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].
While the Tribunal has found that Dr Gupta is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case.

[8]

HCCC submissions

The HCCC submits that the appropriate protective order is that Dr Gupta's registration be cancelled, and that he not be entitled to apply for reregistration for a period of at least 12 months, and that he be reprimanded. The HCCC accepts that Dr Gupta has made full admissions, has expressed remorse, and has been contrite, and has taken some steps to attempt to rectify the issues in his practice. However, he has not offered any real insight into why he prescribed inappropriate drugs to children on two occasions or why he kept inadequate clinical records. He exhibited a concerning lack of knowledge as to the effects of the interaction between antibiotics and other medications, and an alarming misunderstanding in respect of the role of pharmacists. The proven misconduct is serious: he put the lives of two children at risk, compounded the error by keeping inadequate records, and demonstrated a lack of the requisite candour and honesty with the relevant regulatory authority, and he has been unable to offer any reasonable insight into why or how these lapses occurred. In addition to protecting the health and safety of the public, cancellation would have the effect of maintaining high standards in the profession by deterring the general body of practitioners from engaging in such conduct and maintain public confidence. In addition to cancellation a reprimand with respect to the findings of unsatisfactory professional conduct would assist in ensuring that Dr Gupta recognises the gravity of his conduct with respect to those complaints, and provide an indication to other practitioners that this conduct is serious and unacceptable.
In the absence of an order cancelling Dr Gupta's registration, the HCCC submits that Dr Gupta should be suspended for a short period of 3-6 months, with certain conditions placed on his registration. Suspension would protect the health and safety of the public, which is a paramount consideration under s 3A of the National Law, by sending a strong signal to the profession and the public of the gravity of Dr Gupta's conduct in inappropriately prescribing Lorazepam to children, in not demonstrating the requisite level of candour and honesty with the regulatory authority, and in not keeping adequate clinical records. Suspension would deter other practitioners from similar misconduct or lapses, and signal to the public that the conduct is unacceptable and has been denounced.
If the Tribunal does not consider suspension is an appropriate order, the HCCC submits that Dr Gupta should be reprimanded.
The HCCC notes that by operation of s 150H(2)(a) of the National Law the conditions placed on Dr Gupta's registration on 21 December 2015 have effect until "the complaint about the registered health practitioner …is disposed of", and accordingly will lapse once the Tribunal proceedings are finalised. The Tribunal will need to make fresh orders imposing conditions if it means for conditions to continue. The Council has requested that all the current conditions remain even though some have already been complied with.
The HCCC submits that the conditions should include: 1. Expanding the prescribing restriction to all patients rather than just patients under 15 years of age; 2. Requiring an audit of Dr Gupta's practice by a random selection of records within 3 months; and 3. Requiring that he complete the ADA courses Online Dental Records and Consent, and Drug Interactions Dentists Must Know or equivalent courses, and pharmacological, sedation and ethics courses approved by the Council.

[9]

Dr Gupta's submissions

Dr Gupta acknowledges that he has made serious mistakes but submits that they do not lead to the conclusion that he is probably permanently unfit to practice dentistry or that he is presently unfit to practice dentistry, and there is no warrant for cancelling his registration. Such action would be punitive and not protective and would not serve the object of deterrence. Dr Gupta submits that having regard to all of the evidence including his improvements to his practice, a reprimand and continuation of appropriate conditions is an appropriate sanction.
Dr Gupta submits that the Tribunal should be confident that cancelling his registration is not a necessary protective order to make in the circumstances of the case because: 1. Dr Gupta has demonstrated insight both into his mistakes and into his limitations, acknowledging from the start that his conduct in relation to Patients A and B was a "gross misjudgement". He has prioritised his professional development and education, accruing in the last 2 years over 200 hours in professional development in core competencies relevant to his daily practice. He regrets his errors explaining that it was his misguided desire to help his patients which led to his administering Lorazepam rather than referring the patients, and he has committed to making sure he is a better dentist; 2. In his practice over the last three years Dr Gupta has complied with the s150 conditions, including regular detailed discussions with his previous supervisor and his new supervisor Dr Vergara; 3. Dr Gupta has not been previously warned or disciplined, and had an unblemished record of practice prior to his treatment of Patients A and B in a practice spaning over 13 years. The Tribunal can be confident that the mistakes in relation to Patients A and B are isolated events or passing departures from otherwise proper compliance with professional standards rather than deliberate departures from acceptable standards; and that his mistake in failing to correct the errors in Dr Kurian's reports is an aberration and not evidence of a fundamental flaw in his character; 4. Dr Gupta has undertaken an extensive education program covering not only prescribing practices but most if not all aspects of general dentistry; the focus of the courses attended has changed since December 2015; and Dr Gupta is now a member of an active study group in Newcastle giving him access to a wider community of professionals in his discipline to enable him to be supported; 5. Dr Gupta has a far better appreciation of his limitations than was the case in 2014 and 2015; 6. Dr Gupta has changed his approach to: 1. treatment of paediatric patients, stating in evidence he would not attempt to do anything outside his scope of practice, which would include treatment (as opposed to examinations) of young children that could not be performed with the administration of nitrous oxide. He refers patients to an appropriate person, and he has changed his approach to obtaining informed consent; and 2. record taking, with longer appointments, and electronic and contemporaneous preparation of records; and 1. Dr Gupta's prescribing practices have changed, with a review of the patient's medical history, using the ADA resources on prescribing and discussions with Associate Professor Moses.
Dr Gupta does not oppose conditions being placed on his registration. He submits that: 1. the expansion of the prescribing restriction to all patients is inappropriate because there is no suggestion that Dr Gupta has engaged in inappropriate prescribing of Schedule 8 or Schedule 4 drugs other than the two children the subject of the complaint; he has repeatedly acknowledged the inappropriateness of prescribing Lorazepam to the children and demonstrated insight and understanding of why he erred; the protection of the public should specifically address the conduct under investigation and continuing the prescribing limitation for children under 15 provides the requisite assurance in relation to public safety; and the fact that the Council considers that the broader condition will make monitoring easier is not a reason to impose the condition; 2. the continuation of the conditions requiring Dr Gupta to surrender the relevant prescribing rights and provide evidence that he has done so are redundant and ought not be made, and the only way that Dr Gupta could ask for his authority back would be following consultation with the Council; 3. Dr Gupta has already completed the Online Dental Records and Consent Course and a condition requiring his completion of that course is not appropriate. He is content to undertake the Drug Interactions Dentists Must Know course.
Dr Gupta proposes a condition requiring him to complete Special Practice Courses on antimicrobial stewardship and appropriate antibiotic prescribing for treatment and prophylaxis in a dental setting (conducted by Dr Geraldine Moses or other approved equivalent presenter), and on medical and medication history taking, record keeping, prescribing and patient counselling (conducted by Professor I Meyers and Dr Moses or equivalent presenters).
The HCCC, on advice from the Council, proposes alternative wording that is not seen to be promoting particular education courses or persons, to require completion of education courses on appropriate prescribing (including drug interactions), sedation and ethics.
The HCCC proposes continuation of supervision, and conditions requiring Dr Gupta to ensure that the supervisor, and the auditor, provide reports to the Council. Dr Gupta submits that the requirement should be that Dr Gupta "take all reasonable steps" to ensure that the reports are provided.

[11]

Dr Gupta's evidence

In his statement dated 5 October 2018 (ex R4) Dr Gupta stated that he sends an email to Dr Vergara once a week containing a sample patient record from every day of that week for review, and a prescribing log and a log of paediatric patients; he has a follow up telephone call every weekend to discuss the logs and records; they talk on the phone when he has a general inquiry or for advice generally; and they have had two monthly meetings, the first with Dr Vergara attending his surgery and the second in West Gosford. Those monthly meetings last between 40 minutes to one hour.
Dr Gupta stated that he has attended a course on clinical records keeping hosted by Dental Compliance Australia, on the importance of obtaining consent and providing a checklist of how to obtain consent and what to include in clinical records. He now uses those checklists with his patients. He has also attended a dental prescribing course hosted by the Victorian branch of the ADA, and now uses "Pharma-advice" a national drug information service for ADA members. He has implemented the skills learned in these courses into his practice by extending appointment times, regularly conferring with colleagues in his practice about clinical issues, and all his staff now have emergency training.
Dr Gupta states that the entire experience has been extremely sobering and humbling for him, and has provided an opportunity for deep self-reflection and re-evaluation of his attitude and practice. His mistake in not informing the Council of the errors in Dr Kurian's reports as to the location of the meetings was a serious error, and he not only let himself down but let the profession down. He realises the ethical challenge, and appreciates that his actions may have led to a loss of the trust placed in him by the Council. He will attend an appropriate medical/dental ethics course to give him more resources. His practice has matured immensely in the last three years. He takes the complaints made by the HCCC very seriously, it was never his intention to mislead the Council, and he is thoroughly embarrassed and regretful for his actions.
In oral evidence Dr Gupta stated that his practice has changed since the first hearing, as he now takes a patient's weight into account in prescribing antibiotics and has taken on board the suggestion about considering dosage; his record keeping has improved. In response to questions about why he did not admit complaint 4 at the earlier hearing Dr Gupta stated that he did not really have time then to address it and understand the consequences. He now has insight into his failure to inform the Council, he did not appreciate at the time how important it was, and he now does.
In response to questions from the Tribunal Dr Gupta outlined his procedure for obtaining consent from patients. He stated that the courses he has done have filled in gaps. His antibiotic prescribing has decreased. He now hardly uses diazepam, and over the last six months has prescribed for two or three patients who have used it before, and he now monitors the patients after their appointment.
Dr Gupta provided copies of sample patient records (ex R5), discussed below.

[12]

Dr Vergara's evidence

In a statement dated 5 October 2018 Dr Vergara states that he has practised as a general dental practitioner in Australia since 2012, previously working in the dental industry in a variety of roles. He practises from his practice in Erina, with three associate dentists and five staff members. He has been an ADA mentor for two years, a committee member of the ADA professional support committee, and conducts regular lectures for continuing education for dental professionals. When he heard of Dr Gupta's situation he felt he had an obligation to the dental industry and wider community to assist. He has been supervising Dr Gupta since 21 July 2018.
Dr Vergara receives a report by email from Dr Gupta every Thursday or Friday which they discuss by telephone over the weekend. Dr Gupta sends weekly reports that include a sample clinical record of one patient per day, a prescribing log and logs of any attending paediatric patients for that week. They have had two meetings in person, each for approximately an hour. Dr Gupta calls or texts him during the week if he has general questions.
Dr Vergara states that he can see a clear improvement in Dr Gupta's record keeping, and he now keeps comprehensive and compliant clinical notes. His current records demonstrate a vast improvement and sound understanding of dental industry standards and requirements. On his review of Dr Gupta's reports he knows that he has only treated paediatric patients within a scope of preventative dentistry and has not prescribed any restricted medications to any child, and that he will only use nitrous oxide when treating paediatric patients. On review of Dr Gupta's prescribing logs since his appointment as supervisor he has not thought that Dr Gupta made an error or prescribed something to a patient that he would not have prescribed himself. He can see that Dr Gupta is continuously improving in terms of his knowledge and practice. Dr Vergara believes that Dr Gupta's error in failing to notify the Dental Council of the inaccuracies in the former supervisor reports was a lapse in judgment rather than a deceitful or dishonest act. He is confident that Dr Gupta is a safe dental practitioner who poses no threat to himself, his patients or the general public.
In oral evidence Dr Vergara stated that the improvement he has seen based on the content of Dr Gupta's current records is in comparison with the previous records, including in the options provided to patients, discussion of costs, and treatment plan. He has not observed Dr Gupta's clinical practice however from their discussions, his treatment is consistent with standards for example in referring patients to specialists. Dr Gupta's knowledge of pharmacology, and his prescribing practices for antibiotics, are within standards.
The supervision report dated 27 September 2018 provided by Dr Vergara to the Dental Council is in evidence (ex R3). That report includes a list of actions he and Dr Gupta plan to take to address any identified shortfalls in knowledge, skills, attitudes and behaviours, which includes continued weekly submission of clinical reports, notes, and prescription and paediatric logs; weekly communications; identification of courses to improve skills and knowledge; and monthly meeting to further support Dr Gupta.

[14]

Dr Gupta's Conduct

The unsatisfactory professional conduct and professional misconduct of which Dr Gupta is guilty were serious. His actions in prescribing and administering an inappropriate sedative put two young children at risk and resulted in their hospitalisation. The decision to prescribe that medication without properly considering whether it was appropriate; the failure to provide appropriate information, monitoring or follow up care; the failure to obtain informed consent; and the failure to keep adequate records, were all significant departures from the standard of care expected and required of a competent health practitioner.
Dr Gupta attributes his mistake in prescribing and administering Lorazepam to Patients A and B to lack of knowledge. That is disturbing, since by November 2014, when he treated Patient B, Dr Gupta had been practising as a dentist for ten years. At the time he treated Patient B he was working as principal dentist in Dr Edward Kosy's practice in Charlestown, before he established his own practice at Broadmeadow in October 2015, where he treated Patient A. His admitted failures to properly consider whether the medication was appropriate for a young child, and if so, what the appropriate dosage was given the age and weight of each patient; to properly advise the parents of either Patient A or B of the nature and risks of the medication and obtain informed consent; or to monitor either patient or provide adequate follow up care, were all failures to provide adequate clinical care.
Further, Dr Gupta's clinical records were manifestly inadequate, and failed, as explained in Dr Sridhar's expert report, to include detail of medical history and observations that would properly inform a treatment plan, or ensure that the explanation and information that would be required to establish informed consent was provided.
Dr Gupta's failure to inform the Dental Council when he became aware that reports provided by his supervisor as a condition of his continuing registration were inaccurate demonstrates a disturbingly poor understanding of his ethical obligations as a health professional, and was a substantial failure of judgment.

[15]

Dr Gupta's remorse and insight

Dr Gupta accepted, at the earliest opportunity in his evidence to the s 150 hearing, that he had made a mistake in relation to his treatment of Patients A and B. He has continued to express remorse for that mistake, and in his evidence on more than one occasion stated that he would ensure that it would not happen again.
The reasons of the Dental Council in its s 150 findings state that the delegates "apprehended a degree of arrogance and overconfidence" in Dr Gupta's actions. Dr Gupta denied that proposition when put to him in cross examination in his evidence to the Tribunal, stating that in his view it was not due to arrogance that he was prescribing those medications but was mainly due to lack of knowledge, and what he described as "a massive gap" in his knowledge around prescribing and pharmaceuticals. We did not discern from his evidence to the Tribunal arrogance or overconfidence, but rather a reliance on formulaic approaches to his practice and patient treatment, consistent with his acknowledged lack of knowledge and thought. That was demonstrated in relation to Dr Gupta's approach to antibiotic prescription. The prescribing records provided for the period 1 January 2013 to 8 August 2016 (ex A1, tab 29) show that Dr Gupta routinely prescribed Flagyl (metronidazole) 400mg three times a day rather than 200mg, and 500mg Amoxicillin rather than 250mg. In his oral evidence on 9 July 2018, notwithstanding his stated understanding of the risks of antibiotic resistance, Dr Gupta stated that he prescribed the higher dose of metronidoazole because it has been effective and periodontics colleagues stated that that is what they prescribe, and that he prescribed the strongest dose of Augmentin Duo Forte when he needed to give antibiotics to someone who had a pretty severe infection. He acknowledged that he relied on the pharmacist to give his patients specific instructions about the medications prescribed.
Dr Gupta's readiness in the s150 hearing in December 2015 to admit to his mistakes in his treatment of Patient A and Patient B, and his consistent expressions of remorse both to the Dental Council and to the Tribunal, are in his favour. The Tribunal is satisfied that overall it is fair to conclude, as the Dental Council s 150 decision did, that the manifest shortcomings in Dr Gupta's treatment of Patients A and B and in his practice generally, in particular his record keeping, at that time reflect significant deficiencies in his knowledge and understanding. The Council concluded that there was scope for Dr Gupta to remedy his shortcomings and that appropriate conditions would protect the public.
Dr Gupta's explanation for his failure to notify the Dental Council when he became aware of the inaccurate information in his supervisor's reports was that he did not understand the importance of doing so. That reflects poorly on his understanding of his ethical obligations, and, as he accepted in his evidence, has consequences for the high regard held in the community for the dental profession. There is no basis in the evidence before us that would support a finding that Dr Gupta's failure to notify the Dental Council was a deliberate decision to mislead the Dental Council. The Tribunal agrees with Dr Vergara that the failure to notify the Dental Council was a lapse in judgment rather than a deceitful or dishonest act.

[16]

Dr Gupta's rehabilitation

Dr Gupta's acknowledgment from the time of the s 150 hearing in December 2015 through to the present that the deficiencies in his knowledge, understanding and practice, need to be rectified, is to his credit. His efforts to improve are demonstrated in the courses he has undertaken, his engagement with his supervisor Dr Vergara, and the changes he has made to his practice.
The list of courses undertaken by Dr Gupta provided as Annexure A to his statement of 30 April 2018 is extensive. We observe a change from courses primarily focussed on aesthetic and restorative dentistry between May 2009 and November 2015, to the more recent courses in Comprehensive Pharmacotherapeutics within the Scope of Dentistry, Pain and Anxiety Control in the Dental Office, and Therapeutic Dental Prescribing Guidelines, including a course on 15 September 2018 on Updates on Medicines used for Pain Management in Dentistry.
However the Tribunal has concerns as to continuing deficiencies in Dr Gupta's knowledge of medications and his approach to prescribing. While on 9 July 2018 Dr Gupta stated that there had been an increase in his knowledge and changes in his practice for prescribing analgesics and antibiotics since doing the ADA Comprehensive Pharmacotherapeutics course and 200 plus hours of CPD over the past two years, there were still obvious gaps in his knowledge, for example his lack of awareness of possible interaction between oral contraceptives and antibiotics. In his evidence on 15 October 2018 he confirmed that while he considers prescribing a lower 250mg dose of antibiotics he still prescribes 500mg. Notwithstanding his oral evidence on 9 July 2018 that he rarely prescribes Amoxicillin because of the risk of antibiotic resistance, the prescribing log for the period 23 July to 28 September 2018 provided with the September 2018 supervisor report records five prescriptions for 500mg Amoxil and one for 250mg. The Tribunal is of the view that Dr Gupta would benefit from continuing professional education of a more structured and rigorous nature.
Dr Gupta has completed courses on clinical record keeping, most recently on 11 August 2018. The clinical notes provided to the Tribunal (ex R5) relate to the period 13 August to 21 September 2018. Those records support the evidence of Dr Vergara that Dr Gupta now keeps comprehensive and compliant clinical notes. On the Tribunal's reading, the notes now include detailed observations and details of medical history; record discussions with each patient including treatment options and complications; demonstrate informed consent in a written consent form; record appropriate medication and appropriate referrals; and include informative photographs and x rays. Dr Vergara's supervisor report dated 27 September 2018 includes copies of the Obtaining Consent checklist, patient information sheet for oral or inhalational sedation, and dental records checklist to which Dr Gupta referred in a statement he provided to the Dental Council with that report. The Tribunal finds that in this aspect of his practice there has been a significant change and improvement from the situation as considered by Dr Sridhar in his expert report.
The Tribunal is satisfied, based on Dr Vergara's evidence and that of Dr Gupta, that the present supervision arrangement is working well, and that it provides a rigorous scrutiny of Dr Gupta's record keeping and clinical decision-making, and a valuable resource for Dr Gupta. The Tribunal is satisfied that Dr Gupta is fully compliant with the requirements of the s 150 conditions.

[17]

Whether Dr Gupta's registration should be cancelled or suspended

The HCCC submits that in the context of his serious proven misconduct, cancellation of Dr Gupta's registration is required to ensure the protection of the health and safety of the public, encourage maintenance of high standards in the profession, and maintain public confidence in the profession. Its position is based on what it submits is an absence of any real insight into why Dr Gupta prescribed inappropriate drugs to children on two occasions or why he kept inadequate clinical records, or why he failed to inform the Dental Council of the inaccuracies in the supervisor reports; his lack of knowledge in his antibiotic prescribing practice; and his lack of understanding with respect to the role of pharmacists.
There is no dispute that the proven misconduct of Dr Gupta is serious. Without in any way intending to minimise the seriousness of the conduct established in complaints 1, 2 and 4, the Tribunal notes that in the three years in which Dr Gupta has been allowed to practise since he treated Patient A there is no evidence of any breach of the prescribing restriction, and he has complied with the requirements imposed on him by condition 2 to maintain regular contact with his supervisor and provide to his supervisor records and other documents relevant to assessment of his professional knowledge of prescribing and record keeping.
Dr Kosy is the owner of Charlestown Dental Centre where Dr Gupta was employed as an associate dentist from November 2007 and as principal dentist to October 2015. In his statement of 1 May 2018 Dr Kosy states that he, as an orthodontist, and Dr Gupta, have treated patients together for over ten years, treating over one hundred paediatric patients together. In his opinion Dr Gupta's treatment of Patients A and B was a severe lapse in judgment, but not a true reflection of his overall dental competence and character.
Dr Vergara's assessment of Dr Gupta's competence is of course more recent, and was given after the Tribunal's findings in relation to complaint 4. Dr Vergara points to a vast improvement in Dr Gupta's clinical records and sound understanding of dental industry standards and requirements, and expresses the opinion that he is a different practitioner compared to what he was, and is continuously improving in terms of his knowledge and practice, and that he is a safe dental practitioner.
The Tribunal accepts that based on those assessments, it can now be comfortably concluded that Dr Gupta could not be said to be unfit to practise. However, we acknowledge that the role of the Tribunal extends beyond ensuring that the public is protected from the risk of a practitioner repeating the misconduct, to encouraging the maintenance of high standards in the profession including by deterring similar conduct, and maintaining public confidence in the profession. That is made clear by the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 where Meagher JA (with whom Basten JA agreed) held: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In determining whether to cancel or suspend Dr Gupta's registration a relevant factor is the consequences of such an order. As explained by Basten JA in Chen: 21. Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.
The HCCC submits that in the absence of a cancellation order, the Tribunal should instead suspend Dr Gupta's registration for a period of 3-6 months. That would protect the health and safety of the public by sending a strong signal to the profession and the public of the gravity of the misconduct, and deter other practitioners from similar misconduct or lapses. The HCCC relies on the decision in Health Care Complaints Commission v Aref [2018] NSWCATOD 133 in which the Tribunal acknowledged that the incident (in which the practitioner had accessed confidential records for five patients, in breach of the Health Records and Information and Privacy Act 2002), had occurred some years earlier, and commented: This incident occurred some years ago. While suspension as a disciplinary response may have been more relevant as a specific deterrent to the practitioner closer to the time of events, we have concluded that a period of suspension, combined with a reprimand, remains appropriate in these proceedings particularly in order to signal the gravity of the misconduct to the public and the profession.
The Tribunal has had regard to Dr Gupta's early and continued acknowledgement that he made a serious mistake in his treatment of Patients A and B and in his record keeping, and his recognition that his lack of knowledge and the way in which he conducts his practice require substantial improvement. We are satisfied that Dr Gupta has demonstrated insight into why he failed to provide appropriate care for Patients A and B, attributing that to a lack of knowledge and a misguided concern to assist those patients. The Tribunal is satisfied that this is, as identified by Basten JA in Chen, a circumstance of incompetence and inadequate care rather than conduct revealing a defect of character. Dr Gupta has made significant efforts to improve his knowledge and his practice, and the patient records (ex R5) and Dr Vergara's evidence confirm major improvements in documentation of history and treatment options, and obtaining consent. We are satisfied that the remorse and insight demonstrated by Dr Gupta, and the steps he has taken to improve his knowledge and practice, in particular in the short period in which he has been supervised by Dr Vergara, reduce the need for cancellation or suspension of his registration in order to achieve the appropriate protection of the public.
In light of the period of time that has elapsed since the conduct the subject matter of complaints 1 and 2; Dr Gupta's acknowledgment of the significance of his failure in the ethical challenge put to him when he became aware of the errors in Dr Kurian's reports as to the location of their meetings, not least in diminishing the trust placed in the profession; the steps he has taken to improve his practice; his willingness to undertake further ethics and other training, and to continue to be subject to restrictions on prescribing for children and supervision conditions; and his remorse and insight, the Tribunal believes that it would not be appropriate to cancel or suspend his registration. We are satisfied that neither is necessary to protect the health and safety of the public or to maintain the reputation of the profession in the circumstances of this case.
However, his conduct was serious. In order to state clearly the extent to which Dr Gupta's conduct fell short of the required standard, and to encourage other practitioners to recognise the importance of complying with professional standards both in patient care and in fulfilling their ethical obligations of honesty and candour with regulatory authorities, and the risk of failing to do so, we are of the view that a reprimand together with appropriate conditions on his registration are required. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and in this instance, in putting the health and lives of two of his patients at risk. A reprimand 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].

[18]

What conditions should be imposed

The HCCC's proposed conditions in Sch B to its written submissions of 9 November 2018 largely mirror the existing conditions, with some minor changes in language, and include a new audit condition and impose an education requirement. The proposed conditions in Sch A include the expanded prescribing restrictions proposed by the HCCC. The conditions we have decided to impose are based on the HCCC's proposed Sch A conditions.
We are satisfied that Dr Gupta has benefited from his rigorous supervision by Dr Vergara, and that that supervision should continue. We note that the Sch A version clarifies the ambiguity identified in existing condition 2 that was the subject of amended complaint 3 (see paragraphs [47]-[57] of the earlier reasons). Requiring the monthly meeting between Dr Gupta and the supervisor to be in person would facilitate effective review and a thorough discussion of clinical records and prescribing logs. However we acknowledge the practical difficulties, in particular noting the current locations of both Dr Gupta and Dr Vergara. We are of the view that some alternative means of face to face communication (that is, communication other than by telephone or email) could still ensure appropriate discussion between them for the monthly meetings, and accordingly we have drafted condition 2(b) to provide that option and to require a meeting in person only each quarter.
The requirement for a quarterly report by the supervisor to the Dental Council should continue. A health practitioner has significant responsibility to comply with conditions imposed as the basis on which he or she can be permitted to continue to practise: Perera at [90]. In light of the circumstances in which we have found amended complaint 4 proven, we prefer the wording of condition 2(e) as proposed by the HCCC, with the further requirement that Dr Gupta co-sign that report.
Dr Gupta does not dispute a condition requiring audit of his practice, and we agree that it should be imposed. For the reason above, we prefer the wording of condition 3(d) proposed by the HCCC.
Dr Gupta does not resist continuation of the restriction on his administration or prescription of Sch 8 or Sch 4D drugs to patients under the age of 15. The HCCC seeks a condition extending that prohibition to all patients, submitting that this is appropriate given the concerns demonstrated as to Dr Gupta's knowledge and practice with respect to prescribing. The HCCC submits that the Council has noted that a broader authority restriction is easier to monitor because the practitioner is then listed on the NSW Health Drug Withdrawal list, which is routinely sent to the Council; Dr Gupta is not currently on that list and the Council has to pursue monitoring separately.
The Tribunal acknowledges that, as submitted by Dr Gupta, there is no suggestion that Dr Gupta has engaged in inappropriate prescribing practices of Sch 8 and Sch 4 drugs other than to the two children the subject of complaints 1 and 2; he has acknowledged the inappropriateness of having done so; and there is no suggestion that he has failed to comply with the existing condition over the past three years. The issue is whether to facilitate the monitoring of compliance, which the Tribunal accepts would be a consequence of the extended restriction, is a sufficient reason to impose the condition: and in particular, whether to do so would protect the health and safety of the public. On balance, the Tribunal considers that it would. The Tribunal has concerns about Dr Gupta's knowledge of pharmacology, in particular sedation, pain management, and drug interaction, such that as discussed below a condition requiring some more rigorous education in those areas should be imposed. The monitoring assurance to the Council consequent on the prescribing restriction proposed by the Council would provide an added safeguard while Dr Gupta is undertaking further continuing education. We acknowledge that the restriction could restrict Dr Gupta's ability to treat his adult patients effectively, however that can be managed now that he has associates in his practice.
Dr Gupta acknowledges that he would benefit from further education. He proposes that he be required to complete the ADA Drug Interactions Dentists Must Know course, having already completed the Online Dental Records and Consent course proposed by the HCCC. Dr Gupta proposes in addition Special Practice Courses on antimicrobial stewardship and appropriate antibiotic prescribing, and medical and medication history taking, record keeping, prescribing and patient counselling. The parties disagree as to whether particular courses and presenters should be specified in the conditions. The HCCC's position is that the Council is best placed to consider whether courses proposed by Dr Gupta are appropriate in the circumstances and properly address the matters raised by the Tribunal, and has suggested in its submissions that the Tribunal include the considerations that should guide the Council's approval.
The Tribunal's concern is that the courses that Dr Gupta is required to undertake and complete cover the areas of knowledge in which Dr Gupta is deficient; that they are rigorous; and that they require at least self-assessment on completion, as opposed to simply attendance. While the shift in the types of continuing education courses undertaken since 2015 is admirable, the Tribunal is concerned that attendance for short courses designed primarily to maintain competency does not provide the comprehensive, in-depth, understanding that would redress remaining shortcomings. The required areas of knowledge are pharmacology, that is appropriate prescribing for a dentist including drug interactions; sedation; and ethics.
The members of the Tribunal panel are aware that appropriately rigorous courses in such areas are limited. The Royal Australasian College of Dental Surgeons provides two part time pathways for a general practitioner to further their dental education with modular self paced education programmes which leads to admission for either College membership or fellowship on successful completion of the program. Other than that program, special purpose courses have been provided through the ADA, including by Professor Geraldine Moses, to whom Dr Gupta referred during the hearing. Dr Moses, Consultant Pharmacist to the ADA, confirmed in an email of 5 November 2018 to Dr Gupta's legal representatives that she has conducted four and six hour Special Purpose Courses, as one-off courses tailored to each student, on her own and with Professor Ian Meyers. The courses with Professor Meyers have covered topics regarding professional practice and ethics. Those courses have been for four or six hours, with certification on completion. The Tribunal is of the view that special purpose courses of that nature in the specified areas would greatly assist Dr Gupta.
The Tribunal accepts that the Council, as the appropriate review body for the purposes of Part 8 Div 8 of the National Law, should give final approval to the courses to be undertaken by Dr Gupta, having satisfied itself as to the content, coverage and rigour of each course. Condition 5 has been drafted to accommodate the Council's concern not to be seen to be promoting particular courses or persons or bodies conducting them.
There was no dispute that the Dental Council is the appropriate review body. As noted by the HCCC in submissions, the review body can remove or vary any conditions when appropriate.
In its submissions of 9 November 2018 the HCCC noted that it is open to make any or all of the proposed conditions critical compliance conditions under s 149A(4) of the National Law. No further submission was made as to why that would be necessary or appropriate to ensure the health and safety of the public. We see no reason to expect that Dr Gupta will not comply with the conditions, and do not consider it necessary to order that contravention of any or all of the conditions will result in his registration being cancelled.

[21]

SCHEDULE - PRACTICE CONDITIONS 1. The practitioner is not to possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) for patients receiving dental treatment. 1. The practitioner is to provide written evidence to the Dental Council of NSW that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug for patients receiving dental treatment within 14 days of the date of this decision. 2. The practitioner is to provide written evidence to the Dental Council of NSW that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 Appendix D drug for patients receiving dental treatment within 14 days of the date of the decision, 3. Any future change in the practitioner's Schedule 8 and Schedule 4 Appendix D authority must include consultation with the Dental Council of NSW before the submission, or variation application, is made to the Pharmaceutical Services Unit of the Ministry of Health. 1. To practise under Category C supervision in accordance with the Dental Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. The practitioner is to: 1. Nominate said supervisor to the Council within 14 days of the date of this decision. 2. Meet with his supervisor in person or by skype, or facetime or by other digital alternative, at least once a month, and meet with his supervisor in person at least once every three months. 3. At each meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on his prescribing, sedation and record keeping practices. 4. Authorise the supervisor to provide a record of contact with the practitioner summarising the matters discussed and an assessment of the practitioner's professional knowledge of prescribing, sedation and record keeping. 5. Ensure that the supervisor provides a report, co-signed by the practitioner, to the Council at least every three months. 6. Authorise the supervisor to inform the Council if the supervisor has any concern about the practitioner's professional conduct or personal wellbeing. 7. Be responsible for any costs associated with the supervision process. 8. Authorise the Dental Council of NSW to provide proposed and approved supervisors with a copy of the decision. 9. In the event that the approved supervisor is no longer willing or able to continue as a supervisor, the practitioner must nominate another supervisor for approval by the Council within 14 days of cessation of the previous relationship or cease practise until such time as a new supervisor has been nominated and approved. 1. To submit to an audit of his practice, by a random selection of records, by a person or persons approved by the Dental Council of NSW. 1. The audit is to be held within 3 months from the date of this decision and subsequently as required by the Council. 2. The auditor(s) is to assess his compliance with the Dental Board of Australia's Guidelines on Dental Records and paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct and compliance with conditions. 3. The auditor(s) should pay particular attention to: treatment planning, medical history, prescribing in relation to quantity and type of medication prescribed and appropriateness, administering and recording of drugs of addiction and drugs of dependence. 4. To ensure the auditor(s) provides a report to the Council in the form required by the Council. 5. The practitioner is responsible for all costs associated with this condition. 1. To advise the Dental Council of NSW in writing within seven days of changing the nature or place of his practice. 2. To complete within 12 months of the date of this decision the Drug Interactions Dentists Must Know course organised by the Australian Dental Association (NSW Branch) or an equivalent course approved by the Dental Council of NSW, and pharmacological, sedation and ethics courses which incorporate a form of assessment, approved by the Dental Council of NSW. 1. Within 3 months of the date of this Decision he must provide evidence to the Dental Council of his enrolment in each of the abovementioned courses. 2. Within 1 month of completing each of the abovementioned courses, he is to provide documentary evidence that he has satisfactorily completed the courses. 3. To bear responsibility for any costs incurred in satisfying this condition. 1. Within seven days of commencing any other employment, he is to forward evidence to the Dental Council of NSW that he has provided a copy of the conditions to the principal of that place of practice. 2. To authorise the Dental Council of NSW to exchange information with current and future persons or organisations at places where he works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 3. Whilst the practitioner's principal place of practice is New South Wales, the Dental Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 4. Whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Dental Board of Australia. 5. The practitioner is to meet the costs of compliance with the conditions. 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: 21 February 2019

Health Care Complaints Commission v Gupta

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)

Cited By (2)