Health Care Complaints Commission v Hanna

NCAT Occupational|2024-07-29|Before: Dr J

incurred in meeting this condition. (3) The Dental Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (4) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Dental Board of Australia. (5) The respondent is to pay the applicant's costs as agreed or assessed under the National Law, cl 13 of Sch 5D. Catchwords: HEALTH - professional registration and discipline - dental practitioner - appropriate protective orders where guilty of professional misconduct regard non-compliance with Dental Council Policy Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 149A(1), 149C(1) Cases Cited: Hanna v Dental Council of New South Wales [2022] NSWCATOD 54 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Hanna [2024] NSWCATOD 26 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Peeke v Medical Board of Victoria [1994] VSC 7 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) James Mina Hanna (Respondent) Representation: Counsel: A Petrie (Applicant) M Robinson SC and C Jackson (Respondent)

Introduction

On 13 March 2024, we found Dr James Hanna, a dentist, guilty of unsatisfactory professional conduct and professional misconduct: see Health Care Complaints Commission v Hanna [2024] NSWCATOD 26 ("Stage 1 Reasons"). This was in respect of six complaints concerning: criminal findings concerning possession of cocaine; Dr Hanna's failure to notify the National Board within seven days about those findings as required under the National Law; making a false declaration on his renewal form when asked to provide details of any charges or findings of guilt; and his numerous contraventions of conditions on his registration which had been imposed initially by the Dental Council and subsequently by this Tribunal when it granted a stay of the suspension order on Dr Hanna's registration: see Hanna v Dental Council of New South Wales [2022] NSWCATOD 54.
Of importance, as noted in [61] of the Stage 1 Reasons, Dr Hanna: 1. denied that when he provided dilute drug screening on four occasions, he was in contravention of condition 1 on his registration; 2. did not admit that he contravened condition 1 when he failed to attend urine drug testing without the appropriate notifications and/or subsequent testing within the required time; and 3. denied that the numerous contraventions of the conditions on his registration between 23 November 2021 and 17 March 2023 (including two positive random urine drug screening ("UDS") in that time) displayed a pattern of behaviour that raised concerns about his compliance with the Dental Council of NSW's Drug Screen Policy and Participant Procedure ("the Policy") - in contravention of condition 1.
Having found each of the complaints established, following a further hearing, we have now decided to reprimand Dr Hanna and impose conditions on his registration for 6 months for the reasons that follow. These reasons are to be read with the Stage 1 Reasons.

The competing proposed protective orders

The Commission seeks an order cancelling Dr Hanna's registration under s 149(1)(b) and (c) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), with a non-review period of 1 year under s 149C(7).
The Commission also seeks a costs order, which is not contested by Dr Hanna.
Dr Hanna's proposed protective orders included a reprimand under s 149A(1)(a) and a range of protective conditions on his registration including: 1. Dr Hanna undertaking a course on ethics; 2. for the next six months Dr Hanna attend for treatment by a psychiatrist of his choice who specialises in addiction and by a psychologist of his choice at a frequency determined by the psychologist; 3. authorising the treating psychiatrist and psychologist to inform the Dental Council of NSW ("Council") if Dr Hanna fails to attend, terminates his treatment or if there is a significant change in health status, and to also provide Council with copies of treatment reports.

Material relied upon

Dr Hanna relied on his statement of 20 October 2023 and a further statement dated 17 May 2024; a bundle of material comprising a report from his treating psychiatrist Dr Saeed dated 1 June 2023, a report from his psychologist Dr Rodriguez dated 30 May 2024, and three character references. Dr Hanna provided written submissions, proposed orders and a submission concerning conditions on registration.
Dr Hanna, Dr Saeed and Dr Rodriguez were cross-examined.
The further material relied upon by the Commission included a schedule of all of Dr Hanna's UDS results; written submissions and a set of proposed conditions on registration.

Dr Hanna's evidence

In his first statement dated 20 October 2023, Dr Hanna describes how he established his dental practice which provides full comprehensive dental services to patients aged 2 to 80 years old in his community. He offers implants for full mouth rehabilitation and states that he finds it very satisfying when patients are able to eat foods that they have not been able to eat for many years.
Dr Hanna states that he has made and continues to make a significant contribution to the dental profession including by mentoring other practitioners and through the work he does at the Australasian Implant Academy. He also states that he does voluntary work within his community including giving talks about dental hygiene at schools. None of this evidence was challenged.
In his second statement dated 17 May 2024, Dr Hanna states that he is remorseful for the conduct he has admitted in Complaints 1 to 4 but that he is disappointed about the findings regarding Complaints 5 and 6 which he does not accept as being correct. In particular the findings he does not accept or express remorse for are: 1. That he intentionally ingested water to dilute his UDS on 10 October and 27 February 2023 as referred to in Stage 1 Reasons at [133]; 2. That he missed his UDS on 25 and 27 January 2022 and 12 December 2022 as he suspected the tests would have been positive for cocaine or its metabolites as referred to at [142] of the Stage 1 Reasons; 3. That he was absent from testing or gave false reasons for not attending UDS as referred to in the Stage 1 Reasons at [152]-[164]; 4. That he was using cocaine at least in the periods December 2021 to February 2022, early October 2022 and December 2022 to February 2023 which is why he was absent from the specified UDS and provided dilute samples on other occasions in that period.
Ultimately in the context of Complaint 5, whether or not Dr Hanna accepts the finding about cocaine use, he also does not accept our finding that there was a pattern of behaviour that raised concerns about his compliance with the drug screening policy, which is itself non-compliance under cl 4.2 of the policy, and a breach of condition 1 on his registration.
Further, in respect of Complaint 6, even though he had admitted more than one instance of unsatisfactory professional conduct, he did not accept our finding that this amounts to professional misconduct. Essentially, Dr Hanna's evidence was that he was remorseful only for the actions he admitted and how they have impacted the dental field.
Dr Hanna said in cross-examination that at the Stage 1 hearing he showed a lack of insight, lack of credibility and said that he was "fighting the process". He says now he is no longer on the attack.
Dr Hanna also gave evidence that the cost of complying with the conditions on his registration were in excess of $38,000 including counselling, UDS testing and psychotherapy. He has also engaged experienced counsel reflecting that he has taken this proceeding seriously.
Since March 2023 he has developed deeper therapeutic relationships with Dr Saeed and Dr Rodriguez and has not had a single breach of the conditions on his registration. We note the summary of test results confirm that there have been no dilute samples, positive samples or unexplained absences from testing. He said he is a better person now as he has strategies in place so that he is not in situations where he will be exposed to cocaine and has recently married and is part of a strong family group.
Dr Hanna said he would do whatever he is told he needs to do: whatever his doctors recommend he will do; if the Tribunal considers he needs further treatment he will get it; whatever the Tribunal determines he will comply with. The Tribunal asked whether (putting aside what his doctors thought and what the Tribunal ultimately decides) he considers that he would benefit from ongoing consultations with Dr Saeed and Dr Rodriguez. He said it has helped him immensely as a support, to better understand and gain insight into the consequences of drug and alcohol use, and how to avoid situations where he might find himself with the wrong crowd or exposed to excessive alcohol consumption or illicit drug use environments.
Dr Hanna also gave firm assurances to the Tribunal that he will never find himself in this position again or before the Tribunal for disciplinary matters. He gave evidence about recently marrying and how humiliating it was to discuss this with his wife and family.
Dr Hanna stated that regarding the Tribunal's finding of professional misconduct and unsatisfactory professional conduct, he is compliant and has learned a valuable lesson about his obligations on his registration to his clients, the general public and professional bodies.
As a result of the Stage 1 Reasons and media coverage, Dr Hanna said that he is no longer involved with the Australasian Implant Academy as the shareholders voted to remove him. However, he also said he willing removed himself and made that decision for the greater betterment of the Academy but that has resulted in a loss of income.
He also noted his compliance for over 15 months - not missing any UDS, not providing any dilute samples or positive test - in conjunction with participating in extra courses, men's groups and CPD courses.

Dr Saeed's evidence

Dr Saeed has been treating Dr Hanna on a regular basis since October 2022.
In her report dated 1 June 2024, which was a follow-up report to her 20 April 2023 report, Dr Saeed stated: "Dr Hanna has shown commendable progress in managing his past substance misuse issues. He has adhered strictly to all medical advice, consistently attended scheduled therapy sessions, and participated in community support groups, all of which have significantly contributed to his recovery and professional development."
Dr Saeed noted that Dr Hanna had complied with all of her recommendations including attending local AA meetings and a drug and alcohol relapse prevention program. In her opinion, Dr Hanna has benefitted from engaging in psychotherapy and recommended that he should continue with regular psychotherapy sessions to sustain his mental health stability and support his ongoing recovery.
Dr Saeed expressed the opinion that while previously she considered Dr Hanna was an "at-risk" practitioner, she no longer considered he fits in that category. She also explained that in her opinion, Dr Hanna's long-term recovery may be better facilitated by not cancelling or suspending his registration. This, she noted, aligned with "contemporary views on addiction recovery, which advocate for integrating affected individuals into their professional roles under monitored conditions rather than excluding them, which can lead to detrimental effects on their recovery and mental health". This evidence was not challenged.
In cross-examination, Dr Saeed was argumentative and appeared to us to be advocating for Dr Hanna. It was difficult to assess her independence as an expert. In any event, we found her evidence of assistance particularly as a person who has had an ongoing relationship with Dr Hanna.
Dr Saeed noted that Dr Hanna has made significant lifestyle changes, his sleep has improved, and he is looking after himself more by activities like exercising, eating well and seeing his family. While he self-reports to her about these matters, Dr Saeed said she formed her opinion not just on what he tells her but by what she has observed in him over the course of his therapy.
Ultimately, Dr Saeed's uncontested evidence included that while she does not consider drug testing is necessary, particularly given the "significant period of deterrence from the use of any illicit substance", a further period of 6 months would be reasonable to impose in line with her evidence but beyond that period, in the absence of evidence of substance use, it would be unnecessary.

Dr Rodriguez's evidence

Dr Rodriguez provided a report dated 30 May 2024.
He has seen Dr Hanna on 11 occasions since 30 March 2023 over which time he considers Dr Hanna to have been "compliant with the treatment plan and monitoring of his decision to abstain from cocaine and other substances of addiction". He did not explain what that treatment plan was nor was he cross-examined about it.
Dr Rodriguez notes that there has been no identifiable clinical need for him to supervise Dr Hanna's urine testing since June 2023, having presented negative drug urine tests imposed by him randomly.
Dr Rodriguez notes that given the nature of Dr Hanna's reactive depressive disorder, he was concerned psychological treatment alone was not sufficient treatment and recommended antidepressants. Dr Hanna refused medication out of concern that the Council would consider him impaired to practise dentistry. It was also noted that Dr Hanna fractured his fifth metatarsal but refused taking strong codeine-based painkillers out of fear he would be found positive for a prohibited substance. Instead Dr Hanna was in excruciating pain for 10 days as he had to work, standing on the uninjured foot.
Dr Rodriguez expressed the opinion that while Dr Hanna does not require psychological treatment for Stimulant Use Disorder (for the reason he considers Dr Hanna does not meet the clinical criteria), he will require at least fortnightly or monthly psychological treatment "until the investigations are completed and he can resurrect his career". Dr Rodriguez notes that "Dr Hanna has formed insight into his previous substance use patterns, which will assist him in his commitment to abstain from substances, which are viewed contrary to his standing as a dentist by society".
Dr Rodriguez also expresses the opinion that while there is no indication that Dr Hanna has been using any illicit substance for over a year, he should continue to have UDS to provide evidence required of his decision to abstain from all substances for the safety of his patients and the public.
In cross-examination, Dr Rodriguez, like Dr Saeed, was argumentative. Again, this made it difficult to assess the level to which the evidence he gave was independent but his evidence was of assistance particularly with regard to his observations of Dr Hanna in the therapeutic environment, his compliance with treatment protocols, and his recommendations for ongoing UDS.

Referees

Dr Hanna relied upon three character references who each acknowledged that they had read the Stage 1 Reasons.
One referee was a friend, Dr Mousa, who Dr Hanna has known since 2009 on a personal and professional basis. He describes the support Dr Hanna has given him in establishing his own dental practice; Dr Hanna's involvement in charities, the Coptic Orthodox community and church; and Dr Hanna's devotion to and pride in his work, love of dentistry, his honesty, reliability and strength of character. Dr Mousa says that Dr Hanna is "mortified that he has let himself down in this way with his offence" and that his "remorse and commitment to ensure that he does not act this way again has been felt by all within his family and friendship circles". It is not entirely clear to us which "offence" Dr Mousa is referring to. Given Dr Hanna has not expressed remorse to this Tribunal for the pattern of behaviour being contraventions of the conditions on his registration as set out in Complaint 5 and does not accept the findings we made in this regard, it is difficult to determine precisely what remorse Dr Hanna has expressed to Dr Mousa. For this reason, we give that aspect of his reference little weight.
Mr Samaan, who is Dr Hanna's physiotherapist, also provided a letter in support of Dr Hanna. He attested to Dr Hanna's character having known him for over 15 years. In his letter to the Tribunal, Mr Samaan states that Dr Hanna's "ethics and virtues in his career have never been compromised and his level of honesty and integrity continue to impress me". Mr Samaan says Dr Hanna never misses appointments, is always reliable, always looks for ways to help others and supports the community through charitable donations and acts. Mr Samaan indicates that Dr Hanna has confided in him about the proceedings, shows significant remorse for his actions and has taken "all necessary steps to learn from this error to ensure it does not happen again". Mr Samaan refers specifically to criminal charges and disciplinary proceedings but does not specify for which conduct Dr Hanna is remorseful. Again we give that aspect of this reference little weight.
Mr Arkilo, who has been a patient of Dr Hanna since 2011, also provided a reference. In his letter to the Tribunal he states that Dr Hanna has spent countless weekends with his family for gatherings and barbeques, that he is a kind, caring and generous person, but also a great dentist. He says Dr Hanna is heavily involved in the church community and charity works and that he has seen first-hand how Dr Hanna has worked tirelessly to improve himself. He says Dr Hanna is genuine, reliable, honest and "a fantastic person who has made a mistake and is taking every step he can to ensure it never happens again".

Legislative regime

Part 8, Div 3, Subdiv 6 of the National Law which is headed "Disciplinary Powers of Tribunals" sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, the Tribunal is satisfied the practitioner is guilty of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1) of the National Law.
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: "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 therefore 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] and [39]).
Justice Wright in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of the orders in Pt 8, Div 3, Subdiv 6: "(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. (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] NSWSC 297; (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] NSWCA 102; (2009) 74 NSWLR 523 at [83]." (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 Dr Hanna 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 an 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]).
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]."

Commission's submissions

The Commission says that cancellation is appropriate given: 1. the gravity of the conduct and Dr Hanna's continued denial of some of the conduct ultimately found proven by the Tribunal is serious and capable of attracting the order sought; 2. that Dr Hanna engaged in dishonest conduct by making a false declaration on his renewal of registration and was not truthful to the Tribunal about his past cocaine use.
In essence, the Commission's contention is that there is no appropriate alternative given the seriousness of Dr Hanna's conduct which must be denounced, not just for the protection of the public but also as a deterrent to the general body of practitioners and to ensure the public confidence is maintained by "signalling that those whose conduct does not meet the required standards will not be permitted to practise" (relying on Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] (Meagher JA); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [9]).
The reason a non-review period of one year is contended by the Commission as appropriate is to enable Dr Hanna to further reflect on his conduct and be in a position to show reformation of character and insight.

Dr Hanna's submissions

Dr Hanna contends that the protective orders sought by the Commission are unnecessarily harsh in their effect and not necessary for the protection of the health and safety of the public. This is for the reason that it would "deprive Dr Hanna's community of a valuable health service" in circumstances where the Commission does not contend that Dr Hanna is impaired or that the quality of dental services provided by Dr Hanna have ever been compromised by the use of a recreational drug.
Dr Hanna argued that a reprimand is a significant sanction which is not trivial and has the potential for serious adverse implications (Peeke v Medical Board of Victoria [1994] VSC 7 at 6 per Marks J) and which acts as a specific and general deterrence. Further, it was contended that the imposition of a costs order also has a deterrent effect.

Consideration

As we recorded in the Stage 1 Reasons, Dr Hanna admitted numerous particulars of the complaints brought against him but did not admit or denied others (see [61]-[62] of the Stage 1 Reasons).
Of significance, we found that Dr Hanna had engaged in a pattern of behaviour (being numerous non-compliances with UDS) that raised concerns about Dr Hanna's compliance with the drug screening policies - which of itself constituted non-compliance with the Policy and a breach of Condition 1 on his registration. This pattern of behaviour included the two positive UDS which were aspects of the complaint he admitted (Complaint 5 particulars (3) and (4)).
Despite admitting the matters in Complaints 1 to 4 which constituted unsatisfactory professional misconduct, and admitting the two positive UDS, Dr Hanna denied that being found guilty of two or more instances of unprofessional misconduct constituted professional misconduct as he had explanations for each non-compliance. We did not accept those explanations nor did we accept the veracity of his evidence as a whole for the reasons we gave in Stage 1 Reasons. We were ultimately satisfied on the evidence, including the unchallenged expert evidence, and taking into account Dr Hanna's inconsistent versions of the narrative around how he came to have cocaine in his system for the two positive UDS, that he had used cocaine (whether intentionally or not) and he deliberately diluted samples and/or failed to attend for UDS on the occasions particularised (see Stage 1 Reasons.
As noted above, Dr Hanna says that while he accepts our Stage 1 decision, he disagrees with our findings in respect of Complaints 5 and 6, even if that means it may affect the outcome in this Stage 2 decision. Much of the cross-examination of Dr Hanna by the Commission appeared to us to be directed at whether or not he truly accepted our decision: little was achieved by, in effect, attempting to produce a response by Dr Hanna about the unfairness of the decision and/or attempting to demonstrate that he does not accept our decision.
However, it is an unchallenged fact that since 28 February 2023, Dr Hanna has continued to be subject to regular and at times random UDS and has not produced any positive UDS samples; nor have there been dilute samples or unexplained failures to attend. We find that Dr Hanna has complied with the conditions on his registration since 18 March 2023 and has, in effect, demonstrated a pattern of behaviour that is consistent with the conditions on his registration.
During the Stage 1 hearing, we were particularly concerned about Dr Hanna's non-compliance with drug screening in circumstances where this was a condition first imposed on his registration by the Council and then in 2022 by the Tribunal as a basis for granting Dr Hanna a stay. The fact he now has a lengthy period of compliance demonstrates to us that he has gained some insight into the necessity to comply with the conditions on his registration.
However, his refusal to accept that he exhibited a pattern of behaviour that raised concerns about his compliance with the Policy and that he offered inconsistent and on some occasions illogical explanations for his non-compliance with conditions (which we referred to in the Stage 1 Reasons) which he still stands by at the Stage 2 hearing, demonstrates that there is still an element of minimisation which we concerns us.
We have given careful consideration to the matters raised by the Commission (in particular that Dr Hanna has not been forthright and was dishonest) and whether these concerns could be met by a less restrictive order.
We have taken into account that Dr Hanna is a young man who: is valued in his community; has removed himself from social settings which may result in exposure to cocaine again; and has started to gain insight into his conduct. We find that the imposition of the conditions on his registration and these proceedings (including the emotional stress, cost and media interest) has had a deterrent effect on him as demonstrated by his lengthy period of compliance since March 2023. Further, there is no evidence before us that the provision of dental services by Dr Hanna has ever been compromised by any issues concerning drug use.
We accept the evidence of Dr Rodriguez that Dr Hanna would benefit from ongoing UDS. We also accept Dr Hanna's evidence that the treatment he has received from Dr Saeed and Dr Rodriguez has been beneficial and he would like to continue it. We also agree with the submission of senior counsel for Dr Hanna, that the lengthy period of testing and reporting is itself a form of sanction as well as a compliance measure which has had a reforming effect in so far as any drug use is concerned. Based on Dr Hanna's pattern of compliance since March 2023, we consider that Dr Hanna is likely to continue to comply with less restrictive orders which include ongoing treatment from Dr Saeed and Dr Rodriguez.
We have also given consideration to the gravity of the conduct exhibited by Dr Hanna the subject of our Stage 1 Reasons.
In all the circumstances, we do not consider Dr Hanna currently poses a unacceptable risk to the health and safety of his patients for his registration to continue which would enable him to treat the patients that rely on him in his community as well as to employ the staff within his practice.
However, we find that he has failed to demonstrate insight into his previous pattern of behaviour of non-compliance with the Policy and the gravity of his conduct in making false statements.
We have therefore concluded, on balance, that in considering the protective nature of our jurisdiction it is not necessary to cancel or suspend Dr Hanna's registration for the protection of the public. The paramount protective nature of our jurisdiction should not lead us to independently punish him for prior misconduct. Cancellation or suspension would in our view be a disproportionate exercise of our jurisdiction.
Instead, in the exercise of our discretion and having regard to the paramount consideration being the protection of the public, we have decided to reprimand Dr Hanna and imposing conditions on his registration for a further period of 6 months. The community at large expects dental practitioners will adhere to the standards expected of them, and the dental profession need to know that non-compliance with conditions is a serious matter. We also consider that the public interest is better served by reprimanding Dr Hanna and imposing conditions on his registration for a further 6 months rather than cancelling or suspending his registration so that he can continue to provide dental services in his community.
While he has complied with the conditions on his registration since March 2023, we consider a further period of time to reflect on his dishonesty and non-compliances in the past; to undertake further education in ethics; and to continue to receive treatment, would be beneficial to him. It will also give us greater reassurance that Dr Hanna has gained further insight into the consequences of manifestly disregarding his lawful obligations and that he is receiving the ongoing assistance and treatment that he will benefit from. Given his dishonesty and non-compliances in the past, we also consider that the reprimand and a further period of UDS would give greater assurance to the public and to the Tribunal that he is genuine about his insight and reformation.
We also consider that reprimanding and imposing conditions on Dr Hanna's registration acts as a general deterrent to the dental profession from non-compliance with the conditions of their registration and help to maintain the public confidence in the profession.

Costs

The Commission seeks an order for costs as agreed or as assessed. In exercising the power to award costs under the National Law, cl 13 of Sch 5D the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
Dr Hanna does not dispute that the order should be made.
There is no suggestion that there has been some "disentitling conduct" by the Commission in these proceedings and we have decided to exercise the power to order Dr Hanna to pay the Commission's costs, as agreed or assessed.

ORDERS

We make the following orders: 1. The respondent is reprimanded under the National Law, s 149A(1)(a). 2. The following conditions are imposed on the respondent's registration for a period of 6 months. Condition 1: 1. To satisfactorily complete education approved by the Dental Council of NSW and that has the following characteristics: Content or learning objectives: Ethics in Dentistry 2. Within two (2) months of course approval the respondent must provide evidence to the Council of enrolment in the approved course. 3. The respondent must complete the course within six (6) months of course approval or otherwise at a date determined by the Council. 4. Within one (1) month of completing the approved course, the respondent is to provide documentary evidence of satisfactory completion to the Council. 5. The respondent is to bear responsibility for the costs. Condition 2: 1. The respondent is to attend for treatment by a psychiatrist specialising in addiction medicine of his choice. The frequency of treatment is to be determined by the treating practitioner. 2. The respondent is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including temporary change). 1. The respondent must provide the Council with the professional details of the treating practitioner. 2. The respondent is to authorise the treating practitioner to provide the Council with a copy of the treatment reports. Condition 3: 1. The respondent is to attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. 2. The respondent is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including temporary change). 1. The respondent must provide the Council with the professional details of the treating practitioner. 2. The respondent is to authorise the treating practitioner to provide the Council with a copy of the treatment reports. Condition 4: 1. The respondent is to comply with the Dental Council of NSW's Drug Screening Policy and Participant Procedure - drug screening (as varied from time to time) and: 1. attend for urine drug screening (UDS) on a random basis; 2. to authorise the testing facility to forward all results of drug screening to: 1. the Council; 2. his treating practitioners; 1. the respondent is to bear responsibility for the costs incurred in meeting this condition. 1. The Dental Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Dental Board of Australia. 3. The respondent is to pay the applicant's costs as agreed or assessed under the National Law, cl 13 of Sch 5D.

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: 02 December 2024

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Judgment (16 paragraphs)

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Cases Cited (24)