Health Care Complaints Commission v Istephan

Background

1. The facts now set out are, unless noted to be an assertion, found by us proved to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
2. The practitioner was first registered on 21 January 2002. He graduated with a Bachelor of Dental Surgery with Honours from the University of Sydney in 2001.
3. Immediately after his registration the practitioner commenced work at the Belmore Dental Centre. He purchased the practice in 2003 and worked in that practice until 2011. By 2011 he employed two dentists in the practice.
4. The practitioner asserts that, in about early 2011, he met Mr Harry Koutavas, (Mr Koutavas) an optometrist, who proposed he should approach Ms Maree Sardisco (Ms Sardisco), with a view to providing dental services to aged care facilities. Ms Sardisco was a director of a company Elderlink Consolidated Services Pty Ltd (Elderlink). Elderlink's business included providing podiatry and optometry services to aged care facilities including facilities operated by Uniting Care. The practitioner asserts his meeting with Mr Koutavas, who he knew from his childhood when he saw him for optometry services, was a "chance meeting".
5. Elderlink entered into an oral agreement with the practitioner that he would provide dental services, and after deduction of administrative expenses, receive 50 per cent of the payment made by Medicare under the Australian Government Enhanced Primary Health Care scheme (the scheme) or by the Department of Veterans' Affairs (the DVA) for the dental services he provided to aged care residents. The balance of the payment was to be retained by Elderlink.
6. It is unclear from a statement Ms Sardisco made in a recorded interview with officers of the HCCC whether Mr Koutavas was a shareholder of Elderlink. However, Ms Sardisco said when Elderlink was liquidated shortly after the complaints about the practitioner were raised, she made a payment to the liquidator to reflect some financial interest of Mr Koutavas. On Elderlink's liquidation or restructure Ms Sardisco became the director of EC NSW Limited from October 2011.
7. In early 2011 Ms Sardisco, on behalf of Elderlink, met with an employee of Lewisham Retirement Hostel and proposed that Elderlink provide dental services to the residents of that facility.
8. The dental services to be provided were to be claimed under the scheme, or from residents' Department of Veterans' Affairs entitlements. Pre-requisites for eligibility to receive benefits from the scheme were twofold. First, the scheme required the resident to suffer a chronic medical condition and have complex needs (the condition and needs being managed under a care plan) and secondly, the patient's oral health must also be impacting on, or be likely to impact on, their general health. Proof of the establishment of the two criteria was referral by the patient's general practitioner to a dental practitioner. The referral did not deal with a patient's consent to any treatment. The government information provided to dentists strongly advised them before providing any treatment under the scheme to a patient to check that the "relevant GP Care Planning Items have been claimed and paid for the patient". The information also advised the dental practitioner (or receptionist) should check how much of the $4,250 in Medicare benefits available "has already been claimed for the period". After assessment of a patient the dentist was required to provide a copy of the proposed dental plan to the general practitioner before commencing a course of treatment.
9. On 24 August 2011 Ms Sardisco met with an employee of Manly Vale Aged Care Facilities (Manly Vale) and proposed that Elderlink provide dental services to the residents of that facility funded by Medicare. Elderlink had previously provided optometry services to Manly Vale.
10. On 5 September 2011 Ms Sardisco, Mr Koutavas, and the practitioner attended a meeting with representatives of Uniting Care Ageing (Uniting Care). Uniting Care operates a significant number of aged care facilities including The Marion and Woodfield Nursing Home and Hostel. Elderlink proposed offering dental services under the scheme to the residents of Uniting Care facilities. Terms of an agreement reached on that day are in dispute. The practitioner asserts that it was agreed assessment and treatment of patients would occur at the first consultation.
11. In an annexure to a letter from the Australian Government Department of Health and Ageing to the HCCC dated 8 December 2011 it is asserted: In a meeting with a Director of ECS on 29 September 2011, UCA were advised that there was no need to seek consent from residents or their representatives at the dental assessment phase and consent would only be required from residents/representatives undergoing further treatment or procedures. There was a verbal assurance from ECS that no procedures would commence without submission of a report and/or treatment plan to UCA and having gained the appropriate consent to proceed.
12. On 15 September 2011 Elderlink entered into a written agreement with Uniting Care. The practitioner was not a party to the agreement.
13. On 23 September 2011 and without any written agreement between Elderlink and Manly Vale the practitioner treated six patients. Four patients had preparation work for crowns done at the first consultation.
14. On 26 September 2011 the practitioner again attended at Manly Vale and saw eight patients. All eight patients had preparation work done for crowns at the first consultation. The patients included a 99 year old patient who had two teeth prepared for crowns. This patient, who had capacity, did not give consent to the treatment. The practitioner was later charged with, and pleaded guilty to, assault occasioning actual bodily harm in respect of this patient.
15. A meeting occurred between Elderlink and Uniting Care staff, area managers and service managers on 30 September 2011. The practitioner was present at that meeting.
16. On 5 October 2011 the practitioner first attended Lewisham Hostel. He treated seven patients that day. Six of the patients' teeth were prepared for one or more crowns. Five of the patients were incapable of giving informed consent due to cognitive impairment.
17. On 6 October 2011 the practitioner again attended Lewisham Hostel where he treated six patients. Each patient underwent preparation for a crown. Three of the patients were incapable of providing informed consent.
18. Also on 6 October 2011 the practitioner attended Woodfield Nursing Home. He saw seven patients. Four patients four had preparation work for crowns undertaken.
19. During a third visit to Lewisham Hostel on 7 October 2011 the practitioner saw seven patients six of whom received preparation for one or more crowns. One patient, aged 89 years, who was suffering dementia and had a guardian appointed under a Deed of Enduring Guardianship, received a crown and pontic (bridge) without consent for this treatment by his guardian.
20. On 11 October 2011 the practitioner attended Manly Vale and completed crowns on ten patients.
21. On 20 October 2011 the practitioner made his second visit to Woodfield Hostel. The practitioner saw eight patients. Six patients had preparation work for crowns. One patient, who was capable of giving consent, was subject of a guilty plea in the 2015 criminal proceedings. On the same day the practitioner attended the Woodfield Nursing Home where he saw two patients. One patient's general practitioner is alleged not to have any recollection of signing a Medicare form or for DVA benefits for that patient.
22. On 21 October 2011 the practitioner visited Woodfield Hostel for his third visit. He saw four patients, and undertook preparation work for crowns on all four patients.
23. On 25 and 26 October 2011 the practitioner fitted crowns or crowns and/or pontics to seven patients at Lewisham Hostel. The following day he completed crowns on three patients at Woodfield Nursing Home.
24. On 27 October 2011 the practitioner attended Woodfield Nursing Home and completed crowns on three patients.
25. On 28 October 2011 the practitioner saw four patients at The Marion. He undertook preparation of crowns for each patient. Two of the patients had dementia. The practitioner was found guilty of assault occasioning actual bodily harm arising out of his treatment of the two patients.
26. The practitioner visited The Marion again on 31 October 2011. Two patients received crown preparation. One patient who was treated was subject of a criminal charge for which the practitioner was found guilty of assault occasioning actual bodily harm.
27. On his third visit to The Marion on 1 November 2011 the practitioner saw ten patients. He conducted preparation for crowns on nine patients. He was charged in respect of his treatment of four of the patients. The practitioner pleaded guilty to one charge at the 2015 trial, one charge was discontinued, and he was convicted of two charges following the jury trial in 2013.
28. A complaint was made by a resident at The Marion immediately following preparation for crowns by the practitioner at an initial consultation on 28 October 2011. The resident, who was capable of giving informed consent, said she had only consented to a dental examination.
29. On 3 November 2011 Elderlink's services at The Marion were suspended.
30. On 12 December 2011 the practitioner was arrested and charged with twelve counts of assault occasioning actual bodily harm as a result of his treatment of the named patients without their informed consent, or if they were not capable of consenting, without appropriate consent being given by the guardians or person's responsible.
31. On 10 February 2012 the Council convened proceedings under s 150 of the National Law. Conditions were imposed on the practitioner's registration on 29 February 2012 including conditions prohibiting the practitioner from conducting work in any aged care facility, from undertaking dental work involving crowns, bridges or implants, and that he not undertake any work for the scheme.
32. Between 12 August 2013 and 2 October 2013 a trial was conducted before Frearson DCJ SC in the District Court before a jury. The practitioner, who pleaded not guilty to all twelve counts, was found guilty of five counts. On 29 November 2013 the practitioner was sentenced. A two year intensive correction order was imposed. On that day a fresh indictment of seven further counts was listed for trial on 31 August 2015. On 2 September 2015 the practitioner pleaded guilty to three of the seven counts before Flannery DCJ SC. This plea was accepted in full satisfaction of the charges by the Crown.
33. On 15 October 2013 the practitioner's registration was suspended by the Council.
34. On 4 December 2015 Flannery DCJ SC sentenced the practitioner to a term of imprisonment for 11 months on one count. That sentence expired on 3 November 2016. In respect of the two remaining counts, her Honour sentenced the practitioner to a period of 18 months imprisonment expiring on 3 January 2017. Each sentence was suspended and the practitioner required to enter into a good behaviour bond.

Relevant statutory provisions and principles

1. It is not in dispute that the HCCC carry the onus of proving the complaints alleged against the practitioner to the civil standard on the balance of probabilities but to the level of satisfaction explained in Briginshaw v Briginshaw.
2. In this matter the HCCC allege, and the practitioner concedes, that his conduct satisfies the definition of unsatisfactory professional conduct as particularised in s 138B (1) (a) and (l) of the National Law. At the hearing we were provided with a document (Exhibit R) headed "Findings available in relation to complaints of unsatisfactory professional conduct and professional misconduct". Leave was not sought to amend the application for disciplinary findings and orders. For convenience only we have annexed a copy of Exhibit R to these reasons as Annexure "B".
3. Section 138 (1) (a) and (l) provide as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. The HCCC also assert the practitioner's conduct satisfies the definition of professional misconduct as set out in s 139E of the National Law. That provision is as follows: 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.
5. At the crux of issues in dispute in this matter is s 144 of the National Law. That is because the HCCC allege, and the practitioner denies, he is not a suitable person to hold registration as a dentist.
6. Section 144 states: The following complaints may be made about a registered health practitioner- (a) … (b) … (c) … (d) … (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

The issues

1. As the practitioner had admitted all the complaints and particulars of those complaints, except suitability to practice, it was not necessary for us to conduct an exhaustive consideration of each particular. We are cognisant however of the requirement, even in a situation where a practitioner consents to the making of an order in professional disciplinary proceedings, to independently satisfy ourselves that the complaints are established so that we may consider the appropriate protective orders.
2. The hearing before us focussed primarily on whether or not the practitioner is a suitable person to practise as a dentist. Ms R Mathur, (Ms Mathur) counsel for the HCCC, submitted there were two factual issues to be determined which went to the practitioner's honesty and insight, and which, if established, would be pivotal to our assessment of whether the practitioner is a suitable person to practise.
3. Mr Rares submitted we should find that the practitioner is remorseful, demonstrates insight into his wrong doing, and is currently fit to practise.
4. The issues identified by the HCCC as going to the practitioner's credit and honesty are: 1. is the practitioner truthful in his evidence that it was agreed with Uniting Care staff he could assess and treat patients at the initial consultation; and/or 2. is the practitioner's evidence that he obtained "consent" to the dental procedures carried out on incompetent patients, or patients whose competence to provide informed consent was doubtful, from the nursing staff honestly given?
5. In assessing the practitioner's credibility we also propose to examine his stated belief, that at the time treatment was carried out, the use of crowns, or crowns and pontics, were the optimal treatment modality for these patients.

Meeting of 5 September 2011

1. In respect of the issue of the agreement reached at the 5 September 2011 meeting the HCCC rely on the statement of Monika Hall (Ms Hall) dated 25 November 2011 and her typed notes dated 5 September 2011. Ms Hall is the Sydney Regional Manager for Uniting Care. The HCCC also rely on the statement of Ms Cara Champion (Ms Champion) dated 24 July 2012. Ms Champion was the Executive Manager of Care Services in the Sydney region for Uniting Care at the relevant time in 2011. Both Ms Hall and Ms Champion were present at the meeting on 5 September 2011.
2. Ms Hall and Ms Champion set out in their statements the "process" discussed with the practitioner, Ms Sardisco and Mr Koutavas. In summary Ms Champion's evidence, which was untested before us, is that: 1. representatives of Elderlink would meet with the managers of the relevant aged care facilities about the Medicare claims process; 2. the facility would provide to Elderlink the residents' details to be included "pre-populated forms Medicare forms"; 3. Elderlink would provide the pre-populated Medicare forms under the scheme to the facility; 4. the facility would provide the forms to the resident's general practitioner; 5. the general practitioner would consider the form, and if appropriate sign it, and return the form to the facility manager; 6. once the general practitioner's referral had been obtained Elderlink would determine which residents wanted to have an oral examination; 7. Elderlink would then perform an oral assessment only during the first consultation and no treatment would be performed on any resident at that assessment; 8. after an oral assessment of the resident, Elderlink would provide the assessment form and treatment plan prepared by it to the facility manager. A staff member would discuss the proposed treatment with the resident or resident's next of kin (depending on whether the resident had capacity to give consent); and 9. if consent was given to the facility, Elderlink would return to the facility to provide the agreed treatment.
3. Ms Champion also referred to the practitioner, or Mr Koutavas, referring to having experience with patients suffering dementia, and that light sedation would be used if appropriate.
4. Ms Hall's evidence is broadly similar to that of Ms Champion. She refers in her typed notes to obtaining consent from NOK (next of kin) before any dental treatment was carried out being discussed.

Other relevant evidence

1. In her evidence at the practitioner's criminal trial, Ms Sardisco referred to a "pre-assessment" of residents. She said this was an assessment conducted at the request of some facilities and sent to the general practitioner to assist that practitioner's determination to refer under the scheme.
2. In his trial evidence the practitioner referred to "pre-assessments" agreed to being conducted. These, he explained, were brief examinations of a resident's mouth with a light to provide information to the resident's general practitioner that the resident's oral health was likely to be impacting on their general health. He said such pre-assessment had been conducted at Woodford but on 12 October 2011 when he and Mr Koutavas attended at The Marion it was agreed with Ms Amy Walton (Ms Walton) that it was impractical to do pre-assessments because many patients were not in their rooms and because the residents' doctors were returning the forms. Ms Walton was a nurse at the Marion involved with the implementation dental program.
3. The practitioner stated at his trial [transcript 19 September 2013 p 1309] that what was discussed and agreed at the 5 September meeting was that examination and treatment would take place on the first visit.
4. Before us the practitioner said he was not looking to put blame on the nursing staff about their evidence, but he maintained the position he adopted at trial, and that he disagreed with their statements. In summary, he asserted before us that the arrangement was that both treatment and assessment would occur at the first consultation.

Discussion and conclusions meeting of 5 September 2011

1. Although we accept some confusion is caused by the use of the terms of "assessment", "initial assessment" and "pre-assessment", we are unable to accept the practitioner's evidence about agreement reached with Uniting Care on 5 September 2011. We find the question posed by Frearson DCJ SC to the practitioner during his criminal trial and his Honour's comments are telling. After the proposed treatment form was tendered, his Honour asked: HIS HONOUR Q So just to make it clear, treatment was to take place before you had actually determined what treatment was required and reported on it is that right? A You'd determine what treatment was required - HEATHCOTE Q Keep your voice up please? A. Okay, the discussion that took place at the initial meeting was that examination and treatment would take place. Treatment parameters were set as to the general nature of the work that would take place when that treatment - definitive treatment plan had been decided upon. So it doesn't - it doesn't take away from my obligations to get consent but these are the parameters that were set - yes [transcript 16/9/2013 p1309]
2. At another point in the trial, his Honour commented that conducting treatment and then obtaining consent was "absurd". We see much logic and common sense in his Honour's comment that assessment, treatment, and then a provision of a treatment plan after the treatment had occurred was "absurd". We make this finding notwithstanding the assessment form set out, in very general terms, a number of dental procedures.
3. It is inherently improbable that the aged care facility managers would have agreed that residents could have invasive, irreversible treatment carried out at the first visit (whether or not there had been a pre-assessment designed to satisfy eligibility for the scheme) and then a definitive treatment plan decided upon and consented to by those able to consent, or consent given on behalf of those incapable of giving an informed consent. We are satisfied that the practitioner's denial of the agreement is one which he has maintained to support his assertion that he had some form of authority, albeit not a proper authority, for his grossly irresponsible conduct in providing inappropriate, and in many circumstances, unnecessary crowns to this very vulnerable cohort of patients.
4. We also found the practitioner's evidence that he did not sight any consent forms before carrying out initial treatment, nor did he comply with the scheme's requirement that a treatment plan be provided to the general practitioner after assessment, to be inconsistent with his assertion of the terms of the agreement.
5. We further reject the practitioner's evidence that his preferred treatment modality of crowns was discussed at this meeting. Ms Hall's comprehensive dot point notes dated on the day of the meeting do not refer to any such discussion, nor does Ms Champion's statement. We find this evidence too is designed to support or justify the practitioner's actions in working with speed by treating so many residents on the first visit with preparation work for crowns to claim maximum Medicare or DVA entitlements.
6. There are other discrepancies in the practitioner's evidence that cast significant doubt on his truthfulness. While the question of sedation was raised at the meeting and the practitioner agreed he said he could provide appropriate sedation for any agitated dementia patient, at his trial the practitioner said he had never used sedation [transcript 16/9/2013 at 1308]. However, as late as 8 January 2014 the practitioner told his intensive corrections officer that he only carried out dental work that was necessary and used anaesthetic where appropriate. Before us, while he agreed he had not used any analgesia for any patient, he maintained he would have arranged for the patient's general practitioner to prescribe Diazepam (Valium) if appropriate. It was unclear when and how a prescription would be obtained and Valium administered at a first visit if a patient undergoing preparation work for a crown or crowns became agitated. We found the practitioner's evidence about the use, or potential use, of Valium, a Schedule 4D drug, was designed to bolster his assertions about what was said and agreed at the meeting. We are unable to accept the practitioner's evidence that his chosen form of analgesia was Valium. We find this evidence was of recent invention.
7. While in the case of one facility the practitioner was provided with a list of patients who had dentures, and would not qualify for treatment, it is indeed unfortunate that the facilities also did not take greater care to ensure that informed consents had been obtained from all competent patients, or for the majority of them who were incapable of giving informed consent, the person responsible or guardian, before any treatment occurred even if that treatment was limited to scaling and cleaning the patient's teeth. While United Care said any agreement with Elderlink was to comply with their policies and procedures, that requirement was not incorporated into the agreement they entered into with Elderlink. No agreement was entered into between Elderlink and Lewisham.

Consent from the nurses

1. The second area of dispute is the practitioner's stance that, for patients he deemed to be incompetent, or about whose competence he was doubtful, he spoke to the nursing staff and obtained their consent to proposed treatment including preparation for crowns.

How consent must be given to dental treatment for persons without capacity

1. We pause here to note that the nursing staff could not give consent on behalf of an incompetent patient to medical or dental treatment. For such patients in New South Wales consent to medical and dental treatment is governed by Part 5 of the Guardianship Act. Although in some States a Power of Attorney may authorise the attorney to consent to medical treatment that is not the case in New South Wales. A patient, when competent, may however appoint a guardian with authority to give consent to medical and dental treatment under a Deed of Enduring Guardianship.
2. We propose to set out the relevant provisions of the Guardianship Act because it was of concern to us that, at least at the time of the events the subject of this complaint, the evidence discloses that there was a degree of uncertainty about the issue of consent.
3. Section 35 of the Guardianship Act prohibits a person carrying out medical or dental treatment on a patient who lacks capacity unless the consents set out in that section have first been given. Section 35 provides as follows: A person must not carry out medical or dental treatment on a patient to whom this Part applies unless: (a) consent for the treatment has been given in accordance with this Part, or (b) the carrying out of the treatment is authorised by this Part without any such consent, or (c) the treatment is carried out in accordance with an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons. Maximum penalty: - in the case of special treatment or treatment in the course of a clinical trial (on conviction on indictment)--imprisonment for 7 years, or - in the case of minor or major treatment (on summary conviction)--imprisonment for 1 year or 10 penalty units, or both. (1A) Subsection (1) (c) does not apply in the case of special treatment that is special treatment of the kind referred to in paragraph (a) of the definition of "special treatment" in section 33 (1) or special treatment prescribed by the regulations for the purposes of this subsection. (2) This section does not limit the operation of any other Act or law under which minor treatment may be carried out on a person without that person's consent.
4. Section 36 set out who may give consent. It provides as follows: 36 Who may give consent (1) Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given: (a) in the case of minor or major treatment--by the person responsible for the patient, or (b) in any case--by the Tribunal. (2) The guardian of a patient may also consent to the carrying out of continuing or further special treatment if the Tribunal has previously given consent to the carrying out of the treatment and has authorised the guardian to give consent to the continuation of that treatment or to further treatment of a similar nature.
5. It is also appropriate that we set out the definition of "person responsible". It is as follows: 33A Person responsible (1) Object The object of this section is to specify the person who is the "person responsible" for another person for the purposes of this Part. (2) Person responsible for child The "person responsible" for a child is the person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child. However, the person responsible is the Minister if the child is in the care of the Minister or the Director-General if the child is in the care of the Director-General. (3) Person responsible for person in care of Director-General The "person responsible" for a person in the care of the Director-General under section 13 is the Director-General. (4) Person responsible for another person There is a hierarchy of persons from whom the "person responsible" for a person other than a child or a person in the care of the Director-General under section 13 is to be ascertained. That hierarchy is, in descending order: (a) the person's guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person, (b) the spouse of the person, if any, if: (i) the relationship between the person and the spouse is close and continuing, and (ii) the spouse is not a person under guardianship, (c) a person who has the care of the person, (d) a close friend or relative of the person. Circumstances in which a person is to be regarded as "having the care of another person" are set out in section 3D. The meaning of "close friend or relative" is given in section 3E. (5) Operation of hierarchy If: (a) a person who is, in accordance with the hierarchy referred to in subsection (4), the "person responsible" for a particular person declines in writing to exercise the functions under this Part of a person responsible, or (b) a medical practitioner or other person qualified to give an expert opinion on the first person's condition certifies in writing that the person is not capable of carrying out those functions, the person next in the hierarchy is the "person responsible" for the particular person.
6. The requirements to establish a patient's consent is an informed one are explained by the High Court in Rogers v Whitaker (1992) 175 CLR 479 (see also Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55).

Evidence relied on by the HCCC in respect of the nursing staff.

1. The HCCC rely primarily on part of the trial evidence of Ms Walton the registered nurse working at The Marion on 28 October 2011, that of her supervisor, Ms Uerkvitz-Shepherd (Ms Shepherd) and Ms Valerie Boyd (Ms Boyd). Those are the nurses nominated by the practitioner as the staff who he consulted.
2. We observe that not all of the transcript of Ms Walton's evidence at the criminal trial was contained in the fifteen volumes of documents, but was in the supplementary volume of documents relied on by the HCCC.
3. Ms Walton, whose evidence disclosed she had minimal or no recollection of events, could not recall if the practitioner had told her he had taken an X-ray of a patient's mouth, explained there was a problem with the patient's teeth, or that a patient had failed fillings. She also said she could not recollect if the practitioner had shown her a model set of teeth. Ms Walton further said she could not recollect if the practitioner discussed the crown procedure with her [transcript 2/9/2013 p 780]. She denied the practitioner ever checked with her if any patient could consent to treatment, and of giving consent to dental treatment [transcript 3/9/2013 p 791].
4. Ms Boyd, the care co-ordinator at The Marion, during the 2013 criminal trial. denied that the practitioner over three days he attended that facility commencing on 28 October 2011 had: 1. discussed with her that a patient had received an X-ray; 2. shown her models of crowns; 3. explained the procedure involved in preparation for a crown; or 4. asked her to explain the crown procedure to a patient.
5. Ms Shepherd was, at the relevant time, the Deputy Manager at The Marion. At the trial in 2013 she agreed she had gone into the treatment room from time to time when the practitioner was in the treatment room, but that the practitioner had not sought her consent to conduct any dental treatment on any patient.

The practitioner's evidence

1. At the preliminary hearing, and with the benefit of a certificate under s 128 of the Evidence Act, the practitioner maintained that where he formed a view a patient at the Lewisham Aged Care facility did not have the capacity to consent, he had, in error, believed that the staff at the aged care facility were able to consent. He explained he had an express conversation to that effect with a staff member at the facility for agreement to proposed treatment of preparation for a crown.
2. The practitioner said he explained in general terms the treatment proposed and showed the staff member the patient's teeth and his model of a crown. The practitioner asserted the person whose consent he sought and obtained at Lewisham was "more a director of nursing" rather than a nurse. He also said that, for any patient who he had doubt about their ability to consent, or who he believed could not consent, he consulted the staff member.
3. In his evidence at the hearing the practitioner agreed that his evidence about always communicating with nursing staff during treatment of patients given in the s 150 proceedings was inaccurate "it was me going on a rant". He said once he had cleaned and scaled a patient's teeth he had a short discussion but did not discuss options with a patient. He said the facilities staff did assist him and he maintained his trial evidence that Ms Walton, Ms Shepherd or Ms Boyd had given the "go ahead" at The Marion.
4. It is relevant that we note the practitioner did not seek to obtain consent from a nurse for any patients at the Woodfield facilities as he deemed the patients were competent to give consent. It is clear from the expert reports that the majority of these patients, by reason of cognitive deficits, were unable to give an informed consent.

The HCCC's submissions

1. Ms Mathur pointed out that of the 69 patients who were the subject of the complaint, 52 were subsequently found to lack capacity. Therefore, she submitted, for three out of four patients the practitioner would have had to "seek consent" from a nurse. However, she noted none of the nurses nominated by the practitioner agreed he had discussed a patient's treatment with them or purported to give consent to treatment. Ms Mathur submitted that the practitioner's evidence was inconsistent with the statement attributed to both the practitioner and Mr Koutavas at the s 150 hearing that they had problems finding staff at The Marion. She also drew our attention to the fact that the jury in the criminal trial had rejected the practitioner's position he had an honest belief he had the patient's consent to treatment in respect of five out of seven patients named in the charges.

Practitioner's submissions

1. Mr Rares submitted that the practitioner now showed insight and that he had been candid in acknowledging his wrong doing. Mr Rares pointed out that the practitioner did not assert the nurses had lied in their evidence, and did not attribute blame to them rather relied on his recollection being more accurate than that of the nurses.

Discussion and conclusions - consent by nurses

1. We commence by observing that the HCCC did not rely on a statement by Ms Walton. Rather the HCCC rely on the transcript of Ms Walton's cross-examination at the criminal trial. We note from that cross-examination she only provided a statement to the Police on 29 August 2013 shortly before the commencement of the trial which dealt with assaults on twelve patients. We also note that statement of Ms Shepherd was in the HCCC's material, and that she was not required for cross-examination. Further, a statement of Ms Pratibha Rana (Ms Rana), Deputy Manager, Woodfield Nursing Home and Hostel was not challenged. Ms Rana was present and in and out of the treatment room on 20 October 2011 at Woodfield. She does not refer to being approached at any time by the practitioner about a patient's treatment. Similarly, Ms Elizabeth Nell's statement indicates that she was present at Woodfield on 20 October and 27 October but did not speak to the practitioner. We accept however that the practitioner did not even bother to consult these nurses, but proceeded to provide treatment to many incompetent patients without any proper consent to do so.
2. We accept that Ms Walton was not definitive in her evidence answering most questions posed to her by the practitioner's counsel in cross-examination saying that she did not recollect specific matters, but she did deny that the practitioner ever sought her authority to undertake placement of crowns on any patient's teeth. In light of Ms Walton's poor recollection of events we have not placed significant weight on her evidence but we do not entirely discount it. It is consistent with the evidence of other nurses not just at The Marion, but also at Woodfield. The evidence of Ms Shepherd and Ms Boyd was unequivocal. Each witness denied the practitioner's version of events.
3. We accept the evidence of Ms Shepherd, and Ms Boyd, (as well as that of Ms Rana and Ms Wells). While we did not have the benefit of seeing these witnesses we find their evidence is believable. Each had professional qualifications and knew that they did not have the authority to consent to medical or dental treatment. The evidence of all nurses, from different facilities, called at the criminal trial gave consistent evidence of not having given consent. Further, having regard to the sheer number of patients, even excluding the Woodfield patients, for whom an explanation to a nurse about proposed treatment and her consent to it would have been required, militates against the likelihood of this practice occurring.
4. As with the practitioner's position in respect of the agreement reached at the 5 September meeting, we find the practitioner is still unable to take full responsibility for the cavalier manner in which he, aided by Mr Koutavas, disregarded the patients' right, or their responsible persons' right, to consent to the treatment proposed before it took place. Although he says he does not cast blame on the nurses he does in reality seek to shift his responsibility to have obtained some kind of ineffective informed consent onto them and in so doing challenges their integrity. We find his conduct in this regard falls short of demonstrating the qualities of integrity and honesty he alleges he now possesses.

The admitted complaints

1. We turn now to our brief examination of the admitted complaints. The admissions disclose conduct which includes conduct which was both significantly below the standard expected of a practitioner of the level of experience of this practitioner at the relevant time and was improper and unethical.
2. We find the conclusions to be drawn from the admitted conduct are best summed up in the expert reports. Dr Phillip Kelly (Dr Kelly) provided a report dated 21 December 2012. In it he chronicled the inappropriate care given to forty of the patients he examined at The Marion and Woodfield. He concluded his report noting: I was and remain upset at the extent of unnecessary, irreversible and invasive dental treatments. That these treatments were visited on patients who could not have consented is inexcusable. That the quality of dental treatments was poor and performed in an apparently cavalier fashion deserves my professional condemnation. Of all forty patients examined by me in these two Uniting Care facilities on 22 November 2011, there were only three or four whose treatment could be considered to meet the normal standard of dental care in Australia. In each of those patients who had crowns prepared, they received permanent damage to their persons, which if left uncompleted will almost certainly result in serious injury to every one of these teeth, with concomitant discomfort and possible systemic sequelae for these patients.
3. Dr Kelly made similar comments about the treatment of patients at Manly Vale and Lewisham in his report of 9 May 2013.
4. Dr Mark Braud (Dr Braud), who carried out necessary repair and other dental work on the patients treated by the practitioner at The Marion and Woodfield explained in his report dated 27 March 2012 after examining 31 patients: …From the residents that I examined all had teeth prepared inadequately for crowns. No teeth had temporary crown fitted which is important to prevent sensitivity. Most patients had untreated decay left in the mouth and gross calculus and plaque covering their dentition. Many of the patients were very sensitive as temporary crowns were not fitted. In my professional opinion most of the crown preparations were unwarranted and were done in lieu of decay removal and cleaning including [named patients] that should have been performed first. After examining all the patients it became apparent that the teeth selected for crowns were chosen depending on the ease of preparation for the dentist and not the need of the tooth. The majority of teeth prepared were lower incisors 31, 32, 41, 42 and lower premolars 34,35,44,45. These teeth were prepared even though they seemed sound and huge carious lesions were present elsewhere in the mouth.
5. Before us the practitioner acknowledged he acted with "speed and greed" and that his values at that time were motivated by status, politics and financial success. We agree on the evidence before us that acknowledgement typifies the practitioner's motivation for his treatment of this vulnerable cohort of patients. Accepting as we do the expert evidence of Dr Kelly, we find the practitioner's treatment of the patients at Manly Vale named in Complaint One of the Complaint demonstrated treatment significantly below the standard expected of a practitioner of an equivalent level or training or experience. His conduct in performing unnecessary work on very elderly patients without consent, in particular, in respect of Patient MN6 was grossly improper and unethical.
6. We are also satisfied that the practitioner failed to provide the necessary documentation to referring general practitioners as required under the scheme, and that he failed to keep adequate records. We find that the conduct in which the practitioner engaged was influenced by the amount of benefit available under the scheme or DVA entitlements.
7. We make similar findings about the practitioner's treatment of patients at Lewisham Aged Care facility on six occasions (5 October 2011, 6 October 2011, 7 October 2011, 25 October 2011, 26 October 2011 and 2 November 2011).
8. Our findings in respect of Woodfield Nursing Home on three occasions (6 October 2011, 20 October 2011 and 27 October 2011) are identical to those in respect of Lewisham as are our finding about the practitioner's treatment and conduct at Woodfield Hostel on 20 October 2011 and 21 October 2011 and The Marion on 28 October 2011, 31 October 2011 and 1 November 2011.
9. Complaint Six asserts the practitioner is guilty of professional misconduct. In our view, the evidence discloses the practitioner's conduct, although occurring during a brief period, demonstrated a gross departure from accepted standards. It was improper and unethical. His treatment showed complete disregard for a patient who had capacity to consent, to be informed about proposed treatment options, and to determine whether he or she wished to have the treatment proposed. Insofar as the majority of patients who lacked capacity were concerned, the practitioner's conduct evinces a pattern to undertake preparation work for crowns and to fit crowns and pontics as that work attracted the maximum benefit under the scheme or DVA entitlements rather than other appropriate options being adopted. He ignored in many cases obvious decay and gross calculus suffered by patients which should have been treated under the scheme. It is telling that not one patient of the 69 patients treated had a restoration (filling) and that crown preparation for up to four teeth was undertaken for so many patients and, in the majority of cases, on the most easily accessible teeth.
10. For the reasons enunciated above, we are satisfied that the practitioner's treatment of the 69 patients named in the complaint constitutes unsatisfactory professional conduct. That unsatisfactory professional conduct was of such a serious nature that it would justify the suspension or cancellation of the practitioner's registration. We can do no better than repeat Frearson DCJ SC's comments in summing up to the jury in the 2013 criminal trial and noting those comments were in relation to only five patients. We have found the practitioner's conduct in respect of all 69 patients named in the complaint to have been unprofessional. His Honour said: When one looks at the gravity of this type of offence it is an unusual offence under this section and I have not been pointed to any other similar cases but the fact is the frail and elderly have a right to be treated with dignity and respect. It is clearly reprehensible to exploit the elderly and incapacitated for financial gain or for any other reason for that matter and it is an affront to the community standard to do so. That makes it a serious matter to embark upon invasive dental procedures of a person who lacks capacity without ensuring that such treatment is authorised by the persons responsible for doing do. That is because there is a right to bodily integrity, it is a fundamental human right and the offender's conduct has been arrogantly dismissive of that fundamental human right. The gravity of the offences is not undermined by the offender's apparent belief that he was providing relatively expensive crowns for free, free to the patient not to the community I should add. Indeed, the gravity of the offences is enhanced by reason of the offender's financial motivation. And there is also the fact, as I said, that he performed the procedures regardless of what was actually in the best interest of the residents….Nevetheless [it] is the collective conduct of the offender which underlines the deliberate and callous, systematic exploitation of the residents with a view to financial reward. In my view, these were crimes motivated by greed.
11. Little needs to be said about Complaint Seven which recites the practitioner's criminal convictions. The 2013 convictions are established in the Certificate of Conviction supplied by the District Court dated 13 January 2014 and the Certificate of Conviction from the District Court (undated) in respect of the 2015 proceedings.

Complaint Eight

1. Complaint Eight asserts "The Practitioner is otherwise not a suitable person to hold registration as a dentist". The HCCC rely on nine particulars in support of this complaint. The particulars relate to the established charges of assault occasioning actual bodily harm perpetrated on the eight patients subject of the proved offences in the District Court proceedings.
2. Particular 9 relies on the particulars of Complaints One to Five both individually and cumulatively.
3. The phrase "suitable person" is not defined in the National Law. However, assistance in interpretation of who is a suitable person may be had from resort to s 55 of the National Law. That provision sets out the circumstances or criteria used to assess whether a person is unsuitable for registration.
4. Section 55 is as follows: (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if-- (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
5. Thus, it will be seen that three aspects of s 55 have particular relevance in this case. First, we must have regard to the practitioner's criminal history, and the extent to which that history is relevant to the practise of the profession, whether the practitioner is an appropriate person to practise the profession of dentistry, and whether it is not in the public interest that he be permitted to practice. Secondly, we must consider whether the practitioner is a fit and proper person to be registered, and thirdly, whether or not he is able to practise competently and safely.
6. Ms Mathur submitted we should find the practitioner is not a suitable person to hold registration. She relied substantially on us finding, as we have done, that the practitioner is not a witness of truth in respect of the agreement of 5 September 2011 or seeking the nurses' consent to treatment. She submitted, it is integral to the characteristic of a professional engaged in the practise of dentistry, that such a person operates ethically, can maintain and build trust, and conduct themselves in an honest manner. She emphasised the practitioner's conduct in respect of the vulnerable group of persons in the aged care facilities was unethical and he is presently untruthful.
7. Mr Rares provided us with detailed and careful written submissions. Those submissions include a submission that in dealing with Complaint Seven we should have regard to the practitioner's current fitness to practise. It is submitted that the practitioner has admitted his misconduct, and that his conduct was inappropriate. He further submits the practitioner has acknowledged the effect of his misconduct on others (referring to the practitioner's statements in 2015 to his intensive corrections officer), and that he is unlikely to reoffend. Reference is made to the "short window" in which the conduct occurred, the practitioner's engagement in continuing professional development relevant among other matters to informed consent, his engagement in psychological counselling, and the testimonials of his referees.

The authorities

1. Mr Rares referred us to a number of authorities considering the term "fit and proper person" in his written and oral submissions. Mr Rares' written submissions at [21] advance the position that the Tribunal must assess the practitioner's current fitness to practise at the date of the hearing. He cites as authority for this position a number of cases dealing with professional disciplinary proceedings against legal practitioners and the recent UK Supreme Court decision of Khan v the General Pharmaceutical Council [2017] WLR 169.
2. We discern that Mr Rares' written submissions under the heading "Legal submissions" do not specifically refer to s 144 or Complaint Eight, but rather address the issue of relevant legal principles to be applied in respect of final protective orders. However, if we are wrong about that, as we will now discuss, we do not accept that the issue of whether a person is a suitable person to hold registration is confined to consideration of the practitioner's current fitness to practise, although that is one important consideration to be addressed.
3. Ms Mathur referred us to the decision of the former NSW Nurses and Midwives Tribunal decision in Health Care Complaints Commission v Pierce [2010] NSWNMT 23 where the Tribunal discussed whether the nurse, the subject of the proceedings, was "not of good character" and the criteria considered by the Tribunal at [62].
4. We find the consideration of the relevant principles in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 correctly reflects the proper construction of s 144 in the context of the National Law. In that decision the Tribunal, as we have done, had reference to s 55, as giving context to interpret the words "suitable person".
5. In Brush at [72] and [73] the Tribunal explained: We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
6. The Tribunal's interpretation of "suitable person" in Brush is consistent with the interpretation of the Queensland Court of Appeal in when considering those words in the context of whether or not a person was a suitable person to be granted an adult entertainment licence under the relevant legislation (see Chief Executive Department of Tourism, Fair Trading & Wine Industry Development v 4 Play (Oz) Pty Ltd. [2008] QCA 267). Here the Court of Appeal took into account the applicant's reputation, character, honesty and integrity and also had regard to the applicant's past financial dealings with the Australian Taxation Office.

Discussion and conclusions suitable person to hold registration

1. The evidence before us demonstrates that the practitioner has complied with and satisfactorily completed his intensive corrections order. We accept his evidence that the publicity attendant upon his criminal trial caused him deep shame and embarrassment for his actions in 2011. We also accept that he has suffered financial and reputational loss, the unfortunate breakdown of his marriage, and his opportunity to advance his political career with the Hurstville City Council.
2. The evidence is undisputed that up to and during his criminal trial in 2013 the practitioner did not acknowledge the wrongfulness of his actions. We accept that the practitioner's acceptance of his conduct, and the damage he caused has been, and in our view, continues to be an evolving process. In December 2015 for the first time on the evidence before us he expressed contrition to his intensive correctional services officer for his inappropriate and irresponsible conduct in his treatment of the 69 patients and the stress caused to their families. After having the benefit of absorbing the evidence of the dental experts, he now says he accepts his preferred treatment modality was inappropriate. But as we have earlier found, he is unable, at least at this point, to acknowledge that he could not have held an honest view that the best treatment modality for these patients in 2011 was crowns. His stated view of his position at the time is in conflict with both his acknowledged financial motive and his failure to carrying out necessary required treatment on many of the patients.
3. At the hearing for the first time the practitioner gave evidence that he has been attending a psychologist for some time. It is unfortunate we did not have the benefit of any report from the psychologist. Accordingly we are unable to gain any objective knowledge of development of insights he may have received from such consultations.
4. The practitioner also relies on two references provided to the trial Judge at his 2013 criminal trial. Mr Jack Jacovou (Mr Jacovou), solicitor and fellow local government councillor provided a reference. Mr Jacovou is unstinting in his praise for the practitioner, referring to his conduct the subject of the criminal trial as being "totally outside the character I have observed for years".
5. The practitioner's second referee is Mr Victor Lampe (Mr Lampe). At the time of writing the reference Mr Lampe was the general manager of Hurstville City Council. This reference was also prepared in 2013 for the purposes of the criminal trial. He also expresses the view that the practitioner's offending was completely out of character.
6. While we have given some weight to the references, it is relevant to note that they are now almost four years old. They were written in the circumstances of the practitioner's sentencing following his conviction. We accept the references do corroborate the fact that the practitioner had assumed a position of public office, and was, at the time, respected by the local council general manager and a fellow councillor.
7. We have also taken into account that the treatment of the patients occurred over a short period of time, and that the practitioner had, for the previous nine years, an unblemished record as a practitioner. This may be compared with situations such as the practitioner in Health Care Complaints Commission v Rolleston [2013] NSWMT 12 where the practitioner's conduct was repeated with multiple victims over a number of years.
8. We have made findings that reflect that the practitioner has not fully acknowledged the terms of the agreement entered into with Uniting Care. We have also found that he did seek to discuss treatment and obtain consent from nursing staff at the facilities he attended. These findings reflect on the practitioner's current insight, integrity and honesty. We are concerned that the practitioner feels the need to maintain his stance on the 5 September 2011 agreement and the consent issue to, in some sense, justify his conduct. Consequently, we find that he still lacks the full candour, insight and honesty necessary in a responsible professional.
9. In Health Care Complaints Commission v Litchfield [1997] NSWCA 264 the Court of Appeal considered the issue of time since an offence occurred and whether or not the evidence demonstrated a reformation of character. The court said: Moreover there was nothing to suggest that the doctor had become a changed person during the 43 years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness". See NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183. In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man". 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. Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as they did.
10. Here we find that the practitioner has taken some significant steps that indicate he is attempting to overcome some of the serious deficiencies in his character which emerged in his conduct in 2011. He now acknowledges that his treatment modality was inappropriate and the dental treatment given was sub-standard. He acknowledges that greed was a major, indeed perhaps the primary, motivation for his conduct. He has expressed contrition for his conduct. He has undertaken professional development courses in 2016 and 2017 and is seeing a psychologist. He has expressed remorse.
11. We find that the practitioner's position from the one he adopted at his criminal trial, and for some time thereafter, has been a gradual one. We agree with Frearson DCJ SC that the practitioner is, as a result of the shame, cost and losses he has suffered both emotional and financial, unlikely to engage in similar unprofessional conduct.
12. However, we cannot ignore that the practitioner demonstrated no moral compass when treating his aged, frail and vulnerable patients. His treatment was inappropriate and when given was, in the view of the experts, in the vast majority of cases sub-standard or in some cases unnecessary.
13. We also have regard to the serious criminal charges in respect of which he was found guilty. We take into account that his established criminal conduct arises directly from his treatment of the patients the subject of the charge. The criminal conduct is directly related to practise as a dentist and therefore to his suitability to practise.
14. We find, at least up to 2014, the practitioner failed to acknowledge to his intensive corrections officer the true nature of his conduct and his abuse of his elderly patients. He now disavows much of his sworn evidence given at his criminal trial and his evidence at the s 150 proceedings.
15. The practitioner also explained in response to a question from Ms Taylor that his goal is to get back into the profession, but to do so he would require retraining as he currently does not currently have the skill set or knowledge he had when in private practice.
16. We found a number of aspects of the practitioner's responses to questions posed in cross-examination by Ms Mathur, or by us, cast doubt on the veracity of all his evidence. This impacts on our assessment of his honesty, insight and remorse. We have already made detailed findings about the evidence relating to the meeting of 5 September 2011 and the evidence of nursing staff. The practitioner could not have been under any doubt that the questions posed to him by Ms Mathur on the topic of nurses giving consent was not one of blame, but directed to his truthfulness. We find other aspects of the truthfulness of the practitioner's evidence to be troubling including his evidence about sedation with Diazepam. We also are troubled by his explanation early in his cross-examination that Mr Koutavas' role as his dental assistant included being next to the treatment chair, passing instruments and suctioning, but then his denial that Mr Koutasas carried out suctioning in response to a question posed by Dr Lang.
17. Weighing and assessing all the evidence before us we conclude that while the practitioner has made significant strides in coming to terms with the wrongfulness of his conduct, that he retains a stance on the issue of the 5 September 2011 agreement, his interaction with the nurses to justify in some measure his conduct. This stance belies the complete candour, honesty and insight which are integral to the hallmarks of good character. We also find the nature of the proved criminal offences, although they occurred in a discrete period, are directly related to the practice of dentistry. Further, the practitioner's own concession to Ms Taylor about his current skill set confirms that he presently lacks the knowledge and skills necessary to practise safely. Accordingly, we find the practitioner is not a suitable person to engage in practise. Complaint Eight proved.

Appropriate protective orders

1. The HCCC proposed that we should make orders cancelling the practitioner's registration, and preclude him from re-applying for a re-instatement order for a period of between seven to ten years. The orders sought are to reflect the serious nature of the practitioner's conduct and to act as a deterrent to other practitioners from engaging in like conduct. Ms Mathur candidly acknowledged that if we made the order sought under s 149C (7) it would effectively mean that the practitioner would never practise as a dentist again.
2. The purpose of protective orders is well known. Such orders are not directed to punishment of the practitioner but to protect the public. The principles relevant to the orders to be made at the conclusion of disciplinary proceedings are clearly enunciated by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. His Honour said: 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.
3. In this case, as demonstrated by the expert evidence, the practitioner's conduct was of the most serious kind. The conduct requires strong denunciation. It is hard to imagine a more vulnerable group of patients. Those providing services to our elderly citizens have a duty to respect their human rights and dignity. Those persons lacking in cognitive capacity are deserving of special care from professionals involved in their treatment. So much is clear from Australia's ratification of the United Nations Convention of the Rights of Persons with Disabilities, particularly Article 25 of that Convention which deals with the provision of health services. That respect of human rights and special care was completely absent in the practitioner's treatment of the 69 patients.
4. While Mr Rares submitted this was a case where we could either suspend the practitioner's registration, and/or impose a strong reprimand, we are unable to agree that these type of orders would fulfil the factors requiring consideration so clearly set out in Health Care Complaints Commission v Do. It follows from our findings set out above that we are satisfied that the only appropriate order is cancellation of the practitioner's registration.
5. We are unable, however, to agree with the HCCC position that the practitioner should be precluded from applying for a re-instatement order for seven to ten years. The evidence before us discloses the practitioner, who is still a relatively young man, has come some way in acceptance of his wrongdoing particularly since about 2015. Whilst the conduct was of the most serious kind and deserving of the strongest condemnation, it occurred in a discrete time-frame. We are satisfied similar conduct is highly unlikely to be repeated. We are satisfied that a period of two years before which the practitioner can apply to the Tribunal for a re-instatement order is appropriate.
6. During the next two years the practitioner will have the opportunity to reflect on our reasons, hopefully with the ongoing assistance of his psychologist. At any re-instatement application expert evidence from a treating specialist may inform and assist the Tribunal. The practitioner should be able to use his obvious intellectual ability that enabled him to graduate with honours and become an elected councillor to engage in on going professional education and/or community work. We accept that he is genuine in his evidence about wanting to be a role model for his young sons. This should motivate him in taking up the sort of activities likely to benefit him in his process of reformation of character. In reaching our findings on this topic we concur with Frearson DCJ SC's comments about the potential for the practitioner to rehabilitate himself.

The Prohibition order sought

1. The HCCC seek a prohibition order under s 149C (5) of the National Law precluding the practitioner from providing any health service.
2. Section s 149C (5) provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
3. There was no evidence before us that the practitioner had engaged in any health service since conditions were placed on his registration, or it was suspended. Nor was there any evidence he intended to so do. His undisputed evidence was that he has worked in his father's building construction business and has not engaged in dentistry since 2011. The HCCC did not specify any particular health service in respect of which the prohibition was sought. We note that health services are defined in the National Law and include services provided by a registered health professional. Other health services included in the definition are wide-ranging and non-specific and include welfare services necessary to implement a number of services including community health services and health education services. No submissions were addressed to us in respect of this foreshadowed order.
4. We note that the provision requires that we be satisfied that the practitioner poses a substantial risk to the public if he provides a health service. While we have found the practitioner is not presently a person suitable to hold registration as a dentist for the several reasons we have enunciated, and that his registration should be cancelled, we are not satisfied that the HCCC has established, at the present time, on the evidence before us, to the requisite standard, that the practitioner presents a substantial risk to the public if he sought to provide a health service. We do not propose to make an order as sought by the HCCC. In this respect we adopt the reasoning on this topic as set out in Health Care Complaints Commission v CWY [2017] NSWCATOD 6 as apposite to this matter.

Costs

1. As we noted at the commencement of these reasons, the parties remain in dispute about the costs of the proceedings. The Tribunal is empowered in the exercise of its discretion to make a costs order (see Schedule 5D cl 13 of the National Law). The principles to be applied when considering making a costs order are succinctly explained in Health Care Complaints Commission v Do as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power.
2. In this case the HCCC has been substantially successful in the contest in respect of Complaint Eight and the proceedings overall. Further, although the practitioner admitted the balance of the complaints and particulars at the preliminary hearing, it was still necessary for us to consider those particulars in order to determine appropriate protective orders. Further, it was the practitioner's egregious conduct involving so many patients which necessitated these proceedings, the complex pleading and document preparation. In these circumstances we find it is appropriate to order that the practitioner pay the costs of the HCCC as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

orders 1. On the expiry of seven (7) days from to-day's date the registration of Dr Andrew Istephan (the practitioner) is cancelled. 2. The practitioner is precluded from applying for a re-instatement order under s 163A of the Health Practitioner Regulation National Law (NSW) for a period of two (2) years from the date of cancellation of his registration. 3. The Registrar is requested to notify the Dental Council of NSW as soon as practicable of Orders 1 and 2 of these orders. 4. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Annexure A - File 1520261 (475 KB, pdf) Annexure B - File 1520261 (306 KB, pdf)

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

Amendments 01 August 2017 - typographical error 01 August 2017 - paragraph numbering corrected 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: 01 August 2017