Health Care Complaints Commission v Karunaratne

The standard of proof

1. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. This well-known principle was formulated in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 apply. At 361 - 363 Dixon J, (as his Honour then was), said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.; Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath; Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted)
2. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.

The complaints and the particulars of those complaints

1. In essence, the applicant alleged that the respondent was guilty of both unsatisfactory professional conduct and professional misconduct as those expressions are defined in the National Law. The relevant provisions are as follows; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ………………………………………………………………….. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (The remainder is not reproduced) 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.
2. We shall return to these provisions later in these reasons. It is first, however, necessary to have regard to the substance of the complaints and the particulars thereof by reference to the evidentiary material made available to us in the course of the hearing. In order to facilitate this process, we set out hereunder each of the complaints and particulars and make reference to the relevant evidentiary material. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. Each particular of Complaint One justifies an individual finding of unsatisfactory professional conduct. Each sub paragraph of particulars 2, 3, 5 and 6 justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a dental practitioner in 1987. He established a private general dental practice in West Ryde in 1991.
3. In a statement given by the respondent to investigating police he conceded that whilst he was practising at West Ryde he did not employ a receptionist or dental assistant. He said that he managed his practice in this manner in order to save costs. As will become clear, the absence of any employees enhanced the possibility of any opportunistic inappropriate conduct of the respondent of a sexual nature. BACKGROUND TO COMPLAINT ONE Patient A and her family had attended the practitioner for dental treatment since around 1992. Patient A and her husband would attend the practitioner's rooms at approximately six month intervals. Between March 2000 and March 2001 the practitioner had a conversation with Patient A about a husband and wife couple that wished to be treated in the nude. PARTICULARS OF COMPLAINT ONE PATIENT A 1. Between March 2000 and March 2001 the practitioner failed to observe appropriate professional boundaries in circumstances where: (a) while waiting in the practitioner's rooms for a consultation, Patient A found a magazine about nudity which she briefly perused and mentioned to the practitioner after which, during the consultation with Patient A, the practitioner inappropriately asked a personal question about nudity when he said words to the effect of: "What do you think about that sort of thing?" (b) during a further consultation at the practitioner's room when Patient A was lying down on the dental chair and her head was positioned lower than her feet, the practitioner inappropriately: (i) asked Patient A about her opinions on nudity; (ii) said words to the effect of, "How often do you have sex with your husband?" (c) during a further consultation with Patient A at the practitioner's room, the practitioner inappropriately asked Patient A about her sexual experiences with her husband when he said words to the effect of: (i) "When you have an orgasm, what happens?"; (ii) "What about when your husband comes, do you swallow it, or what?"; (iii) "What does it taste like?" (d) during the consultation particularised above at (c), the practitioner inappropriately offered her to feel his penis and/or pulled Patient A's hand toward his groin. 2. During Patient A's regular dental appointments between 1992 and March 2001 in circumstances where Patient A's presentation was not associated with infection or trauma, the practitioner on numerous occasions and without clinical reason: (a) checked Patient A's upper chest; (b) checked the area around or near Patient A's breasts. 3. On 6 March 2001 at a consultation at the practitioner's rooms for continuing root canal treatment, after Patient A had commented to the practitioner that she had a bad back, the practitioner said to Patient A words to the effect of "Where exactly is the pain in your back and we'll see if it's the same place as mine", after which the practitioner without clinical reason: (a) lifted up Patient A's shirt; (b) obtained a ruler from another room, lifted up Patient A's shirt and using the ruler, started to measure her back; (c) pulled Patient A's pants down and said words to the effect of "I'm just going to pull your pants down…" 4. During the consultation with the practitioner on 6 March 2001 while Patient A was positioned in the dental chair with her head low and lay on the dental chair with her eyes closed and mouth open and a number of cotton sticks in and around her mouth, the practitioner placed his penis inside and to the right of Patient A's mouth during which Patient A could smell the odour of urine. 5. By reason of the actions in particulars 1 - 4 above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A. 6. During the consultation of 6 March 2001 with Patient A, the practitioner failed to use appropriate hygiene control in that he did not use a rubber dam during the endodontic procedure.
4. The above particulars are based upon information provided by patient A to investigating police officers consequent upon a complaint made by her to NSW police on 28 October 2002. All of the matters referred to in the particulars are corroborated in that statement. In the course of giving her statement patient A explained why, after the episode in which the respondent had pulled down her pants, she allowed him to continue to treat her. She said; Under normal circumstances I would have left as a result of such action, but as a Root Canal filling was not a simple process and required approx 3 visits of which this was the second, I could not really leave at this stage. I knew that this was important work that was being completed and I knew that I had to have a dentist that I could trust to do the work properly. I had a bad experience in the past and I just wanted it to be done correctly.
5. In her statement patient A said that after the incident of 6 March 2001 she went home and told her husband what had happened. She also telephoned a friend and told her of these events. Her friend's husband advised her to make a complaint to the police. Patient A's husband gave a statement corroborating the fact that his wife had returned from the consultation with the respondent extremely upset and crying. Corroborative statements were also given to the police by the friend and her husband.
6. After making that statement patient A decided to withdraw her complaint. Ultimately she said; "I do not have the confidence in the justice system to put my self-esteem on the line for what seems to me will inevitably be his word against mine."
7. Patient A gave evidence in police proceedings brought against the respondent concerning patient B. In those proceedings she was cross examined extensively concerning her version of what occurred and the contents of her police statement. We do not apprehend that anything given in her sworn evidence would detract from the veracity of her statement. Patient A also provided a statement on behalf of the respondent's former wife as evidence in Family Court proceedings between her and the respondent. Finally, patient A has provided a statement to the applicant in these proceedings, in which she has affirmed the contents of her police statement.
8. The respondent has formally denied the complaint and particulars concerning patient A but has not adduced any evidence or made any statement concerning the allegations. Nor, as we have pointed out, did he participate in the proceedings.
9. We are comfortably satisfied on the basis of the evidentiary material referred to above that this complaint and the particulars thereof have been established. There is ample evidence which corroborates the fact that patient A was extremely upset following the incident of 6 March 2001. Her evidence was tested in the course of criminal proceedings concerning patient B, and she did not recant from it. Furthermore, and tellingly, the evidence of patient A concerning the inappropriate predatory sexual conduct of the respondent is sufficiently similar to his behaviour concerning patient B and person C as to warrant, on the basis of the acceptance of their evidence, corroboration of the version of events as narrated by patient A.
10. Dr Gautam Sridhar was asked by the applicant to provide an expert opinion concerning the treatment by the respondent of patient A. He said that there was no therapeutic justification for examining the patient's back, and it follows that the remainder of the respondent's conduct was inappropriate. As such, this was conduct which was outside the practice of dentistry.
11. For completeness we note that it was the evidence of patient A that she was able to talk during the procedure which was undertaken on 6 March 2001. This evidence is inconsistent with the use of a rubber dam, a process which is recommended, but not then mandatory, in undertaking dental procedures of that kind. Whilst we are comfortably satisfied that a rubber dam was not used, this in itself would arguably constitute unsatisfactory professional conduct. In the total circumstances of these proceedings, it is not necessary that we consider this particular matter further. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B (a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. Each particular of Complaint Two justifies an individual finding of unsatisfactory professional conduct. Each sub paragraph of particular 1 justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT TWO On 16 October 2002 Patient B had concern about a decayed lower molar that had broken off. Patient B made an appointment for a consultation after having found the practitioner's listing in the Yellow Pages. PARTICULARS OF COMPLAINT TWO PATIENT B 1. On 17 October 2002 Patient B attended a consultation with the practitioner wearing a t-shirt, jeans, a bra and no underwear and received treatment from the practitioner on the molar in the back of her mouth during which: (a) the practitioner started to prod at Patient B's neck and chin area and said words to the effect of "I'm tracing the infection" and inappropriately and without clinical indication: (i) prodded around Patient B's upper chest area including her bones; (ii) lifted up Patient B's t-shirt and said words to the effect of, "Would you mind taking your shirt off?"; (iii) prodded around Patient B's left breast and said words to the effect of, "Can you take your bra off?"; (iv) stood behind Patient B and said words to the effect of, "Just stay there and face the wall" as he prodded at Patient B's back; (v) prodded around Patient B's arm pits; (vi) prodded around Patient B's rib cage; (vii) continued to prod Patient B's rib cage and lower stomach area which prompted Patient B to turn and face him when he said words to the effect of, "Can I pull down your pants?"; (viii) pulled at Patient B's pants until she stopped him; (ix) despite Patient B protesting "No", held the top of Patient B's jeans and pulled them down; (x) prodded at Patient B's groin, outside her jeans. (b) when Patient B, without her t- shirt on, stood up to look at a photograph of a tooth on the wall, the practitioner stood to her left and inappropriately and without clinical indication: (i) prodded around the top of Patient B's bottom, inside her jeans; (ii) used his fingers to pull at Patient B's jeans and prod around the front of Patient B's vagina; (iii) used his fingers to prod around Patient B's pubic area when he said words to the effect of "You have a rash"; (c) by reason of the actions in particulars (a) and (b) above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient B. 2. During the consultation of 17 October 2002 with Patient B, the practitioner failed to conduct an appropriate or adequate dental assessment of Patient B in that he did not take or arrange a radiograph or x-ray for the purpose of treatment planning.
12. In a statement patient B said that after attending on the respondent she was concerned about his conduct, particularly "prodding around at my vagina." She spoke to her parents who advised her to consult another dentist. On 18 October 2002 she called another dental surgery and spoke to a person concerning what had occurred during the course of the consultation with the respondent. She was told to report the matter to the police. On 21 October 2002 patient B gave a detailed written statement to NSW police which was corroborative of the factual matters set out in the above particulars of this complaint. She made a further police statement on 5 September 2003, which was again corroborative and also provided an affidavit in Family Court proceedings initiated by the respondent's wife on 15 December 2006. Again, this was corroborative of her original statement.
13. Statements by patient B's parents given to NSW police confirmed that they had received a telephone call from their daughter in October 2002 in which she had expressed concern about the examination conducted by the respondent.
14. A police statement by patient B's work manager confirmed that on Friday, 18 October 2002 patient B had informed her of the conduct of the respondent during the course of the dental consultation. That person confirmed the substance of the conversation in evidence given in criminal proceedings brought against the respondent.
15. Finally, a flatmate of patient B provided a witness statement confirming that patient B had informed her of the conduct of the respondent in terms which are corroborative of patient B's account of what occurred.
16. Following the complaint made by patient B, the matter was investigated by NSW police officer Senior Constable Michelle Mathieson. In a written statement Senior Constable Mathieson confirmed the nature and extent of the factual allegations made by patient B which are consistent with the allegations contained in the particulars of this complaint. Together with another police officer Senior Constable Mathieson attended on the respondent at his surgery on 23 October 2002. The respondent conceded that he had treated patient B but denied any inappropriate conduct of the kind alleged by her. In particular he denied palpating around the jaw and the back of the neck, he denied asking her to remove her pants, and pulling her jeans down. A further interview was conducted with the respondent at a suburban police station on 25 October 2002. He was then placed under arrest and an ERISP statement was taken.
17. By Court Attendance Notice the respondent was directed to appear at a local court on 13 November 2002 charged with "Assault with act of indecency". Following a committal hearing an indictment was issued charging the respondent that on 17 October 2002 he assaulted patient B and at the time of that assault he committed an act of indecency on her. The respondent's trial took place in the District Court of NSW. In addition to other witnesses, both patient B and the respondent gave evidence. We do not apprehend that the evidence of patient B varied from that contained in the statement which she had originally given to the police. The respondent in his evidence denied that he had conducted himself in any inappropriate manner, and in particular denied the allegations to this effect contained in the evidence of patient B. Patient B was cross examined at some length concerning the time at which the respondent had commenced to see her, and concerning another patient who was, at some stage, in the respondent's waiting room at a time whilst she was being treated by him. The other patient gave evidence. He said that he had heard nothing untoward coming from the respondent's surgery while he was waiting but that he was concentrating on reading a magazine at the time and was not really paying attention to what was happening in the surgery area. Significantly, the jury was not permitted to hear any evidence concerning the circumstances pertaining to patient A.
18. The respondent was acquitted of the charge.
19. The applicant submitted that we should accept the statement of patient B and find this complaint and the particulars thereof proven.
20. There are a number of reasons why we accept this submission. There is no hint of any motive by patient B in making her complaint to the police other than to report what she perceived to be the gross misconduct of the respondent. She complained about his misconduct to others, who in turn corroborated the fact that she had done so. There can be no question of any then recent invention on her part. Furthermore, the evidence of the other patient that he was sitting in the waiting room and heard nothing untoward is equivocal and does not assist in evaluating the competing versions of what happened as given by patient B and the respondent. We also have the advantage of the evidence of similar sexual predatory conduct by the respondent with respect to patient A, and as we shall shortly discuss, person C. We conclude that this evidence of similar conduct of a sexual predatory kind is corroborative that the respondent engaged in that type of conduct with patient B.
21. Finally, we are entitled to disregard the verdict of the jury in the criminal proceedings. In those proceedings it was necessary for the prosecution to make out its case according to the criminal standard of proof, namely beyond reasonable doubt. We have earlier referred to the appropriate standard of proof which applies in these proceedings, requiring us to be "comfortably satisfied" on the balance of probabilities that the respondent engaged in the misconduct as asserted by patient B. It follows that we are comfortably satisfied that this complaint and the particulars thereof have been made out.
22. It was the evidence of Dr Douglas Stewart, the Head of Department, Oral Medical and Surgical Sciences at the Westmead Centre for Oral Health, that the examination of this patient's body below the neck was, in his professional opinion, inappropriate. We accept this evidence. On one view it is a matter of common knowledge.
23. Dr Gautam Sridhar also provided expert opinion concerning the treatment by the respondent of patient B. In his opinion it was not inappropriate for the respondent to have palpated around the patient's chin and the back of her neck. However, before doing so he said the respondent should have recorded any appropriate signs and symptoms and the diagnostic methodology which he was using. There was no such record in the respondent's clinical notes. Furthermore, there were no indicia that would have justified the respondent in palpating her lower neck and upper chest areas. In his opinion this was conduct which was "a significant departure from the standard reasonably expected of a practitioner of an equivalent level of training and experience" and Dr Sridhar was strongly critical of the respondent in this regard. He was also strongly critical of the conduct of the respondent in lifting up the patient's shirt, prodding around her left breast, right shoulder, armpits and rib cage area. Asking the patient to remove her T-shirt and take off her bra fell into the same category. The further conduct of the respondent in prodding other areas of her body and trying to pull at her pants was also entirely inappropriate. There was no justification for this behaviour within the practice of dentistry. 2. During the consultation of 17 October 2002 with Patient B, the practitioner failed to conduct an appropriate or adequate dental assessment of Patient B in that he did not take or arrange a radiograph or x-ray for the purpose of treatment planning.
24. Given that this is a matter which would arguably be considered as to whether it constituted unsatisfactory professional conduct and having regard to the findings which we have determined to make in the disposal of these proceedings, it is not necessary that we consider this matter. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. Each particular of Complaint Three justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT THREE In January 2015 the practitioner was employed as a general dentist at Gordon Family Dental ("the practice"). Between 8 and 14 January 2015 Person C began work at the practice on a trial work placement as a casual dental assistant. PARTICULARS OF COMPLAINT THREE 1. Between 12 and 14 January 2015 the practitioner engaged in conduct of a sexual and unwelcome nature when he spoke to Person C during her shift about her appearance at work and inappropriately said words to the effect of, "I would like you to wear more makeup and to have bright red lipstick, as the patients prefer it and it is better to flirt with the patients". 2. Between 12 and 14 January 2015 the practitioner engaged in conduct of a sexual and unwelcome nature when he: (a) spoke to Person C while they were alone during a shift and inappropriately said to Person C words to the effect of "Give me your hand" ; (b) took both of Person C's hands and sat holding them, during which time the practitioner spoke to Person C about his need that she be comfortable working in close proximity to him. 3. Between 12 and 14 January 2015 the practitioner engaged in conduct of a sexual and unwelcome nature when he pulled Person C's chair towards him so that both her legs were between his legs during surgery after which he said to her in an angry manner using words to the effect of, "You are not close enough". 4. Between 12 and 14 January 2015 the practitioner engaged in conduct of a sexual and unwelcome nature while Person C was bent over and filling up a stock drawer while wearing a vest top with a sheer chiffon top over it, by inappropriately reaching his hand towards Patient C's top, pulling it down about an inch and saying words to the effect of: "You really shouldn't show me those". 5. By reason of the actions in particulars 1 to 4 above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Person C.
25. Documentary evidence in the proceedings is to the effect that Person C advised the owner of the practice that she did not wish to work there any further because of the conduct of the respondent. A notification by the owner to AHPRA is to the effect that she discussed the allegations made by this person with the respondent, who denied them.
26. Person C gave a statement to the applicant confirming the matters set out in this complaint and the particulars. In addition, a statement was given to the applicant by the sister and mother of Person C corroborating the fact that she had complained to them concerning the conduct of the respondent, the subject of this complaint.
27. We are comfortably satisfied that this complaint and the particulars thereof have been proven. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Particulars 3, 4, 5, 6, 7 and 8 of Complaint One; particular 1 of Complaint Two and particulars 4 and 5 of Complaint Three are repeated and relied upon individually; or 2. Complaints One to Three and the particulars therein are repeated and relied upon cumulatively.
28. In essence, this complaint relies upon the same complaints and particulars already dealt with but alleges that the respondent is guilty of professional misconduct, as opposed to unsatisfactory professional conduct by reason of these matters. We shall return to this matter later in these reasons for decision. COMPLAINT FIVE has been convicted of criminal offences in New South Wales BACKGROUND TO COMPLAINT FIVE On 5 March 2008, at Parramatta District Court, the practitioner was convicted of six offences, namely: four offences of common assault under section 61 of the Crimes Act (NSW) 1900; one offence of using an offensive weapon to commit an indictable offence under section 33B(1)(a) of the Crimes Act (NSW) 1900 and one offence of sexual intercourse without consent under section 61l of the Crimes Act (NSW) 1900. The practitioner was sentenced to a head sentence of four and a half years imprisonment commencing on 6 June 2008 and expiring on 5 December 2012 with a non-parole period of two years and three months imprisonment commencing on 6 June 2008 and expiring on 5 September 2010. The practitioner was released from custody on parole on 11 December 2010. PARTICULARS OF COMPLAINT FIVE 1. On 5 March 2008, the practitioner was convicted of assaulting Person D in about March 2003 at Eastwood, under section 61 of the Crimes Act (NSW) 1900 [count 3]. 2. On 5 March 2008, the practitioner was convicted of using an offensive weapon, namely a pair of scissors, with intent to commit an indictable offence namely to intimidate Person D with intent to cause her to fear physical harm on 27 November 2003 at Eastwood, under section 33B(1)(a) of the Crimes Act (NSW) 1900 [count 4]. 3. On 5 March 2008, the practitioner was convicted of assaulting Person D on or between 1 June 2004 and 30 June 2004 at Eastwood, under section 61 of the Crimes Act (NSW) 1900 [count 5]. 4. On 5 March 2008, the practitioner was convicted of assaulting Person D on or between 1 June 2004 and 30 June 2004 at Eastwood, under section 61 of the Crimes Act (NSW) 1900 [count 6]. 5. On 5 March 2008, the practitioner was convicted of having sexual intercourse with Person D, without the consent of Person D and knowing she was not consenting between 14 April 2005 and 30 April 2005 at Eastwood, under section 61l of the Crimes Act (NSW) 1900. [count 9] 6. On 5 March 2008, the practitioner was convicted of assaulting Person D on 4 July 2005 at Eastwood, under section 61 of the Crimes Act (NSW) 1900. [count 11]
29. We have been provided with a Certificate of Conviction with respect to these matters. We should stress that Person D was not a patient of the respondent but was in a close personal relationship with him. We do not find it necessary to describe each of the counts of which the respondent was found guilty in the District Court of NSW in any detail. The nature of the offences for which the respondent was convicted speak for themselves and are self-evident. We do note, however, that in his Remarks on Sentence published on 6 June 2008 the learned District Court Judge commented specifically that there was no evidence of either contrition or remorse demonstrated by the respondent.
30. We are comfortably satisfied on the basis of the documentary evidence tendered in these proceedings that this complaint and the particulars thereof have been made out. COMPLAINT SIX The practitioner is otherwise not a suitable person to hold registration as a dentist. BACKGROUND TO COMPLAINT SIX All backgrounds are relied upon and repeated. PARTICULARS OF COMPLAINT SIX 1. The particulars of Complaints One to Three and Five are relied upon and repeated. 2. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of one count of assault under section 61 of the Crimes Act (NSW) 1900 [count 3] arising out of the following underlying conduct: (a) In about March 2003, the couple were sitting on the floor in the television room of their home in Eastwood and the practitioner began to criticise Person D in relation to how she handled a situation and Person D started verbally defending herself and the practitioner began to get angry. (b) When Person D got up and began walking towards the kitchen, the practitioner followed her and the practitioner said "You don't support me" then took hold of Person D with his hands around her neck and started shaking her with his arms around her neck. (c) Person D's body was shaking back and forth as he did this with the practitioner holding her firmly but not so that Person D could not breathe. (d) The practitioner yelled, "This is all your fault. You're making me do this. It's your fault". 3. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of using an offensive weapon with intent to comment an indictable offence under section 33B(1)(a) of the Crimes Act (NSW) 1900 [count 4] arising out of the following underlying conduct: (a) On 27 November 2003 the couple got into an argument at their home in Eastwood about the events at the couple's daughter's birthday party earlier that evening with the practitioner criticising Person D over what he regarded as the bad organisation of that party. (b) The practitioner said "you are making me angry" and Person D attempted to verbally defend herself. (c) The practitioner then grabbed Person D by her clothes and pushed her up against the kitchen sink and said "I want to kill you". (d) Person D replied, "…life with you is just so bad Tusitha. It really doesn't matter. Sometimes to me it doesn't really matter whether I live or whether I die." (e) The practitioner then began rummaging through the kitchen drawer and pulled out a pair of scissors. (f) The practitioner came back towards the victim and held the scissors against her neck, just over the blood vessels in her neck, and said to Person D, "So, you're not scared of dying, are you?". (g) Person D was terrified and stared at the scissors which felt sharp over her neck. (h) The practitioner then let go of Person D. 4. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of one count of assault under section 61 of the Crimes Act (NSW) 1900 arising out of the following underlying conduct [count 5]: (a) On or between 1 June 2004 and 30 June 2004 Person D's brother telephoned Person D from England to announce that his wife was pregnant. (b) Later that evening at their home in Eastwood, the practitioner and Person D were seated on the cushions on the floor in the TV room and the practitioner confronted Person D about lying to him about talking to her brother in circumstances where he had previously forbidden her to do so. (c) The practitioner said to Person D, "You know I don't like it when you lie to me" (d) As the practitioner said these words, he put his hands around Person D's neck and started squeezing her neck and shaking her. (e) The practitioner continued to do this for some time and Person D was very scared for her safety. 5. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of one count of assault under section 61 of the Crimes Act (NSW) 1900 [count 6] arising out of the following underlying conduct: (a) On or between 1 June 2004 and 30 June 2004, the practitioner and Person D were at their home in Eastwood and planning a trip to Sri Lanka when the practitioner became angry. (b) The practitioner sent the children upstairs. (c) The practitioner followed Person D into the corridor and was facing her as she had her back to the wall, carrying a cup of tea. (d) The practitioner was shouting at Person D. (e) The practitioner grabbed hold of Person D's hair and started banging her head against the wall in the corridor. (f) Person D was terrified and began screaming. (g) Person D was being shaken back and forth. The cup she was carrying smashed on the wall or floor. (h) Person D was screaming "Help me" and yelled her son's name. (i) The couple's children came down the stairs and the victim then took them into the lounge room. 6. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of having sexual intercourse with Person D without her consent under section 61I of the Crimes Act (NSW) 1900 [count 9] arising out of the following underlying conduct: (a) Between 14 April 2005 and 30 April 2005 the practitioner and Person D were lying in bed at their home in Eastwood. (b) The practitioner began touching Person D's genital area. (c) Person D took the practitioner's hand and put it back towards him, hoping he would leave her alone. (d) The practitioner put his hand back and continued feeling Person D's genital area. (e) Person D said to the practitioner, "I don't want to, let's just have a cuddle". (f) Person D took the practitioner's hand and wrapped it around her. (g) The practitioner then put his left hand under her body, gripped her, and pressed his body against her. (h) The practitioner began having penile/vaginal sexual intercourse with Person D whilst he was still gripping her (i) The practitioner gripped Person D's neck and continued to have sexual intercourse with her while he had his hand over her mouth. (j) Person D went to the bathroom ensuite and wiped herself at which time she saw that there was semen and blood on the tissue paper, and her vagina felt uncomfortable with a stinging feeling that was raw to touch. (k) Person D later put on some underpants on and went back to bed. 7. On 5 March 2008 at Parramatta District Court, the practitioner was convicted of one count of assault under section 61 of the Crimes Act (NSW) 1900 [count 11] arising out of the following underlying conduct: (a) On 4 July 2005 the practitioner and Person D were at their home in Eastwood sitting in the TV room when the practitioner raised the topic of Person D not wanting to have sex with him. (b) The couple began arguing and Person D ran across the family room, grabbed her handbag from under the bench top and tried to make an exit through the back door. (c) The practitioner intercepted her at the back door, grabbed her by the front of her clothing and rammed her into the corner of the door and wall. (d) The practitioner began yelling at Person D, "take it back, take it back, take it back what you said, there's another reason why you didn't have sex with me last night, tell the truth". (e) Person D replied, "if I told you there's another reason why I didn't have sex with you then I'd be lying, I'm not lying, I'm telling you the truth". (f) The practitioner continued verbally abusing Person D for some time until the arguing ceased.
31. These convictions are the same convictions referred to in complaint Five. We make the same observations with respect to this complaint and the particulars thereof as are set out in [35] above concerning complaint Five.
32. We are comfortably satisfied on the basis of documentary evidence tendered in these proceedings that this complaint and the particulars thereof have been made out

Professional Misconduct

1. It is now necessary to consider whether the respondent is guilty of professional misconduct as asserted by the applicant by reason of the findings which we have made concerning each of the counts and their particulars. In summary, the respondent engaged in predatory sexual behaviour with respect to patients A and B, in the course of purporting to provide treatment while carrying on his profession as a dental practitioner. On the basis of the evidence available to us there can be no reason why the respondent engaged in behaviour of this kind except for sexual gratification.
2. We have earlier set out the definition of professional misconduct. It is predicated on a finding of unsatisfactory professional conduct as defined, also set out earlier. Based on the expert opinions to which we have referred it is clear that the respondent lacked the requisite knowledge, skill and judgment which he should have possessed when purporting to examine each of patients A and B and in controlling any predatory sexual desires that he may have harboured. It is equally clear that the care exercised by the respondent in purporting to practise his profession with respect to these two patients was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
3. Furthermore, the respondent engaged in improper and unethical conduct relating to the purported practice of his profession in the manner in which he conducted himself with respect to patients A and B. In the same vein, his inappropriate conduct with respect to Person C, who was a trainee employee in the practice in which he was then working also constituted improper and unethical conduct relating to his purported practice of his profession.
4. We conclude that the respondent is clearly guilty of unsatisfactory professional conduct.
5. It is now necessary to consider whether the respondent is guilty of professional misconduct as asserted by the applicant by reason of the findings which we have made concerning each of the counts and their particulars. In summary, the respondent engaged in predatory sexual behaviour with respect to patients A and B, in the course of purporting to provide treatment whilst carrying on his profession as a dental surgeon. On one view, it might be thought that this behaviour occurred a long time ago, and that its significance might not be so compelling after such a long period of time. However, the respondent's behaviour with respect to person C occurred in 2015. Whilst obviously that behaviour was not in the same category as that which occurred in connection with the earlier patients, it had a distinct sexual component, and was predatory. In circumstances where the respondent has again engaged in behaviour of a sexual predatory nature in 2015, there is no reason why we should not characterise the earlier behaviour with respect to patients A and B with the same degree of seriousness as would normally apply to misconduct of this kind.
6. In addition, the matters with respect to which the respondent was convicted and imprisoned are obviously of a most serious kind.
7. As is obvious from the definition of professional misconduct it is necessary to conclude that the misconduct is of such seriousness as to justify suspension or cancellation of registration. This in turn directs attention to those circumstances which would justify suspension or cancellation of registration. Those circumstances were referred to in this Tribunal in Health Care Complaints Commission v Cheng [2017] NSWCATOD 51. At [169] and following the Tribunal said; By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or there is "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." This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other medical practitioners. We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background to which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal; "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest."( HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638)." It is entirely uncontroversial that a medical practitioner must not physically, emotionally, or sexually exploit a patient. All of these patients were female, and two of them were particularly vulnerable because of their very young age and lack of adult support.. A medical practitioner, such as the respondent, who has, as we have found, deliberately and intentionally carried out inappropriate examinations in an inappropriate manner for sexual gratification is clearly guilty of professional misconduct. We repeat, there can be no motivation for the manner in which the respondent exposed and viewed the bodies of these patients, including sensitive areas, and touched them in circumstances where there was no adequate or appropriate clinical reason for doing so, other than sexual gratification. We find that in the aggregate the conduct of the respondent constitutes professional misconduct.
8. We have set out the extract from Cheng in some detail because we regard the observations of the Tribunal as being relevant to our consideration of the circumstances pertaining to these proceedings. Those observations refer firstly to the purpose and nature of protective orders and secondly to a consideration of professional misconduct where it involves inappropriate predatory sexual behaviour. We trust that it is not necessary to describe the respondent's behaviour in any greater detail, nor to discuss why behaviour of that kind performed by a dental surgeon would clearly constitute professional misconduct. It is not necessary that we consider whether the respondent used a rubber dam or failed to carry out an adequate assessment including x-ray examination. All of the complaints and remaining particulars referable to patients A and B and to person C individually and in the aggregate constitute professional misconduct of the most egregious kind, and we so find.

Protective orders

1. Consequent upon our finding of professional misconduct it is necessary that we determine what appropriate protective orders should be made. We have previously set out in the extract from Cheng above the relevant principles that apply to the making of a protective order. The applicant submitted that an appropriate protective order would involve the cancellation of the respondent's registration, albeit that he is no longer registered as a dental surgeon. The relevant provision in the National Law is section 149C which is in the following terms; 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied - (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (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. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order - (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

Professional misconduct

1. We first deal with the finding of professional misconduct which we have made. It is of a most serious and egregious kind, commencing in 2000, and manifesting itself most recently in 2015. A dental practitioner who conducts himself or herself in this manner by engaging in predatory sexual behaviour is unfit to practise dentistry, and therefore his or her registration should be suspended or cancelled in order to protect the public, to deter the practitioner and others from engaging in this type of misconduct, and to uphold the integrity of the profession.
2. In determining whether suspension or cancellation is appropriate, a number of factors must be taken into consideration. They were adverted to by the Tribunal in Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 as can be seen from the following extracts, commencing at [29]; 29 The professional misconduct which we have found the respondent to have committed is of a most egregious kind, and we cannot agree with the submissions made on his behalf that it demonstrates anything other than unfitness to practice medicine. We approach the matter on the basis that predatory sexual behaviour of this kind is sufficient to constitute unfitness to practice medicine. 30 The difficulty which we face in assessing whether or not the respondent is likely to be unfit to practise for the indefinite future or for some limited period is that there is simply no evidentiary material available to us to indicate why he engaged in that sort of behaviour and whether and to what extent he is unlikely again to ever offend. The protective function which this Tribunal exercises demands that we must have some confidence that he is unlikely to offend again in the future. The only material available to us is that which is referred to in the reasons for Decision of the Medical Tribunal relating to a course of events finishing in 2001. And of course, the prediction of Dr Wright that the respondent was unlikely to engage again in conduct for the purpose of gaining sexual gratification has been shown to be wrong, having regard to the later incidents in 2012 and 2013 which are the subject of these proceedings. 31 Although it is clear that the burden of establishing unfitness to practice by reason of professional misconduct lies on the complainant, nevertheless the burden of establishing any mitigating factors in favour of the respondent will lie on the respondent……………… 32 We have found that the respondent deliberately and intentionally carried out inappropriate examinations in an inappropriate manner which can only be explained as involving sexual gratification and is guilty of professional misconduct. Dr Cheng has not admitted this behaviour, and we have no information available about his current psychological state or wellbeing on which to evaluate or understand his behaviour with Patients A, B, C, D and E that led to this finding. Nor has the respondent provided information to assist us in considering potential contributing factors that may be amenable to intervention and would therefore assist in determining the risk of reoffending and the framing of appropriate Orders. 33 Sexual boundary violations represent an abuse of the patient's trust and the practitioner's position of authority. They may be impulsive and opportunistic, planned and predatory or a combination of the two. 34 In very general terms, sexual boundary violations may sometimes be attributed to impaired judgment as a consequence of illness or intoxication, or occur in combination with personality characteristics in a practitioner that increase the risk of recurrent offending. Intoxication, episodic illness (eg a manic phase of a bipolar illness) or increased psychological vulnerability in the practitioner, (for example following bereavement) may in part account for, but not excuse, incidents of impulsive or disinhibited behaviour that contribute to sexual boundary violations. In such a case the underlying illness (substance abuse, mood or adjustment disorder) may be amenable to treatment, thus reducing the risk of reoffending. 35 Also, in very general terms, the contribution of an individual practitioner's personality characteristics and traits may be a significant factor. Personality disorders or difficulties are understood to include longstanding pervasive patterns of impairment in a number of situations and across the related domains of 'self' which includes identity, self-direction and emotional regulation; and the 'interpersonal' domain which includes the capacity for empathy and intimacy. Recurrent sexual boundary violations in a professional context may indicate longstanding impairments in both self and interpersonal functioning. This can include antisocial disregard for lawful and ethical frameworks, reduced capacity for intimacy in that exploitation is the primary means of relating to others and a callous disregard and lack of empathy for the consequences of the predatory behaviour. Narcissistic personality traits include a vulnerable and/or over inflated self-esteem with an associated sense of entitlement and lack of empathy for the patient/victim. 36 Very occasionally a lack of education or understanding of what constitutes appropriate behaviour in the doctor-patient interactions might be a contributing factor. 37 Of course, we have no basis for considering whether any of the above matters apply to this respondent. We have mentioned them because they assist in understanding that an identification of any reason for behaviour of this kind enables consideration to be given to appropriate treatment and other measures designed to effect rehabilitation. If no such understanding is possible then the formulation of any prognosis becomes impossible. ……………………………………………. 40 On the basis of such evidence as is available to us, we are of the opinion that, in the absence of alternative explanations or evidence provided by the respondent, his conduct arguably constitutes recurrent predatory sexualised behaviour that is aimed to satisfy his own personal needs and not the assessment or treatment of his patients. This behaviour has recurred, in relation to Patient D and E, despite his receiving a serious reprimand, a fine and conditional registration following the 2005 Tribunal. In addition, it has recurred despite undertaking relevant professional education in relation to doctor patient relationships, communication and maintenance of appropriate boundaries, and despite regular psychiatric treatment. Dr Cheng 's continued disregard for the best interests of his female patients in the form of recurrent sexually intrusive and exploitative behaviour suggests a probability that it is due to longstanding personality factors. There is no evidence that his behaviour is amenable to censure, education or therapy, thus indicating a risk of recurrence. 41 In these circumstances, and without any current medical evidence concerning the respondent's condition, any proposed appropriate treatment regime and any prognosis, no matter how tentative, there is simply no basis for us to be able to assess for how long the respondent is likely to continue to represent an unacceptable risk to female patients. We find that the respondent is currently unfit to practise medicine and is likely to be so for the indefinite future. Consistent with authority, it would be inappropriate in the circumstances to consider suspension of registration. In all the circumstances as we have discussed them, the only appropriate protective order is one of cancellation. 42 We add for completeness that we reject any suggestion that it is appropriate to allow the respondent to continue to practice medicine with a condition that he not perform medical services for female patients. Such a restriction, as is now widely accepted in this Tribunal, is indicative of a person who is not a suitable person to be registered to practice medicine (sec 149C(1)(d)).
3. Because the respondent has consistently denied any misconduct involving patients A and B and person C, and has thus proffered no explanation for his conduct, we are unable to examine or assess any reason why he may have engaged in behaviour of this kind other than to conclude, by inference, that he wished to satisfy some underlying inherent sexual desire. In the same way, we are unable to contemplate the likelihood of the respondent refraining from engaging in behaviour of this kind in the future. The paucity of the information available to us is analogous to that faced by the Tribunal in Cheng (No 2) extracted above. This leads to the inevitable conclusion that the respondent is unfit to practise dentistry safely, especially with respect to female patients and is likely to be so unfit to practise dentistry indefinitely. This conclusion, per se, justifies cancellation of the respondent's registration as if he were registered pursuant to the provisions of section 149C(4) of the National Law set out above.

Convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession

1. The applicant submitted that the respondent's convictions which are the subject of complaint Six justified cancellation of his registration pursuant to section 149C(1)(c) of the National Law. In so submitting the applicant directed attention to the words "and the circumstances of the offence." It was said, and we agree, that in so considering this provision we are required to take into account not only the offences of which the respondent was convicted but the circumstances in which they were committed, including the relevant factual background, and the impact of the conviction on the respondent in terms of his insight, and any expressions of contrition and remorse.
2. In A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1 the High Court of Australia distinguished between behaviour which constituted professional misconduct and personal misconduct. The latter, whilst not occurring in the course of practising a profession or in circumstances intrinsically related to the practice of a profession might nevertheless demonstrate that a person was not a fit and proper person to practise a profession. Not only must consideration be given to the circumstances in which the misconduct occurred, but also the subjective personal circumstances of the professional person. Each case must be determined on its own merits.
3. It is clear that the practice of dentistry is intended by dental practitioners to be considered the practice of a profession. The Code of Conduct published by the Dental Board of Australia in March 2014 is confined to the conduct of dental practitioners within their profession. Nevertheless, there is ample evidence that dental practitioners are expected to behave appropriately. For example, clause 8.1 states; "In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct."
4. The offences for which the respondent was convicted occurred on a number of occasions over a period extending from 2003 to 2005. Thus, they cannot be considered in the context of an isolated act constituting aberrant behaviour. Nor are they of a trivial kind, either when considered individually or in the aggregate. Indeed, they are serious offences which justified imprisonment for a substantial period of time. Furthermore, the offences involved inappropriate physical contact in circumstances where the respondent was unable to control himself. And, as the applicant asserted, these offences were perpetrated against a woman in circumstances where patients A and B and person C were all women. We observe that there is a demonstrated propensity to take sexual advantage of women who are in a vulnerable position to the respondent. We agree with the applicant's submission that "the proven crimes demonstrate that neither the public nor the profession could trust (the respondent) to observe high standards of conduct."
5. These conclusions justify a finding that the circumstances of the offences render the respondent unfit in the public interest to practise his profession as a dentist. This constitutes an additional ground for concluding that if he were still registered as a dental practitioner his registration should be cancelled.

A minimum period under section 149C(4)(b)

1. Having determined that the registration of the respondent as a dental practitioner should be cancelled as if he were currently registered, we are required to determine whether a minimum period of disqualification should be fixed under section 149C(4)(b).
2. The lack of evidence concerning the respondent's current condition and any prognosis by reference to any treatment or other regime creates difficulties in formulating an appropriate period. We propose approaching this matter by reference to the period of time during which the respondent might again be considered a fit and proper person to be registered as a dental practitioner, should he wish to do so. Such a period should be fixed by reference to the length of time that the Tribunal assesses as being reasonable to allow the respondent to have undertaken and successfully completed rehabilitation, should he indeed decide to do so. We note that despite the respondent having been subjected to complaints concerning patients A and B dating back to 2000, and 2002 respectively he again engaged in conduct involving sexual gratification in 2015. Furthermore, there is no evidence available to us concerning the respondent's insight into his behaviour which gave cause to each of the complaints.
3. We have already referred to the lack of available information concerning the reasons why the respondent embarked upon the course of conduct that he did. In making an assessment of an appropriate minimum time period we have regard to our concerns that the respondent was driven by personal sexual gratification with respect to his patients and the employee at the practice, and that sexual gratification played some part in the offences for which he was convicted. Conduct of this kind is notoriously difficult to "treat", and there are significant rates of recidivism. In addition, the respondent's behaviour is marked by an inability to appropriately control his conduct, especially in the circumstances applying to the offences for which he was convicted. We propose in all the circumstances to fix a minimum period of 10 years.

Prohibition from providing any health service

1. The applicant also asked that we make an order under section149C(5) prohibiting the respondent from providing any health service as defined under section 5 of the National Law. In that the respondent's behaviour has been directed to vulnerable female patients and vulnerable female persons and that it constitutes predatory sexual misconduct, we agree that it is appropriate to make such an order, and we shall do so.

Costs

1. The applicant sought an order for the payment of costs. This is a costs jurisdiction and costs normally follow the event. There is no conduct of the applicant or any other matter of which we are aware which would preclude the making of a costs order. We shall make a costs order accordingly.

Orders

1. Pursuant to the finding of professional misconduct that we have made, we make the following orders; 1. if the respondent were still registered as a dental practitioner, we would have cancelled his registration pursuant to section 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) 2. the respondent is disqualified from being registered as a dental practitioner for a period of 10 years 3. the National Board is asked to record in the National Register the fact that the Tribunal would have cancelled the respondent's registration 4. the respondent is prohibited pursuant to section 149C(5)(a) of the National Law from providing any "health services" as defined by section 5 of the Health Practitioner Regulation National Law (NSW) 5. the respondent is to pay the costs of the applicant assessed in default of agreement

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2018