Health Care Complaints Commission v Kirby

NCAT Occupational|2023-03-10

2001] NSWCA 305 Melbourne v The Queen [1999] HCA 32; (1999) 19 CLR 1 New South Wales Housing Corporation v Orr [2019] NSWCA 231 Paric v John Holland Constructions Pty Limited [1984] NSWLR 505 PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 R v Bartle [2003] NSWCCA 329 R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501 R v El-Kheir [2004] NSWCCA 461 R v Milk Board (1944) VLR 187 R v Skaf [2004] NSWCCA 74 R v Stalder (1981) 2 NSWLR 9 Rockcote Enterprises Pty Limited v FS Architects Pty Limited [2008] NSWCA 39 Liu v Health Care Complaints Commission [2018] NSWSC 315 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Stirland v Director of Public Prosecutions [1994] AC 315 Sullivan v Civil Aviation Authority [2014] 226 FCR 555 The Nominal Defendant v Cordin [2017] NSWCA 6 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 West v Mead [2003] NSWSC 161 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) David William Kirby (Respondent) Representation: Counsel: P Lowson (Applicant) J Sheller SC / D Southwood (Respondent)

Introduction

By Further Amended Complaint filed on 6 March 2023 the Health Care Complaints Commission (Commission) sought disciplinary orders against Dr David Kirby (the Practitioner) pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). By his Reply filed the same date, the Practitioner denied that he was guilty of any of the complaints made by the Commission.
The proceedings were heard by the Tribunal on 6, 7, 8, 9 and 10 March 2023 and on 30 October 2023, when the Tribunal reserved its decision. During the morning of 7 March 2023, the Commission abandoned one of its Complaints against the Practitioner (Complaint 2). Although such withdrawal and the circumstances in which that occurred may assume significance with respect to costs, it is unnecessary to further refer to that Complaint in these reasons.

Evidence relied upon

The Commission relied on 3 volumes of documents (Volumes 1A of 2, 1B of 2 and 2 of 2) which became Exhibit HCCC1 in support of its case. Redactions in various documents contained in HCCC1 reflected previous rulings of the Tribunal on objections to evidence upon which the Commission sought to rely. The transcript of proceedings before the Health Professional Councils Authority of 12 February 2016 became Exhibit HCCC2 in the proceedings.
The Practitioner relied upon 2 volumes of documents, which became Exhibit R1 in the proceedings. The Practitioner also relied upon the expert opinion evidence of Dr Rourke (R2).
The Tribunal received written submissions on behalf of the Commission on 14 July 2023, the Practitioner on 14 July 2023, the Commission on 28 July 2023 and the Practitioner on 2 August 2023. The delay between the conclusion of the hearing in March and the delivery of the parties' written submissions was referable to the delay in the transcript of the hearing becoming available. Sensibly in the Tribunal's view, Counsel for the parties agreed that, particularly having regard to the antiquity of the proceedings, the delay in their finalisation caused by waiting for the transcript of the hearing was appropriate.
On 30 October 2023, in accordance with directions made by the Tribunal at the conclusion of the hearing in March, the Tribunal heard oral submissions from Counsel for both parties. Arising out of exchanges between the Tribunal and Counsel on 30 October 2023, and without objection, the Practitioner made further written submissions on 4 December 2023, to which the Commission replied on 11 December 2023.
The Commission's Further Amended Complaint relates to one patient of the Practitioner, Patient A. The Practitioner was first registered as a Dental Practitioner on 7 February 1990, and thereafter engaged in, and continues to engage in dental practice.
Although it will be necessary to refer to the particulars of the Commission's Further Amended Complaint and the evidence with respect to them later in detail in these reasons, the Complaint arose from consultations with Patient A between 10 February 2010 and 7 November 2015. The Commission alleged that the conduct of the Practitioner with respect to eight consultations between those dates demonstrated that the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of dentistry was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience pursuant to s 139B(1)(a) of the National Law. The Practitioner denied that his knowledge, skill or judgment possessed or care exercised in the practice of dentistry fell significantly below the standard reasonably expected of him.
The Commission also alleged, pursuant to s 139B(1)(a) and/or (l) that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. The Practitioner denied that his conduct was unethical or improper. The evidence upon which the Commission relied was the same with respect to each of the statutory provisions which the Practitioner was alleged to have breached.
These proceedings potentially involve two stages. The first is whether the Tribunal is comfortably satisfied that the Practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct (Stage 1). In the event that findings of guilt are made, the second stage in the proceedings involves the determination of the appropriate protective orders (Stage 2). Despite some apparent initial dispute, it was not ultimately controversial that the hearing to which these reasons relate was a Stage 1 hearing.

The statutory framework

Section 139B(1)(a) of the National Law, on which the Commission relied, defines unsatisfactory professional conduct of a registered health practitioner to include: 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.
Section 139B(1)(l), on which the Commission also relied provides that unsatisfactory professional conduct may include: (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law, which defines professional misconduct of a health practitioner provides: 139E Meaning of "professional misconduct" [NSW] For the purpose 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.
Section 139B(1)(l) of the National Law creates, but does not define "improper or unethical conduct". The terms "improper" and "unethical" conduct have been given their ordinary meaning by the Tribunal in numerous decisions in proceedings pursuant to the National Law (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). The Tribunal will also do so in this case.
The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153 at [59]. In R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501, at [24] the High Court said that "improper" was an "indefinite term", and, at [25] that, although, "not a term of art", the issue of impropriety needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but, by reference to a "range of considerations that may be taken into account". The "particular officer" for present purposes is the Practitioner.
The dictionary definition of "unethical" as "contrary to moral precept, immoral, in contravention of some code of professional conduct" was adopted in Health Care Complaints Commission v Little [2016] NSWCATOD 146 and in Health Care Complaints Commission v Ross [2019] NSWCATOD 153.
In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal said at [41] that: ""Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper", and "not in accordance with the propriety of behaviour, manners, etc: improper conduct" [Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]. "Unethical" means, relevantly, "contrary to moral precept; "immoral" or "in contravention of some code of professional conduct" [Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 113 at [52]. In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the Respondent [see Health Care Complaints Commission v Liu [2016] NSWCATOD 133, at [54]."
The Tribunal is not bound by the rules of evidence (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW); clause 2 of Schedule 5D of the National Law). Section 140 of the Evidence Act 1995 (NSW) does not directly apply to the Tribunal's decision making process (Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Sullivan v Civil Aviation Authority [2014] 226 FCR 555; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39). However, the Briginshaw "principle" remains relevant (Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103; Health Care Complaints Commission v Sriskanda [2021] NSWCATOD 42; Health Care Complaints Commission v Saab [2020] NSWCATOD 145; Gautam v Health Care Complaints Commission [2021] NSWCA 85). The seriousness of an allegation and the gravity of the consequences of making a finding are relevant in determining whether the Tribunal is comfortably satisfied that the Commission has established disputed issues of fact (Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).
The Commission's Complaint set out the essential details of each of the allegations made by it in support of its Complaint. The particulars of the Complaint identified the conduct upon which the Commission relied sufficiently for the Practitioner to be aware of the facts upon which the Commission relied and the aspects of the conduct relied upon as satisfying the elements of unsatisfactory professional conduct and/or professional misconduct (Liu v Health Care Complaints Commission [2018] NSWSC 315). To the extent that, in his submissions, the Practitioner suggested that the Commission had failed to adequately particularise its Complaints, or adhere to the complaints as particularised, the Tribunal is satisfied that the Practitioner knew what the Commission's case was, and met it.
The Commission bears the onus of proof of each factual allegation upon which it relies in support of its Complaints, and, in this case, that such facts establish conduct which fell below the standard reasonably expected of the Practitioner, and/or constituted unethical or improper conduct, and must do so to the comfortable satisfaction of the Tribunal. Whether that level of proof has been achieved is assessed by the Tribunal in the light of all of the relevant evidence before it (Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10).
Unless the Commission satisfies the Tribunal that the Practitioner is guilty of unsatisfactory professional conduct, there is no occasion for the Tribunal to consider professional misconduct. If consideration of professional misconduct is necessary, in the circumstances of this case, the Tribunal must determine whether the unsatisfactory professional conduct of the Practitioner, considered individually or as a whole, is of a sufficiently serious nature to support such a finding (Health Care Complaints Commission v Perroux [2011] NSWDC 99, Health Care Complaints Commission v Karalasingham [2007] NSWCA 267). A finding of professional misconduct enlivens the power to cancel or suspend a practitioner's registration, but that is not the inevitable consequence of such a finding. In exercising a "function" under the National Law, "the protection of the health and safety of the public must be the paramount consideration" (National Law s 3A). Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in s 3 of the National Law.
The abandonment of one of the Commission's Complaints after the evidence in support of it had been agitated, leaving only one Complaint remaining, means that the Tribunal must be vigilant to avoid having regard to evidence which was relied upon in support of a Complaint which has been withdrawn to which neither party has referred. Given the nature of that evidence, and the evidence in support of the remaining Complaint, doing so is not difficult.

Background

The following matters of background emerge, essentially uncontroversially, from the evidence before the Tribunal.
On 27 November 2015 Dr Brendan White attended the Practitioner's dental practice in regional New South Wales. Dr White then had powers under Part 8 of Division 9 of the National Law, which included the power to enter and inspect dental practices.
During the inspection, Dr White identified what he considered to be an issue with a patient record for Patient A. A s 150 hearing was convened on 11 December 2015, and was adjourned for further hearing on 15 and 18 December 2015. On 18 December 2015 the Practitioner was suspended from practice. Written reasons for that decision were provided on 27 January 2016.
The Practitioner sought a review of the suspension, and a s 150A hearing took place on 12 February 2016, when the Practitioner's suspension was lifted and conditions were imposed, as set out in the reasons for that decision of 24 March 2016.
On 26 February 2016 the Practitioner attended an interview with Mr Aleksandar Gavrilovic at the Pharmaceutical Regulation Authority.
The Commission filed its original Complaint with the Tribunal on 2 July 2018. The hearing of the Complaint was delayed for some years. For present purposes nothing turns on that, or why it occurred.

The Commission's Complaints

The Complaint upon which the Commission relied as the foundation for a finding of unsatisfactory professional conduct pleaded 8 specific particulars in support of the allegation that the Practitioner had engaged in conduct that demonstrated the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of dentistry was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or that the Practitioner had engaged in improper or unethical conduct relating to the practice or purported practice of dentistry.

The "missing" clinical records

A number of particulars of the Commission's Complaint alleged that the Practitioner prescribed medication "without making appropriate proximate entries in the clinical records". The clinical records are found at HCCC1 Tabs 8 and 9. Clause 8.4 of the Dental Board of Australia - Code of Conduct ("the Code"), which commenced in March 2014, provided that: "Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves: (a) keeping accurate, up to date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by health practitioners; (b) ensuring that records are held securely and are not subject to unauthorised access, regardless of whether they are held electronically and/or in hard copy; (c) ensuring that records show respect for patients or clients and do not include demeaning or derogatory remarks; (d) ensuring that records and sufficient to facilitate continuity of care; (e) making records at the time of events or as soon as possible afterwards; (f) recognising the right of patients or clients to access information contained in their health records and facilitating that access, and (g) promptly facilitating the transfer of health information when requested by patients or clients."
On numerous occasions, in the context of particulars alleging inadequate records, the Practitioner acknowledged that the clinical records did not reveal matters which he said had been considered and addressed by him during the course of his consultations with Patient A. The Practitioner repeatedly said "not in these records" in response to questions about the recording of aspects of Patient A's asserted treatment. The Practitioner's alleged failure to maintain clinical records which would enable another dentist to assume the care of Patient A was also relied upon by the Commission in support of allegations that the Practitioner had prescribed the medication referred to in the particulars without performing an appropriate assessment prior to issuing the prescription. If the Practitioner failed to make appropriate proximate entries in the clinical records, that is circumstantial evidence which would provide support for, but not be determinative of the Commission's allegations that the Practitioner prescribed medication without performing an appropriate assessment prior to issuing the prescription. In view of the absence of detail with respect to the asserted contents of the missing records, failing to find the Commission's "records" complaint established would not preclude a finding that the Practitioner failed to perform an appropriate assessment prior to issuing the prescriptions relied on by the Commission.
The Practitioner generally conceded that the clinical records before the Tribunal were deficient, but maintained that other records made by him at or about the time of each relevant consultation contained more detailed information than those records, and revealed that he had performed an appropriate assessment before issuing the prescription. The Practitioner maintained that those records were missing, having been stolen or destroyed by, or at the behest of a former employee of his practice. The Commission disputed that the Practitioner had made such records, and rejected his explanation for their absence. When questioned by the Tribunal, the Practitioner introduced the issue of "missing records", having not previously raised it in communications with the Dental Council of NSW, the Commission, or in his replies to the complaint. The Practitioner had previously suggested that clinical records had been "stolen", but offered no detail or explanation about the contents of those records, or the circumstances in which they were allegedly stolen.
As is not in doubt, it is for the Commission to comfortably satisfy the Tribunal that the Practitioner failed to make appropriate proximate entries in the clinical records with respect to the prescribing which gives rise to Complaint 1. It is not for the Practitioner to prove that he did so. However, in view of the Practitioner's concessions with respect to the deficiencies in the clinical records which have been produced, for the Commission to fail to prove its case to the comfortable satisfaction of the Tribunal, the Practitioner needed to adduce evidence about the missing records which was neither rejected, nor entitled to little weight.
The fate of the particulars alleging, or turning on inadequate clinical records involves, but does not turn solely on the Tribunal's evaluation of the credibility or reliability of the Practitioner's evidence with respect to the missing records. If the Practitioner's evidence is rejected, or afforded little weight, the former of those particulars would be made out, and the Practitioner's defence to the latter particular rendered more difficult. If the Practitioner's evidence with respect to missing clinical records is not rejected, and not held to be entitled to little weight, it would remain necessary to consider whether, in all the circumstances, and having regard to the provisions of clause 8.4 of the Code, the Commission proved its case.
The parties made comprehensive submissions about this important issue, and about the credibility of the Practitioner generally. Given that 6 of the 8 particulars of Complaint 1 alleged that the Practitioner inappropriately prescribed medication without making appropriate proximate entries in the clinical records, it is convenient, and avoids repetition, to deal with the issue of the Practitioner's evidence about the missing records before considering each of the particulars of Complaint 1. The parties engaged extensively with this issue in written submissions.
In support of its contention that the Tribunal should reject the Practitioner's evidence with respect to prescribing for a "dentistry related purpose", and his credibility generally, the Commission relied on asserted inconsistencies between the Practitioner's statements in these proceedings and the course he adopted at s 150 proceedings on 15 December 2015 and what he wrote to the Dental Council on 3 February 2016 (HCCC1 Tab 40, page 4.2).
The Commission relied on the admission made by the Practitioner at the s 150 hearing on 12 February 2016, agreeing with the suggestion that his "clinical records in relation to (Patient A) do not comply with the Dental Code of Practice". Whilst making those admissions, the Practitioner disputed that the records were "significantly deficient" (HCCC1 Tab 38, page 82). The Commission relied upon the Practitioner's absence of reference to missing records during the course of the s 150 proceedings.
The Commission contrasted what the Practitioner then said with what he wrote to the Dental Council on 3 February 2016 (HCCC1 Tab 40, page 4.2). In that letter the Practitioner said "In relation to the dental records included in the (Z Patient A) file …" the Practitioner "copied these records across from the dental file to the (Z Patient A) private file. These are the same records that have been referred to by the delegates from the second paragraph of page 8 of the detailed reasons". The Practitioner reiterated that he "maintains his position that this (Z Patient A) file was a private file and was not the dental file of (Patient A)".
The Commission was critical of the Practitioner as a witness, submitting that he "tended to be defensive and argumentative". An instance of that was given (Transcript 9 March 2023, page 344, line 38ff), which revealed: "Q I'm just curious as to why, in that period of 3 years, it didn't become evident that (Patient A's) further records were not present if you were managing (Patient A) on a number of occasions during that period. A Well, if I had referred to them in that time period that you mention, they - they may well have been there in that time period. Q What were the circumstances in 2016 which led you to realise that those further records of (Patient A) were missing? A I received an email, from memory, from the Executive Officer of the Dental Council, whose name was Farina Bains, to provide - and to the best of my recollection, that - that was who it was, to provide records for (Patient A) to the Dental Council. And that was when I realised."
The Commission further submitted that other evidence given by the Practitioner was "unconvincing and should be rejected". The Commission sought to rely upon "evidence that the Respondent was an unsatisfactory witness at the s 150A". We have reservations about making findings with respect to the credibility of the Practitioner as a result of statements made during s 150 or s 150A proceedings having regard to the nature and form of those proceedings and, with no disrespect to those who conduct them, the way they are conducted.
The Commission submitted that, prior to 8 March 2023, and then only in the context of responding to questions by a Member of the Tribunal, the Practitioner "never previously suggested that there were other clinical records that adequately recorded details relating to the assessment and treatment of Patient A and the purposes for which medication in Complaint 1 was prescribed, and the Tribunal would not be persuaded that any such records exist or existed". The Practitioner was criticised for not suggesting at the s 150A proceedings in February 2016 that there were other records that he had recorded. Having regard to the matters with which those proceedings were concerned, and having read the entirety of the transcript, we are comfortably satisfied that the Practitioner's failure to mention the missing records should be viewed in the manner asserted by the Commission.
It was submitted, correctly, that in evidence before the Tribunal the Practitioner stated that he discovered that records had been destroyed, in at least some instances, in February 2016. It was submitted that, had the Practitioner made the discovery before the s 150A hearing, it is surprising that he did not raise that during those proceedings. It was, properly, conceded by the Commission that at least in two instances, the Practitioner had raised the possibility of there being clinical records other than those found at HCCC1 Tabs 8 and 9 at the s 150A hearing. That concession provides only limited assistance to the Practitioner's case.
The Commission summarised the present issue by posing the question "Is the mere assertion that other records existed sufficient to cause the Applicant to fail to prove its case?". It was submitted, in reliance upon Health Care Complaints Commission v Wardman [2020] NSWCATOD 126 that, where the Commission had "sufficiently demonstrated a prima facie case" and the Practitioner has responded by "positively asserting that other records existed, the Respondent is obliged to prove his defensive case". We are unable to accept that the Practitioner bore that onus. The Commission's case is that, at its highest, if accepted, the Practitioner's evidence with respect to the missing records was no more than "mere assertion".
In Health Care Complaints Commission v Wardman [2020] NSWCATOD 126, upon which the Commission relied it was said at [52] that "It is an established principle in disciplinary proceedings before the Tribunal that while the applicant has the burden of establishing unfitness to practice by reason of professional misconduct, nevertheless the respondent has the burden of establishing any mitigating factors in favour of the respondent". The Tribunal there referred to observations of Campbell JA in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 in which the "two distinct meanings" of the expression "burden" or "onus" of proof were discussed. It was there accepted, at [63], by reference to the decision of the Court of Appeal in Rockcote Enterprises Pty Limited v FS Architects Pty Limited [2008] NSWCA 39 at [78] that: "Once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If the defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument."
Importantly, in Wardman the Tribunal concluded [54] that "If the applicant establishes sufficient evidence" of the failures alleged by it, the respondent has the evidential onus of introducing evidence which tends to show he had a reasonable excuse for the failure. If the respondent does so, then the applicant must then, as part of its overall burden of proof, deal with that evidence either by submission or argument". As will be seen, the fate of the Commission's records complaints turns on whether, if not rejected, the Practitioner's evidence "tends to show" that he did not fail to make appropriate proximate entries of Patient A's treatment in his clinical records.
With respect to the alleged absence of appropriate proximate entries in the clinical records, the Commission has made out what in other circumstances would be called a prima facie case. The burden of proving its case to the comfortable satisfaction of the Tribunal remains with, and never leaves the Commission. If the Practitioner's evidence that he made other clinical records which are missing is not rejected, it will be necessary to closely consider when the Practitioner discovered that those records were missing, when, and in what circumstances he advanced that explanation for the deficiencies, and the circumstances surrounding the making of the missing records, their contents, and the extent to which they failed to reflect the recommendations in clause 8.4 of the Code in order to determine whether the evidence tends to show that the Practitioner did not fail to make appropriate proximate entries in his clinical records, or establishes no more than "mere assertions".
It is not necessary however in our view for the Practitioner to affirmatively establish, on the balance of probabilities or otherwise, that he did not inappropriately prescribe the medication without making appropriate proximate entries in the clinical records. In the circumstances of this case, unless the Practitioner's explanation for the deficiencies in the available clinical records is rejected, or shown to be entitled to only little weight, he would have introduced evidence which tended to show that he had not failed to make appropriate proximate entries recording the matters to which the Code referred. In those circumstances, the standard of proof required of the Commission, comfortable satisfaction, would assume particular significance.
As will be seen, the Tribunal has reservations about the reliability of the Practitioner's evidence with respect to the "missing" records. If the Practitioner had to prove that he did make appropriate proximate clinical notes with respect to his treatment of Patient A, the Practitioner would fail to do so, but he does not bear that onus.
The Commission submitted that there were "any number of ways that the Respondent could have proved that other records existed but that they had gone missing or been destroyed, and that this had been discovered at a particular point in time". This he was submitted to have failed to do. That contention applies equally to the Commission. Although, arguably, the Practitioner first needed to attempt to do so in July 2018, more than two years after the s 150A hearing, he was aware from February 2016 of the Commission's records complaints. In the five years which have elapsed since that time, the Practitioner appears has made no attempt to obtain any evidence to support his claim. Although on notice of the broad terms of the Practitioner's claims, the Commission has not done so either. The Practitioner's failure to attempt to obtain evidence which tended to show that he had an adequate explanation for his alleged breach is significant. The circumstances in which evidence of the missing records emerged, and when it did preclude criticism of the Commission's failure to attempt to obtain circumstantial or other evidence with respect to the issue. Moreover, in view of his admissions, the Practitioner bore the evidential burden of making those attempts. He was far better placed to seek to obtain it than was the Commission.
The Practitioner submitted that he was a credible witness, and had given his evidence in a "calm, thoughtful and responsive way both in cross-examination and when under questioning from the Tribunal Members". Although that submission has merit, a witness' demeanour in the witness box is of limited assistance to the Tribunal in evaluating the witness' evidence (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). In any event, the Tribunal does not find that any aspect of the manner in which the Practitioner gave evidence impacts to his detriment on our assessment of his credibility.
Not unreasonably, the Practitioner relied upon the reality that some of the events about which he was questioned had occurred more than a decade ago. The Tribunal makes allowance for that reality. With respect to the issue of the missing records, the allowance is limited, having regard to the circumstantial evidence with respect to them, and the fact that the Practitioner did not assert that time impacted on his evidence with respect to the missing records.
The Practitioner also submitted that the gravity of the proceedings and the possible consequences for him could make him "feel anxious or concerned". We are mindful of that in the context of reliance upon things said or not said at s 150 and s 150A hearings. In giving evidence before the Tribunal, the Practitioner did not manifest any anxiety which he may have been experiencing. We accept that the possible outcomes of the proceedings would have been concerning for the Practitioner.
It was submitted that the Commission "elected to cross-examine Dr Kirby in a way which did not challenge his credibility". Having regard to matters which were directly put to the Practitioner with respect to the missing records, we cannot entirely accept that that was the case. Counsel for the Commission raised squarely with the Practitioner that his evidence about the missing records was, at its most benign, an afterthought. In the circumstances, the Tribunal does not consider that more extensive cross-examination on the issue was required of Counsel for the Commission (West v Mead [2003] NSWSC 161, at [95]-[99]). As both parties in their submissions recorded, and as will be demonstrated, in pursuit of the truth about the missing records, the Tribunal thoroughly traversed the issue with the Practitioner. The Practitioner submitted that there was no rational basis for rejecting his evidence in reliance upon his answers to questions from Counsel for the Commission or the Tribunal. As will be seen, the determination of the Commission's records complaints does not turn solely on whether the Tribunal rejects the Practitioner's evidence with respect to the missing records. Declining to reject the Practitioner's evidence does not mean that the records claims must fail. The fate of the complaints would then turn on whether, in all the circumstances, the evidence tended to show that the complaints were not established to the comfortable satisfaction of the Tribunal.
In submissions in reply, the Commission rejected the assertion of the Practitioner that it had been "on notice" since 26 July 2021 that the Practitioner alleged that some of his "records were destroyed". It was submitted that the Practitioner "at no time prior to hearing has clearly articulated his assertion that he kept other clinical records that are relevant to the prescribing of medications to (Patient A) nor that they had been destroyed". The reference to the absence of clear articulation is apt. The Practitioner could have clearly articulated his assertion years before he did. Such clarification of the Practitioner's claims with respect to the existence of other records as he earlier advanced, at the s 150 hearing in 2016, suggesting that they were "private" files and not the "dental" files of Patient A did not put the Commission on notice of the Practitioner's likely, or actual defence to its records complaints. The Practitioner's silence provides support for rejecting his evidence about the existence of the missing records, and how they came to be missing, or, if not rejecting his claims, giving that evidence little weight.
The Commission referred to paragraph 44 of the Practitioner's Affidavit of 28 February 2022 (R1), which stated that the "notes were dictated but does not state that the dictated notes eventuated into a physical form other than the clinical records of Tab 8 of HCCC1. Similarly, the assertion in a letter sent to NCAT that a former employee who left in 2012 had destroyed patient records is not evidence that the former employee had destroyed clinical records that are relevant to the prescribing of medications to Patient A (after 2012)". The Commission reiterated its invitation to the Tribunal to find that the Practitioner "has been deliberately obscure and obfuscatory about the matter. Given his interest in establishing the truth of the assertion, if it were true, such deliberate obfuscation was difficult to explain". The Tribunal does not find, or need to find that the Practitioner has been "obfuscatory", deliberately or otherwise. Whether deliberate or inadvertent, the evidence of the Practitioner with respect to the missing records is "obscure". Having regard to the seriousness of these proceedings, and the avenues by which, on the Practitioner's own evidence, he could have adduced, or given evidence of attempts to obtain circumstantial evidence tending to support his claims with respect to the missing records, the obscurity surrounding the Practitioner's evidence with respect to the missing records creates a significant obstacle to finding the requisite "tendency".
The Commission responded, convincingly in the Tribunal's view (paragraph 24, submissions 28 July 2023) to suggestions with respect to the inferences which should be drawn from the absence of evidence from Patient A, other than his statement in 2016.
For reasons which will become apparent, it is unnecessary for the Tribunal to speculate about why Patient A was not a witness in the Practitioner's case, or to draw inferences arising out of the reality that Patient A was a solicitor. In any event, as will be seen, the Tribunal relies upon Patient A's statement in support of finding one of the particulars alleged by the Commission to have been established.
In his submissions in reply of 28 July 2023, at [57]-[61], the Practitioner advanced reasons why the Tribunal would make benign findings with respect to the credibility of the Practitioner, and his evidence with respect to the "missing records", without regard to what happened at s 150 and/or s 150A hearings. The Tribunal does not rely on "findings" made in those proceedings. There is no reason not to have regard to what the Practitioner said, and, more significantly, did not say during those proceedings. The Tribunal has had ample opportunity, through the cross-examination of the Practitioner by Counsel for the Commission, and its own questions, to make its findings with respect to the credibility and/or reliability of the evidence of the Practitioner, generally with respect to the complaints, and particularly with respect to the "missing records".
In The Nominal Defendant v Cordin [2017] NSWCA 6 at [165], Davies JA recorded, summarising numerous authorities, how credibility issues are to be approached when issues of the fallibility of human memory are called into question: "[165] In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows: [100] In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431): Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part. [101] In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said: [15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. [102] In Campbell v Campbell [2015] NSWSC 784 Sackar J said: [73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]: [140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. [141] In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility… [142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). [75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. [76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: [71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. [72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." [73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. [74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. [75] … [76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." [77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval."" (Emphasis added).
Consistent with the principles emerging from the authorities to which Davies JA referred, in determining the missing records issue, the Tribunal has closely considered the circumstances surrounding the Practitioner's claims with respect to missing records, when they were first articulated, his failure to do so sooner, his failure to attempt to obtain circumstantial evidence which, if the claims were true, is likely on his own evidence to have been available, and the Practitioner's evidence with respect to the making, purpose, content and relationship to existing clinical records of the missing records. These considerations do not involve rejection of the Practitioner's evidence in reliance on credibility: although we do not find that he did, the Practitioner may have made a "private" file with respect to Patient A.
In response to a question from the Tribunal (Transcript 8 March 2023, page 239, line 8) "When to the best of your recollection" was the first occasion when the Practitioner realised that he needed to look to "prescribing matters" the Practitioner replied "12 February 2016". As the Practitioner confirmed (line 35), that was a little over 18 months, and as many as 4 or 5 years after the first entries with which the Dental Council was concerned. The Practitioner's evidence was that, prior to "the week up to and including 12 February 2016" he had no cause to go back over his clinical notes, or to recollect what had or had not happened during any of the consultations that were referred to in Complaint 1. The Tribunal is not aware of any evidence which suggests that those statements could not be accepted, or should be rejected. That however provides little assistance for the Practitioner's case.
As the Commission submitted, the Practitioner gave no evidence that the missing records were ever transcribed, or, if they were, the notes were not incorporated into, or otherwise reflected in the clinical records which did exist. The Practitioner gave no evidence of his attempts to securely hold the missing records. The Practitioner did not explain his suggestion in 2016, when his recollection was likely to have been better than it was likely to have been seven years later, that the missing records were "private", and "different" to the "dental" records which did exist. In evidence before the Tribunal, the Practitioner described the clinical records which exist as "aide memoirs", implying that the missing records were his primary clinical records. If that were so, it is hard to understand, and the Practitioner did not suggest how they did not find expression in the existing clinical records.
On 4 January 2016, (HCCC1 Tab 39), the solicitors then representing the Practitioner responded to a letter from the Dental Council which, inferentially, raised concerns about "prescribing practices" and "excessive procurement". That letter is not in evidence. On balance, we are not persuaded that anything arising from the Practitioner's solicitors' response is supportive of accepting or rejecting his evidence that there were "missing records".
In cross-examination of the Practitioner with respect to the missing records, the following exchange occurred (Transcript 8 March 2023, page 276, lines 35-50): "Q So, which notes? Can you find them? A Well, I made a reference in my statement to the fact that it - it was my practice at the time, in addition to these aide memoirs that you see here [HCCC1 Tabs 8 and 9] to put my notes onto a tape, just an audio tape, to then subsequently be transcribed either digitally or - or to be scanned by a - by a staff member. Those records don't exist anymore. Q So, you recorded the clinical findings. A Yes. Q These are referring to these notes as an aide memoire. A Yeah. Correct. Q So, these are secondary to the primary records which are recorded? A Correct. These are immediate notes. Yes."
The Practitioner's evidence suggests that the tape recorded notes were subsequently transcribed or "scanned". If they were, and the Tribunal does not so find, they may or may not have been, that does not assist the Practitioner's case. Their contents were not incorporated into, or reflected in the records which exist. The Practitioner did not explain why they were not. In those circumstances, the entries in the missing records were not available to the Practitioner, or any other practitioner assuming the care of the patient. The passages to which we have referred and will refer suggest that the obscurity surrounding the Practitioner's evidence with respect to the missing records, though not indicative of invention, is consistent with the Practitioner, having accepted that the clinical records which exist are deficient, elevated the possibility of other records to which he referred but did not rely on in 2016 to become the basis of his defence in 2023.
At Page 277, lines 1-15, the following exchange occurred: "Q And the recording, how did that transfer the recording then? Was that written down or digital, did you say? A Yeah. Well, the - the main method was - as I say, I would put everything onto an audio tape. And then, subsequently a staff member would either store it in a - in a - in a digital form for just - or - or transcribe it and scan it. Q And why are those records not available? A They've been destroyed and taken out of circulation. Q Can I ask why they've been taken out of circulation? A I can. There's a sanitised version of precisely what happened on page 542 of volume 1 of my evidence that was presented before a judge. Q Can I just go that firstly? A Yes. Certainly."
The document referred to was a letter written by the Practitioner on 26 July 2021 (R1 Tab 52) in which the Practitioner advanced an explanation (paragraph 25) with respect to the missing records. The Practitioner there said that Dr N "destroyed and or stole patient records". Significantly for present purposes, after referring to the "ongoing stress" allegedly caused to him and his family by Dr N's conduct, the Practitioner said that the "further relevance of this relates to the extreme circumstances involved in this application and I would expect that some of this information in relation to Dr N, the danger he posed in relation to prescribing and the Commission's and Council's role including Dr O'Reilly and Farina Baines in this matter is very relevant to these hearings and will be sought via subpoena". The Practitioner sought time to pursue the course he foreshadowed. The Practitioner has not adduced evidence of the matters to which he referred, or evidence of attempts, by subpoena or otherwise to secure such evidence in the period of almost two years which followed his letter, or an explanation for failing to do so.
In further response to questions from the Tribunal (Transcript 8 March 2023, page 278, lines 12-36) the Practitioner gave evidence with respect to the generation of the missing records which, with respect to him, did not ameliorate the obscurity surrounding them. The evidence was: "Q So, doctor, could we just go back to you, you said you had two sources of records in clinical records. Why did you choose that method? A It's the most efficient for me. Or was in a busy practice. Q So, you wouldn't put everything onto one record? A No, no. We had many, many different modules that they were all linked. Q And you didn't put everything onto a tape recorder instead? A Everything that was - I - I felt was relevant to that particular appointment or - or history, we'd get onto an audio recording. But yes, that's correct. Q So, all of the salient facts were put onto the clinical record that we have in front of us now? A No. Q So, not the salient facts? A No. What you see in front of you there was just what I immediately put on during the appointment. Q Can I ask how did these manage to survive, and the other records were destroyed? A They - these - these can't be deleted. They're - they're part of - and I have a contact management system. They're part of a core package of that system and it's impossible - it's - it's - I can't even delete them. It's impossible to delete."
The following day the Practitioner was again closely questioned by the Tribunal, during which ensued (Transcript 9 March 2023, page 312, lines 43-50): "Q I was reading from your volume 1, R1 to the exhibits and your statement and I think it was page 11 of the statement where you do say that it was your practice - at paragraph 8, that it was your practice to dictate a short entry following a consultation into a recorder. A Yes. Q But, that these records were destroyed. And, then it was a lingering concern of mine as to where we might find these records and very helpfully yesterday you did say that statement further back in that volume at page 542. A Yes. Q Where you - you write about an incident with another practitioner. A Yes. Q Now, I don't think it's appropriate that we get into all of that incident, except for the issue of the destroyed or stolen patient records. Now, I'm just wondering if you might give us a bit of a chronology of when you - for example, when you discovered that the records were stolen and - and what you did about it? A Sure. Q Yes. A Which - which records. Q The patient records." [Page 313, line 18]
The Practitioner was asked by the Tribunal whether he was suggesting that there had been, in effect, a third, electronic record that he had previously contemporaneously made, but no longer had or could produce. The Practitioner confirmed that that was the case. That evidence further obscured the circumstances surrounding the reason for the creation, content, retention and absence of the missing records.
Further questioning of the Practitioner by the Tribunal revealed the following (Transcript 9 March 2023, page 315, lines 19-50, page 316 lines 1-36): "Q Look, I'll - I'll phrase that differently because that might be sort of throwing you. But, for example, you would have woken up one morning, gone into the surgery and discovered that your records were lost. Which day was that? A For (Patient A). Q No … when did you discover that your records were lost. A These records. Q No, you just you said that there was a lot of records that - that went missing. A Yes, just prior to July 2012. Q So, prior to 2012. A Prior prior. Q And what did you do about that. A So, when those records went missing, we put into place a number of security measures, the most significant of which in retrospect was to ban all online access to my surgery for any staff members and to only - limit the amount of people that could access certain computers. Q So, did you report the incident to the police? A I - I didn't have to, our lives were under threat, they were already on my doorstep. Q So - A So, the a well, the Q -- police were aware, can we say? A Yes. … that was the least of their concerns. Q Alright. So, the security measures came in. A Yes. Q And this was around 2012? A Yes. Q Okay so, did your records go missing again after that? A Yes. Q So, tell me, when did they go missing again? A I didn't discover (Patient A's) records missing or the full extent until just prior to February 2016. Q So … I'm unclear about this, so in 2012 you say a lot of your records went missing. A Well, I don't know the full extent but I'll say some. Q Okay. A -- went missing. Q A lot of your records went missing? A Well, I don't know the full extent, but I'll say that some went missing. Q Okay. So, it's not a lot? A I - over those - sorry Q It's just a few, is it? A I was aware of drugs relating to Mr Z [anonymising the name of another dental practitioner who had worked in the practice at that time] - sorry, records relating to Mr Z going missing in 2012, yes. Q Okay. Did Mr Z provide any treatment to (Patient A)? A No no. Q No. A No Q Okay. So, there was no reason for (Patient A) on the basis that you've outlined, there was no reason for (Patient A's) records to go missing, is that right. A Had it not been for Mr Z, yes, that's right."
The Practitioner suggested that "a number of safety measures" were put in place when the first records were found to have gone "missing" in 2012, but did not suggest how records subsequently went missing, or why he did not discover that they had until 2016. Why Dr N, or Mr Z would have stolen or otherwise impermissibly obtained Patient A's clinical records was not suggested by the Practitioner. The Practitioner's stated reasons for not seeking to obtain Police records on summons were inconsistent with the intention to do so which his 2021 letter to the Tribunal at least implied.
Further questioning of the practitioner revealed (Transcript 9 March 2023, page 317, line 28): "Q Do you say, or do you know, or do you remember whether they (the destroyed or stolen clinical records) or notes relating to (Patient A)? A I don't know if they were specifically related to (Patient A) prior to July 2012."
The Practitioner stated that he would be able to identify "only some" patients' records which were or weren't amongst those which he discovered in July 2012. He did not do so in evidence in chief or in re-examination. The Practitioner confirmed (page 318, line 1) that Mr Z had full access to the electronic records of the practice during the time when he worked there. The Practitioner's evidence with respect to the missing records was that he, or someone at his instigation, stole or destroyed the missing records. The Practitioner reaffirmed (page 318, lines 15-21) that he discovered in February 2016 that the only records he was able to discover with respect to Patient A were those which the Commission tendered in evidence in these proceedings.
In the course of responding to close questioning (pages 317-318) the Practitioner suggested that, after July or August 2012, when Mr Z ceased to work in the practice he still had access to the electronic records of the practice (page 318). In further questions by the Tribunal the Practitioner was asked (page 319, lines 33-37): "Q I would like to know whether there could be a record of your reporting this to the police and a record of what the police investigation found. I believe it could assist you and from that point of view, I'm persisting to ask because we're here to get to the truth as it relates to our particulars."
The Practitioner replied (line 39) "Yes". That answer was consistent with the Practitioner's July 2021 letter. The Practitioner has at all relevant times been represented by a solicitor and eminent Senior Counsel. The unexplained failure to summons NSW Police to produce their records is significant. The potential for even the briefest COPS entry to provide support for the Practitioner's claims with respect to the missing records is readily apparent. To the extent that the Practitioner impliedly sought to explain that failure as referable to present or recent threats by or fear of Dr N or Mr Z, he did not suggest that to have been the case, or suggest that he had any content with either man since, at the latest, 2016.
After legal argument the question of the missing records was again raised with the Practitioner by the Tribunal (Transcript 9 March 2023, page 342). In the questions which followed, the Practitioner was asked to provide, and did provide considerable detail with respect to how he claimed that the missing records had been prepared (page 343, lines 1-48).
The Practitioner asserted that his credibility had withstood close scrutiny, and, having regard to the onus of proof which the Commission undoubtedly bears, that the Tribunal could not reject the Practitioner's evidence as "unreliable or untruthful". In support of his claims, the Practitioner referred to a statement made by him on 28 February 2022 (Exhibit R1, page 11 [6]), which was not entirely consistent with the concessions made during the hearing before the Tribunal, in which the Practitioner said that: "In relation to proximate entries at the time it was my practice to dictate a short entry following consultation into a recorder in which I set out relevant details relating to (inter alia) the consultation and assessment of the patient and his complaint to then be either manually transcribed or digitally stored by a staff member. Despite records being destroyed and taken out of circulation there is sufficient information present."
Reliance was placed upon the Practitioner's further statement in April 2022 (R1, page 22 [5]) that he relied on (R1, Tab 52), which contained a letter dated 26 July 2021 from the Practitioner describing the impact that Person Z allegedly had on him. The statement in the letter that Mr Z "destroyed and/or stole patient records once I became aware of his issues" (R1, page 242) was relied upon by the Practitioner. It was submitted that the Tribunal could not reject the Practitioner's explanation. The fact that the Practitioner said that as long ago as he did militates against accepting that his explanation was a recent invention, as the Commission submitted. The fact that it was said 3 years after the Commission's application alleging deficient records, and in the absence of any explanation for that silence, weighs against finding that the Practitioner's evidence "tends to show" that he did make other clinical notes of the kind he described.
The Practitioner relied on the Commission being "on notice" as early as July 2021, and at the latest April 2022, that he contended that his clinical records had been destroyed by Person Z. That submission is literally correct, but, as we have earlier explained, other than in the vaguest terms, the Commission was not on notice of the case which the Practitioner would ultimately advance until his cross-examination in 2023. The Practitioner's evidence with respect to the issue was submitted to have been "entirely consistent" with his earlier statements. To the extent that he made "earlier statements", in view of their brevity, it is unsurprising that the Practitioner's evidence before the Tribunal was to some extent consistent with those statements. As we have identified earlier, there were significant inconsistencies in the Practitioner's accounts of the missing records between 2016 and 2023. The obscurity surrounding the Practitioner's accounts significantly outweighed any clarity provided by him in that regard. The Practitioner relied upon a number of passages in his cross-examination in support of those submissions. In those passages of cross-examination, the Practitioner repeatedly conceded that relevant information did not appear in the clinical records which comprised HCCC1, Tab 8, and frequently reiterated his assertion that he had other notes, being the notes to which we have earlier referred.
In subsequent evidence (Transcript 9 March 2023, page 313) the Practitioner reaffirmed that, in addition to the information recorded in HCCC1 Tabs 8 and 9 there was another "electronic record" that he had previously contemporaneously made but no longer had. The Practitioner further reaffirmed that this further contemporaneous electronic record had either disappeared as a result of actions taken by Person Z, or had been destroyed or caused to be destroyed by Person Z, or someone on his behalf, rendering them no longer available to him.
In response to questions from the Tribunal (Transcript 8 March 2023, page 276) after questions about the basis of his "view that the patient had periodontal disease" the Practitioner confirmed that HCCC1 Tabs 8 and 9 did not record his having taken radiographs and/or carried out periodontal probing, which the Practitioner asserted he had undertaken "at each appointment". When asked "which notes? Can you find them" the Practitioner reiterated that "Well, I made a reference in my statement to the fact that it - it was my practice at the time, in addition to these aide memoirs that you see here (HCCC1, Tabs 8 and 9) to put my notes onto a tape, just an audio tape, to then subsequently be transcribed either digitally, or - or to be scanned by a - by a staff member. Those records don't exist anymore".
In evidence on 9 March 2023 (Tcpt p. 343, lines 31-41) the following telling exchange occurred: "Q. In the management of (Patient A) following July 2012, up until November 2015, was there any reason why you would have needed to refer to these further (missing) records? A. Perhaps there may- perhaps there may have been, but I don't recall having needed to- to refer. Q. I'm just curious as to why, in that period of three years, it didn't become evident that (Patient A's) further records were not present if you were managing (Patient A) on a number of occasions during that period. A. Well, if I had referred to them in that time period that you mentioned, they- they may well have been there in that time period."
It was submitted on behalf of the Practitioner that during cross-examination by Counsel for the Commission and "close questioning" by Members of the Tribunal the Practitioner's answers were "clear and cogent", and that he did not "waver" in his explanation that Patient A's records had been removed unbeknown to him. That contention is literally correct, but it does not materially advance the Practitioner's case. The paucity of his account of the missing records to which we have earlier referred rendered the absence of waiving likely. For the reasons which we have earlier recorded, the Tribunal does not find the Practitioner's evidence with respect to the missing records was neither clear nor cogent. It was obscure in numerous material respects. His account is not so implausible to be rejected. We do not reject it on the basis of credibility.
It was submitted that the Commission had not "meaningfully" challenged the Practitioner's evidence with respect to the destroyed or missing clinical notes. As we have earlier recorded, we do not accept that contention. To the extent that Counsel for the Commission was obliged to do so, the Practitioner was cross-examined on his account of the missing records. The extent to which Counsel was obliged to cross-examine the Practitioner on that issue was impacted by the evidence which he adduced in chief. In view of the paucity of the Practitioner's account of the missing records, and obscurity or inconsistency with it revealed by circumstantial evidence, it was not for the Commission to explore the possibility of benign explanations which the Practitioner did not articulate.
In cross-examination of the Practitioner (Transcript 9 March 2023, page 349) it was put to the Practitioner that "Other than the documents that appear behind Tab 8 and Tab 9 of the HCCC documents, I want to suggest to you that you did not take any other kind of notes in respect of your consultations with (Patient A)". The Practitioner replied "I deny that". The Practitioner submitted that the Tribunal could not "be comfortably satisfied that it could reject" the Practitioner's explanation, absent a meaningful challenge to his account. The Tribunal cannot accept that submission. How that denial could, or should, have been further challenged has not been suggested. Acceptance or rejection of the Practitioner's denial is not decisive of the case. Consistent with authority, Counsel for the Commission, by cross-examination and in reliance on circumstantial evidence, suggested that the denial should not be accepted. The Tribunal does not reject or accept the Practitioner's denial. He may have made another "kind of notes" of his consultations with Patient A, but, as we have earlier identified, whether he did or not is not determinative of the Commission's records complaints.
It was further submitted that, as evidence about which there has been no relevant cross-examination the Practitioner's evidence should not, and would not usually be rejected (Ghosh v Medical Council of New South Wales [2020] NSWCA 122). It was properly conceded by the Practitioner that where evidence is not cross-examined upon, whilst it does not necessarily mean that the evidence will be accepted, it enables that evidence to be regarded with a greater degree of assurance than might otherwise have been the case (Paric v John Holland Constructions Pty Limited [1984] NSWLR 505; Knight v Maclean [2002] NSWCA 314).
The Tribunal does not criticise Counsel for the Commission for not pursuing this issue further in cross-examination of the Practitioner than it did. There is no suggestion that there was any document or record or circumstantial evidence with which the Practitioner could have been confronted by way of further challenge to his explanation. There were diametrically opposing versions of the facts, and few of the recognised means of informing the probabilities available to either party.
The Commission was criticised for failing to "take a number of steps to investigate" the Practitioner's explanation. In view of the terms in which the Practitioner articulated his claims with respect to the missing records, and when he first did, the criticism of the Commission is unfounded. The Practitioner knew about the matters upon which he ultimately relied, the characters involved, and the records which he considered were likely to support his claims. He was better placed than the Commission to seek to secure evidence to support his claims, but did not do so, or explain why he did not. It may be that such steps as the Commission assertedly could have taken would have rendered the Practitioner's explanation sufficiently implausible to be rejected. We do not need to speculate about that. It may mean that there are "gaps" in the evidence which are helpful to the Practitioner's case, having regard to the onus and standard of proof which the Commission bears. The Tribunal determines whether, on the evidence before it, the Commission proves its case.
The exchanges recorded above establishes that the Practitioner could, by summons, potentially have elicited information from NSW Police which provided, or failed to provide support for the Practitioner's claims with respect to the missing records. In July 2021 the Practitioner indicated his intention to do so. He did not do so. Ultimately, we are not persuaded that it would be fair, or is necessary in any event to draw inferences adverse to either party by reason of the failure to summons witnesses or documents relating to the Practitioner's account of the missing records. The Practitioner has adduced no evidence corroborating or supporting his claims in discharge of the evidential onus which he bears. In those circumstances, determining whether the evidence tends to show that the Practitioner did not fail to make the appropriate entries for Patient A in his clinical records turns on our evaluation his evidence with respect to the missing records in the light of the matters impacting on that evaluation which we have earlier identified.
Other than in final submissions, the Practitioner did not expressly raise his good character in his defence. The Tribunal is satisfied however that, at least by the commencement of the hearing, resolution of the controversy with respect to the Practitioner's evidence missing records turned materially, but not decisively on the Tribunal's findings with respect to the Practitioner's credibility. The submissions of the Commission with respect to the Practitioner's evidence about missing records, the cross-examination of the Practitioner by Counsel for the Commission and his questioning by the Tribunal leave no scope for doubt that the Practitioner's credibility was squarely in issue and that, in that context the Practitioner relied upon his asserted good character.
There is no statutory definition of character evidence. In Melbourne v The Queen [1999] HCA 32; (1999) 19 CLR 1 (although in dissent with respect to the merits of the case) Kirby J at [105] is cited in the Civil Trials Bench Book published by the NSW Judicial Commission which states that ""character" refers to the aggregate of qualities which distinguish one person from another, or the "moral constitution" of a person: it embodies the permanent and unchanging pattern of the nature of the individual concerned".
Evidence of "good character" includes evidence of the accused's general good reputation, and evidence of the accused's favourable disposition (Stirland v Director of Public Prosecutions [1994] AC 315), which may be proved in a number of ways, and does not simply consist of evidence that the accused has not previously been convicted of an offence (Melbourne v R). Evidence of good character is not merely evidence which may make it more likely that the accused's evidence is credible, but also whether it is unlikely that the accused committed the offence as charged, or, in these proceedings, committed the conduct alleged against him (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, at [35] Gleeson CJ, and [94] McHugh J). The evidence can only make it unlikely, rather than improbable that the accused is guilty of the conduct alleged against him (R v Stalder (1981) 2 NSWLR 9).
There is no suggestion that the Practitioner is other than a person of good character. The thrust of the submissions on the Practitioner's behalf is that his good character makes it unlikely that the Practitioner would be guilty of the conduct alleged by the Commission, and unlikely that he would misspeak the truth about his conduct (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 at 359, Eastman v The Queen [1997] FCR 9 at 52-53; 158 ALR 107 at 147, TKWJ v The Queen at 94).
Although, if these were criminal proceedings, whether the Practitioner made a conscious decision to raise good character, and could thus rely upon it may have been problematic (see R v Bartle [2003] NSWCCA 329, PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426), the Tribunal is satisfied that the Practitioner has raised good character sufficiently, and not merely made emphatic denials of guilt (R v Skaf [2004] NSWCCA 74, R v El-Kheir [2004] NSWCCA 461).
The significance of character evidence in the present proceedings is limited. It is to be expected that dental practitioners will be persons of good fame and character, as the Practitioner is. Nevertheless, the Tribunal does take into account the Practitioner's good character in determining whether it is unlikely that he has committed the conduct alleged against him and/or misspoken the truth about those matters.
Dr Rourke said that the Dental Board of Australia's Guidelines on Dental Records ("Guidelines") were not mandatory. In cross-examination by Counsel for the Commission (Transcript 9 March 2023, page 373-374), Dr Rourke acknowledged that the Guidelines (HCCC1, Tab 44) were in place at the times to which this particular related. After being referred to particular provisions of the Guidelines, Dr Rourke made clear his view that "should" appearing in the guideline with respect to "clear documentation describing the date of visit" for each appointment and "information about the type of examination conducted", the "presenting complaint" in each instance referred to in the guideline meant "should" be included but did not have to be included. Having regard to the reasons for keeping clinical records which accord with the Guidelines, we are not persuaded that, in the context of s 139B(1)(a) of the National Law, compliance with the Guidelines not being mandatory assists the Practitioner. If a practitioner "should" comply with the Guidelines, failing to do so provides support for the Tribunal's findings with respect to the clinical records particulars relied on by the Commission.
In support of its case, the Commission relied on the expert opinion evidence of Dr Peter Mansour, a Sydney based Dental Surgeon, whose qualifications and experience to express his opinions was not challenged. Dr Mansour said (HCCC1, Volume 2) that prescribing Amoxil required "knowledge of the patient's presenting condition along with detailed clinical findings". Dr Mansour was of the view that "With no proximate entry in the clinical record concerning dental treatment, (the Practitioner) has breached the Dental Boards Code of Conduct section 8.4(a) which was in Dr Mansour's view significantly below the relevant standard". As is not in doubt, Dr Mansour relied upon the clinical records which were provided to him (HCCC1, Tabs 8 and 9). Properly, Dr Mansour did not attempt to express views about the credibility or reliability of the Practitioner's evidence with respect to the missing records.
In cross-examination (Transcript 7 March 2023, page 149, lines 23-32) Dr Mansour was asked about the Guidelines. He agreed that they "offer guidance" and provided a "framework for our for - for our practice". It was suggested to Dr Mansour (Transcript 7 March 2023, page 151, lines 47-50) that "In determining the adequacy or otherwise of records maintained in respect of a patient that it's important to look at the records rather than an individual record" to which Dr Mansour replied "I think it's important to look at all the records".
Although more directly relevant to whether any particulars proved by the Commission, individually or collectively, constitute unsatisfactory professional conduct, we observe that, to the extent that it has relevance to the missing records issue in view of the Practitioner's admissions with respect to the existing records, the provisions of the Code, and the Guidelines, and the expert opinion evidence of Dr Mansour and Dr Rourke provide objective criteria which informs and supports the Tribunal's findings in relation to the Commission's clinical records particulars.
There is an obvious convenience about the Practitioner's suggestion that he made records which are now missing. The Practitioner's explanation for the absence of the records, and the absence of explanation for his failure to more diligently pursue their recovery, raise concerns about the reliability of his evidence. Why the missing records were not included in or placed with the clinical records which continued to be available in a timely way was not explained. It is readily apparent that, in order for clinical records to perform one of their important functions, they need to be available to a practitioner assuming the care of the patient. We are not convinced that, even without the alleged intervention of Dr N. or Mr Z, the missing records would ever have been available for the purposes intended by the Guidelines. We have recorded earlier a number of matters of substance which militate against acceptance of the Practitioner's account of the missing records which do not involve adverse credit findings
The Practitioner's evidence about the missing records is ultimately unconvincing. If the Practitioner bore the onus of proving that he made the records which he claims he made, and that they contained the entries which they "should" have contained, he would undoubtedly fail to discharge that onus. If the Practitioner bore the onus of proving his explanation for the absence of the missing records, he would also fail to discharge that onus. If the Commission had only to prove its allegations on the balance of probabilities, it would succeed with its clinical records particulars. As is not in doubt, the Commission must prove its clinical records particulars to the comfortable satisfaction of the Tribunal.
Neither on the basis of credibility, or implausibility is the Tribunal unable to reject the Practitioner's evidence that he made contemporaneous clinical notes in records other than those which are in evidence, or reject his explanation for their absence. Conversely, we are unable to make findings in those terms. That does not mean that the Commission necessarily makes out its case. As foreshadowed earlier, the test becomes whether the evidence "tends to show" that the Practitioner did what he claims to have done, in which case Tribunal could not be comfortably satisfied that the Commission has proved its case. As the Tribunal finds that the Practitioner may have done what he claims to have done with respect to the missing records, the critical issue is whether the evidence sufficiently tends to show that he did as to preclude finding that the Commission has proved its case to the Tribunal's comfortable satisfaction. That involves determining the weight to be afforded to the Practitioner's evidence. As with all evaluative decisions of that kind, minds may reasonably differ.
We have earlier identified the evidence which militates against finding the requisite "tendency". Importantly, that evidence includes silences, gaps, inconsistencies and the overall obscurity surrounding the Practitioner's accounts of missing records over the years, unexplained failures to seek to secure potentially relevant or exculpatory evidence which the Practitioner indicated his intention to seek almost two years prior to the hearing. Ultimately, and particularly in reliance upon the obscurity surrounding the Practitioner's own account of them, we do not find that the evidence tends to show that the Practitioner has not failed to make or maintain the clinical records upon which the Commission relies.
Even if the Tribunal had found that the evidence tended to show that the Practitioner had made the missing records, that would not change our decision with respect to the records particulars alleged by the Commission. The Practitioner's evidence does not tend to show that any missing records would have contained the information which the expert opinion evidence establishes that they should have contained. The absence of evidence from the Practitioner with respect to their contents, and vagueness in that respect demonstrated by the Practitioner in cross-examination support that finding, making due allowance for the passing of time since the first missing records were assertedly found to be missing.
It follows that each of the particulars of the Commission's clinical records complaint is established to the comfortable satisfaction of the Tribunal. The Tribunal finds Particulars 1(a), 2(a), 3(a), 5(a), 6(a) and 8(a) proved. Although potentially unhelpful to the Practitioner's defence of other particulars of Complaint 1, as they do not depend on credit findings adverse to the Practitioner, these findings do not increase the likelihood of the Commission proving its case.

Particular 1

The Commission alleged in this particular: "1 On 1 February 2010, 30 October 2010, 11 July 2011, 16 August 2012 and 23 April 2014, the Practitioner inappropriately prescribed Amoxil to Patient A: (a) without making appropriate proximate entries in the clinical record; and (b) without performing an appropriate assessment prior to issuing the prescription."
In his Reply, the Practitioner denied that he had engaged in conduct which offended s 139B(1)(a) or s 139B(1)(l) of the National Law. The Practitioner further pleaded that he: "denies that each particular, if found, in itself justifies a finding of: (a) inappropriate prescribing; (b) unsatisfactory professional conduct"
It is not contentious that Amoxil is an antibiotic that is normally used for treating infection.
The Practitioner articulated his response to the facts alleged by the Commission in support of this particular in the form of a table. It is useful to summarise the contents of the table in order to better identify the real disputed issues of fact. Other than on 23 August 2014 the Practitioner admitted that he had prescribed Amoxil to Patient A on each of the other occasions alleged by the Commission. In every instance the Practitioner denied having inappropriately prescribed Amoxil to Patient A. In every instance the Practitioner denied having prescribed Amoxil for Patient A without making appropriate proximate entries in his clinical records. In every instance the Practitioner denied having prescribed Amoxil for Patient A without performing an appropriate assessment prior to issuing the prescription.
The critical issues for determination with respect to this particular relate to the circumstances surrounding the prescription of Amoxil rather than whether Amoxil was in fact prescribed for Patient A on the 4 occasions when it was.
The clinical records kept by the Practitioner in respect of his treatment of Patient A (HCCC1, Tab 8) comfortably established that the Practitioner had not made appropriate proximate entries for the prescription of Amoxicillin on any of the 4 occasions which inform this particular. The Tribunal has found Particular 1(a) proved. The facts alleged in support of it inform and provide context for our consideration of Particular 1(b).
The Commission referred to clause 8.4 of the Code (HCCC1, Tab 47) which was submitted to specify that "good practice requires keeping health records that include clinical history, clinical findings, investigations, information given to patients or clients, and medications, in such a way that can be understood by other health practitioners".
The Commission submitted that the entries for the prescribing of Amoxicillin for each of the dates identified in this particular did not identify the purpose for which the drug was prescribed in that: "(a) on 1 February 2010, 30 October 2010 and 11 July 2011 the entry merely referred to the prescribing of Amoxicillin to be taken 3 times a day with no other details included; (b) on 16 August 2012 the clinical record stated "sore throat inflammation more right side"; (c) on 23 April 2014 the record stated "in a lot of pain - face red - sweating and this causes abrasin apparently from his clothin [sic] … ADv to contact me if he gets symptoms of shingles"."
It was submitted that, for the first three entries there was no record of any assessment that caused Amoxil to be prescribed. It was thus submitted that the Tribunal could infer that the Practitioner had not performed a proper assessment prior to issuing the prescription. Although the admitted absence of such record materially assists the Commission's case, the Practitioner has given evidence which was asserted to tend to show that he had performed a proper assessment prior to issuing the prescription, precluding a finding that the Commission had proved its case.
It was submitted by the Practitioner that the last two entries referred to in this particular did no more than record symptoms, and did not refer to any assessment conducted by the Practitioner.
The Commission relied on evidence given by the Practitioner that an unknown number of consultations with Patient A were performed over the telephone and submitted that it was uncertain whether the notes recorded what the Practitioner had himself observed, or whether they merely recorded what Patient had A told him.
In his evidence (Transcript 8 March 2023, page 253), albeit in the context of cross-examination about prescriptions for Valtrex and/or Ativan, the Practitioner agreed that he had been "prepared to prescribe" medication for Patient A although he "didn't attend" the Practitioner's surgery. The Practitioner said "I was prepared and he didn't attend. Yes". Whether that was the case on any of the 4 occasions with which this Particular is concerned is unclear.
The Practitioner submitted generally with respect to "clinical records" that a "key plank" in the Commission's case was that, in the absence of clinical notes establishing the appropriateness of the Practitioner's prescribing, the prescribing is presumed to be inappropriate. Such approach was submitted to be "fundamentally flawed". The Tribunal's findings with respect to the Practitioner's missing records does not mean that Particular 1(b) is necessarily made out. Its fate turns on the Tribunal's findings with respect to whether the Practitioner failed to perform an adequate assessment prior to issuing the prescription in the light of the evidence about the prescribing. Although not conclusive of the issue, the Tribunal having found Particular 1(a) established, the Commission has made out what in other proceedings would be called a prima facie case. The Practitioner thus has the onus of adducing evidence tending to show that he did perform an appropriate assessment prior to issuing the prescription. The missing notes may have recorded information which did so, and precluded the success of this Particular, but the Tribunal's findings with respect to the missing records, and the level of generality of his evidence about their contents, deprive him of the ability to use them as a shield against the particular.
The Practitioner took issue with what was described as the Commission's imposition of an onus on him to "assert something else" to establish the appropriateness of his prescription in the absence of that being apparent from clinical notes. To the extent that, in this case, the Practitioner has an onus of adducing evidence tending to show that he did not fail to perform an appropriate assessment prior to issuing the prescription, we cannot accept the Practitioner's submission. Although not so expressed, the thrust of the Practitioner's contention was that the Commission sought to reverse the onus of proof and that the Practitioner was not required to prove that his prescribing was appropriate but rather it was for the Tribunal to consider whether, in the light of all the evidence, the Commission had discharged its onus. We agree with the Practitioner's contentions with respect to the onus of proof of the particular to the comfortable satisfaction of the Tribunal - it remained with the Commission.
The Practitioner reiterated his contention that the Commission "wrongly conflates an absence of clinical records, even if proven" which the Practitioner disputed, with inappropriate prescribing. It was submitted that, although clinical records were an important piece of evidence in determining whether prescribing was appropriate, they were not "conclusive", and their absence does not provide a basis for inferring that the prescribing was inappropriate. The Commission's success with Particular 1(a), and identical subsequent particulars, renders the Practitioner's defence to Particular 1(b), and similarly pleaded particulars problematic, but does not mean that the Commission would necessarily succeed on those particulars. That is particularly so as, although sceptical about his claims, the Tribunal has not made adverse credit findings with respect to the Practitioner's evidence about the missing records.
The Practitioner relied on the written and oral evidence he gave about the matters which he asserted had informed his decisions to prescribe medication for Patient A, as well as his lack of records. That evidence is considered below in the light of the cross-examination of the Practitioner.
The Practitioner also relied on the expert opinion evidence of Dr Rourke, an experienced Dental Surgeon. Properly, it was not suggested that Dr Rourke lacked the qualifications or experience to express the opinions contained in his report (R2).
Dr Mansour said in cross-examination (Transcript 7 March 2023, page 153, line 46 - 154, line 4) that the prescription of Amoxicillin was not necessarily limited to cases involving infection but could be prescribed "in conjunction with dental treatment not in isolation". The Practitioner has consistently maintained that the prescription of Amoxil for Patient A was in connection with dental treatment and not in isolation. Particular 1(b) does not allege that it was not. The particular alleges that the Practitioner failed to perform an appropriate assessment prior to issuing the prescription.
Dr Mansour was cross-examined in some detail about his asserted failure to have regard to anything but HCCC1 Tabs 8 and 9 in assessing this particular. The Tribunal does not criticise Dr Mansour for not taking into account the missing records. The reasons why it was not reasonable that he did not do so have been identified in the Tribunal's findings with respect to the missing records. In the circumstances, it is unsurprising, and reasonable that Dr Mansour relied upon the only clinical records which were available.
If the only evidence with respect to the prescription of Amoxil for Patient A on the occasions referred to in this particular were those appearing at HCCC1 Tabs 8 and 9, the Tribunal would be comfortably satisfied that the particular was established. Although unhelpful to the Practitioner's case, the admitted deficiencies in the existing clinical records do not mean that this Particular is made out. It does not necessarily follow that, because the Practitioner did not make an appropriate proximate entry in the clinical records, he did not perform an appropriate assessment prior to issuing the prescription. The Commission must prove to the Tribunal's comfortable satisfaction that he did not. The issue is whether, unless rejected, or entitled to only little weight, the evidence of the Practitioner tends to show that he made an appropriate assessment before issuing each of the prescriptions identified in the Particular, thus precluding the Tribunal being comfortably satisfied that he failed to do so. If the Particular is proved, determining whether the Practitioner's conduct fell below the requisite standard or, fell significantly below that standard would require determination.
In defence of this and other particulars, the Practitioner relied upon the report of Dr Rourke. Dr Rourke prepared a report dated 15 February 2023 to which there was a volume of documents attached (Exhibit R2). Dr Rourke stated in his report that he could not "identify that the Amoxil prescriptions by (the Practitioner) on any date were inappropriate given his account of the purpose, quantity and use of the medication".
In cross-examination Dr Rourke was referred to a report which he prepared for the Practitioner "in respect of different proceedings" in July 2016 (Transcript 9 March 2023, page 355), and was cross-examined at some length (Transcript 9 March 2023, pages 356-359) about his prior encounters with the Practitioner. The Tribunal asked (Transcript 9 March 2023, page 359) whether "other than at perhaps morning tea, afternoon tea, lunch breaks during the course of seminars or other professional development events, have you ever had any contact with (the Practitioner) which you would describe as social". Dr Rourke said that he recalled an occasion when he went to "an Italian restaurant with him and his wife" but that "other than in the course of or in association with a seminar, conference or some other professional event" he had never socialised with the Practitioner, or had "that kind of a relationship". The Tribunal is not persuaded that Dr Rourke's evidence suffered from a lack of objectivity by reason of any prior association which he had with the Practitioner. The Tribunal does not understand that contact of the kind which Dr Rourke had with the Practitioner was in any way inappropriate, or likely to influence his opinion evidence.
Dr Rourke accepted (Transcript 9 March 2023, page 366, lines 25-32) that for the purposes of assessing why Amoxil was prescribed it would be necessary to consider the reasons for the prescription on each of the occasions, and for that purpose "you would need to look at the patient notes". Dr Rourke was reminded of his statement (page 367) that he had been unable to "identify that the Amoxil prescriptions by (the Practitioner) on any date were inappropriate".
It became apparent from subsequent cross-examination (page 368) that Dr Rourke's opinion was not based solely on HCCC1 Tabs 8 and 9, but also on Dr Kirby's statement. In those circumstances, to some extent the weight to which Dr Rourke's opinions are entitled depends on the Tribunal's findings with respect to the Practitioner's evidence (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305). Unless the Tribunal is unable to reject the Practitioner's evidence about his pre-prescribing assessment, or afford it more than token or little weight, Dr Rourke's opinion with respect to this Particular provides only slight support for this Particular.
In questions from the Tribunal (Transcript 8 March 2023, page 274, line 10 to line 7 on page 276) the Practitioner was asked (line 23) "Can you tell us, first of all, why you prescribed Amoxil on these three occasions". The Practitioner replied "For infection, presence of infection." When invited to "elaborate a little bit more on that" the Practitioner replied "So, the first one is on 1 February 2010. And the reason - if - if you look back just slightly on 23 December 2009, it said, "Trimmed a lot of gum". So, what happened the - the - so, what happened on 1 February 2010 was that there was a secondary infection subsequent to the gingivectomy. And I would have thought - I'd like to think that would be self-evident". The Practitioner was asked "So, infections, that's the periodontal tissues and?" to which he replied "And the gingiva. Yes". The Practitioner clarified that he identified "acute infection of the gingiva and periodontal tissues".
The clinical record for 1 February 2010 (referred to as an "aide memoir") is limited to the prescription of Amoxil, there was no record of any assessment that caused Amoxil to be prescribed. Hence the Practitioner's explanation is reliant upon his memory, and draws on an interpretation adapted from the existing records. The passage of time since the prescribing is unlikely to have improved the Practitioner's recollection of the prescribing. Such entries as he made in the existing clinical records are unlikely to have assisted his recollection of the prescribing. The Tribunal has regard to these factors, and to the fact that inability to recall or accurately recall events does not necessarily mean that recollections are untrue, or unreliable. The standard of proof which the Commission bears is relevant in this context.
With respect to the prescription on 30 October 2010, the Practitioner explained (page 275, lines 1-6) that "On 15 September 2010, we did the 47 MO, gave him a double block, and fitted the denture to it. The 47 MO refers to a subgingival cavity that was associated with an operculum in that area and an ill-fitting lower partial prosthesis. Just area right for gingival infection, periodontal infection, the [sic] continues unresolved to this day. … the Amoxil was just simply designed to control the infection, just an urgent procedure". The Practitioner was asked "So, periodontal infection relating to the operculum in 47, so a pericoronitis?" The Practitioner replied "Yes. … and the ill-fitting denture, the partial prosthesis as well". The Practitioner added "and the subgingival cavitation there".
Again on 30 October 2010 the clinical record contains no record of any assessment that caused Amoxil to be prescribed. Again the Practitioner's explanation relies on his recollection of the patient's presentation, clinical signs and patient symptoms from the day of the appointment and the findings of his examination that took place. This appointment took place more than 12 years before the date of the hearing. If the Practitioner bore the onus of proving this assessment, he would fail to do so, but he does not bear that onus.
When asked about the prescription of Amoxil on 11 July 2011 the Practitioner reiterated that he prescribed Amoxil because Patient A's "gingiva and periodontal architecture was significantly sore and obviously infected, that's why I gave him the Amoxil". When asked how he "arrived at the diagnosis of periodontal disease?" (page 275, line 46) the Practitioner replied (page 275, lines 48-49) "There's bone loss, loss of attachment, swelling. They're the main ones". When asked whether there was anything else that he used the Practitioner replied (page 276, lines 2-6) "There was a reference there, I can't remember where it was. I - I think - I think he said he had a - there was redness somewhere which is often a sign of fever as well. But it was classically the gingival infection, the periodontal infection and the operculum, and the partial prosthesis and the subgingival cavity that remains unresolved".
With respect to the appointment on 11 July 2011 there is also no record of any assessment that caused Amoxil to be prescribed, the record is limited to the details of the prescription only. When questioned about this prescription the Practitioner's answer relied entirely upon his memory, and what he might have expected to find or observe in a patient suffering from periodontal disease. We regard that evidence with some scepticism, but cannot reject it. As with other evidence of the Practitioner in reliance upon his memory, the Commission has not demonstrated that the explanation is so implausible, or lacking an acceptable basis that we can reject it.
The Tribunal proceeded to ask the Practitioner the "basis for your forming a view that the patient had periodontal disease" (page 276, lines 18-19). The Practitioner replied (lines 22-23) that "The two main significant factors were the radiographs that were taken at the time and the periodontal probing". The Practitioner stated that the periodontal probing occurred "at each appointment", that it was documented, in the missing records, and not in the clinical records at HCCC1 Tabs 8 and 9. The Practitioner responded in further detail to questions from the Tribunal (page 276-277) about the missing records.
When asked why Amoxil was prescribed on 23 April 2014 the Practitioner replied that he prescribed it because "The infection was obvious, the fact that he was sweating and had a - had a red face in my opinion could have easily led to a fever. And the prescribing of the broad-spectrum antibiotic was used also as a preventative measure in that case" (Transcription 9 March 2023, page 297, line 12). The following exchange then took place lines 17-40): "Q. So, there was a suspicion - sorry. If I understand correctly, you're suggesting that an external examination of the face because there was redness on the outside of the face, this was sufficient sign for you to assume that this was a periodontal infection? A. No. Not - no. No, that wasn't sufficient. No. Q. What else did you see apart from the sweating and the external redness? A. Okay. So, in - internally or in - inside his mouth he has an ill-fitting denture associated with that 47 area. There was swelling and crevicular fluid release on - on palpation in that area that is - is present at virtually every visit that I had there. That is not listed in the notes, but the - the risk of him developing a - a deeper or a more significant infection was why I prescribed a broad-spectrum antibiotic at that - at that stage. So, he had presence of external and internal symptoms. Q. Did you carry out an internal examination on that day? A. Localised, yes. Q. At that intra ob examination? A. Specific to that area, yes. Q. And is there a reason why that isn't recorded in the clinical records? A. Yes, but that - that was - as I said yesterday, they're just the brief notes to refer my memory to it when I write it - write up and record the detailed notes"
With respect to the appointment on 23 April 2014 the "aide memoir" mentions systemic complaints only, and is silent with regard to any dental signs or symptoms, clinical observations and findings on examination. The Practitioner relied entirely on his memory to explain why on this occasion a prescription for Amoxil was appropriate for the treatment of a dental condition.
Unless rejected, or entitled to little weight, the evidence of the Practitioner, and particularly his evidence in response to questions from Senior Members of the Tribunal tends to show that he made appropriate assessments prior to issuing each of the prescriptions referred to in Particular 1(b). His reasons for issuing the prescriptions have not been shown to have lacked a rational basis, or to have been inconsistent with accepted standards of practice. Although they do not assist his case, such records as there are not inconsistent with the Practitioner's claims with respect to this particular. The Practitioner's explanations were heavily reliant, if not entirely reliant, upon his recollections which are being recalled many years after the events. The tenuous and fallible nature of memory when presented as evidence has previously been emphasised, and the Tribunal takes that into account. The burden and standard of proof assume particular significance in this context.
Although we have our suspicions, no rational basis for finding to the requisite standard that the Practitioner misspoke the truth about this prescribing has been established to our comfortable satisfaction. The Practitioner conceded that his recollection was imprecise during cross-examination with respect to this and other particulars. If the Practitioner had to satisfy the Tribunal that he did perform appropriate assessments prior to issuing the prescriptions, he would probably fail to do so, but he does not bear that onus. The Practitioner was not shown to have materially misremembered the substance of the assessments which he said he had performed. The confusion and obscurity surrounding the Practitioner's evidence with respect to the missing records was markedly absent in relation to his evidence with respect to this Particular.
The Practitioner's evidence tends to show that he did perform an appropriate assessment prior to issuing the prescriptions. The Commission has not proved this Particular to the Tribunal's comfortable satisfaction. Particular 1(b) is not made out.

Particular 2

Particular 2 alleged that: "On 27 November 2010 (the Practitioner) inappropriately prescribed Tinidazole to Patient A: (a) without making an appropriate proximate entry in the clinical records; (b) without performing an appropriate assessment prior to issuing the prescription; (c) in circumstances where the prescribing fell outside the scope of dentistry; (d) in circumstances where Patient A presented complaining of "food poisoning maybe Giardia"; and (e) without making an appropriate referral to a medical practitioner."
By his Reply, the Practitioner admitted prescribing Tinidazole to Patient A on 27 November 2010, but denied that such prescription was inappropriate, denied having prescribed the drug without making appropriate proximate entries in the clinical records and denied having prescribed the drug without performing assessment prior to issuing the prescription. The Practitioner denied that he had prescribed the drug in circumstances where prescribing fell outside the scope of dentistry. The Practitioner said with respect to the allegation that Patient A presented complaining of "food poisoning maybe Giardia", that he admitted that the patient had made such "comments" but that this was not a particular of complaint. The Practitioner disputed that a referral was required or appropriate "for a patient to see a medical practitioner concerning symptoms of food poisoning or Giardia".
In view of the Tribunal's findings with respect to Particular 1(a), the allegation that the Practitioner prescribed Tinidazole without making an appropriate proximate entry in the clinical records is made out. As with Particular 1(b), that does not mean that Particular 2(b) must fail. Its fate turns on whether the Tribunal is comfortably satisfied that, in all the circumstances, the particular is established. As we have earlier recorded, that does not mean that Particular 2(b) is necessarily made out, but it does mean that the Practitioner's defence of it is largely reliant upon his recollection of events which happened 13 years earlier.
Although it may not have been, or have been capable of being a particular of complaint, a relevant issue in the determination of Particular 2 is whether Patient A presented complaining of "food poisoning may be Giardia". If that was the sole or primary purpose of his consultation with the Practitioner, and reason for the Practitioner issuing the prescription, that would advance the Commission's case. Conversely, if, as the Practitioner asserts, that was merely a comment made by the patient, and not the reason for issuing the prescription, and the Commission does not establish that the primary purpose of the consultation fell within the scope of dentistry, that would advance the Practitioner's defence.
The Commission relied in support of this particular on the absence of an adequate proximate entry and the absence of an assessment in reliance upon the Practitioner's clinical notes (HCCC1, Tabs 8 and 9). The Commission submitted, correctly, that the clinical notes did not record any referral to a doctor, referring to "terrific gut ache", "sore throat pharyngitis?", "Perio?", "he thinks he has food poisoning maybe Giardia".
The Commission submitted, correctly in our view, that the Practitioner's clinical notes did not record any matter which suggested a connection between any "dentistry related medical condition or procedure or treatment, and the prescribing of the drug". In those circumstances the Commission submitted that the record did not establish that the drug was prescribed within the scope of dentistry. The missing records may or may not have provided support for the Practitioner's claims with respect to making an appropriate assessment prior to issuing the prescription and/or the prescribing having been in the course of the practice of dentistry. In view of the Tribunal's findings with respect to them, the Practitioner's case is not assisted by the missing records.
The Commission submitted that, although a formal referral to a medical practitioner was not required, "in circumstances where the symptoms were not dentistry related, the (Practitioner's) obligation was to advise the patient to visit a health practitioner who was qualified to make the appropriate diagnosis". Implicit in that contention was acceptance that, if the prescribing was not found to have fallen outside the scope of dentistry, this particular would fall away.
The Practitioner submitted that the Commission had not proved this particular, on the basis that it had "failed to lead any evidence which establishes what constitutes an appropriate assessment", absent which, the Tribunal could not make a finding that the Practitioner did not perform an appropriate assessment. The Practitioner submitted that it was "not the role of the Tribunal to endeavour to achieve its own diagnosis or undertake its own assessment as to what was suitable treatment for (Patient A)". The Tribunal accepts that proposition (R v Milk Board (1944) VLR 187; Kassem v Crossley [2000] NSWCA 276). The Tribunal is unable to accept the proposition that the Commission had failed to adduce evidence of the standard or benchmark by reference to which the Practitioner's conduct should be evaluated. Section 139B(1)(a) of the National Law provides the standard by reference to which conduct of a health practitioner is evaluated. The Guidelines (HCCC 1, Tab 44) identify the matters which clinical records "should" record. Informed by the terms of s 139B(1)(a) and the Guidelines, the opinions of the experts upon which the parties relied assist the Tribunal to make the value judgment which the section requires it to make in the light of its findings with respect to disputed issues of fact, and disputed issues with respect to expert evidence.
The essential basis upon which the Practitioner in part relied was, as with Particular 1, that the Tribunal could not be comfortably satisfied that the clinical notes at HCCC1 Tabs 8 and 9 constituted the totality of the Practitioner's clinical records and, as submitted in detail with respect to Particular 1, that the Tribunal could not reject the Practitioner's evidence in that regard. As we have earlier recorded, the success of the clinical records particulars, and Particular 2(a) does not necessarily result in the success of the balance of Particular 2. It does mean that the Practitioner's defence of the remainder of Particular 2 is not assisted by the existing clinical records.
The Practitioner also relied upon his February 2022 statement (Exhibit R1, page 12 [11]-[12]) in which he said: "11 Tinidazole is an acceptable alternative in dentistry to its cousin Metronidazole. There is no mandatory requirement for the use of Metronidazole for gram negative anaerobe infestations or infections in dentistry. Tinidazole was used as a medication to manage the infection and pain associated with what I believed was the presence of gram negative anaerobe bacteria in the periodontium in the oral cavity of this patient. 12 The record indicated the possibility of periodontal disease but there were no loose teeth present which is not an uncommon scenario in the practice of dentistry. Whether the infection in and of itself was a definitive oral manifestation of a systematic disorder or the oral signs were the cause or associated with a systemic disease is not definitive. The prescribing was within the scope of dentistry and it was not inappropriate."
The Practitioner submitted that the Commission had not challenged the assessment to which he referred in that statement. In response to questions from the Tribunal, the Practitioner was submitted to have confirmed that he prescribed Tinidazole in response to clinical manifestations that he was observing. In cross-examination (Transcript 8 March 2023, page 279, line 25) the Practitioner was asked whether he could "outline then why you chose to prescribe Tinidazole". The Practitioner replied: "Yes. So, Tinidazole and Metronidazole are nitroimidazoles. And both are effective for gram-negative anaerobes. Which I felt was clearly part of the clinical manifestations that I was observing. Tinidazole, in a number of different studies and a number of different ADA lectures, has been shown to have better tissue penetration, better absorption, a better half life, and arguably most important of all, well, I won't say most important of all, but very significant, is that the fact that compliance is drastically increased by a one-off dose. So, put those factors together, with his gut ache, and with the clinical manifestations that I was observing, there was no question in my mind that Tinidazole was the drug of choice."
It was then clarified (line 41) that on 27 November 2010 the Practitioner "diagnosed that (Patient A) had periodontal disease". It was further clarified (lines 45-50) that Patient A had, and "still has periodontal disease" with an "acute outburst" on that date. The Practitioner submitted that his explanation was not challenged, either by the Commission or any member of the Tribunal. It is to be remembered that the Practitioner does not have to prove that his diagnosis was correct. It is sufficient defence if the Tribunal finds that the evidence tends to show that the Practitioner did what he claims he did, and that any assessment or diagnosis which he made prior to issuing the prescription did not lack a rational or clinically acceptable basis.
Further reliance was placed upon evidence given by Dr Rourke (Transcript 9 March 2023, page 370, lines 39-48) in which the following exchange occurred: "A When prescribing many issues are automatically assumed such as prescribing a medication that would normally be taken in tablet form you don't need to record that it will be consumed orally. When you write down a prescription for an antibiotic it is self-evidence that the purpose of the medication is as an antibiotic. You would not normally need to include the words, "antibiotic to be taken orally". In this case, my determination is based first upon the fact that the medication is an antibiotic, prescribed previously for (Patient A), in my belief that he has a chronic periodontal condition. And, secondly, on the basis that this is a drug commonly used in dentistry as listed in therapeutic guidelines version 2."
The Practitioner submitted that the Commission had "not led any evidence establishing what are the circumstances in which a dentist is expected to refer a patient to a medical practitioner". That being so, it was submitted that Particular 1(e) could not be established. It was further submitted that "even if such a standard could be established, there is no relationship between the assessment of "inappropriate prescribing" and whether or not a referral should have been made to a medical practitioner.
The Practitioner relied upon evidence in cross-examination in which he said that Patient A had been recommended to see a general practitioner. That evidence revealed (Transcript 8 March 2023, page 237, line 33 to page 238, line 15) the following exchange occurred: "Q And, in para 21 you - in the third sentence you say, "In any case, the patient was referred to a medical practitioner". Do you see that? A Sorry, which paragraph? Q 21 on page 14. A Yes. Q Are you referring there to the - the date of 27 November 2010? A Not necessarily, no. Q So, you're saying that at some point you referred (Patient A) to see a medical practitioner? A I suggested to him --- and - a - that he might see a - Q - and was that in relation to, are you able to put a timeframe on when you made that suggestion to (Patient A)? A No. Q So, it's not necessarily within the timeframe of any of these complaints? A Yes, it would be. Yes. Q Well, it would be, or it is? A It is. Q So, is it your evidence that on - was it during a consultation with (Patient A) that you made that suggestion? A Could have been. Q You can't - A Can't recall specifically, no."
The Practitioner clarified in response to questions from the Tribunal (Transcript 8 March 2023, page 239, lines 32-41) the Practitioner confirmed that the first time when he had occasion to consider or reconsider any of the "prescribing matters" the subject of the Commission's Complaints was 12 February 2016, which was "a bit over 18 months - 4 or 5 years after the first entries that we are concerned with in Complaint 1 and more than 12 months after the very last entry that we are concerned with". The Practitioner reiterated that, prior to 12 February 2016 he had no "cause to go back over your (his) clinical notes or recollect what had or hadn't occurred during any of these consultations that are in Complaint 1".
In his report (HCCC1, Volume 2 of 2, Tab 2, page 4) Dr Mansour reiterated much of his opinion with respect to the prescribing of Amoxil, stating that the absence of "proximate entry in the clinical record concerning dental treatment breaches section 8.4(a) of the Dental Boards code of conduct and was a breach which fell significantly below the requisite standard". With respect to whether Fasigyn and Tinidazole are medications ordinarily prescribed within the practice of dentistry, Dr Mansour said that "from my experience and is evident in the Therapeutic Guidelines Oral and Dental Version 3 page 42, Metronidazole is the nitroimidazole of choice used in dentistry. There is no mention of Fasigyn/Tinidazole in the Guidelines. Therefore, it is my opinion that these medications are not ordinarily prescribed for treatment within the practice of dentistry". Dr Mansour added that "Nevertheless, antibiotic therapy is rarely required for periodontal patients and is certainly not an alternative to conventional periodontal treatment (comprehensive periodontal examination, staging, non-surgical and/or surgical periodontal scaling, review/maintenance)".
In cross-examination (7 March 2023, page 157, lines 20-23) Dr Mansour agreed that Fasigyn was the brand name for Tinidazole. In cross-examination (7 March 2023, page 159, lines 1-2) Dr Mansour reiterated that to the best of his knowledge Tinidazole/Fasigyn was not "ordinarily prescribed in the course of the practice of dentistry. When asked to accept Dr Rourke's suggestion that Fasigyn "can be used in a dental setting", Dr Mansour replied (Transcript 7 March 2023, page 159, lines 16-21) "Well, I'd - I'd seek expert opinion on that. There is infection disease specialists, people who, you know, spend their whole career just studying this thing and I'd - I think that would be more of a question for them than for a general practitioner like myself. And that's what's reflected in the therapeutic guidelines. We have a team of experts who guide us in what - what we should use in general practice, and I trust that". There followed (line 23-28) the following: "Q Your comment is that those medications don't appear in the current form of the guidelines. A That's correct. Q That leads you to then to the then conclusion to the conclusion that they're not in ordinary use. A Correct."
In his report (R2, page 9), Dr Rourke said that Tinidazole was listed in Table 1 "common antimicrobial drugs used in dentistry" Therapeutic Guidelines Oral and Dental V2 page 17. Dr Mansour accepted in cross-examination that that was the case. Dr Mansour did not disagree with that suggestion.
Dr Rourke said that it was "extremely difficult to make a definitive diagnosis from infection with anaerobic bacteria" and that the clinical notes for Patient A record that the Practitioner was considering a diagnosis of a periodontal condition by reference to the entry "Perio?". He further suggested that "any reasonable interpretation of the entire Z (Patient A file) and (Patient A) file would indicate that (Patient A) "had chronic periodontal disease". Dr Rourke said that nitroimidazole antibiotics were "commonly prescribed for periodontal conditions". In his opinion Dr Rourke considered that the prescribing of Tinidazole for Patient A on 27 October 2010 was appropriate.
In cross-examination (Transcript 9 March 2023, page 369, lines 37-42) Dr Rourke confirmed that he understood that the Practitioner had prescribed Tinidazole for Patient A for a "periodontal condition", and that he had concluded from the notes that Patient A had chronic periodontal disease, a conclusion influenced by the reference to "Perio" in the Practitioner's clinical notes. When asked the significance of the question mark following "Perio" Dr Rourke agreed that its presence indicated that the Practitioner was unsure as to whether or not there was periodontal disease present on that day, adding (line 11, page 370) "that is one possible interpretation".
Later, Dr Rourke admitted that it would have been difficult for Dr Kirby to make a definitive diagnosis of whether Patient A had periodontal disease because of his pattern of attendance. (Transcript 10 March 2023, page 409, lines 37-42). If the Practitioner had to prove that he made a definitive diagnosis that Patient A had periodontal disease, that evidence would assume unhelpful significance for his case, but the Practitioner does not have to prove that he made such a diagnosis, or validate it.

Consideration

As discussed in the context of our evaluation of Particular 1(b), finding Particular 1(a), and Particular 2(a) proved does not mean that the remainder of Particular 2 must succeed. The Commission must prove these particulars to the comfortable satisfaction of the Tribunal. It is not for the Practitioner to satisfy the Tribunal that he performed an appropriate assessment prior to issuing the prescription, or that the prescribing was within the scope of dentistry. If he bore that onus, the Practitioner would not discharge it. The Commission having made out a case to answer, as it has, Practitioner need only establish that the evidence tends to show that he did the things complained of in the Particular.
As we have earlier recorded, notwithstanding close questioning, and particularly questions from Senior Members of the Tribunal, who have expertise in the practice of dentistry, the Practitioner was able to give detailed evidence about what he said he did during the consultation on 10 November 2010, notwithstanding the deficiencies in the existing clinical records. We are not able to reject that evidence as lacking credibility. It has not been shown to be entitled to only token or little weight. It has not been established that the Practitioner's explanation for his missing records was a recent invention, lacked a rational basis, or was inherently improbable, or contrary to recognised or accepted standards. It is relevant to the evaluation of the Practitioner's evidence that he had no occasion to attempt to recover any missing records until, in this instance, more than 5 years after the consultation which gave rise to these particulars. The Tribunal takes that into account, as it does the likely impact of the passing of so much time since the consultation on the Practitioner's recollection of it. The Practitioner may or may not have failed to perform an appropriate assessment prior to issuing the prescription.
There is ultimately, having regard to the unchallenged evidence of Dr Rourke, and Dr Mansour's implied acceptance of it, insufficient evidence to be comfortably satisfied that the prescription of Tinidazole was without an appropriate assessment prior to issuing the prescription, or fell outside the scope of the practice of dentistry. That is particularly so having regard to the fact that the Guidelines expressly provide that Tinidazole may be prescribed in the practice of dentistry, being one of the listed "common antimicrobial drugs used in dentistry". The Tribunal finds that the evidence tends to show conduct of the Practitioner which precludes the success of these Particulars.
The fact that Patient A presented on 27 November 2010 complaining of what the practitioner recorded as "food poisoning maybe Giardia" has not been shown to have been the reason for the Practitioner prescribing Tinidazole on that occasion.
Although the Practitioner was cross-examined in some detail with respect to the prescribing of Tinidazole/Fasigyn on subsequent occasions, he was not cross-examined in detail with respect to the prescription on 27 November 2010.
The Practitioner was questioned closely by the Tribunal in relation to the prescription of 27 November 2010 of Tinidazole which revealed the following (Transcript 8 March 2023, page 278): "Q There's an entry on 27 November 2010. A Yes. Q And there's an entry there, and it says, the first word in the second line, "Perio?". A Yes. Q Could you just explain to us what you mean by this entry, "Perio?". A Yes. What I was referring to there is - is whether or not the symptoms that I - sorry, the clinical findings that I was noticing there, was it due - was it due to the periodontal condition or was the periodontal condition simply a manifestation of some other systemic disorder. Causation and association. Q Just so I can understand that, so whether the perio was a manifestation of the gut ache and the pharyngitis? A Well, a systemic disorder. Yes. Was it - was it - I was - when I wrote that note, the "Perio?" Refers to is this - it's a short it's a shorthand to say is this a systemic - sorry, oral manifestation of a systemic disease, is it - or is it the cause of a - a systemic - symptoms of a systemic disorder. Q Do you believe that periodontist or periodontal disease can manifest from gut ache? A Yep. If there's a gastrointestinal issue, most definitely. Yes. Q And in this instance, on A Certainly in - in the acute phase. For sure. Q And, on this instance, on 27 November, how did you diagnose the perio? How did you arrive at the diagnosis that there was a periodontal disease? A I - I don't know that's - I - I didn't say that he had periodontal disease. What that - sorry. I may not be explaining that too well. The "Perio?" Simply refers to the fact that the cause, the - the actual cause was unknown at the time of him presenting in pain to me. I don't know whether it was cause and effect or a manifestation. Q Thank you. So, could you outline then why you chose to prescribe Tinidazole then? A Yes. So, Tinidazole and Metronidazole are nitroimidazoles. And both are effective for gram-negative anaerobes. Which I felt was clearly part of the clinical manifestations that I was observing. Tinidazole, in a number of different studies and a number of different ADO lectures, has been shown to have better tissue penetration, better absorption, a better half life, and arguably most important of all, well, I won't say most important of all, but very significant, is the fact that compliance is drastically increased by a one-off dose. So, you put those factors together, with his gut ache, and with my clinical manifestations that I was observing, there was no question in mind that Tinidazole was the drug of choice. Yeah. Q Just to be clear, so, on 27 November, you had diagnosed that (Patient B) had periodontal disease. The same end that I just referred to. A 27th, 27 November. Q I'm sorry. I'm just a little confused as to the relationship between the two. A Yes. 27 November. Well, yes. He did have - he still has periodontal disease. So - chronic. Q Chronic. A But it had become an acute - an acute outburst at that stage - at that stage. Q So it would appear that he's had several episodes of periodontal disease. A It's challenging. Very difficult. (Patient B) tended to present on billing time he was - he's a very busy man. And arrives, dare I say, when he pleases, or - or rings when he pleases. And as with most patients, I try to do more [sic] best and well, not try, I do my best, and - and try to attend them to whenever I can. Q How did you manage his periodontal condition. A Okay. So, in the acute phase of the periodontal condition, as you can see from these notes, I would manage it usually with some sort of drug therapy. Always with the intention of some sort of definitive treatment, whether it in - be in the form of root planning, whether it'd be in the form in subgingival scaling, curettage, gingivectomies, that sort of thing. But, as you can see, I've never been able to do it. And I don't blame anyone because of that. And I just deal with what I can - can at the time really. Q So, did you consider other clinical interventions. A Of course. Q But the rationale for not administering those treatments or implementing those treatments rather was because of his patient behaviour or can you explain. A No. Acute - the acute - not so much - well, his behaviour to the extent that, when he arrived, it would be an urgent procedure, or an emergency procedure, where he had to be either relieved of pain, or infection, or both. Q So --- A Before I could do any definitive treatment. Q And I think my understanding of periodontal disease is you have an active phase, then you go into the maintenance phase so you were never --- A Correct. Q In the maintenance phase with - A That's right."
Another Member of the Tribunal also questioned the Practitioner in relation to this issue (Transcript 8 March 2023, page 281-283). The following exchanges occurred during that process (page 281, line 9-36): "Q You formed a view that the patient had periodontal disease. And on multiple occasions, needed antimicrobial drugs to manage that. A Yes. Q Periodontal because it was urgent, because there was pain. A Yes. Q When did you --- A Or infection. Q When did you first diagnose the patient's periodontal disease? A The first entry that the HCCC submitted was on - going back as far as October 2001. But my recollection is that- the management of (Patient A) went back to approximately 97 … so, I think he had problems as far back as 97. Q And in the time that you treated him … A Managed him. Q Managed him, did you provide any treatment for the periodontal disease … A I can't - I actually --- Q -- in the absence of prescription for antibiotics? A The closest - the closest that I can recall, I think I counted four occasions where I addressed the 47 MO or the operculum there, and it was just that one area where I can recall addressing - well, even then, it wasn't definitive, but some sort of treatment there."
Referring to the material behind HCCC1 Tab 45 the Practitioner was asked: "Q Do you believe that (Patient A) had adult periodontitis? A I never characterised it as that. I would simply say chronic periodontitis."
The Practitioner was then asked by reference to the document which was before him: "Q But is [sic] essentially says that the normal average commonplace periodontist the patients in our community have should respond to root planning [sic], root debridement, and control of the oral hygiene. And you alluded to that yourself, although you didn't mention the oral hygiene aspect of it. And if the disease doesn't come under control with those conservative measures, then one may need to carry out surgery. But the last line of that paragraph says that no additional antibiotic therapy should be necessary if the patient is treated in the appropriate manner."
For reasons which do not assume significance, that question was refined, and the Practitioner was asked (lines 17-19) "Can you explain why, throughout the many years that you were managing this patient's periodontal disease, that the conventional approach to treatment was never undertaken?" After some discussion, the following exchange occurred (page 283, line 8): "Q And it (the paper to which the Practitioner had been referred) goes on to say, "For the vast majority of patients, mechanical removal of subgingival plaque and calculus" that is the infected material below the surface of the gums, "Coupled with control of plaque", which is oral hygiene, "Will hold the loss of periodontal attachment, which is basically continuation of the disease. So, that follows on with the last paragraph, the paragraph under, "Adult type periodontitis" - "that the conventional management of periodontal disease is concerned with removal of the contaminated material in the infected area, and then preventing further contamination" and I am just unsure why, for this patient, that was never undertaken. A Simply because I was unable to have him come in for any definitive treatment. I - I - I would hope that that's evident from the - the notes that - that I have. At no stage, as far as my recollection goes, is the way - I haven't been able to do that sort of conventional treatment of root planning, curettage, removal of subgingival plaque, removal of subgingival tartar, let alone surgery on him. It's it - it - it's that simple. It - it's - this - this - this is an urgent emergency treatment on - on an irregular basis. Q Do you agree that oral hygiene and plaque control is an important facet of managing periodontal disease? A I would regard it as critical. Q Was this patient ever provided with oral hygiene advice? A Well, the answer is yes. But in - in the form of - of handouts. I can't recall every having got to the stage of - of simply advising him that he'd have to improve his oral hygiene. There were too many other significant risk factors in place which I've attempted to - to list in my statement. And at the risk of repetition, they are the ill-fitting lower chrome prothesis, the subgingival cavities, and the operculum, especially at 47, has never been in control. So, to get to a subgingival calculus removal, as I say, and let alone surgery, I was just never - it's - it's never happened."
The Tribunal followed with further questions (pages 283-285) in which the following exchanges occurred (page 283, line 44): "Q … Dr Kirby, just with regard to what we talked about, the periodontal condition, what advice did you give (Patient A) in general with regard to his chronic periodontal status? A You mean, what verbal advice? Q Yes. What was he made aware of? A That - well, when he came in, he was made are of the acute condition of what he had and how he could maintain it. But that didn't encourage him to - to come back on - on a regular basis. Q And there's no charting available in the notes. But it would appear that he's got a partial denture, or a cobalt chrome, I think it's referred to. A That's exactly right. Anchoring on 47. Q Was he missing several units in the lower arch? A Yes. Q So it was a tooth supported prosthesis. A Yes. Q So, the ramifications of further loss of the periodontium would have been - A High. Q Yes. And would have effect upon that prosthesis. Okay. A Our goal was at a far more basis lane - level and that was to keep his teeth. He had a - horrific experiences in the past. He's - no maxillary edentulism. And it's taken him a while to even get to this stage. So, I - I've been lucky enough to be able to have controlled him not to have any further extractions over that period. That - that's the level we're at. It's - it's not basic hygiene."
Unless the Tribunal is able to reject the Practitioner's evidence, the success of this particular is problematic. The Practitioner was closely questioned by Members of the Tribunal with expertise in the practice of dentistry. It has not been suggested that the Practitioner's explanations were improbable, contrary to accepted dental practice or standards, or otherwise inappropriate.
The Practitioner's defence gains support from the expert opinion evidence that Tinidazole may be prescribed in the course of the practice of dentistry, as it not uncommonly was. That did not relieve the Practitioner of the obligation to make an appropriate assessment prior to issuing the prescription. Helpfully for the Practitioner, it does however assume relevance in determining whether the evidence tends to show that the prescribing was within the scope of dentistry.
As with Particular 1(b), the Commission's case is significantly reliant on the absence of entries in the clinical records at HCCC1 Tabs 8 and 9 to establish that prescription of Tinidazole occurred without performing an appropriate assessment prior to issuing the prescription. The Practitioner's missing records provide no assistance to his defence to these particulars, but do not necessarily mean that his defence fails.
In cross-examination, the Practitioner gave a detailed account of his reasons for the prescribing. The Practitioner's account of the prescribing gained some, but limited support from entries in the clinical records which are in evidence, to which the Practitioner referred. The Tribunal is unable to reject the Practitioner's evidence with respect to his assessment prior to issuing the Tinidazole prescription. Nor has the evidence been shown to be entitled to only token or little weight on any basis. The Practitioner's evidence tends to show that he did the things which Particulars 2(b) and 2(c) alleged that he did not do. The Tribunal is thus not comfortably satisfied that either Particular has been made out.
If we are in error, and the Practitioner failed to perform an appropriate assessment prior to issuing the prescription and/or the prescribing fell outside the scope of dentistry, conduct falling below the requisite standard, we would not be comfortably satisfied that the offending conduct fell significantly below that standard.
The Practitioner's evidence to which we have referred, and cannot reject, precludes finding that any complaint about "food poisoning may be Giardia" made by Patient A was the reason, or formed any significant part of the reason for the prescription of Tinidazole by the Practitioner.
The evidence is clear that Patient A was a mature professional man. Quite apart from the absence of any guideline or standard which rendered doing so necessary or appropriate, nothing to which the Tribunal has been referred persuades us that it was appropriate for the Practitioner to refer Patient A to a medical practitioner or that the failure to do so fell significantly below the standard expected of him. At worst, the failure to refer may have been less than best practice on the part of the Practitioner.
For the foregoing reasons, the Tribunal does not find that either of Particulars 2(d) or 2(e) has been made out.

Particular 3

Particular 3 alleged that: "On 20 January 2011 the Practitioner prescribed Fasigyn and on 20 January 2011 and 19 November 2011 prescribed Tinidazole inappropriately to Patient A: (a) without making appropriate proximate entries in the clinical records; (b) without performing an appropriate assessment prior to issuing the prescription; and (c) in circumstances where the prescribing fell outside the scope of dentistry."
The Commission made clear that the "inappropriateness" of the prescribing referred to in this particular arose from the absence of an adequate proximate record and, in reliance upon the inadequacy of that record, the inference that the Practitioner failed to assess the appropriateness of the prescribing. In view of the Tribunal's findings with respect to earlier particulars pleaded in the same terms as Particular 3(a), the Commission makes out a case to answer, or, as it might be termed in other proceedings, a prima facie case with respect to Particulars 3(b), 3(c) and, arguably 3(e). The Practitioner thus bears the onus of adducing evidence tending to show that he did the things complained of in those Particulars. Particulars 1(a), 2(a) and 3(a) having been proved does not mean that the Commission must succeed with the remainder of Particular 3.
The Commission submitted that it was "simply impossible" to derive from the Practitioner's clinical records (HCCC1 Tabs 8 and 9) "any sense of what dental related condition is being treated by the prescribed drug, nor to know what condition, if any, has been diagnosed by the Respondent". There is force in that submission. As with earlier particulars in similar terms, the Practitioner is necessarily reliant on his recollection of events over a decade ago. The existing clinical records do not assist his case, but the Practitioner's evidence before the Tribunal was not shown to be contradicted by what was recorded in those records.
As with the previous two particulars pleaded in the same terms, if the only evidence before the Tribunal was the existing clinical records, it would be difficult not to find that the Practitioner failed to perform an appropriate assessment prior to issuing the prescriptions. Not making an appropriate proximate entry in the clinical records did not necessarily mean that the Practitioner had not performed an appropriate assessment prior to issuing the prescription, just as making an appropriate entry did not necessarily mean that the Practitioner had done so.
In support of the particular, the Commission relied upon the expert opinion evidence of Dr Mansour (HCCC1 Volume 2 of 2, Tab 2). In his report Dr Mansour said with respect to this particular that the prescription of Fasigyn/Tinidazole with no proximate entry in the clinical record concerning dental treatment breached s 8.4(a) of the Code of Conduct and fell significantly below the relevant standard.
Dr Mansour said with respect to the prescription of Fasigyn and Tinidazole within the practice of dentistry that, as evidenced by the Therapeutic Guidelines Oral and Dental Version 3 page 42, Metronidazole is the nitroimidazole of choice used in dentistry but there was no mention of Fasigyn/Tinidazole in the Guidelines. It was therefore Dr Mansour's opinion that those medications are not ordinarily prescribed for treatment within the practice of dentistry. Dr Mansour added that "nevertheless, antibiotic therapy is rarely required for periodontal patients and is certainly not an alternative to conventional periodontal treatment (comprehensive periodontal examination, staging, non-surgical and/or surgical periodontal scaling, review/maintenance)".
The Practitioner denied that Particular 3(b) had been made out to the comfortable satisfaction of the Tribunal in reliance upon the matters which he had advanced with respect to the prescribing of Amoxil. With respect to Particular 3(c) the Practitioner submitted that Dr Mansour had "conceded" that his opinion with respect to the prescribing of Fasigyn/Tinidazole was based on the belief that the drug was not mentioned in the Therapeutic Guidelines Oral and Dental Version 3 and, as such, were not medications normally prescribed for dentistry.
In cross-examination (Transcript 7 March 2023, page 158-159), Dr Mansour confirmed that he based his opinion Fasigyn/Tinidazole was not ordinarily prescribed in the practice of dentistry on "what's referred to as the Therapeutic Guidelines Oral and Dental, Version 3" (lines 40-42) which (line 44) Dr Mansour said was a "current document". When asked (line 47) "Was it issued at the time of this prescribing?" Dr Mansour replied (line 48-50) "Well, I'll have to go back and have a look. They are - they're doing many versions. You know, they make some changes, but not significant. I - I think this particular part of its been a feature in a number of versions". The Tribunal is not comfortably satisfied that any suggestion by Dr Mansour that, Fasigyn/Tinidazole could not be prescribed by the Practitioner in 2011 was proved to be correct. Dr Mansour reiterated his conclusion that Fasigyn/Tinidazole was not normally prescribed in the practice of dentistry.
Dr Mansour was reminded of Dr Rourke's opinion that Fasigyn could be used in a dental setting. When asked to accept that it could be so used, Dr Mansour replied (page 159, lines 16-21) that he would "seek expert opinion on that. There is infection disease specialists, people who, you know, spend their whole career just studying this thing. And I'd - I think that would be more of a question for them than for a general practitioner like myself. And that's what's reflected in the therapeutic guidelines. We have a team of experts who guide us in what - what we should use in general practice, and I trust that". Although he is to be commended for his candour, Dr Mansour's uncertainty with respect to a key element of Particulars 3(b) and 3(c) is damaging to the Commission's case.
The Practitioner relied upon Dr Rourke's report (R2 paras 63-65) in which he referred to Dr Mansour's evidence, and suggested that the provisions of the Therapeutic Guidelines Oral and Dental Version relied upon by Dr Mansour "was not yet published (in 2011) and therefore not contemporaneous with the prescribing by Dr Kirby". Dr Rourke suggested that Tinidazole (Fasigyn) was removed from sale in Australia prior to the publication of the Therapeutic Guidelines V3 in 2019, which is why it is not referenced in the V3 Guidelines". Dr Rourke suggested that Fasigyn/Tinidazole was "referenced in an earlier iteration of the guidelines (V2) and that there was "thus no basis for the opinion expressed by Dr Mansour. Earlier in his report (para 50) Dr Rourke had asserted that Tinidazole was listed in Table 1 "Common antimicrobial drugs used in dentistry" Therapeutic Guidelines Oral and Dental V2 page 17".
Dr Rourke was cross-examined in relation to this issue. In response to questions from the Tribunal (Transcript 9 March 2023, page 372, lines 46-49) Dr Rourke reiterated that Version 2 of the Guidelines commenced in 2012 and that Version 3 commenced in 2019. Dr Rourke confirmed that Version 2 was "the only one contemporaneous with the alleged conduct of Dr Kirby" (Transcript 9 March 2023, page 373, lines 2-3). Without finding that Dr Mansour ultimately agreed with that suggestion, or needing to, as the Tribunal is unable to reject Dr Rourke's evidence in the absence of source documents which contradict his opinion. In those circumstances, proving the Commission's case becomes more difficult, but not impossible.
The Practitioner further submitted that, although the foundation for his opinion was flawed, Dr Mansour had qualified his opinion by stating (HCCC1 Volume 2, Tab 2, page 4) that "Antibiotic therapy is rarely required for periodontal patients and is certainly not an alternative to conventional periodontal treatment".
If there was a guideline which preceded the operation of V2 which apparently commenced operation in 2012, the Tribunal has not been referred to it. The Commission bears the onus of proof. Absent evidence of a guideline which precluded prescribing Fasigyn/Tinidazole in the practice of dentistry, the foundation for the basis of Particular 3(c) of this Complaint is problematic, as is the success of Particular 3(b). If the evidence established that, in 2011, the prescribing was in breach of a guideline or other regulatory provision, Particular 3(b) and (c) would be made out. In the absence of evidence clearly establishing that Fasigyn/Tinidazole could not be prescribed in the course of the practice of dentistry in 2011, we proceed on the basis that the Commission has not established a fundamental factual foundation for these Particulars.
The Tribunal still needs to consider whether the Practitioner failed to perform an appropriate assessment prior to issuing the prescription, and whether the circumstances in which the Practitioner prescribed the drug fell outside the scope of dentistry. The Tribunal's acceptance or rejection of the Practitioner's evidence with respect to the prescribing becomes critical with respect to the determination of both particulars.
In his statement of 28 February 2022 (R1 Tab 3) the Practitioner set out his response to complaints with respect to the particulars relating to prescribing Tinidazole/Fasigyn (at [11]), and asserted that he had used Tinidazole "as a medication to manage the infection and pain associated with what I believed was the presence of gram negative anaerobe bacteria in the periodontium in the oral cavity and throat of Patient A". The Practitioner further stated ([12]) that the "record indicated the possibility of periodontal disease but there were no loose teeth present which is not an uncommon scenario in the practice of dentistry. Whether the infection in and of itself was a definitive oral manifestation of a systemic disorder or the oral signs were the cause or associated with a systemic disease is not definitive". The Practitioner thus asserted that his prescribing was within the scope of dentistry and was not inappropriate.
The Practitioner referred to a number of publications. Without deprecating those publications, the Tribunal prefers to rely upon the evidence of what the Practitioner said that he did, and the expert opinion evidence which has been presented to it, particularly as each of the experts was cross-examined.
The Practitioner was closely cross-examined with respect to the prescribing of Fasigyn and Tinidazole on 20 January 2011. The Practitioner was asked (Transcript 8 March 2023, page 217, line 3) whether there was "any reason that you wrote both there?" a reference to the separate entries for the prescription of Fasigyn and Tinidazole on the same day. The Practitioner replied "Yes" (line 4), adding (line 7) that there were "many different proprietary names for Tinidazole", and confirmed that he was "particularly recommending a particularly [sic] proprietary name" to Patient A because he "felt that was best suited for him". The Practitioner was "not sure" whether "other proprietary names of Tinidazole … contained the same active ingredients". The Practitioner was asked (line 39) "You didn't prescribe two drugs on that occasion as I understand your evidence", to which the Practitioner replied (line 41) "On Thursday January 20 2011, I made one prescription". The Practitioner clarified (line 50) that the one prescription was "either in the name of Tinidazole or in the name of Fasigyn" but was adamant that there was only one prescription (page 218, lines 4 and 5).
The Practitioner was referred to his clinical notes (HCCC1 Tab 8, page 6) in which he recorded "Same as before. Throat not too bad. His gums are only slightly sore. No difficulty with stomach cramps" and "Tinidazole 500mg. 2 grams orally as a single dose. Told him to stop eating Chinese".
Albeit in the context of cross-examination about events later in 2010 and 2011, the Practitioner was asked (Transcript 8 March 2023, page 275, line 46) to "just outline how you arrived at the diagnosis of periodontal disease?". The Practitioner said (page 275, line 48-49) "So, there's bone loss, loss of attachment, swelling. They're the main ones". The Practitioner added (page 276, lines 2-6) "I think there - there was a reference there, I can't remember where it was. I - I think - I think he said he had a - was redness somewhere which is often a sign of fever as well. But it was classically the gingival infection, and periodontal infection, and the operculum, and the partial prosthesis and the subgingival cavity that remains unresolved".
The following exchange between the Practitioner and the Tribunal ensued (page 276, lines 18-31): "Q I'm just curious to know what was the basis for your forming a view that the patient had periodontal disease? And you mention bone loss, swelling, loss of attachment, tissue on the 47. I mean, can you identify how you formed the view that the patient had a periodontal disease? A Well - certainly. Two - the two main significant factors were the radiographs that were taken at the time and the periodontal probing. Q Can you show me where there's any notation in the records to record your findings having taken radiographs? And when did you carry out the periodontal probing? A At each appointment. Q Was the [sic] documented? A Yes. It was. But they are not in these notes." A reference to HCCC1 Tabs 8 and 9.

Consideration

The Tribunal's determination of these Particular is made in the context of earlier findings with respect to the absence of appropriate proximate entries in the Practitioner's clinical records. We need not repeat what we have recorded earlier as the implications for each party's case of finding the Commission's clinical records particulars established.
The Tribunal is unable to accept, with respect to this or other particulars of this complaint that, as submitted by the Practitioner, "the relevant standard" was "itself not (the) subject of any evidence". In determining the relevant standard, the Tribunal has had regard to the parties' expert opinion evidence, which is directed to that issue. We do not perceive there to be disagreement, or significant disagreement between the experts as to the relevant standard, which is informed by the terms of s 139B(1)(a) of the National Law, as their evidence makes clear. They have different opinions as to whether the Practitioner's alleged conduct fell below the relevant standard. The basis of Dr Mansour's opinion, not unreasonably, was the Practitioner's existing clinical records, and his understanding of whether the drug could be prescribed, and whether doing so could be in the scope of dentistry. Dr Rourke had a different opinion, on that, and other grounds involving assumptions with respect to the Practitioner's account of the relevant consultation. Ultimately, the Tribunal's evaluative determination of this particular turns on our assessment of the Practitioner's evidence, and the burden and standard of proof required for the Particulars to be found proved.
Neither on the basis of the Practitioner's credibility or anything emerging from his evidence can the Tribunal reject the Practitioner's explanation for the prescribing of Fasigyn/Tinidazole on 20 January 2011 and 19 November 2011, or give it only token or little weight. The Tribunal has earlier recorded why it has found that the evidence tends to show that the Practitioner did what particulars in the same, or similar terms to Particulars 3(b) and 3(c) alleged that the Practitioner had failed to do. We need not repeat them here. Those reasons inform the Tribunal's findings with respect to these Particulars.
We are thus unable to be comfortably satisfied that the Practitioner did not perform an appropriate assessment prior to the prescribing, or that, in the circumstances which he described, which description we cannot reject, we are comfortably satisfied that the prescribing fell outside the scope of dentistry. Other than to the limited extent recorded earlier, this particular fails.

Particular 4

Particular 4 alleged that: "On 29 January 2011 the Practitioner inappropriately prescribed Lofenoxal to Patient A in circumstances where: (a) Lofenoxal is not a drug used in the practice of dentistry; and (b) he purported to diagnose and provide treatment for diarrhoea."
The Commission relied on the entry in the Practitioner's clinical records (HCCC1 Volume 1, Tab 8) that the patient "came into surgery and said he is really dehydrated dry mouth dry lips and throat [sic]. ABV had diarroea [sic]". The Commission submitted that the prescribing of Lofenoxal appeared to have been in reliance upon Patient A's description of his symptoms, and that the Practitioner had thus "diagnosed" diarrhoea and prescribed the medication to stop the diarrhoea. It was submitted that nothing in the clinical records suggested that diarrhoea was in any way connected with a dental condition.
The Commission relied on the expert opinion evidence of Dr Mansour in support of this particular (HCCC1 Volume 2, Tab 2). Dr Mansour said that Lofenoxal "Is used for the treatment of acute or chronic diarrhoea. During the course of dental treatment, a patient may have an adverse reaction to a prescribed drug such as codeine. In that case, it would be prudent to discontinue the medication and monitor symptoms. In most instances the symptoms should subside. However, if the adverse reaction requires further attention, help from a medical practitioner should be sort [sic]. For this reason, in my opinion, Lofenoxal is not a medication ordinarily prescribed for treatment within the practice of dentistry". Dr Mansour added that "In addition to a thorough history, the diagnosis of diarrhoea would normally require a complete physical examination and laboratory tests to examine urine and blood samples. This puts the diagnosis and treatment of diarrhoea outside the scope of dentistry. Dr Kirby's decision not to refer (Patient A) to a medical practitioner is significantly below the relevant standard".
The Practitioner submitted, correctly, that it was not contentious that Lofenoxal is commonly used to treat diarrhoea. The Practitioner relied upon his statement of 28 February 2022 (Exhibit R1, page 14 [23]) in which he said that the prescribing of Lofenoxal was "as a consequence of a side effect of a previously issued (20 January 2011) script for dental purposes. Its issue was analogous to arguably the most common side effect of codeine ingestion which is constipation and for which the Australian Dental Association NSW Continuing Professional Development Comprehensive Pharmacotherapeutics within the Scope of Dentistry Course recommends further medication to deal with a side effect or adverse consequence the management of which is case specific". The Practitioner asserted that it was "not uncommon" for dentists to prescribe "secondary medications as a consequence of the primary or initial medication". The Practitioner asserted that there was "sufficient information present to demonstrate (that) the appropriate prescribing of the medication was compliant with the appropriate purpose and quantity relevant to the therapeutic standard for that drug and the practice of dentistry". The Practitioner was submitted to have adhered to that statement, "despite repeated questioning by the Commission". We do not understand that submission to be critical of the Tribunal. No objection was taken with respect to the terms or frequency of the Tribunal's questions to the Practitioner. The Practitioner revealed no hesitation in engaging with the Tribunal's questions.
In cross-examination of the Practitioner by Counsel for the Commission (Transcript 8 March 2023, page 222, line 23-34) the following exchange occurred: "Q And, in relation to your prescribing of Lofenoxal on 29 January to (Patient A) you - your evidence in your statement is that it was - and as clarified today, is that it was because - you formed the view, is this right that the diarrhoea was caused by the Fasigyn? A It was - it was a - yes. Yes. Q - that was the conclusion you came to? A Yes. Q And you don't record that in the notes, do you accept that? A I don't - I - I accepted that I - I that there's not an entering [sic] in these notes. Yes, that I have been supplied."
As is not in doubt, the prescription of Fasigyn to which the Practitioner was referred was the prescription of 20 January 2011.
The Practitioner confirmed (page 223, line 15) that he did not "recall whether I asked him (Patient A)" whether he had in fact taken the Fasigyn which the Practitioner had prescribed on 20 January 2011. The Practitioner accepted (page 223, lines 17-19) that "For you to have thought or to have formed the view that his symptoms of diarrhoea were caused by the Fasigyn, you would have to have been satisfied that he had taken the Fasigyn".
The Practitioner accepted (line 43) that it was "a relevant matter to record that (Patient A) whether or not (Patient A) had taken the Fasigyn that had been prescribed 9 days earlier". The Practitioner was obliged to accept that there was no note to that effect in HCCC1 Tab 8. The Practitioner denied (page 223, line 50) that Lofenoxal was not a drug used in the practice of dentistry and reiterated his denial (page 224, lines 4-5) that he "purported to diagnose and provide treatment for diarrhoea".
Later in his cross-examination (Transcript 8 March 2023, page 228) the Practitioner reiterated his belief on 29 January 2011 that the symptoms of diarrhoea which Patient A described to him on that date were "due to the earlier prescription of Fasigyn". The Practitioner accepted that "diarrhoea can be a symptom of a range of other illnesses" or "due to the consumption … of other medications or food poisoning". The Practitioner was "sure" that diarrhoea could be "a symptom of quite serious diseases". The following exchange ensued (page 228, lines 25-49): "Q And, in that regard, do you accept that for you to have concluded that it was due to Fasigyn, was something that as a dentist you were not skilled or qualified to reach? A I don't accept that I wasn't skilled or qualified to reach that conclusion."
Line 31- line 17 page 229: "Q In relation to the diarrhoea - the symptoms of diarrhoea that (Patient A) described, was there a degree of seriousness about his description of the symptoms that you thought warranted prescription medicine to stop the diarrhoea? A Yes. Q And - and you thought that he - so you thought that he had symptoms of diarrhoea that were relatively serious? A No. Q That was sufficiently serious to warrant prescription medication rather than over the counter medicine? A Seriousness of it wasn't the only reason, no. Q What were the other reasons? A The other reason is compliance. Q Compliance with what? A The drugs. Q With what drugs? A That he was prescribed. Q Which drugs are you referring to. A Fasigyn. Q So, what do you mean by compliance? A It is a well known fact for anybody who is in the pharmaco therapeutics field or pharmacy field, that 90% of the success that any drug that is prescribed is dependent on compliance. Now, (Patient A) - that - that - that's my answer. Q So, compliant, you mean taking the drug? A Yes. Q Well, isn't a failure to take the drug reflective (of) a 100% failure of the drug? A If he - if he - which - which drug."
With specific reference to Fasigyn the Practitioner was asked (page 229, line 31): "Q Now, in relation to Fasigyn, you proceeded on the basis that he had diarrhoea because he had taken Fasigyn, that's right, isn't it? A It was a side effect. Q So, necessarily he had taken Fasigyn? A Yes. Q And it was a sufficiently serious side effect that it warranted Lofenoxal being prescribed? A Well, your original question was a degree of seriousness. Q Well, you said that one of the reasons for prescribing Lofenoxal was compliance. A Yes. Q In - in what way did prescribing Lofenoxal improve the compliance with (Patient A) taking the - the Fasigyn? A It didn't. Q So, the Fasigyn was a single - to be taken as a single dose, correct? A I can't recall the dose."
Further cross-examination revealed the following (page 230, line 7-31): "Q But you at the time prescribed the Lofenoxal in response to his advice that he had diarrhoea, that's right, isn't it? A Yes. Q What I'm suggesting to you, Dr Kirby, is that the symptoms of diarrhoea that (Patient A) described to you, they could have fallen across a spectrum of seriousness. Do you accept that? A Yes. Q We don't know what the spectrum is because you haven't described it, do you accept that? A Any - I - yes, I do. Q And - but what I'm suggesting is that had they been mild symptoms of diarrhoea - tell me whether you agree with this or not - you would not have prescribed Lofenoxal? A That's not necessarily the case. Q So, can you explain to the Tribunal in what circumstances it would be appropriate to prescribe Lofenoxal for mild diarrhoea? A I've already - compliance. Q Right. So, in respect of your view that Fasigyn caused him to have symptoms of diarrhoea, that's - that's the view you formed on 29 January? A At the - yeah at the very least contributed yes."
Whilst Dr Mansour's report suggested (HCCC1 Volume 2, Tab 2, page 5) that "in the circumstances described by him, the Practitioner should have discontinued the prescription of Fasigyn/Tinidazole, and should help from a medical practitioner", the Practitioner submitted that Dr Mansour's oral evidence (Transcript 7 March 2023, page 160, lines 41-48) was at variance with his written report, and should be preferred to the written report on the basis that the latter was more realistic and consistent with common experience. The exchange on which the Practitioner relied revealed the following: "Q What you appear to accept, presumably, this is by reference to Dr Kirby's affidavit, is that someone might have an adverse effect associated with codeine. A It's entirely possible. Yes. Q Then what you seem to accept is that the dentist in that situation can give advice in relation to the codeine. Is that right? A Yes. Q That advice would be, could include its discontinuance. A Yes. And that would be the initial advice, I would - I would presume."
The Practitioner relied on the evidence of Dr Rourke who said in his report (Exhibit R2, paragraphs 81-85): "81 I believe that if Dr Kirby was of the opinion that the diarrhoea experienced by (Patient A) was a complication of dental treatment that he had provided, then he was under an obligation as part of the practice of dentistry to provide initial management of the complication and not to abandon his patient. 82 The use of "adjunctive therapy" for digestive tract complications caused by first prescribed medicines is taught to seminar attendees at the ADA NSW branch presentation given by ADA NSW branch endorsed dual qualified Pharmacist and Dentist Dr Andrie Tutoveanu. 83 The use of adjunctive therapy for digestive hypermobility is part of the practice of dentistry. 84 The prescription of Lofenoxal by Dr Kirby was in accordance with quantity, purpose and TGA guidelines. 85 I cannot identify the prescription of Lofenoxal on 29 January 2011 was inappropriate given Dr Kirby's account of the purpose, quantity and the use of the medication."
The Tribunal has not been directed to any cross-examination of Dr Rourke in relation to this issue.
In cross-examination, Dr Mansour agreed that the Practitioner had not diagnosed diarrhoea.
In cross-examination of Dr Mansour (Transcript 7 March 2023, page 164, lines 15-18) the following exchange occurred: "Q Dr Mansour, just in relation to question 8 (of the questions which the Commission asked Dr Rourke to which he responded in his report). You heard the discussion about it. You accept that it was implicit in the question you were asked, question 8, that Dr Kirby had diagnosed (Patient A) to be suffering from diarrhoea. A Well, in my answer, I think I clearly say that a diagnosis hasn't been established. Q I'll ask you, to be fair. The question asked you to assume that such a diagnosis had been made. Is your answer it hadn't been? A The question assumes the diagnoses and treatment. Q You say there was no relevant diagnosis of diarrhoea. Is that the effect of your answer? A Well, yes. Q Without getting too - A I think the final sentence is that the diagnosis and treatment of diarrhoea is outside of the scope of dentistry."
Later in his cross-examination (Transcript 7 March 2023, page 186, lines 6-7), Dr Mansour agreed, fairly, that the Practitioner's clinical notes for 29 January 2011 (HCCC1 Tab 8) recorded "that the patient has advised Dr Kirby that he's got diarrhoea". Earlier in his cross-examination (Transcript 7 March 2023, page 164) Dr Mansour agreed that based upon a person "self-diagnosing diarrhoea symptoms" there were over-the-counter treatments available at pharmacies.

Consideration

In view of the evidence of Dr Mansour to which we have referred, Particular 4(a) is not established. The particular is pleaded in absolute terms- "Lofenoxal is not a drug used in the practice of dentistry". The Tribunal has not been referred to any legal constraint upon the use of Lofenoxal in the practice of dentistry. There is no evidence that Lofenoxal is not used in the practice of dentistry. Nor have we been referred to any guideline which suggests that it should not be so used. It is conceivable that it will be rarely appropriate to prescribe Lofenoxal in the practice of dentistry, but that is not what the particular alleges. Particular 4(a) is not made out.
Particular 4(b) alleged that the Practitioner purported to "diagnose and provide treatment for diarrhoea". The evidence does not establish that the Practitioner purported to diagnose diarrhoea in Patient A. Dr Mansour's evidence in cross-examination implies the contrary. The Tribunal is not able to reject the Practitioner's evidence that, in reliance upon Patient A's statement that he had diarrhoea symptoms, the Practitioner, having formed the opinion that such symptoms were likely to have been caused, at least in part, by a reaction to the Fasigyn/Tinidazole which he prescribed 9 days earlier, prescribed Lofenoxal. It was common ground that Lofenoxal was a prescription for diarrhoea. This Particular is not made out.
Even if the Tribunal was persuaded that the Practitioner's prescription of Lofenoxal on 29 January 2011 fell below the requisite standard, we would not be comfortably satisfied that it fell significantly below that standard.

Particular 5

Particular 5 alleged that: "On 4 March 2014 the Practitioner inappropriately prescribed Rulide to Patient A: (a) without making an appropriate proximate entry in the clinical record; (b) without performing an appropriate assessment prior to issuing the prescription; (c) in circumstances where the prescribing fell outside the scope of dentistry; and (d) without making an appropriate referral to a medical practitioner."
For the reasons we have earlier recorded, the Tribunal is comfortably satisfied that Particular 5(a) is made out. That finding is helpful for the Commission's case, establishing a prima facie case, or case to answer, thereby raising an evidential onus for the Practitioner to adduce evidence tending to show that the Practitioner did the things which Particulars 5(b), (c) and (d) alleged that he did not do.
The Commission succinctly articulated its case in reliance upon the absence of any appropriate proximate entry in the clinical notes produced by the Practitioner other than "sJNGLES". It was submitted, correctly, that the records did not record that the symptoms of Shingles were manifested orally. Reliance was placed upon the evidence of the Practitioner's own expert that there had to be "some manifestation in the areas of the body covered by dentistry in order for Rulide to be prescribed". The absence of any indication of why Rulide was prescribed in the Practitioner's clinical records was submitted to invite the inference that it had been prescribed solely or primarily for Shingles, which was not for a dentistry related purpose.
Dr Mansour (HCCC1 Volume 2, Tab 2, p6), in reliance upon the absence of a proximate entry in the clinical record identifying the "patient benefit - harm profile of the drug Rulide", was reasonably of the opinion that the Practitioner had breached section 8.4(a) of the Code of Conduct. Dr Mansour was further of the opinion that "treatment of a disease such as periodontitis with antimicrobials in the absence of conventional therapy is contraindicated." This in Dr Mansour's opinion was conduct which fell significantly below the relevant standard.
In cross-examination of Dr Mansour (Transcript 7 March 2023, page 168, line 35-46) the following exchange occurred: "Q Dr Kirby says - this is paragraph 23 - that the Rulide is a dental item listed on the PBS. Is that right? A A dental item - item? It's Q Yes. That's correct? A Rulide is antimicrobial. It's listed on the PBS, but not a dental item. Q It specifies in paragraph 24 that the purpose for which he prescribed it? A Yes. He mentioned for periodontitis. Q In particular, he referred to (Patient A's) apoptosis condition at 4.7. A Yes.
Dr Mansour reiterated (Transcript 7 March 2023, page 169, line 46-47) that "antimicrobials, such as Rulide, in the absence of conventional treatment, is contraindicated in the practice of dentistry". Dr Mansour was asked (page 169, lines 49-50): "Q Do you accept or not that he was treating (Patient A's) periodontal and gingival condition?"
Dr Mansour responded (page 170, lines 1-16): "A I accept that he - he - he mentions it in the affidavit that he was treating it, but I don't accept that that's how you treat periodontal disease or gingival. Q You're criticising the method is that right? Is that right? A Method. Yeah. It's a - you could say that. Yeah. Q That's on the assumption of there being an absence of conventional therapy. Is that right? A Correct. Q That's your assumption? A Assumption? Q Yeah assumption. A No. It's based on looking at the records and reading the affidavit what else is there to go by."
As with other particulars, it became apparent that Dr Mansour's opinion was based significantly on the absence of any detailed record of any therapy at all in the clinical notes which he had seen (page 170, line 20). Dr Mansour added (lines 24-25) that "In treating periodontitis without conventional therapy as well. I think you could include that as well" as a breach of section 8.4 of the Code.
As we have noted earlier, the entries in the clinical record (HCCC1, Tab 8) on 4 March 2014 are limited to the details of the prescription for Rulide and the word "sJNGLES" which is understood to mean "shingles".
In his statement of 28 February 2022 (R1, Tab 3, paragraphs 23-27) the Practitioner provided his version of the circumstances in which he prescribed Rulide for Patient A. Other than general statements and/or references to publications, the Practitioner provided no detail with respect to any assessment made by him of Patient A prior to issuing the prescription, or specific suggestion as to how the prescribing fell within the scope of dentistry. The Practitioner asserted that no referral to a medical practitioner was required.
In his statement of 28 February 2022 (R1 Tab 3) the reason for prescribing Rulide was articulated in paragraph 24, and was that Rulide "in this case was for a bacterial superinfection that had occurred associated with the patient's periodontal and gingival condition at 4.7". That was in contrast to 7 November 2015, when Patient A presented with pain and suspected periodontal disease in the same region of the same tooth and antibiotics were not prescribed.
In cross-examination (Transcript 9 March 2023, page 296, lines 25-33) the Practitioner was asked: "Q can you explain why on the appointment of 7 November 2015 when tooth 47 was tender or at least the tissues around tooth 47 were tender and you attempted to examine the operculum and you suspected periodontal disease-- A Yes. Q --why is it that on this day antibiotics were not prescribed? A I couldn't get a good look in - in there, I couldn't - couldn't even make a - a working diagnosis as to what was going on."
The Practitioner was further cross-examined in relation to this Particular. The Practitioner was obliged to agree (Transcript 8 March 2023, page 232) that his records with respect to the prescribing of Rulide on 4 March 2014 contained only the reference to Shingles.
In cross-examination (Transcript 8 March 2023, page 235, lines 42-45) the following exchange occurred: "Q Dr Kirby, in circumstances where - Dr Kirby, you didn't suggest to (Patient A) on 4 May 2014 that he consult a general practitioner about whatever was ailing him on that day, did you? A I may have, I may not have."
As we have earlier recorded, the Practitioner's evidence, which was not challenged (Transcript 8 March 2023, page 239, line 1-9), was that he first had occasion to consider or reconsider prescribing matters on 12 February 2016, almost two years after the prescribing which gave rise to this particular. That justifies uncertainty of recollection on the Practitioner's part, up to a point. In some instances, the Practitioner suggested that the passage of time had, or may have dimmed his recollection. In other instances, at least in substance, the Practitioner was adamant that he had done, or would have done the things which he was alleged to have failed to do. The Tribunal has been alert to the possibility that the Practitioner's memory was selective. Other than with respective to his evidence about the missing records, we are ultimately not persuaded that it was.
In subsequent cross-examination (Transcript 8 March 2023, page 247, lines 1-29) it was suggested to the Practitioner that the adequacy of his clinical records may have been raised on 15 December 2015. If that were so, that was still more than 18 months after the prescribing which gives rise to this particular.
In his report (R2, paragraphs 87-91) Dr Rourke said that Rulide was a prescription medicine listed in "numerous presentations for a prescription on the dental PBS" and was listed in Table 1 "Common antimicrobial drugs used in dentistry" Therapeutic Guidelines Oral and Dental V2 - page 17". Dr Rourke was of the opinion that the prescribing of Rulide fell within the scope of dentistry. Although it does not necessarily mean that the prescribing in this instance fell within that scope, the drug's inclusion in the list of "common" antimicrobial drugs used in dentistry provides objective support for Dr Rourke's opinion.
Dr Rourke said that he could not "identify" that the prescription of Rulide on 4 March 2014 was inappropriate "given Dr Kirby's account of the purpose, quantity and the use of the medication". It is not entirely clear to what Dr Rourke was referring. Paragraphs 23 to 27 of Dr Kirby's statement, in which Dr Rourke considered that he "addresses" this particular provide little or no detail of the matters to which particular 5(b), and thus 5(c) were concerned. The weight to which Dr Rourke's opinion with respect to Particulars 5(b) and 5(c) thus depends on the Tribunal's findings with respect to the Practitioner's evidence about the matters alleged by them.
Save to the extent that we have earlier recorded, the Practitioner was not cross-examined in relation to the explanation he gave for the prescribing of Rulide on 4 March 2014.
In cross-examination Dr Rourke (Transcript 9 March 2023, page 377, line 40 - line 10 on page 378), when questioned about the purpose for which Rulide may have been prescribed on 4 March 2014 having regard to the record (HCCC1, Tab 8), explained that it was for the treatment of bacterial infection. His explanation entailed the treatment of "ulceration and secondary infection" resulting from shingles. "Q Having regard to that record (HCCC1 Tab 8) for that date, which has a reference to Rulide and then what Dr Kirby clarified was a reference to shingles under that, do you say that that's sufficient to indicate the purpose for which Rulide was prescribed on that day? A Well, purpose, quantity guidelines, I would make the observation that Rulide is an antibiotic and outbreaks of shingles are often accompanied by ulceration and secondary infection, secondary infection often being addressed with an antibiotic. Q In terms of what is recorded there though, what I actually asked you was whether you think that's sufficient to indicate the purpose for which Rulide was prescribed. A The purpose of Rulide is an antibiotic but I - Q But does that come back - I'm sorry I didn't mean to interrupt you. Do go on. A Just in regard to regulation 304. Q Can I take it that your answer is in effect the same as it was in relation to Amoxil, that an antibiotic was prescribed. A It will be the same answer for all 8 - 7 medications."

Consideration

We have reservations as to whether the Practitioner performed an appropriate assessment prior to prescribing Rulide for Patient A on 4 March 2014, but cannot reject his evidence in cross-examination with respect to the issue either on the basis of his credibility, or the implausibility of the Practitioner's explanation for the prescribing. Nor can we give it only token or limited weight. If the Practitioner bore the onus of establishing that he did perform an appropriate assessment prior to issuing the prescription, it would be difficult to find on the balance of probabilities that he did. The onus however is on the Commission to comfortably satisfy the Tribunal that the Practitioner failed to do so. As with earlier particulars, in view of the implications of the success of Particular 5(a), which we have earlier identified, the Practitioner bears the onus of adducing evidence tending to show that he did the things which the remainder of the Particular alleged that he failed to do. That "tendency" does not need to be established as a probability, but must be shown to be more than a mere or remote possibility.
The Tribunal has not been referred to anything which establishes that the Practitioner should have referred Patient A to a medical practitioner with respect to his shingles. Patient A was a mature aged professional person who would, or should, have known when to consult a medical practitioner for any medical matter.
The crux of the allegation that the prescribing fell outside the scope of dentistry was that the Practitioner prescribed Rulide solely or predominantly for the treatment of Patient A's Shingles. The Practitioner provided an explanation for the prescribing in his statement of 28 February 2022. The Tribunal takes into consideration that this is not consistent with his management of the same condition at the same location at a subsequent appointment.
It is not controversial that prescribing Rulide was permissible, provided that so doing was in the course of the practice of dentistry. The Tribunal accepts the Practitioner's evidence at various times over the years with respect to Patient A's reluctance to consult medical practitioners or adhere to "conventional" procedures. The evidence implies that Patient A may have relied on tenuous connections with dental symptoms to procure the Rulide prescription from the Practitioner on 4 March 2014, rather than consulting a medical practitioner. That however cannot excuse the Practitioner's conduct if the Particulars are made out. The clinical record (HCCC1, Tab 8) for this day contains only the details of the prescription and the patient's medical condition; and is consistent with Dr Rourke's explanation that the purpose of the prescription "may" have been to treat infection of the ulcers resulting from shingles. In those circumstances, the prescribing may have been without an appropriate assessment prior to the prescribing, and consequently may have fallen outside the scope of dentistry.
Although the prescribing of Rulide may not have resulted from an appropriate assessment prior to its prescribing, and thus may not have been entirely, or predominantly in the course of the practice of dentistry, the Tribunal is not comfortably satisfied that it was not. Although we have reservations about the Practitioner's explanations for the prescribing, which are recorded above, essentially for the reasons we have earlier recorded with respect to other particulars in similar terms, we cannot rationally reject his evidence, or give it so little weight as to decline to find that it tends to show that the Practitioner did the things which Particulars 5(b) and 5(c) alleged that he failed to do. The Tribunal is not comfortably satisfied that they have been made out. Particular 5(d) necessarily fails to be established in those circumstances. The Commission having failed to establish that the prescribing fell outside the scope of dentistry, there was no occasion for the Practitioner to refer Patient A to a medical practitioner.

Particular 6

Particular 6 alleged that: "On 16 May 2014, 29 May 2014, 9 October 2014, 5 May 2015 and 7 August 2015 the Practitioner inappropriately prescribed Valtrex to Patient A: (a) without making appropriate proximate entries on the clinical records; (b) without performing an appropriate assessment prior to issuing the prescription; and (c) in circumstances where the prescribing fell outside the scope of dentistry."
For the reasons the Tribunal has earlier recorded, Particular 6(a) has been proved to the Tribunal's comfortable satisfaction. We have earlier recoded the implications of that finding with respect to the remainder of this Particular.
The Commission submitted, accurately, that the Practitioner's clinical records (HCCC1 Tab 8) did not record any assessment or discussion with respect to the prescribing of Valtrex on 16 May 2014 or 29 May 2014. The records for 9 October 2014 referred to "outbreak on lower left lip but particularly back". The Commission submitted that it could only be inferred from the fact that Valtrex was prescribed that the outbreak referred to Shingles. On 5 May 2015 and 7 August 2015 Valtrex was again prescribed and, on neither occasion was there any reference to Shingles affecting a part of the body associated with dentistry.
The Commission referred to the entry in the clinical notes of 29 November 2014 recording Patient A apparently describing symptoms of Shingles, the consultation having apparently been by telephone. The next recorded attendance by the Practitioner, 3 months later, was not recorded as involving Shingles.
The Commission relied on the evidence of Dr Mansour (HCCC1 Volume 2, Tab 2) in support of this particular.
Dr Mansour referred to paragraph 8.4 of the Dental Board Code of Conduct with respect to the obligation to keep clinical records. In the absence of proximate entries in the clinical records concerning dental treatment, Dr Mansour considered that the Practitioner was in breach of the Code of Conduct and that his conduct fell significantly below the requisite standard.
Dr Mansour referred to the Therapeutic Guidelines Oral and Dental Version 3, page 112, and said that "Aciclovir or Famciclovir are indicated for the treatment of recurrent oral mucocutaneous herpes. On this basis it appears that Valtrex is not a medication ordinarily prescribed for treatment within the practice of dentistry".
Cross-examination of Dr Mansour did not advance matters, understandably given that, as he made clear on a number of occasions, his opinion was largely informed by the absence of proximate entries in the clinical records of the Practitioner which were provided to him.
In his statement of 28 February 2022 (paragraphs 28-32) the Practitioner said why he prescribed Valtrex for Patient A on the dates which gave rise to this particular. The Practitioner submitted that Valtrex "can legitimately and appropriately be prescribed by dentists for example for treatment of recurrent Herpes Labialis and therefore for this purpose falls well within the scope of prescribing competency for dental practitioners" (28). The Practitioner further asserted that the herpes Zoster virus "can affect the trigeminal ganglion in which case eruptions can occur on face and oral mucosa" rendering prescribing the drug within the scope of the practice of dentistry. The Practitioner referred to a number of circumstances in which he suggested that prescribing the drug was appropriate and to literature in support of that view (29). The Practitioner acknowledged (30) that Valtrex was not "covered under the Pharmaceutical Benefits Scheme (PBS) for dental prescribing and in my opinion may be a reason it is not "commonly" prescribed however that does (not) mean the prescribing is inappropriate".
The Practitioner submitted, with respect to Patient A that "there was a degree of urgency in prescribing due to the drug needing to be prescribed as early as possible to be effective for example at the prodromal stage and also due to higher risk of heart attack and stroke". The Practitioner cited an article in support of that contention. The Practitioner made (31) further reference to matters related to Shingles, and dental complications which they may cause or contribute to. The Practitioner reiterated (32) that there was "sufficient information present to demonstrate the appropriate prescribing of Valtrex was compliant with the appropriate purpose and quantity relevant to the therapeutic standard for that drug in the practice of dentistry".
In cross-examination (Transcript 8 March 2023, page 250, line 28) the Practitioner said "Valtrex is only ever prescribed for somebody in relation to Shingles". When asked (line 38) "Well, is it your evidence that you prescribed it for Shingles?", the Practitioner replied "I prescribed it for a symptom in relation to Shingles. Yes". The symptom was said to have been "pain". The Practitioner said (Transcript 8 March 2023, page 252) that the prescription of Valtrex on 29 May 2014 was for pain which was "almost certainly" the result of a visit to the Practitioner's surgery.
The Practitioner was cross-examined with respect to the entry in the clinical notes of 9 October 2014 which included the entry "borfh" which the Practitioner said was an abbreviation "belt of roses from hell". The Practitioner confirmed that that was not something that he "actually inspected" on Patient A. The Practitioner confirmed that the reference in the clinical notes "gave Valtrex exactly as before" was a reference to the previous prescription on 29 May 2014. The Practitioner confirmed (page 253) that the prescribing of Valtrex on 5 May 2015 resulted from a telephone conversation, Patient A not having attended the surgery on that date. That circumstance assists the Commission's case.
The Practitioner was cross-examined with respect to the prescription of Valtrex on 7 August 2015 (page 256). The Practitioner confirmed that Patient A had attended the surgery on that date and that the purpose of prescribing Valtrex on that day was "to manage the pain associated with his Shingles" (Transcript 8 March 2023, page 256, line 16). During cross-examination it was confirmed (page 256) that of the five dates referred to in this particular there was no evidence of prescribing on 5 May 2015. The Practitioner rejected the suggestion that prescribing Valtrex on the four occasions on which it was admitted that he did so was outside the scope of dentistry. It was put to the Practitioner (page 257, lines 1-3) that "on any of the four occasions when you admit prescribing Valtrex you did not perform an appropriate assessment prior to issuing the prescription", to which the Practitioner replied "Utterly rejected". It was further suggested that the Practitioner had failed on each of those four occasions to make appropriate proximate entries in the clinical records. The Practitioner responded "Utterly rejected".
The Practitioner was cross-examined on an Affidavit sworn by Patient A on 11 February 2016. Patient A is, and was in February 2016, a practising solicitor. Patient A represented the Practitioner throughout these proceedings. He was present during the hearing. He has not filed any statement, or given evidence qualifying, clarifying or correcting what he said in his Affidavit. In his Affidavit (HCCC1 Volume 2, Tab 41, page 9) Patient A said: 37 In March 2014 I had a very severe and debilitating breakout of shingles in the common area for right handed persons on the right side of my torso beneath the sternum extending around to the middle of my back on the same side. This outbreak was not treated by the antiviral drug in the initial period of its onset that is recommended and I suffered and I continued to suffer severe nerve pain in the area. 38 In about May 2014 Dr Kirby who was aware of my reluctance to seek medical advice for this condition informed me that he had looked extensively at the treatment options for this condition and that what he had read had indicated that treatment with the antiviral drug might even at that stage have some beneficial effect on the severe nerve pain which I was continuing to suffer which was affecting my sleep even more than usual and was also significantly affecting my golf swing and consequently my ability and desire to even attempt to play golf. He prescribed Ativan and I was provided with a generic version of the antiviral drug for shingles which I took as prescribed and it did have a beneficial effect in reducing the nerve pain I was suffering. 39 Not long afterwards I suffered a second severe attack of shingles and subsequently in a relatively short time a third and fourth attacks [sic] all within a year. Dr Kirby assisted me and prescribed the drug Ativan on further occasions to help me deal with these outbreaks and to also keep in reserve a dose in case of a further outbreak. I recently suffered a fifth outbreak of shingles at Christmas time. Ativan was prescribed for me by Dr Kirby to not only help me sleep but to try to reduce my stress levels which had been high over a long period of time probably related to work and other issues which I do not wish to further disclose at his point. If necessary I can elaborate on these matters including anything related to the other prescriptions mentioned if required."
The Practitioner agreed (Transcript 8 March 2023, page 259) that Patient A was correct in suggesting that in about May 2015 the Practitioner had informed him that he had "looked extensively at treatment options". The Practitioner agreed with the Tribunal (Transcript 8 March 2023, page 287, lines 36-38) that Valtrex is an antiviral agent, also known as Valaciclovir. The Practitioner was asked whether he prescribed Valtrex because it is antiviral with the aim of treating a viral infection" (line 43-44) to which the Practitioner replied (45) "managing pain", adding (48) "and infection associated with shingles". The following exchange occurred (Transcript 8 March 2023, page 288, line 6): "Q Could you describe how you arrived at that diagnosis (shingles)? A Yes. Certainly. The critical symptom, clinical, well, finding, came from the patient himself. I think I abbreviated there, "BORFH". If it hadn't been for that, I - I may - I may not have diagnosed it as shingles."
The Practitioner clarified that BORFH was "Classically, that's an inflammation, infection, alongside the dorsal route ganglion of the spinal dermatomes" (lines 14-16). It was noted that the Practitioner "placed his left hand to his lower back" as he gave that evidence. The Practitioner confirmed (lines 21-22) "That was the definitive symptom for the working diagnosis that I had". The following exchange ensured (lines 29-38): "Q The patient actually said to you, "I've got a belt of roses"? A No. That was my abbreviation. I'm sorry. That was - that was my abbreviation. But as well as that, there was extreme pain along the distribution of the trigeminal ganglion. The trick, or the problem, I should probably say, with (Patient A) was getting him in - in the prodromal phase. And that was very difficult and challenging to do with that - that sort of patient. So, the clinical symptoms that I observed, on the odd occasion that I was able to observe it, were usually something like angular cheilitis or cold sores. I think, on one occasion, theres [sic] was blisters and ulceration. So, they were the clinical symptoms which I think was your question. And extreme pain."
In response to further questions from the Tribunal (Transcript 9 March 2023, page 298, lines 11-13) the Practitioner confirmed that the reason he prescribed Valaciclovir was because "it's specific for shingles which matched my working diagnosis of the symptoms that he was experiencing". The following exchange ensued (lines 15-30): "Q How did you arrive at that diagnosis, what was the basis for your diagnosis of shingles? A Yeah. So, on - on one side of his face he was report - well, a number of different areas of his body, he was reporting pain. The definitive symptoms that he described to me after I'd - I think there was one occasion where I - I'd seen angular cheilitis and cold sores on his lip or blisters on his lip there, was the - what is in - in layman's terms called the belt of roses from hell. That - that was the confirming symptom for my suspicion that he had, plus what the patient tells us I mean 80% of any working diagnosis is I mean - I mean from - that's from 80% of working diagnosis … is based on what the patient tells us. And we either choose to accept that or - or not accept it and that's not to downplay the critical nature of our 20% diagnosis, but that - that became a major feature of my decision to give him Valtrex. Plus, the urgency associated, there's a degree of urgency associated with the condition when a patient has."
The Practitioner confirmed that Patient A told him that the "belt of roses indication" was on his "back area" but that he did not examine him. The Practitioner was asked (page 299, lines 17-30): "Q So, I'm not certain that I agree with your understanding of how one arrives at a diagnosis, that one places an 80 priority or - or prominence on - on what you are told by the patient because in my - I would personally would believe that an important part of a diagnosis is examination, clinical records, investigations and combining with the signs and the symptoms. But signs is something that the - the - the examiner has to determine. So, putting that aside, I think what needs to take note of what you were able to find evidence of yourself rather than simply relying on a patient's assertion that he has a certain condition under his clothing. And you described what you saw angular cheilitis. A Yes. Q Can you explain what angular cheilitis is - means and - and what - what is the usual cause of angular cheilitis? A Well it could be from a denture, it could be just from dry lips as well."
The Practitioner was then asked (line 35) "In your experience, what is the most common reason for angular cheilitis", the Practitioner replied (lines 38-40) "It could be a viral disorder as well, it could be traumatic, but as I said with the other symptoms that I - it's not just one - one symptom in - it wasn't just the angular cheilitis it was the pain all on one side".
The Practitioner was asked about his reference to cold sores and described (page 300, lines 1-2) cold sore as "a lesion classically on the lips or on - on the skins, almost blister like appearance, and ulcerated like appearance". When asked "Which viral condition does a cold sore refer to" (page 300, line 12) the Practitioner relied (line 13) "Well, it's usually herpes". The Practitioner reiterated that he "formed the view that the patient may be suffering from shingles" which is caused by the varicella zoster virus and was "not as such" herpes. The Practitioner reiterated that he saw "evidence of blisters on the patient's lip". The Practitioner was reminded (page 300, line 27) that he "mentioned that you saw evidence of blisters on the patient's lip?". The Practitioner replied "Cold sores. Yeah".
The Practitioner was referred to extracts from a bacteriology text attached to Dr Rourke's report (Volume 2 of R2). The Practitioner, having reviewed the material, was asked (page 304, line 6) "You mention the herpes zoster virus, would you accept that we're really talking about the varicella zoster virus" to which the Practitioner replied "Yes", agreeing that it was not herpes. The following exchange ensued (lines 13-50): "Q You expressed the view that eruptions can occur on the face and the oral mucosa, and you then state again this place is prescribing within the scope of dentistry? A Yes. Q Am I to understand or - or can I ask you, are you expressing the view that it is within the scope of a dentist to treat a patient with shingles when there is no oral expression of the disease? A No. Q Or is it only when there is an oral manifestation? A No, I'm - I'm saying that a dentist can manage the symptoms of shingles, especially if they're in pain and they have sufficient knowledge, skill and training to do that. And that was the case in - with (Patient A), he had significant pain and symptoms that I was able to deal with. It is not a cure, it was not a treatment, and it was just management of the pain and the symptoms and the infection that he presented. Q But I'd like to understand if you feel it is reasonable and within your scope of practice to treat a patient, whether in pain or not, if he's got a systemic condition, but for which there is no oral manifestation. A I - I'd have to be given an example, but if there's no oral manifestation and - and you used the word treatment, I - I'd have to be given an example, I can't think of one. Q Can I ask you then, you mentioned that on one occasion (Patient A) had an outbreak on the lower left lip. A Right. Q That you prescribed the antiviral drug on two other occasions or maybe three … or four actually … I'm trying to understand, that's an example for instance when it seems there was no oral manifestation, but you were treating a systemic condition. A - I - I understand, yes. The - the issue with the herpes zoster or varicella zoster or shingles is trying to get it at the prodromal stage which was always the issue with (Patient A) and that was the most significant difficulty, I had no problem whatsoever with my working diagnosis, I had no problem whatsoever with the degree of urgency that was associated with it and I was happy with the skill and knowledge that I had to be able to manage him with pain even though he may not have had the oral manifestation at the time of the shingles. [Page 305, line 1 to 30] Q And, you have just suggested that you had no problem with your working diagnosis, and you felt comfortable providing treatment for at least not or at least not treatment, but something to assist with the management of the patient's condition. A Pain, yes. Q And, yet was only one of the five visits at which you actually saw - saw a manifestation because the other times I assume you were relying on the patient's report because it was under his clothing. A Yes. Yes. Q So - so you had a - you were sufficiently confident in your diagnosis even though it was reliant to a large extent on what you have been told by the patient, if I understand it - do I understand it correctly? A Yes. I just thought - Q If I - sorry A Sorry, you go. I - I was just going to say there's - there's a couple of other areas where I just considered where somebody doesn't have any oral manifestations whatsoever. Typically, in emergency situations or urgent situations they may not have, you know, somebody who goes into broncho spasm, anaphylactic shock, cardiac arrest, has a seizure, none of those are oral manifestations. And I'm - I'm - I'm a graduate of the complex medical history and medical emergencies courses and I'm comfortable with my skill and knowledge to manage the pain of those patients with those urgent needs without an oral manifestation."
By reference to another article it was suggested to the Practitioner (page 306, line 16) that shingles, herpes zoster - not herpes, but rather varicella zoster did not appear on the list of systemic conditions which the article suggested may arise in the mouth. The Practitioner replied (19-25) "Correct, but it is part of our course in the Australian Dental Association continuing professional development, advanced pharmacotherapeutics course. We're not only advised it's - well, within our scope or have knowledge of it, we are actively encouraged to manage pain or symptoms if it - if it presents. So, I - I appreciate it's not - not listed in - in that article, nevertheless, that's what our Association encourages us to do." The Practitioner did not produce any documentation which supported that assertion.
The Practitioner was asked further questions by reference to another article in a medical journal about oral manifestations of systemic disease and it was put to him (page 306-307, line 36) "shingles is not mentioned". It was put to the Practitioner (page 307, line 8) "Do you think in view of all of - on the fact that so many conditions can manifest in a similar manner in the mouth, that it would have been appropriate to have recommended a consultation with a medical practitioner for your patient?" The Practitioner replied (line 12) "It was, I did. Yes. Yes, it was appropriate".
The Practitioner did not previously suggest in his evidence that he had given that advice. Unsurprisingly, having regard to the Practitioner's admissions with respect to deficiencies in the medical records before the Tribunal (HCCC1 Tab 8), he could not refer to any record which confirmed that statement.
In his report (R2, page 11, 93-116) Dr Rourke said that it was "As a part of their undergraduate training dental students are taught to identify the oral manifestations of a broad range of systemic conditions and diseases" (93). As is not in doubt, the Practitioner completed his undergraduate studies some decades ago. Dr Rourke suggested (94) that it was "appropriate for registered dentists to treat some of these conditions on their own". Whether that is correct or not does not assist our evaluation of this particular.
Dr Rourke suggested (96) that "shingles is such a condition that demands immediate management by the practitioner making the prospective diagnosis" and reiterated that "students in the faculty of dentistry are taught to recognise the oral manifestations of numerous systemic diseases, including viral disease, which includes herpes zoster" (98). Dr Rourke referred to a number of matters referred to in the textbook "Bacteriology for Students of Dental Surgery Lucas and Kramer". Dr Rourke said (103) that "When a patient is suspected of having Shingles it is extremely important that they commence antiviral medication as soon as possible to prevent cardiac or brain infections".
Dr Rourke stated (106) that: "Patients with a diagnosis of herpes zoster are at an increased risk of Stroke and myocardial Infarction and placing patients on antiviral medications early in the course of the development of the viral outbreak is a matter of urgency relative to minutes and hours rather than days. In appropriate circumstances I would have no hesitation whatsoever in prescribing Valaciclovir for a patient with symptoms and a presumptive diagnosis of oral herpes zoster. Such circumstances would be in circumstances of isolation, difficulty in obtaining urgent medical consultation or the reluctance of a patient to accept treatment from a medical practitioner."
Dr Rourke asserted (110-111) that Dr Mansour was "wrong" in suggesting that Valtrex was not a medication ordinarily prescribed for treatment within the scope of dentistry, in part on the basis that Valaciclovir is listed in Table 1 "Common antimicrobial drugs used in dentistry" Therapeutic Guidelines Oral and Dental V2 - page 17. The Tribunal's findings with respect to Particulars 6(b) and (c) are not predicated on Dr Mansour being right or wrong. The issue is not whether prescribing Valtrex was or was not ordinarily prescribed in the course of dentistry, it is whether, in this case, we are comfortably satisfied that prescribing the drug fell outside the practice of dentistry.
Dr Rourke inferred that the Practitioner's prescribing of Valtrex was appropriate having regard to the entries recording "outbreak on lower lip but particularly back" in the clinical notes which he saw. Dr Rourke was accordingly of the opinion that the evidence did not establish that the prescribing of Valtrex for Patient A was inappropriate, and the conduct of the Practitioner thus did not fall below the requisite standard.
In cross-examination of Dr Rourke (Transcript 9 March 2023, page 380, lines 11-22) the following exchange occurred: "Q Are you able to say whether, to your recollection, there is some other part of the guidelines that deals specifically with Valtrex being orally prescribed by a dentist for shingles? A I would have to go through the guideline, but I have no specific knowledge of that at this time. I don't think that's necessary. Q When you say you don't think that's necessary what do you mean by that? A The identification of the symptoms of shingles is part of the practice with dentistry, that is made clearly by the textbook entries that have been submitted as attachments to my report from the textbook Lucas and Kramer in regard to viral infections and in regard to herpes zoster or shingles specifically."
Dr Rourke further stated (lines 42-46) that "The absence of shingles or herpes zoster in the guidelines does not necessarily exclude it from part of the scope of dentistry any more than the absence of any other treatment from the ADA schedule and glossary would exclude a particular treatment from the practice of dentistry". Dr Rourke agreed (page 381, lines 2-3) that for a dentist to prescribe Valtrex it "must be within the scope of dentistry, the teeth, the gum, the jaws and associated structures". Dr Rourke agreed (Transcript 9 March 2023, page 386) that his "field of specialty is dentistry" and "not general practitioners" and agreed that prescribing Valaciclovir for a patient with symptoms and a presumptive diagnosis of oral herpes zoster would be appropriate if "I was the only health practitioner available" (page 386, line 45).
During the course of questions from Members of the Tribunal (Transcript 10 March 2023, page 399, line 50-19) the following exchange with Dr Rourke occurred: "Q At paragraph 40 of your report, you express the opinion that a first responder has a responsibility to provide immediate care. And then arrange for appropriate ongoing care, and I'm not reading it word for word, but my understanding is, provide immediate care and then arrange for appropriate ongoing care, and where appropriate and if necessary, care by other health practitioners. A Yes. Q In view of the serious complications that you describe at paragraph 106 associated with an outbreak of shingles, do you believe that the first responder ought to arrange appropriate ongoing management for this systemic disease to be provided by a medical practitioner? A That would be part of the normal process, unless there was some extraordinary complicating factor. Q And do you believe that Dr Kirby arranged for ongoing care by a medical practitioner of the patient's shingles? A I do not know what he did, but I would acknowledge there doesn't appear to be any note in his clinical record that there was a discussion with the patient about the kind of ongoing care or referral."
In cross-examination of Dr Rourke (Transcript 10 March 2023, p 402) the following exchange occurred: "Q … the clinical records show that there was only one occasion on 9 October 2014 when Dr Kirby recorded an observation of what he believed to be an oral manifestation of shingles. A Yes. Q Why do you believe Dr Kirby's presumptive diagnosis of shingles could be relied upon when there is no other entry in the notes regarding any observation that might lead him to believe that the patient had shingles on this day or any of the other days. A Well, there are two aspects. To that one is the phrase exactly as before. As I have stated before, that is ambiguous, but my interpretation of that is it applies to all of his observations and not just the prescription. And the other aspect of this is the fact that I myself have had shingles twice on my shoulder, and my doctor photographed it on both occasions and showed me both the previous photo and the one of the second outbreak and the affected area looked exactly as before."
As Dr Rourke had earlier agreed (line 25) that the one occasion when any oral manifestation of shingles was noted recorded "outbreak on lower left lip". Dr Rourke reiterated (page 403, line 24-25) that there was "no notation about oral manifestations, other than possibly the interpretation of the phrase, "exactly as before" for any appointment other than that which appeared on 9 October 2014.
By reference to texts contained in the Appendix to Dr Rourke's report it was suggested to him (Transcript 10 March 2023, page 404, line 11) that shingles was not mentioned in the list of systemic diseases which have oral manifestations. Dr Rourke replied (line 12) "However, it is a disease with oral manifestations". In further questioning Dr Rourke reiterated his view that it was "prudent" for the practitioner to prescribe valaciclovir for Patient A. When asked to explain why, Dr Rourke said (lines 41-44) "Because the patient told him that he had shingles on his back, and because the diagnosis of a viral condition affecting the trigeminal gasserian ganglion has a very specific diagnostic appearance. The vesicles and the ulceration is generally unilateral. It is just utterly classical".
In subsequent cross-examination Dr Rourke confirmed, properly, that the circumstances in which the Practitioner prescribed Valtrex for Patient A did not involve isolation or his being a "first responder".
The Practitioner relied upon evidence of Mr Alexander Gavrilovic who is the Principal Pharmaceutical Officer and Manager of the Monitoring and Compliance Team within the Pharmaceutical Regulator Unit of NSW Health who provided a report for the Commission (Tab 50(3)).
Mr Gavrilovic was asked by reference to the records which he saw (Transcript 7 March 2023, page 130, lines 10-31): "Q There's a reference to Valtrex, again its cut off, but it seems to be oral herpes. Is that right? A That's correct, yes. Q Whose words are being captured here, if I could ask? A If I recall correctly, Mr Smith made the point that Valtrex could be being prescribed for genital herpes as well as for shingles, but I think from these notes that this is what Dr Kirby said he was prescribing for, that in fact it was for shingles but there was some oral effect from the shingles. Q When you say oral effect, and oral - A Sometimes you get these lesions, and the lesions can appear anywhere on the body I think he was asserting that there were some lesions in the mouth. Q Some oral manifestation - A Yes. Q - of shingles symptoms. Is that right? A Yes. Q Just going back to your pharmacist hat, is Valtrex a proper medication for that? A It is for shingles, yes, and for - well for both those reasons."
The Practitioner relied upon his evidence in response to questions from the Commission (Transcript 9 March 2023, page 304, lines 42-50) to which we have earlier referred. Significantly, the Practitioner agreed that on only one (9 October 2014) of the four occasions when he prescribed Valtrex for Patient A had he any "oral manifestation" of the "systemic (dental) condition" which the Practitioner believed that he was treating. In the course of his answers, the Practitioner reiterated that he "had no problem with his working diagnosis" of shingles and was "happy with the skill and knowledge that I had to be able to manage him with pain even though he may not have had the oral manifestation at the time of the shingles". Understandably, the Commission placed significant reliance on that evidence.
The Practitioner relied on the evidence of Dr Rourke with respect to the need for "swift treatment" having regard to the seriousness of shingles. The Practitioner submitted that Patient A would have been "at risk if Dr Kirby simply told (Patient A) to go elsewhere and refused to provide treatment given (Patient A's) demonstrated inattentiveness to his wellbeing". We are unable to accept either of those propositions. Either the prescribing was in the course of the practice of dentistry or it was not. If the prescribing was not in the course of dentistry, and Patient A chose not to attend upon a medical practitioner with respect to his symptoms, as was his right, that would not give rise to any criticism of the Practitioner. The evidence does not establish that there was urgency, isolation or a first responder situation on any of the occasions when the Practitioner prescribed Valtrex for Patient A. The Practitioner was practising in a large rural town. There is no evidence that "swift treatment" for Patient A's shingles on any basis connected with the practice of dentistry was indicated or justified. If "swift treatment" was indicated, it was with a medical practitioner in the circumstances revealed by the evidence.
It was submitted on behalf of the Practitioner that "even if the Tribunal were to hold that Dr Kirby's prescribing of Valtrex was not within the scope of dentistry, it remains that the prescribing was appropriate" having regard to the factors identified by Dr Rourke. With respect, none of the factual circumstances identified by Dr Rourke applied. We are unable to accept the submission or Dr Rourke's opinion that "the reluctance of a patient to accept treatment from a medical practitioner" justifies a dentist in prescribing medication other than in the course of the practice of dentistry.
There is no issue that Valtrex can be prescribed by a dentist, but that does not mean that doing so on three of the four admitted occasions was appropriate. We are not able to accept the contention of the Practitioner that whatever factual finding is made in relation to the prescribing of Valtrex, that the Tribunal cannot be satisfied that the conduct fell significantly below the relevant standard "when that standard was itself not subject of any evidence". Dr Mansour's evidence was to that effect. Dr Rourke's view was to the contrary. As their reports make clear, correctly, both experts adopted the same "relevant standard" in the light of the terms of s 139B(1)(a) of the National Law. Nothing emerging from the cross-examination of Dr Mansour provides a basis for declining to find, if the factual basis of this particular is established, that the conduct of the Practitioner fell significantly below the standard reasonably required of him. The reality is that, if the prescribing of Valtrex was not in the course of the practice of dentistry, that would amply support a finding that the conduct fell significantly below the requisite standard.
The Commission submitted that Dr Rourke's opinion that dentists can fill the void in circumstances of "the reluctance of a patient to accept treatment from a medical practitioner" is entirely inconsistent with the requirement that a dentist practice within the scope of dentistry. The prescription of Valtrex was submitted to have had no connection with any "acute phase" of (Patient A's) dental health. Save in one situation, we agree with that contention. We do not accept that, in the circumstances in which the Practitioner prescribed Valtrex for Patient A that he was a "first responder". The fact that Patient A may have chosen to first consult the Practitioner, which has not been established, did not render the Practitioner a "first responder". That is particularly the case given that there is no evidence that there was an absence of general or specialist medical practitioners in the large rural town where Patient A and the Practitioner practised whom Patient A could have consulted for his shingles.
In his supplementary closing submissions of 4 December 2023 the Practitioner submitted that he did not "treat" Patient A's shingles, but rather prescribed Valtrex to manage the "pain and symptoms of (Patient A's) shingles". The Practitioner referred to evidence given by him in cross-examination (Transcript, page 287, lines 36-48, page 304, lines 18-29). In the course of that evidence the following exchange occurred: "Q Am I to understand, or can I ask you, are you expressing the view that it is within the scope of a dentist to treat a patient with shingles when there is no oral expression of the disease? A No. Q Or is it only when there is an oral manifestation? A No, I'm - I'm saying that a dentist can manage the symptoms of shingles, especially if they are in pain and they have sufficient knowledge, skill and training to do that. And that was the case in - with (Patient A) he had significant pain and symptoms that I was able to deal with. It was not a cure, it was not a treatment, it was just management of the pain and the symptoms and the infection that he presented."
The Practitioner's submissions with respect to the distinction between "treatment" and "management" do not in our view advance the Practitioner's defence of this complaint.
The statements of the Practitioner at his s 150A examination (HCCC2) to which the Practitioner referred do not in our view assist his defence of this particular. As he submitted, the Practitioner there said with respect to the prescription of Valtrex "I attempted to relieve his symptoms with Valtrex, after careful consideration and discussion with the patient as to what his expectations were, what I could do, I prescribed". We have excused the Practitioner's failure to articulate in greater detail things he said, or did not say at his s 150A hearing. What he then said about this issue is significant for the absence of reference to a connection between the patient's symptoms and expectations and the practice of dentistry.

Consideration

Save with respect to the prescribing on 9 October 2014, as the evidence to which we have referred confirms, there is no evidence that the Practitioner considered that Patient A's presenting symptoms were related to any aspect of his dental care. On one occasion, the Practitioner did not actually see the patient.
The statements of Patient A in 2016, presumably prior to their potential significance being realised, or fully realised, are important. Nowhere in his statement did Patient A suggest that he saw the Practitioner on any of the occasions when Valtrex was prescribed because of any dental condition. On the contrary, Patient A's 2016 statement suggests that, for whatever reason, and the reason is of no relevance for our purposes, Patient A chose to go to the Practitioner in response to his symptoms of shingles and their impact on his life, and lifestyle.
In his evidence before the Tribunal, the only evidence given by the Practitioner of presenting symptoms was with respect to Patient A's back area and some reference to a lower lip blister. As we have earlier recorded, the Practitioner did not, in his statement of 28 February 2022 advance any explanation with respect to examining the patient prior to prescribing Valtrex or suggest why, other than to manage Patient A's pain associated with his shingles symptoms the Practitioner prescribed Valtrex. It was not suggested by the Practitioner that the prescription was intended to ease pain in any part of the patient's body associated with the practice of dentistry.
Although we do not agree with the totality of the Commission's complaints with respect to Dr Rourke's evidence, we are not persuaded that Dr Rourke was able to be entirely objective about this issue, or that, on balance, his evidence ultimately materially assisted the Practitioner's case. To the extent that Dr Rourke's opinions with respect to these prescriptions were based on admitted or assumed facts, they lack foundation in view of the Practitioner's evidence, and Patient A's statement.
We are comfortably satisfied that the prescribing of Valtrex on 16 May 2014, 29 May 2014 and 7 August 2015 was done without performing an appropriate assessment prior to issuing the prescription, and in circumstances where the prescribing fell outside the scope of dentistry. On his own evidence, had the Practitioner performed an appropriate assessment, he would have declined to issue the prescription, and have suggested that Patient A consult a medical practitioner. We are comfortably satisfied that, although the Practitioner may have made an assessment before issuing the prescription, it was not an appropriate assessment, but, as the Practitioner's own evidence confirmed, a medical assessment which, despite his confident assertions to the contrary, the Practitioner was not qualified or entitled to make. On three occasions, on the Practitioner's own evidence, and in view of that finding, the prescribing lacked a connection with the practice of dentistry.
It is not in doubt from the evidence of Dr Rourke, and the Practitioner, that shingles is a serious medical condition. It cannot be assumed that by the Practitioner prescribing Valtrex in the absence of oral indications that doing so was in the course of the practice of dentistry, that the health and safety of Patient A may not have been placed at risk or compromised. The Practitioner's evidence leaves us in no doubt that he believed that he was competent to prescribe Valtrex for patient A's shingles, and, in those circumstances, was not concerned to first satisfy himself that doing so was appropriate, or in the course of dentistry.
To fail to uphold particulars 6(b) and (c) would in our view be tantamount to the Tribunal condoning conduct which has substantial risks for the health and safety of the public. Simply because a dental practitioner professes by reading or otherwise, or undergraduate studies, or post-graduate experience, to have knowledge of, and thus a basis for prescribing Valtrex in the absence of oral indications cannot in our view justify doing so.
As is not in doubt, in determining whether conduct falls significantly below the requisite standard, as opposed to merely falling below the requisite standard, the Tribunal makes a value judgment. Inherent in doing so is the potential for minds to reasonably differ. There is a material distinction in our view between conduct of a nature which is not shown to involve actual or potential risk to the health and safety of the public, and conduct which is. Further, as we have said, the regulation of health practitioners generally and the objectives of the National Law would be problematic if, as we find occurred in this case, a dental practitioner could prescribe medication for the management of pain associated with a medical condition which the practitioner did not satisfy him or herself had a connection with the practice of dentistry.
Particulars 6(b) and (c) are established to the Tribunal's comfortable satisfaction. Unlike a number of earlier particulars, and for the reasons recorded above, the Tribunal does not find that the evidence tends to show that the Practitioner did what he is alleged to have failed to do.

Particular 7

Particular 7 alleged that: "On 14 July 2014 the Practitioner inappropriately prescribed Scheriproct ointment to Patient A: (a) in circumstances where Scheriproct is designed for the treatment of haemorrhoids and other anal conditions; and (b) in circumstances where the prescribing fell outside the scope of dentistry."
The facts relied upon in support of Particular 7(a) are not controversial. The real complaint is that the prescribing of it fell outside the scope of dentistry. The Commission relied substantially on the absence of any recording of symptoms or cause, or any indication that the prescribing had a connection with dentistry in the clinical records of the Practitioner. Unlike earlier particulars, this particular makes no complaint about that absence.
The Commission relied on Dr Mansour's opinion evidence (HCCC1 Volume 2, page 8) that diagnosis of haemorrhoids and itching of the anus "usually precedes treatment". Dr Mansour said that the diagnosis of haemorrhoids "would at a minimum require a digital examination of visual inspection. Both of which are clearly outside the scope of dentistry. A general medical practitioner may request a colonoscopy if the patient is exhibiting signs suggestive of digestive system disease or colorectal cancer". In the absence of any proximate entry in the clinical record establishing a connection between the prescribing and dental treatment, Dr Mansour was of the opinion that the Practitioner's conduct fell significantly below the standard expected of him.
Dr Mansour's opinion was that the diagnosis and treatment and haemorrhoids was "outside the scope of dentistry" and said "I suspect that Scheriproct ointment is a medication not ordinarily prescribed for treatment within the practice of dentistry".
In cross-examination (Transcript 7 March 2023, page 176) Dr Mansour was asked (line 37) "You don't know whether people may self diagnosis or be of the belief that they have haemorrhoids without going and seeing a medical practitioner" to which he replied (line 40) "No, I don't know, and I think it would be very dangerous to self diagnose, even if you're a doctor".
In cross-examination, Dr Mansour reiterated his written opinion that "formal diagnosis of haemorrhoids requires a series of examinations" involving a "physical medical assessment". The following exchange revealed (page 177, line 5): "Q What Dr Kirby says is that he prescribed the Scheriproct as a consequence of symptoms associated with use of codeine. You're aware of that, aren't you? A Yes. Q He contends that the codeine was being used for dental purposes. You understand that? A Yes. Q … I take it that there are adverse consequences associated with particular prescribing undertaken by dentists? A Yes. Q I take it at the time that a dentist prescribes a medication, he or she may advise the patient as to what the side effects of that medication may be? A Well, the dentist can advise them, the pharmacist can, and it's usually on the packet as well. Q It may be the case that the dentist won't advise of the potential side effects of a medication provided associated with dental care. A Unless it's very serious, not necessarily, no. Q Does the dentist ordinarily suggest to the patient that if they have an adverse consequence associated with what they've prescribed, to adopt a particular course? A Depends on the adverse reaction of course. Q If, as a consequence of providing dental treatment, the dentist says to the patient, "You'll need this medication for pain relief for a period of time", would the dentist ordinarily say something about what should happen if there's an adverse reaction to that pain relief? A Yeah. There would be some instructions, of course. Yeah. Q By the dentist or just in terms of on the medication or from the pharmacy, or any combination? A I - I think if the dentist has knowledge of the complications, they would be entitled to inform the patient. Q Do dentists, as part of their ordinary practice, say to patients, "In the event that there's a problem with this medication that I am prescribing to you, give us a call or call the surgery"? A Of course, yes. Q Is that what they normally say, or do they sometimes say, "Go to your GP", or something like that? A Well, I think again, it depends. Sometimes the patient will ring and inform the dentist of the complication and then - Q As a consequence, will get some advice is that right? A Correct. Q Would that advice extend to alternative treatment? An alternative to what's been prescribed? A It depends on the situation of course. Q Does it extend to prescribing another medication to deal with the side effects of the earlier medication provided? A Again, I - I - Q Is your answers, such as they are, reflective of a sort of grey area in terms of how a dentist - A Well, it - well, it depends on the - the skill of the dentist, the training, their therapeutic knowledge. It - it does depend on a number of factors. I would say, in general practice, where I come from, you know, we - we stick to what we know best. And, once we start to delve into poly pharmacology, we do rely on experts in that field, such as pharmacists and medical practitioners."
In his statement of 28 February 2022 (33-38) the Practitioner set out his explanation for the prescribing of Scheriproct. The Practitioner asserted (34) that corticosteroids (such as Scheriproct) are "widely used within the scope of dentistry". The Practitioner said (35) that the medication was "provided as a consequence of a side effect of codeine that was used for dental purposes. Its issue was as a result of arguably the most common side effect of codeine injection which is constipation and for which the Australian Dental Association NSW Continuing Professional Development Courses in Pharmacology recommend further medication to deal with a side effect or adverse consequence the management of which is case specific".
The Practitioner made further statements of a general nature without reference to Patient A. In cross-examination (Transcript 8 March 2023, page 248, lines 32-42) the Practitioner confirmed that the prescription of Scheriproct for Patient A on 14 July 2014 was "associated with prescribing codeine", which, in the form of Panadeine Forte was prescribed on 23 April 2014, with a repeat prescription on 23 May 2014.
The cross-examination continued (Transcript 8 March 2023, page 249, lines 1-12): "Q On the record for 14 July, you would agree that there are no notes recorded i [sic] these clinical notes at Tab 8 as to any questions that you asked (Patient A) about whether he had taken the Panadeine Forte? A Yes. That's correct. Q Whether when he started having the symptoms of constipation, that's not recorded the notes you asked him that? A No. Not recorded in these notes. No. Q And, that there's no indication in these notes that you discussed with (Patient A) any other possible causes of the constipation? A Not in those notes. No."
In his report (R2, page 13, para 117-127) Dr Rourke expressed his opinion (119) that if the Practitioner "believed that (Patient A's) symptoms were a complication of previous dental treatment, he may have prescribed Scheriproct to manage the complications". Dr Rourke added (120) his belief that if the Practitioner "was of the opinion that the symptoms experienced by (Patient A) was a complication of analgesics for dental pain associated with dental treatment that he provided, that he was under an obligation as part of the practice of dentistry to manage the complication with adjunctive therapy so as not to abandon his patient".
Dr Rourke referred to the writings of Dr Tutoveanu with respect to "adjunctive therapy" for relief of a patient's "digestive tract symptom of constipation" (124) and suggested (125) that there was no "substantial difference" with a dentist who provides adjunctive therapy for the relief of constipation as compared with diarrhoea using the anti-propulsive of Lofenoxal". Dr Rourke suggested (126) that "The acknowledgement of digestive tract complications and use of adjunctive therapy for such digestive complications caused by a primary prescription is part of the practice of dentistry". He was accordingly unable to agree that the Practitioner's prescribing of Scheriproct was inappropriate. In cross-examination, Dr Rourke did not resile from the opinions which he expressed in his report.
If it is accepted that the Practitioner had previously prescribed codeine, as the evidence suggests was the case, the evidence of Dr Rourke, which is not materially disputed by Dr Mansour, creates obstacles to the success of this particular. Although, on the evidence before the Tribunal, the prescribing of Scheriproct appears to have been ancillary to the practice of dentistry, we are not comfortably satisfied that it bore no relationship to it. As Mr Gavrilovic suggested, and no other expert disputed, Scheriproct is available "over the counter" in pharmacies. Although that does not mean that the Practitioner could not have prescribed Scheriproct for Patient A when he did without so doing being in the course of the practice of dentistry, it is a circumstance which supports his claim that it was.
We are not comfortably satisfied that the Practitioner's conduct fell below the standard reasonably required of him. Essentially for the reasons we have not found earlier particulars proved, and found Particulars 6(b) and 6(c) proved, the Tribunal finds that the evidence tends to show that the Practitioner did the things which Particular 7 alleged that he failed to do.

Particular 8

Particular 8 alleged: "On 20 November 2014, 4 February 2015, 5 May 2015 and 7 November 2015 the Practitioner inappropriately prescribed the Schedule 4D drug, Ativan: (a) without making appropriate proximate entries in the clinical records; (b) without performing an appropriate assessment prior to issuing the prescription; (c) without obtaining informed consent; (d) in inappropriate quantities; (e) without appropriate monitoring; and (f) for a purpose otherwise than for dental treatment, contrary to clause 33(4) of the Poisons and Therapeutic Goods Regulation 2008 (NSW)."
By his Reply the Practitioner admitted the prescribing on 20 November 2014, 4 February 2015 and 7 November 2015 but denied having prescribed Ativan on 5 May 2015. There is no evidence of his having done so on that date. The Practitioner denied having prescribed Ativan without performing an appropriate assessment prior to issuing the prescription, denied prescribing Ativan without obtaining informed consent, denied prescribing Ativan in appropriate quantities, denied prescribing Ativan without appropriate monitoring and denied having prescribed Ativan for a purpose other than dental treatment contrary to clause 33(4) of the Poisons and Therapeutic Goods Regulation.
In view of the Tribunal's earlier findings with respect to identical particulars, Particular 8(a) is made out. We need not repeat what has earlier been recorded with respect to the implications for each party's case of that finding.
The Commission submitted that the prescribing in this particular is "the most serious example of the respondent demonstrating care skill or judgment that falls significantly below the standard". The Commission submitted, uncontroversially, that Ativan is a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Act 1996 (NSW), being a drug listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) ("the PTGR Regulation") and a type of benzodiazepine.
Clause 33(4) of the PTGR Regulation provides that: "33(4) A dentist must not issue a prescription for a restricted substance otherwise than for dental treatment, and must endorse any such prescription with the words "for dental treatment only".
The Commission relied upon the entry for 20 November 2014 in the Practitioner's clinical records (HCCC1 Tab 8) noting "another attack on face still eft [sic] side cant sleep and is highly stressed - left submandib slightly enlarged cold minimal - lifting arms hurts him but back is still main issue Told him to come in and I would have a look ASAP. No obv infection but highly stressed pre Ativan 2 x 1mg only. Adv some chemists will not split".
The Commission submitted that "on its face" the Practitioner prescribed Ativan on 20 February 2014 to address stress that was related to "an unidentified condition but which inferentially was shingles". As the Commission pointed out, by that date the Practitioner had already prescribed Valtrex for Patient A on three occasions over the previous six months. The Commission submitted that even if there was "some connection between the shingles and dentistry, the records do not reflect any proper basis for the Respondent to prescribe a benzodiazepine for shingles-related stress". Such prescription was submitted to not have been for dental treatment, and lacking an explanation as to why the Practitioner prescribed the taking of only two tablets. The Commission submitted that there was no evidence in any records produced by the Practitioner that he "in any way monitored the prescribing". The Commission asserted that, if Patient A had the prescription filled and 50 tablets were supplied there was "no apparent need for 3 further prescriptions over the next 12 months".
With respect to the prescribing on 4 February 2015, the Commission reiterated its allegations with respect to the prescribing on 20 November 2014 and added that the prescribing on that date specified "Ativan 1mg x 50" but stated "1 tablet to be taken 1 hour before procedure".
In support of particular 8(e) the Commission submitted that there was no evidence of monitoring with respect to any prescriptions of Ativan for Patient A, including in relation to the quantities in fact dispensed by the pharmacist, whether Patient A had taken any other than in preparation for a "procedure", whether the drug had been effective, whether Patient A had suffered any side effects, or any other such enquiries that might amount to appropriate monitoring.
The Commission further submitted, in support of particular 8(c) that there was nothing recorded to demonstrate that Patient A was provided with information that would allow him to make an informed decision about, and give informed consent to the prescribing of Ativan as opposed to other options available.
In support of this particular the Commission relied on the evidence of Dr Mansour (HCCC1 Volume 2, Tab 2, page 9). Dr Mansour referred to an "inconsistency" between the Affidavit of Patient A and the Practitioner's statement. In his Affidavit of 11 February 2016, paragraph 39, Patient A said: "Ativan was prescribed for me by Dr Kirby to not only help me sleep but to try to reduce my stress levels which had been high over a long period of time probably related to work and other issues which I do not wish to further disclose at this point."
Dr Mansour referred to the Practitioner's claim that Ativan was prescribed "as a pre-treatment anxiolytic". In his Affidavit of 28 February 2022 at paragraph 41 (R1, Tab 3) the Practitioner said that Ativan "was prescribed as an anxiolytic and was done so within the practice of dentistry and in this case a reading of the whole patient record rather than any particular individual reference reveals dental issues associated with an operculum at 4.7 that resulted in gingival infection and was exacerbated on occasion by subgingival cavity".
Dr Mansour referred to patient safety and to a publication of the Australian and New Zealand College of Anaesthetists (ANZCA) PS09 2014. He also referred to ADA policy statement 6.17 - conscious sedation in dentistry 1 (including the ADA recommended guidelines for conscious sedation in dentistry and guidelines for the administration of nitrous oxide inhalation sedation in dentistry". Dr Mansour did not suggest that the Practitioner could not properly prescribe Ativan.
Dr Mansour referred to the necessity for informed consent. Dr Mansour referred in some detail to the protocols with respect to administration of procedural sedation and/or analgesia". Dr Mansour referred to section 3.1(d) of the ANZIC CAPS09 2014 which he said provided that a practitioner administering sedation required sufficient knowledge to be able to "provide a written record of the dosages of drugs and the time of their administration as part of the patient's records which entry should be made as near the time of administration of the drugs as possible. The record should also note the regular readings from monitored variables". Dr Mansour was of the opinion that, based on the records produced by the Practitioner, he failed to make the appropriate proximate entries in the clinical records, such conduct in Dr Mansour's view falling below the requisite standard.
In cross-examination (Transcript 7 March 2023, page 178, line 37) Dr Mansour accepted that Ativan is "commonly prescribed" in the course of the practice of dentistry. The following exchange ensued (page 178, lines 39-50): "Q Just help me on the nature of its prescribing. Is it ordinarily prescribed to anxious dental patients? A Well, there's degrees of anxiousness. So, it wouldn't be prescribed for every anxious patient. It's contraindicated against a prescription for children and the elderly. Q Is it ordinarily prescribed for a patient who has trouble coping with the dental treatment process? A Well - Q If otherwise not contraindicated. A Yeah. Look, it's - it - it is one of the drugs that we - we can prescribe yes."
At page 179, lines 1-48: "Q Is it prescribed in a way that the patient is entitled to take it at their home or before they come to the practice? A It depends on the practitioner and the protocol. Q Dr Mansour, it can be prescribed for the patient to take at some other place. A Yes. Q Presumably, with a condition or a warning that that person has to be brought to the practice having taken that. A Yeah. Yes. I - I think with - with regard to anxious patients, we might be just jumping towards the medication. It's a bit more complicated than that. I think there's degrees of anxiousness in dental surgery. Everybody who comes through the door has a sweaty palm, from my experience, and they're all considered anxious patients in my book. And you first, I think, sit down, have a discussion about the cause of the anxiety. It think that's a starting point. You compare that to the degree of difficulty of treatment before we move to the prescription or - Q … it's the case anyway, that dentists have to inform themselves as to whether it's an appropriate treatment by reference to how anxious the particular patient is. A Yeah. Yeah. Q Either a dispensing of the Ativan in the practice or at the patient's residence. Either case are common. A Yes. Q There's a relatively set timeframe. A Yes. Normally one to two hours before treatment. Q The effect is to calm the patient - A Yes. Q To the extent that they are calm as to any anxiety they have, but nonetheless are sufficiently conscious to comply with directions provided in the surgery. Is that right? A Correct."
The cross-examination continued (page 180, lines 9-21): "Q It's the case, isn't it, I think, as you always indicated, is that the Ativan, when prescribed, should come with a direction as to the circumstances in which it is to be taken, in effect, to make the patient safe both where they take it and for any transport to treatment reasons [sic]. Is that right? A Yes, that's correct. Q There's other means of sedation available for patients. Is that what you're addressing here when you talk about procedural sedation - A Yes. Q And complete consciousness at the top of page 10 (of Dr Mansour's report)? A Yes. Yes. But, you know, sedation and consciousness is a possibility with - with Ativan as well. And that can't be overlooked."
Dr Mansour was referred to section 3.1(d) of ANZCA. It was suggested to Dr Mansour that administering sedation was a different process to the prescribing of Ativan, to which he replied (lines 29-30) that it was "but there's a possibility of moving from anxiolysis to sedation". It was clarified (lines 40-42) that Ativan also "goes by the name" of Lorazepam.
Dr Mansour was referred to the Practitioner's clinical notes and to the Practitioner's statement and asked (Transcript, page 181, lines 1-2) whether he was familiar with the "standard pack size" which Dr Mansour said that he was not. Dr Mansour confirmed that in his practice he had prescribed Ativan to be taken off site at home "in the past" but now does not.
In re-examination (Transcript 7 March 2023, page 184) Dr Mansour was asked his opinion of the significance, if it be the fact, of there being no evidence of informed consent with respect to the prescribing of Ativan. Dr Mansour replied (lines 4-10): "I think it's very significant for the patient, from the patient perspective. I think patient centred treatment is paramount. And, patients are making decisions, you know, based on their own free will, of course, and their own research these days. There's a lot of information out there. But we're - as practitioners, whatever we do, we have to provide all the information so that they can make an informed decision and there was no evidence of an informed decision where [sic] regard to the treatment".
In his statement of 28 February 2022, (R1, Tab 3, paragraphs 39-43) the Practitioner gave his account of the prescribing of Ativan. The Practitioner suggested (40) that dentists "frequently prescribe benzodiazepines for patients to take prior to a procedure to relieve their anxiety. These medications do not treat the teeth or jaws; they treat the brain and central nervous system. Dentists prescribe antibiotic prophylaxis frequently, particularly for endocarditis prophylaxis. These antibiotics are not treating the teeth and jaws; they are treating the heart, and also affect the rest of the body".
The Practitioner further stated (41) that the prescribing of Ativan "was appropriate in the circumstances and falls within the scope of dentistry. The medication was prescribed as an anxiolytic and was done so within the practice of dentistry and in this case a reading of the whole patient record rather than any particular individual reference reveals dental issues associated with an operculum at 4.7 that resulted in gingival infection and was exacerbated on occasion by a subgingival cavity". The Practitioner added, at (42) "Over the years gingival and periodontal issues manifested with (Patient A) which from time to time was dealt with via the assistance of various medications including Ativan as a pre-treatment anxiolytic. (Patient A) could also be an anxious patient at times when being treated no doubt in part due to the trauma he suffered in the past from extensive multiple extractions. The medication in such low doses was used to reduce anxiety pre-treatment". With respect to the dosage which he prescribed, the Practitioner said, at (43) "The standard pack side for Ativan was 50 but that amount of medication was not prescribed for (Patient A's) use. Rather 2 x 1mg 60-90 mins before treatment was prescribed." The Practitioner reiterated his assertion (44) that his prescribing of Ativan was appropriate, "compliant with the appropriate purpose and quantity relevant to the therapeutic standard for that drug and the practice of dentistry" and that there was "sufficient information present" to demonstrate those matters.
In cross-examination (Transcript 8 March 2023, page 289, line 5) the Practitioner was asked to tell the Tribunal why he prescribed Ativan on the occasions he did. The Practitioner replied (lines 7-15): "(Patient A) requires in - in - well, I made the decision to do any definitive treatment, whether it be the treatment of the chronic periodontal disease, or gingivitis, or even surgery, reflecting those - the gingival and the periodontal architecture, to control his anxiety, I wanted to give him Ativan or Lorazepam as a pre-surgical anxiolytic. As I've said, the problem with (Patient A) is actually getting him in for that treatment, whether that be phobia, or business, or both. I think it's both. As you can see, it - it's never happened. So, the answer to your question is for a pre-surgical anxiolytic."
When asked (line 17) what "specific procedures" he had prescribed Ativan for, the Practitioner replied (page 289, lines 19-22) "It was really only in relation to that to the best of my recollection. Whenever I was going to attempt to do something definitive in the form of operculum removal, gingivectomy, periodontal, subgingival scaling, he required a pre anxiolytic to even get close to doing definitive treatment". With respect to the prescription of Ativan on 20 November 2014 it was suggested to the Practitioner that Patient A "didn't return then until February (2015)" (line 32) to which the Practitioner replied (line 33) "Correct". The following exchange ensued (lines 35-40??): "Q So, he didn't return (for) a subsequent dental procedure or a dental intervention? A No. He - he - he came in, saying that he was ready to go ahead with the procedure - how do I say this? Ativan is not something that I prescribe on the day of the procedure. It's prescribed to a patient with the view to have them come back with a responsible adult, so that I can do the procedure on a subsequent date. It's not on the date."
The Practitioner confirmed that the prescription had been given "in advance" and on the "anticipation that the patient would return and would be medicated thereby enabling the treatment to be undertaken. The Practitioner confirmed (page 290, lines 1-2) that Patient A "didn't return" after he was prescribed Ativan on 20 November 2014. The Practitioner was asked whether he asked Patient A whether he still had the original prescription available. The Practitioner replied (lines 11-14) "So, I don't know - that's right. So, I don't know what happened with the script. Either it was lost or - or he - he never filled it. But the fact is I gave him another script at that time" (4 February 2015). The Practitioner was unable to "remember if I asked him if he had the tablets available" (line 35), but thought that he "would have asked Patient A whether he had taken the Ativan or not". When asked whether he could remember how Patient A replied the Practitioner was unable stating that it was "8 years ago". The Practitioner suggested (page 291, lines 1-3) that to the best of his recollection he would have established whether the patient had any of the initial prescription left over when he saw him on 4 February 2015. The Practitioner agreed that there were three occasions when he prescribed Ativan for Patient A "and then he never turns up".
The Practitioner said that he considered other methods of managing Patient A's dental anxiety and when asked to outline what they were said (page 291, lines 18-29): "Yes. I have a gift. And that is that when a patient comes to my practice the minimum standard is a painless injection. However, when they see me, the standard is they don't know they've been given the injection, which may sound, you know, hard to believe, but that's the way it is. So, I've learnt how to do that. And in most - not one hundred per cent, I can give multiple injections without anybody even knowing that it's done. And verbal anaesthesia, combined with that technique, is my primary form of managing an anxious patient before I even consider anxiolysis. But if somebody is a gagger, has a low attention span, is fidgety, shakes, sweats, before they even sit in the chair then we have to go to the next level … and that decision isn't taken lightly. However, I've been doing that since 1991 on a recommendation of a periodontal specialist, Dr Del Pra, and it's been very successful in my hands."
The Practitioner was asked (page 291, line 47) whether Patient A had "failed to take" the Ativan he prescribed to which the Practitioner said "Yes". The Practitioner suggested that "happened on two occasions" (page 292, line 1). The following exchange ensued: "Q - do you continue to do that indefinitely? Or - A Well, I haven't seen him since 15 November 2015 for any definitive treatment. So, it was just that, at what point would I - I don't abandon a patient if that's what you may have said. Q Not abandon. I think, manage him appropriately. So, I think, recognising that he wasn't responding to the Ativan. That wasn't appropriate management of his dental anxiety. A Well, the next level would have been eight eight years ago. Well, obviously, I would have been able to do intravenous sedation. So, we would have gone - that would have been the next level. I've got no reason to believe why that wouldn't have been successful. But failing that, I would have gone straight to GA. I've been doing that since 1991. So, in that order. So, I'd be doing local anaesthesia with verbal anaesthesia first. And that wasn't quite enough with (Patient A). So, then, we went to anxiolysis. And I was never able to do definitive treatment. But in answer to your question, had that not worked, I would have gone to intravenous sedation. And if for some - if - I'm - I'm not quite sure why it wouldn't have worked in his case because he had a clear medical history. But the, I would have gone to general anaesthesia which is - one can't go further than that."
The Practitioner confirmed that he "hadn't done that" or "anything for eight years" (page 292, line 27).
When asked to explain (Transcript 9 March 2023, page 294, lines 41-42) why Lorazepam or Ativan was prescribed on 7 November 2015 the Practitioner replied (lines 43-46): "A Lorazepam or Ativan is the only legally approved or TGA certified benzodiazepine for pre-surgical anxiolysis. He was prescribed Ativan - whatever it is, One to two milligrams sixty to ninety minutes before the procedure for operative work to be done at a future appointment."
When asked (line 48) "Why did the patient seek treatment that day?" the Practitioner replied "Pain", a response which he immediately reiterated. When asked to "expand on that answer, pain related to what?" (page 295, line 4) the Practitioner replied (lines 5-23): "A Asked if I could look at the 47 operculum, so the 47 is a dental notation for the lower right or mandibular tooth and associated that with area was an operculum with is a swelling of - of gum that can occur or did occur with (Patient A) on an irregular, but reasonably frequent basis. He came in with that pain, but I couldn't get a look at it, he's a very anxious sort of patient. I think I've got notes here that he - when I tried to even get a look at it, he pushed my hand away. I've advised him that nature would catch up with him if we can't get in there and actually do something definitive and the only - I felt that the only way to have him come back and do any sort of definitive treatment was to put him on an anxiolytic agent to calm him down so that I could do that at - at a subsequent visit. Q So, the definitive treatment - what - well - so what was the condition that you were hoping to treat with the definitive treatment? A Sure. So, the definitive treatment is usually associated - there - there may have been the possible need for gingivectomy at - at a future date, but certainly starting with the most conservative and basic treatment I would have been subgingival critical scaling in that area. I would have been inspecting the 47 subgingival cavity as well and the debridement in that area."
The Practitioner confirmed that the condition he was treating was "inflammation overall, but periodontal disease as a general term" (page 295, lines 27-28).
In response to questions from the Tribunal (Transcript 9 March 2023, page 309) the Practitioner confirmed that he was familiar with the "risks and precautions" associated with the use of Ativan/Lorazepam "for the purposes of pre-medication". The following exchange ensured (page 310, lines 4-19): "Q Are you aware that - that it is common practice to supervise the administration of these oral medications? A I - I am aware of that, but to what time period were you referring? Q Well, when the patient takes it and makes his way to the surgery - A No. Q Immediately after the procedure. A Yeah sorry no I mean 2023 2010 or 2015. Q Well, at the time you were prescribing these drugs in 2013 14 15. A I - I - yes, I was aware that some people would have in - in house prescribing and I was aware that some people would rely on the script and specific instructions to be accompanied to and from the surgery by a responsible adult."
The Practitioner stated (lines 33-42): "Dr Selby, in every single anxiolytic case, every case, my patient is given a typed handout that I have personally done, ADA handout and they are given specific instructions to be - to be escorted to and from the surgery by a responsible adult. And the name of that person is made known to my receptionist so we can check on them and preferably they be looked after that evening as well. It was not mandatory - was not mandatory to have in house delivery or prescription of the patient. There is another set of risks that are involved, a completely new set of risks by having drugs on - and I don't have any drugs on my premises. The drugs for anxiolysis were prescribed, written prescription, all of them."
The Practitioner was then asked about "risks associated with oral sedatives". The Practitioner said with respect to associated risks (page 311, lines 5-21): "Q Did you know which other medications (Patient A) was taking? A Yes. Q Where is that recorded? A No, he was not on any - any other medications. Q In the older population, there is an increased risk of oversedation. A That is correct and - and - a which can be titrated by dosage. Q --- and this drug Lorazepam, is a somewhat longer acting benzodiazepine. A That - that depends on a number of factors yeah. It - it can be, but nevertheless, whatever the half life is, and it can vary on an - on an individual body weight, diet, exercise, the whole thing. It is still the only - the only legally approved TGA certified benzodiazepine for pre-surgery anxiolysis in New South Wales."
In further cross-examination of the Practitioner (Transcript 9 March 2023, page 345, lines 25-46) the following exchange occurred: "Q Dr Selby raised questions about any enquiries made or knowledge of (Patient A's) other medication you accept that? A He - I think he did. Q You said that you knew that he (Patient A) was not on anything else or taking any other medication. A (Patient A) had not reported being on any other medication. Correct. Q Isn't it the case, though, that throughout this period of time, he was taking codeine? A He was certainly taking codeine for a certain amount of time. I don't - I can't recall the exact dates that he was taking codeine. Q Did you consider his consumption of codeine when you prescribed the Ativan? A Yes. Q How did you do that? A I would have asked him, what was his consumption of codeine. Q Is that an independent recollection? A I don't recall a specific conversation with him about it."
For the reasons which he set out in his report at 142-146, Dr Rourke was unable to identify that any prescription of Ativan (Lorazepam) was inappropriate given the Practitioner's account of the purpose and use of the medication. With respect to obtaining informed consent, Dr Rourke said, (paragraph 148): "In dentistry valid consent to treatment may be implied by sitting in the dental chair and opening your mouth. There should always be some sort of written record that indicates an appropriate level of consent. The record may merely state that there was a discussion with the patient about the symptoms and diagnosis and/or treatment. The dental record may give brief details of the consent discussion or there may be a detailed records of more lengthy discussions on a point-by-point basis and finally for procedures with a high risk and/or high cost there should be a detailed and signed consent form."
For the reasons which he advanced (149) Dr Rourke was of the opinion that a patient indicated "implied consent in accepting a written prescription, taking it to the pharmacy, waiting for the script to be filled, paying for the script, following the instructions and consuming or apply the medication as directed. As such patient consent does not need to be recorded".
Largely in reliance upon the passages of the transcript which we have earlier recorded, the Practitioner submitted that the Tribunal would not be comfortably satisfied that the Practitioner had prescribed Ativan for Patient A without performing an appropriate assessment prior to issuing the prescription.
With respect to the issue of consent, the Practitioner relied upon Dr Mansour's concession that, based on the clinical records he had seen, Dr Mansour could not conclude whether or not Patient A provided informed consent to the prescription. It was submitted that there was no absence of evidence of failure to obtain informed consent but, if there was, that the Tribunal should accept the evidence of Dr Rourke with respect to implied consent, to which we have earlier referred, particularly as that evidence was not seriously challenged.
The Practitioner denied having ever prescribed 50 Ativan tablets for Patient A (Transcript 8 March 2023, page 260, lines 9-11; 263, lines 24-26). The Practitioner relied upon the evidence of Mr Gavrilovic (Transcript 7 March 2023, page 131, lines 106) that, at his interview with him, the Practitioner denied issuing prescriptions for 50 Ativan tablets, and said that he had prescribed the drug with directions to take 2 tablets 90 minutes in advance of a dental procedure (Transcript 7 March 2023, page 140, lines 24-26). That was submitted to be consistent with the contemporaneous clinical notes (HCCC1 Tab 8) and to be consistent with the purpose specified in the clinical notes.
The Practitioner relied upon evidence given by Mr Gavrilovic in which the following exchange occurred (Transcript 7 March 2023, page 125, lines 12-29): "A Generally, it's (Ativan) available in packs of 50 and generally when prescribed by medical practitioners, packs of 50 is what I've normally seen. I can't say that I've ever seen a dentist prescribe Ativan but in prescribing other benzodiazepines, it's usually in a much smaller amount, 2 to 4 tablets. Q Is it correct that as at February 2016, that a packet of Ativan, leaving aside whether it's prescribed or not, would be a minimum of 50 tablets? A So, there's no onus on a medical or other practitioner to prescribe the quantity that's in the box. Q I'm just asking you though about the box at the moment. A That's the only pack size that I'm aware of for Ativan. Q Has that changed … can you get smaller. A I haven't looked. I don't know."
Mr Gavrilovic confirmed (page 126, lines 1-2) that in 2016 pharmacists were permitted to "break up packets of drugs" and that pharmacists "should only dispense what's been prescribed" (line 5). Mr Gavrilovic was asked (lines 9-10): "Q Dr Kirby contends in his evidence that he was aware that pharmacists were reluctant to break up packets of medication. A He's right. They don't like it."
Mr Gavrilovic was further asked (lines 24-26) "Were there instances where pharmacists would not only refuse to break up packets, they will then proceed to sell the whole of the packet notwithstanding what the prescription might say?" Mr Gavrilovic replied (line 27) "I have seen that as well". The following exchange ensured (page 127, lines 25-36: "Q Is a prescription for two tablets of Ativan or whatever other medication to be taken on one occasion in a specific circumstance which also specifies the particular packet which has a larger number of tablets, problematic? A Well, it can't be both. You have to be specific that you've asked for the dispensing of fifty tablets or two tablets, that's the first thing. And, if I've understood your question correctly, it's not unusual for a pharmacist to label that product with whatever instruction the doctor has given. And, certainly with dental scripts, in my own practice as a pharmacist, I can recall many instances where I've dispensed small amounts of a benzodiazepine for exactly that purpose, prior to dental treatment."
Mr Gavrilovic confirmed that "part of the role of the pharmacist, where ambiguity arises," was to resolve the ambiguity "typically, by calling the doctor and saying, "What do you mean?"" (page 127, lines 42-44). Mr Gavrilovic was asked about the prescriptions for Ativan which the Practitioner wrote on the dates referred to in this particular. He was asked (page 135, line 1) whether he actually had the scripts supplied to him, to which Mr Gavrilovic replied "No". In those circumstances Mr Gavrilovic was unable to comment on whether there was ambiguity in the Practitioner's Ativan prescriptions (Transcript 7 March 2023, page 135, lines 12-21). Mr Gavrilovic was asked (Transcript 7 March 2023, page 140, lines 28-32): "Q Seeing that on a packet would be - or seeing that actually on the packet or seeing that in the script - A Well, it would confirm - it would confirm his statement, but it doesn't - it doesn't impact on what I was trying to ascertain, which is was it being prescribed in larger amounts, or - or smaller amounts".
The Practitioner relied upon his own evidence, and particularly his responses to questions from the Tribunal with respect to his monitoring of Patient A's use of the Ativan prescriptions. The Practitioner relied upon the evidence of Dr Mansour (Transcript 7 March 2023, page 179, lines 1-37) to which we have earlier referred, that it was acceptable for a patient to take Ativan at a location other than the Practitioner's surgery.
The Practitioner submitted that he had not been "seriously challenged" with respect to his rejection of the allegation that he prescribed Ativan for a purpose other than for dental treatment. We are unable to accept that contention, for the reasons we have earlier recorded.

Consideration

During the hearing, the Practitioner was closely questioned in relation to whether he had made an assessment prior to prescribing Ativan for Patient A. Save with respect to the prescribing on 4 February 2015, and not without reservations in view of Patient A's 2016 statement, we are unable to reject the Practitioner's account of what he did prior to the prescribing, irrespective of whether he made appropriate proximate entries in the existing and missing clinical records. It is not insignificant in this regard that, as the expert evidence to which we have referred confirms, albeit perhaps less in the practice of dentistry than in the practice of medicine, pre-procedure medication such as Ativan/Lofenoxal was both permissible and not uncommon. The Practitioner's evidence with respect to his alleged consideration of other medications for the anxiolytic purpose he prescribed Ativan cannot rationally be rejected, or afforded only token or little weight. The evidence tends to show that the Practitioner did what particular 8(b) alleged that he failed to do.
The Practitioner was, appropriately, candid about his lack of specific recollections of a number of matters with respect to this particular, noting that it was "8 years ago". It was not suggested that the Practitioner's evidence with respect to what he considered included irrelevant matters, or the failure to consider relevant matters, or was irrational or inherently improbable or implausible.
The Practitioner's evidence with respect to the prescribing of Ativan for patient A on 4 February 2015 is concerning. As the Practitioner admitted, he prescribed Ativan on that occasion, despite Patient A's failure to attend his surgery for the treatment which he considered justified prescribing Ativan for Patient A on 20 November 2014, and the absence of any knowledge of, or inquiry about the fate of the drug which he had prescribed. It is to be remembered that Ativan is a Schedule 4D drug of dependence. We have earlier referred to the regulatory provisions governing its prescribing. They impose an obligation on health practitioners to take special care in initially prescribing and then monitoring the patient. The Practitioner failed to monitor the patient after the November 2014 prescribing. On his own evidence, the Practitioner's prescribing on 4 February 2015 was not done with appropriate care, and was contrary to the regulatory requirements.
The Practitioner's conduct constituted a significant departure from acceptable and responsible prescribing of the drug. We are also mindful that the Practitioner admitted having prescribed the drug over the telephone. Doing so was entirely inappropriate. We are comfortably satisfied that Particular 8(b) has been established.
We are not comfortably satisfied that Particular 8(c) is made out. The evidence tends to show that the Practitioner did what the Particular alleged that he had failed to do. As the evidence of Dr Rourke makes clear, the extent to which informed consent should be obtained and recorded varies depending upon the context in which the need for it arises. There is logical force in Dr Rourke's evidence with respect to "implied consent".
The evidence before the Tribunal suggests that Patient A, who was a practising solicitor of mature age, was very much "his own man", and was unlikely to have allowed the Practitioner to prescribe anything for him without his informed consent. The Practitioner had been Patient A's dentist for more than a decade at the time of the prescribing. Whether Patient A filled some or all of the prescriptions is not clear, and, if he did, whether Patient A took the medication is also unclear. The Practitioner's own evidence with respect to this issue was candid, and contained appropriate concessions with respect to specific absences of recollection. Given the time when these complaints first arose, it would have been concerning, given the contents of the existing clinical records, and fact that the missing records have been missing for almost a decade, or perhaps longer, if the Practitioner had professed better or more detailed recollections of these events.
We are not comfortably satisfied that Particular 8(d) is made out. The evidence tends to show that the Practitioner did not do what the particular alleged that he had done. The evidence does not establish to the Tribunal's comfortable satisfaction that the prescribing was for inappropriate quantities of the drug. This Particular appears dependent upon accepting and adopting a malign interpretation of prescriptions which may have been somewhat ambiguous. There is no evidence that inappropriate quantities were prescribed. Mr Gavrilovic's evidence to which we have referred provides further support for our inability to find this Particular proved.
We are not persuaded that Particular 8(e) has been made out. The evidence tends to show that the Practitioner did not fail to do what the Particular alleged that he had failed to do. Other than the expression "appropriate monitoring", nothing to which the Tribunal has been referred establishes with any precision just what the Practitioner should have done by way of monitoring the prescription of Ativan, and Patient A's utilisation of it, if he did. The Practitioner gave evidence with respect to the monitoring. We are not persuaded that his evidence should be rejected.
Particular 8(f) is less readily determined. We have earlier referred to Patient A's 11 February 2016 Affidavit. Patient A said that the Ativan was prescribed for him by the Practitioner "to not only help me sleep but to try to reduce my stress levels". Patient A made no mention of any symptoms, conditions or other matters relating to his dental health at the time. On the other hand, his statement that his stress levels had been "high over a long period of time" is not inconsistent with the Practitioner's evidence that Patient A was an "anxious" patient. Moreover, as submitted on behalf of the Practitioner, and unlike what Patient A said with respect to the prescription of Valtrex, Patient A's statements about his symptoms were not inconsistent with the Practitioner's reasons for prescribing Ativan for him. Patient A could not give expert opinion evidence about the reason for the prescribing in either instance. He could, and did with respect to Valtrex, give evidence of what his symptoms were, and, by his silence, what they were not. The statement with respect to the prescribing of Ativan, though not in an entirely different category, is sufficiently different to preclude being comfortably satisfied that this particular is proved.
The Practitioner's evidence with respect to Patient A's failure to attend for any kind of treatment for which he said he had prescribed Ativan for an anxiolytic purpose raises doubts about the prescribing having been in the course of dental treatment. The Tribunal accepts that, at least with respect to the prescription on 20 November 2014, the Commission has not established that the prescribing was for a purpose otherwise than for dental treatment. The failure of Patient A to turn up on two admitted subsequent occasions is, without more questioning, exploration and knowledge than the Practitioner's evidence suggested that he gained with respect to those non-attendances, suggestive of the prescribing being for a purpose other than for dental treatment, and potentially to assist Patient A to sleep and try to reduce his stress levels, which the evidence suggests is one of the purposes for prescribing Ativan, and possibly the main purpose. The expert evidence before the Tribunal does not comfortably establish that prescribing Ativan to help Patient A with sleep was the sole or dominant reason for the prescribing.
The Tribunal is comfortably satisfied that the prescribing of Ativan on 4 February 2015 and 7 November 2015 was, in the circumstances revealed by the Practitioner's own evidence, below the standard reasonably required of him. The Tribunal accepts that Patient A was an anxious and not an easy patient, particularly in terms of his willingness to undergo treatment which the Tribunal accepts having regard to the evidence of the Practitioner was in his interests. The Tribunal accepts that the Practitioner made sustained but, it seems, largely unsuccessful attempts to persuade Patient A to submit to treatment which he believed was in the best interests of his health. The evidence does not establish that such beliefs and advice were unfounded.
Not without misgivings, the Tribunal is not comfortably satisfied however that the Particular has been proved to the Tribunal's comfortable satisfaction. Albeit less convincingly than with earlier particulars which we have not found proved, the evidence tends to show that the Practitioner did not do the things which Particular 8(f) alleged that he had done. The evidence raises suspicion about the Practitioner's prescribing of Ativan, but, other than by elevating suspicion to the status of proof, we are unable to find this complaint made out.

Whether the Practitioner is guilty of unsatisfactory professional conduct

For the reasons we have recorded, albeit serious findings, the only particulars which the Commission has made out are Particulars 1(a), 2(a), 3(a), 5(a), 6(a), 6(b), 6(c), 8(a) and 8(b) of Complaint 1. That conduct fell significantly below the standard reasonably required of the Practitioner and, as such, constituted unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law.
The Tribunal is unable to accept the Practitioner's contention that the Commission has failed to identify "any relevant standard by which the Tribunal could determine whether Dr Kirby's conduct fell below or significantly below it. The relevant standard has not been the subject of any evidence at all which is fundamental in a case based on a statutory provision such as s 139B(1)(a) of the National Law". A similar submission was made with respect to the Complaint pursuant to s 139B(1)(l) of the National Law.
The Practitioner referred the Tribunal to the decision in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [25] in which it was relevantly said with respect to s 139B(1)(a) of the National Law that: "… A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. …"
The Practitioner submitted that the Commission had failed to establish the "benchmark standard" which was expected of him. Section 139B(1)(a) of the National Law articulates the "benchmark standard". The Commission's submissions of 28 July 2023 (14) cogently refuted the Practitioner's contentions. The evidence of Dr Mansour and Dr Rourke was directed to whether the Practitioner's alleged conduct fell significantly below the requisite standard. Although they disagreed as to whether the Practitioner's prescribing of Valtrex for Patient A fell below that standard, neither expert disputed that the Practitioner could only permissibly prescribe Valtrex if, having performed an appropriate assessment, doing so was in the course of the practice of dentistry. The "benchmark standard" has not been in doubt, either in the context of the expert evidence relied upon by the parties, or the Tribunal's evaluative determination of whether the Practitioner's proven conduct fell significantly below that standard. The Tribunal is comfortably satisfied that the proven conduct of the Practitioner fell below the requisite standard.
The Commission relied on the same evidence with respect to the Complaint pursuant to s 139B(1)(a) and 139B(1)(l) of the National Law. To also find the Practitioner guilty pursuant to s 139B(1)(l) would, in the circumstances of this case, be tantamount to convicting him twice for substantially the same offence. So doing would have no impact on the determination of appropriate protective orders at the Stage 2 hearing.
The decision of the Tribunal in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 upon which the Practitioner relied supports the Practitioner's submission that s 139B(1)(l) "predominantly appears concerned with the moral or ethical quality of a practitioner's conduct, whereas s 139B(1)(a) is concerned with the skill level of the practitioner".
Although the Tribunal has found the Practitioner guilty of unsatisfactory professional conduct, we are not comfortably satisfied that his offending conduct is properly classified as unethical or improper having regard to the definitions of such conduct which we have earlier recorded. The Tribunal inclines to the view that, at least to some extent, the Practitioner naively allowed himself to be used by Patient A to prescribe Valtrex for him for his shingles, rather than attend upon a medical practitioner. Why that was so is unknown to the Tribunal and does not need to be known. Although no defence, the Practitioner's evidence with respect to Patient A's reluctance to consult medical practitioners cannot be rejected in the context of an evaluation of the impropriety of his proven conduct.
If the Practitioner could properly be found guilty of unethical or improper conduct, doing so would, in the present circumstances, essentially find him guilty twice on the same evidence. So doing could not properly, in the circumstances of this case, result in the making of more onerous protective orders than the Tribunal permissibly could if the Practitioner is found guilty of unsatisfactory professional conduct.
In view of the Tribunal's finding that the Practitioner is guilty of unsatisfactory professional conduct, the Tribunal's powers pursuant to s 149A and 149B of the National Law are enlivened. It remains however to consider whether, as the Commission contends, the conduct of the Practitioner is sufficiently serious to constitute professional misconduct, thereby enlivening the power to suspend or cancel the Practitioner's registration pursuant to s 149C(1)(b) of the National Law.

Whether the Practitioner is guilty of professional misconduct

Albeit it predicated on it having successfully prosecuted all, or most of the particulars of Complaint 1, the Commission submitted that the Practitioner was guilty of professional misconduct pursuant to s 139E of the National Law which provides that professional misconduct means: 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."
The Commission has succeeded with its prosecution of Particulars 1(a), 2(a), 3(a), 5(a), 5(c), 6(a), 6(b), 6(c), 8(a) and 8(b) of its Complaint. It is not in doubt that determining whether unsatisfactory professional conduct amounts to professional misconduct is an evaluative process, not involving the exercise of discretion (Hampshire v Health Care Complaints Commission [2021] NSWCA 283).
Cumulatively, the Tribunal's findings of guilt with respect to the Practitioner's failures to make appropriate proximate entries in his clinical records on 17 occasions over a period of more than 5 years provide cogent support for finding professional misconduct. As is not in doubt, and the Code and the Guidelines confirm, the health and safety of patients depends on health practitioners making such entries, and having their records of them available for their own effective and appropriate management of patients' treatment, and, potentially vitally importantly, for practitioners assuming the care of a patient for any reason having an appropriately detailed clinical record for the patient in order to be able to care for and treat the patient safely and in a timely way.
The Practitioner treated a patient believing he was suffering from shingles. He should not have done so in the circumstances revealed by the evidence, including the Practitioner's own evidence. The patient was led to believe his condition had been accurately diagnosed, and was being appropriately managed. If the patient was suffering from another disease which might have been mistaken for shingles, which had serious consequences such a misdiagnosis by a non-medical practitioner, there could have been very serious consequences.
There is a more fundamental seriousness about the Practitioner's prescribing of Valtrex in the circumstances revealed by the evidence. Dental practitioners should practise dentistry, and not purport to practise medicine, no matter how confident they are, or are entitled to be about their ability to make a medical diagnosis. If dental practitioners could prescribe Valtrex in the circumstances in which the Practitioner has been proved to have, the objective and guiding principle of the National Law, and the statutory scheme it articulates for the accreditation, registration and regulation of health practitioners would be potentially rendered inutile.
In Chen v Health Care Complaints Commission [2017] 95 NSWLR 334 Basten JA at [19]-[20] said: "19 …The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify a suspension or cancellation... 20 There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal…"
The Commission referred to the decision of the Court of Appeal in Health Care Complaints Commission v Robinson [2022] NSWCA 164 in which Leeming JA said: "33 In summary, if a "stage 1" hearing is conducted on the basis that it is to determine what conduct occurred and whether or not any such conduct falls into the more serious category of professional misconduct, then such a hearing necessarily involves some consideration of a potential remedy, even though the outcome of that hearing will not be a decision on the actual order to be imposed. This is a similar type of paradox to the one this court identified in EFA at 169 in the context of the LPUL. 34 That necessity to look ahead to potentially appropriate orders raises the question of what factors are relevant to the characterisation exercise. It would be odd if all matters relevant to deciding whether to impose an order were relevant, for that would require that issue to be considered in full twice. The statutory text refers to "conduct of a sufficiently serious nature" to justify one of the two types of order. The word "conduct" is defined in s 138(1) to mean "any act or omission". The focus is on the character of what occurred which is the subject of complaint. The characterisation exercise involves "an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct": Chen v Health Care Complaints Commission (2017) 95 NSWLR 334 [2017] NSWCA 186 at 20. 35 The seriousness of the conduct may take colour not only from the acts or omissions in questions but also from the circumstances in which they occurred: Note, analogously, EFA at [169]-[172]. For example, that conduct was undertaken for an improper purpose may be a very significant factor in determining whether the suspension or cancellation is justified. Thus, look to the facts of this case, inappropriately touching a patient is likely to be more serious if it was done for sexual gratification rather than because of a misguided understanding of clinical justification. 36 The Appellant gave other examples of other sorts of issues that it said might arise in characterising the nature of the conduct: (1) the practitioner's state of mind at the time of the impugned conduct (e.g. whether the conduct was deliberate or inadvertent); (2) any knowledge the practitioner had of particular vulnerabilities in a patient; (3) the risks of harm that the conduct was apt to create; (4) the practitioner's knowledge, skill and training; (5) the disciplinary history of the practitioner, as repeated inappropriate conduct may be treated as being of a more serious nature than isolated inappropriate conduct (see, analogously, EFA at 172). 37 There is force in these submissions the Respondent did not take issue with them."
The Tribunal is not comfortably satisfied that the Practitioner's impugned conduct was deliberate. Irrespective of whether the offending conduct arose from a misguided sense of loyalty to Patient A, or unjustified confidence in his own skill and ability, the Tribunal is not comfortably satisfied that the Practitioner consciously or intentionally failed to exercise the level of professional skill and care which he should have. Having regard to the objective and guiding principle of the National Law as it is expressed in s 3A, which is the health and safety of the public, and the fact that determining whether offending conduct is sufficiently serious to constitute professional misconduct requires an objective evaluation, with no involvement of discretion, that does not assist the Practitioner. Put bluntly, a well-meaning practitioner may constitute as much, or more of a risk to public health and safety as one whose intentions are malign.
The evidence does not establish that the Practitioner had knowledge of any "particular vulnerabilities" in Patient A. On the other hand, as the Practitioner repeatedly stated, which does not seem to be seriously in contest, Patient A was an anxious and difficult patient. The Practitioner did not take advantage of Patient A. If anything, although the Practitioner did not suggest it, the evidence implies that Patient A may have taken advantage of the Practitioner. This is not a case in which the Practitioner's offending conduct involved taking advantage of vulnerability of a patient. Conversely, the seriousness of the Practitioner's conduct is not ameliorated by any aspect of Patient A's personality. The Practitioner should not have prescribed Valtrex for him in the circumstances in which he did.
Having regard to the unchallenged evidence of both experts, and the Practitioner himself, the Practitioner's offending conduct entailed risks of harm to Patient A's health. There is no evidence that the risks materialised, or even that Patient A had the prescriptions for Valtrex issued by the Practitioner filled, or that, if he did, Patient A took the medication. Having regard to the manner in which the Practitioner engaged with questions from specialist Members of the Tribunal, and in the absence of any suggestion to the contrary, the Practitioner's knowledge, skill and training, as it emerged in evidence in 2023, suggests that his offending conduct was out of character with the manner in which the Practitioner undertakes the practise of his profession.
Eight years after the last incident which gave rise to these proceedings, it is improbable that, if the Practitioner had, in the intervening period, failed to properly discharge his professional duties, the Tribunal would not have heard about that. There is no suggestion that the Practitioner has breached any conditions imposed upon him by the Dental Council over that period. There is no evidence of "repeated inappropriate conduct" on the part of the Practitioner. His offending conduct is appropriately categorised as "isolated inappropriate conduct".
Although perhaps more relevant at Stage 2, there is no suggestion that the Practitioner has engaged in inappropriate prescribing with respect to other patients. Having regard to the time over which Patient A has been a patient of the Practitioner, the volume of impugned prescribing which has been proven is "fairly limited" and confined to Schedule 4 and 4D drugs. The evidence does not establish that the Practitioner was other than well intentioned, if somewhat naïve, and mistakenly believing in his own competence in prescribing Valtrex in the circumstances in which we have found that he did. There is no evidence suggesting that the prescribing was predatory and/or that the Practitioner stood to benefit from prescribing Valtrex for Patient A, or that the Practitioner received or was likely to receive a financial benefit from the prescribing.
The Tribunal infers that, albeit not necessarily entirely appropriately, the Practitioner was genuinely attempting to respond to Patient A's various health needs. The Practitioner has been registered as a dentist for more than three decades. There is no suggestion that he lacks competence. Although ultimately not a reason to decline to find unsatisfactory professional conduct, the evidence does suggest that Patient A was a "challenging patient".
As with most evaluative determinations, minds can reasonably differ with respect to the assessment of the seriousness of the Practitioner's proven unsatisfactory professional conduct. The offending conduct was undoubtedly serious. The Tribunal's findings with respect to the prescribing of Valtrex and Ativan are particularly concerning. As is not in doubt, the seriousness of offending conduct is measured by the extent to which it departs from proper standards, not by reference to the worst cases (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630) on the one hand, or the standard of perfection of the other.
In New South Wales Housing Corporation v Orr [2019] NSWCA 231, at [75] Bell JA (as Bell CJ then was) referred with approval to the statement by Basten JA in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, at [46] that "Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint". The obligation to which his Honour referred was the obligation to provide adequate reasons for the Tribunal's decision. That "constraint" applies to our determination of this issue.
But for the requirement that the Commission comfortably satisfy the Tribunal that the Practitioner's offending conduct was sufficiently serious to warrant finding him guilty of professional misconduct, we may have reached a different decision, but, having weighed in the balance the factors for and against so finding, not without reservations, the Tribunal is unable to be comfortably satisfied that the Practitioner's conduct was sufficiently serious to constitute professional misconduct.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct. 2. Direct that the matter be listed for directions for hearing with respect to the determination of appropriate protective orders. 3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Patient A listed in the Schedule to the Complaint annexed to the Application for disciplinary findings and orders in this matter is prohibited.

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 June 2024

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