Health Care Complaints Commission v Lam

Complaint 1 - Criminal Convictions

1. Section 144(a) of the National Law provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
2. In relation to the first conviction, an amended fact sheet in relation to that complaint is contained in the applicant's documents (exhibit 2, pg 85-89). The fact sheet notes that on 16 July 2019 a search warrant was granted in relation to Mr Lam's residence and the warrant was executed the next day. Devices were seized which revealed child abuse material. The material also contained multiple videos filmed within Mr Lam's bathroom. The videos appeared to be captured by cameras positioned in a way to avoid detection by other people within the bathroom. The videos captured by the camera in the bathroom area depicted various naked female adults using the toilet and showering. A copy of the Local Court Sentencing transcript dated 5 July 2021 (exhibit 3, p 11-12) is contained in the applicant's material. A certificate of conviction (Evidence Act 1995 (NSW), s 178), in relation to those offences has also been provided by the applicant (exhibit 2, p 204-205). The certificate discloses that Mr Lam was convicted and sentenced to the following: … a Community Correction Order for a period of 3 years to commence on 5 July 2021 and expiring on 4 July 2024. This Community Correction Order is subject to the following standard conditions: a) The offender is not to commit any offence while subject to this Community Correction Order b) The offender must appear before the Court if called upon to do so at any time during the term of the Community Correction Order. This Community Correction Order is subject to the following additional conditions: 1. The offender is subject to supervision by a Community Corrections Officer at Parramatta Community Corrections District Office for the period of the Community Correction Order. 2. The offender is to perform 250 hours Community Service Work. 3. Defendant to report Parramatta Community Corrections within 7 days. Rehabilitation/Treatment. Complete Sex Offenders Program. Psychological intervention for as long as deemed necessary.
3. In relation to the second conviction, a criminal history report (exhibit 2, page 141) reveals that on 3 November 2021 Mr Lam was convicted at the Local Court of New South Wales at Burwood of failing to comply with reporting obligations contrary to section 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). A certificate of conviction (exhibit 2, p 207-208) discloses that Mr Lam was convicted and sentenced under s 10A of the Crimes Act 1900 (NSW) with no penalty imposed.
4. In relation to the third conviction, a fact sheet (exhibit 2, p 134 -138) reveals that on 1 August 2022, Mr Lam failed to complete his annual reporting obligations for July 2022. A certificate of conviction (exhibit 2, p 209-210) discloses that on 8 August 2022, Mr Lam entered a guilty plea in relation to the offence of failing to comply with reporting obligation and ordered to pay a fine of $1000.00.
5. Having considered the evidence, we find that the practitioner has been convicted of criminal offences and the first complaint is proven.

Complaint 2 - unsatisfactory professional conduct

1. Section 144(b) of the National Law provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
2. Section 139B(1)(b) provides that contravention by a practitioner of a provision of the National Law amounts to unsatisfactory professional conduct.
3. Section 130(1) of the National Law requires that a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred, give the National Board established for the practitioner's profession, written notice of the event. Section 130(3)(a)(ii) includes, in the meaning of a relevant event, if a practitioner is charged with an offence punishable by 12 months imprisonment or more.
4. Mr Lam was charged with an offence punishable by more than 12 months imprisonment. Pursuant to s 91H(2) of the Crimes Act 1900 (NSW), a person charged with possessing child abuse material is liable to imprisonment for ten years. Pursuant to s 91P of the Crimes Act 1900 (NSW), a person who intentionally records an intimate image of another person is liable to imprisonment for three years. A Court Attendance Notice required Mr Lam to attend Court in relation to those offences on 17 May 2021 (exhibit 2, p 83 -84).
5. On 23 December 2020 Mr Lam's then solicitors set an email to the Australian Health Practitioner Regulation Agency (AHPRA) notifying them of Mr Lam's Local Court matter and attaching a copy of the bail conditions (Exhibit 2, p 11). An "Advice of Court Result" dated 15 December 2020 (Exhibit 2, p 13) confirms that Mr Lam was granted bail on conditions.
6. In a letter from Mr Lam to the Health Care Complaints Commission dated 15 February 2022 (exhibit 2, p 78 - 79), Mr Lam stated the following: I accept that I was required to notify AHPRA of the charges within seven days. When I was originally charged, I was remanded into police custody until 14 December 2020. I was in shock at the time and my primary concern was to be released on bail. My actions were focused first on getting bail and then considering the very serious criminal charges brought against me (which I recognise arose from my actions).
7. Having considered that evidence, we are satisfied that Mr Lam failed to notify AHPRA of the charges with seven days. In his letter to the HCCC, he concedes that failure. The complaint of unsatisfactory professional conduct is proven.

Complaint 3 - Not a suitable person to hold registration as a Dentist

1. Section 144(e) of the National Law provides that: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
2. Section 55(1)(b) gives some guidance to "unsuitability" under the National Law. It relevantly provides as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or …
3. We are satisfied, given the circumstances, that Mr Lam is not a suitable person to hold registration in the profession of dentistry.
4. The fact sheet in relation to the first offences (exhibit 2, pp 85-89) notes that on 28 December 2018 the Australian Federal Police received a referral from the National Centre for Missing and Exploited Children relating to child abuse material (also known as child exploitation material) that had been uploaded to the online application "Tumblr" by an individual using the username "dueerose". The account "dueerose" was linked to Mr Lam's e-mail address. As a result of the searches undertaken in response to the Tumblr uploads, the matter was referred to NSW Police and on 17 July 2019 a search warrant ("the search warrant") was executed at the practitioner's home address.
5. An Australian Federal Police report in relation to Mr Lam is contained in the evidence (exhibit 3, p 13- 76). that images related to Mr Lam's TUMBLR and Yahoo accounts were categorised using the Australian National Victim Image Library (ANVIL) schema as follows. Category 1 × 23 Category 2 x 1 Category 4 × 2 Category 7 x 1 Category 8/9 × 14
6. A "Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material" (exhibit 2, p 77 - 89) indicates that the scheme provides a categorisation of the broad description of activity depicted in child abuse material. The schema includes the following relevant categories which the applicant has helpfully summarised: 1. "Category 1" includes images of children which are likely to cause offence to a reasonable adult, but where there is no actual sexual activity taking place. There is no specific requirement for nudity or for a particular focus on or attention to the genitals: however the image must be sexually suggestive or sexual in nature. 2. "Category 2" includes sexual acts between children only with no part of the body being penetrated and the solo masturbation by a child. This includes a child penetrating themselves in the act of masturbation. 3. "Category 4" includes penetrative sexual activity between children only or adults and children. 4. "Category 7" includes images featuring children in non-illegal poses or scenarios. It also includes images which may be directly related to child exploitation material for example, images of offenders and crime scenes (not depicting victims.)
7. Category 8 are pornographic images featuring only adults and category 9 includes images that do not fall into any other category.
8. Further, Mr Lam breached the conditions relating to his conviction for the first conviction. The fact sheet in relation to the second conviction (exhibit 2, pp 31-33), reveals that on 10 August 2021 police attended Mr Lam's residence and found that he was in breach of the conditions imposed on him as a Registrable Person, because he had internet access on his phone. The fact sheet in relation to the third conviction (exhibit 2, p135 -137) reveals that Mr Lam failed to complete his annual reporting obligations for July 2022. Those breaches raise concerns as to Mr Lam's ability to comply with requirements.
9. Mr Lam has not appeared in these proceedings, and it is difficult to determine the level of insight he has into his actions.
10. In the letter from Mr Lam to the Health Care Complaints Commission dated 15 February 2022 (exhibit 2, p 78 - 79), Mr Lam states: I accept that I filmed women without their consent, for my sexual gratification. I have since the charges entered into a sex offender treatment program that is currently midway. The COVID pandemic has unfortunately slowed the progress of that program but i am deeply committed to it and its completion, and the following of any treatment or directions that arise from it. I have significantly greater insight into my offending behaviour, my mental health issues, and the factors that made me vulnerable to offending. I am truly committed to never re-offending and ensuring that I am not in a place in the future where I am at risk of offending, and for that reason will ensure that I address my mental health issues now and going into the future.
11. In a case note report for pre-sentence consultation dated 25 June 2021 (exhibit 2, p165) it notes in relation to an assessment of risk of reoffending: ASSESSMENT OF RISK Mr Lam's risk of sexual reoffending was assessed using the Static-99R, which is an actuarial risk assessment tool that focuses only on static factors. Mr Lam's Static-99R score was 1. This result was accounted for by his age being 52 years at the time he was released, having a conviction for non-contact sex offences and his victims being unrelated to him. Mr Lam's Static-99R result places him in the AVERAGE risk level of sexual reoffending relevant to other male sex offenders. In a routine sample of offenders with the same score, the 5-year sexual recidivism rate is estimated to be between 6.4% to 12.5%. However, the Static-99R does not provide prediction of risk of recidivism at the individual level and that dynamic factors were not considered. Based on file review only, it is suspected that potential dynamic risk factors that may be relevant to explore with Mr Lam include problems with general-self regulation, lack of capacity of relationship stability, using sex as coping and possible sexual interest related to children and voyeurism given the nature of his offending behaviour.
12. In a sentencing assessment report dated 2 July 2021 (exhibit 2, p 137 - 170) it was determined that Mr Lam had been assessed as a Tier 2 low risk of reoffending and recommended a supervision plan.
13. In a report from a forensic psychiatrist Dr Richard Furst (exhibit 2, p 193 - 197) addressed to Mr Lam's previous solicitors, Dr Furst makes the following recommendations: Mr Lam would benefit from the following treatment plan: 1. He be placed under the care of his GP with respect to proposed management under a mental health care plan. 2. He is referred to see a clinical psychologist at LSC Psychology, Sydney, or to an alternative psychologist with some experience in forensic psychology. 3. He attends sessions with a clinical psychologist to further explore his psychological deficits, relationship issues and any issues of relevance in relation to the current allegations against him. 4. Sessions should be at a frequency as directed, probably fortnightly in the first instance. 5. Mr Lam does not appear to require antidepressant medications at the current time. Should his symptoms of depression and/or anxiety increase in the future, such treatment may be warranted.
14. Having regard to Mr Lam's criminal history, we find that it is relevant to the practice of the profession of dentistry. Mr Lam's actions were not an impulsive act. Child abuse material was found on his phone, and he set up cameras to film women in his bathroom. That demonstrates a level of planning and premeditation and on his own admission the filming of the women was for his own sexual self-gratification. The very serious nature of Mr Lam's convictions, the harm caused to the community by having child abuse material on his phone, the filming of women without their consent, the breach of orders as a Registrable Person and the failure to disclose his charges to AHPRA demonstrate that Mr Lam's conduct is of the kind which could be found to render him unsuitable to practice in the profession of dentistry.

Appropriate Protective Orders

1. The HCCC notified Mr Lam by letter dated 1 December 2023 (exhibit 1, annexure D) that the HCCC would seek that the Tribunal make the following orders if the allegations in the amended complaint filed on 26 October 2023 were proven: 1. That Mr Lam's registration as a dentist be cancelled, pursuant to s 149C(1)(c) or (d) of the National Law. 2. That pursuant to s 149C(7) of the National Law, an application for review of the cancellation may not be made until after three years from the date of the orders. 3. That pursuant to s 149C(5) of the National Law, Mr Lam be prohibited from providing any health service, as defined under s 4 of the Health Care Complaints Act 1993, for three years from the date of the orders. 4. That Mr Lam pay the Commission's costs of the proceedings in the Tribunal, as agreed or assessed, under clause 13(1) of schedule 5D of the National Law.
2. The applicant referred to the decision of the Tribunal in Health Care Complaints Commission v Pilkington [2020] NSWCATOD 21. In that case a physiotherapist filmed a patient on his mobile phone under a curtain while she was in a state of undress during a clinical consultation. Child abuse material was also found on the physiotherapist's phone. At [114] of the reasons for the decision, the Tribunal stated: "Given the seriousness of the conduct, the range of personal, public and professional settings in which it occurred, and the practitioner's continued minimisation and lack of insight about the abusive nature of the conduct, we are concerned that he would pose a substantial risk to the public in almost any health service. In addition the continued gratuitous provision of physiotherapy services while suspended and the practitioner's wish to continue to provide physiotherapy and massage therapy services to friends and family while under a cancellation and prohibition order cause concern about his continued lack of boundaries and appropriate professional judgement."
3. We are mindful that each case should be decided on its own facts and of the dangers of comparisons - see Gayed v Walton [1997] NSWCA 121 at [25] - [35].
4. Sections 149A-149C of the National Law set out the orders that the Tribunal can make once it has been found that the complaint against the practitioner has been proved.
5. The power to make those orders is protective rather than punitive.
6. Section 3(2)(a) of the National Law provides that one of the objectives of the national registration scheme is: (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
7. In Lee v Health Care Complaints Commission [2012] NSWCA 80, the Court of Appeal held (at [20]-[21]): "20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
8. In Health Care Complaints Commission v Do [2014] NSWCA 307, the Court of Appeal said (at [35]): "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."

Cancellation of Registration and Disqualification Period

1. Relevantly, s 149C( 4) the National Law provide as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
2. The sentencing transcript (exhibit 3, p 3 - 12) in relation to the first conviction provides an insight into the seriousness of the offence. Her Honour relevantly stated: It is conceded by looking at the materials that the videos appear in a considerable amount of other material, and it is noted in the reports from Dr Furst and then the defendant's own letter to the Court that he has for a long period of time engaged in viewing pornography at considerable - on considerable regular occasions over a lengthy period of time. A number of factors are said to have contributed to this, in particular some social isolation which the defendant found himself in and both reports speak of the fact that given a difficult childhood his ability for socialisation was somewhat under developed, and I also note that he is somebody who has had three marriages which have all ended and he says much of that is to rest on his shoulders given his lack of ability to appropriately engage or develop those relationships. … In respect of this matter judging by the worst case scenario in that this charge would encompass this matter would have to be by limited number towards the lower end of the scale, and there is no suggestion that Mr Lam disseminated it to any other person. Having said that of course the Court of Criminal Appeal has been quite clear in terms of the general deterrence being the paramount issue when determining sentence with regard to ensuring that other persons identify that penalties for such charges are significant and severe and are to act as a general deterrent to the rest of the community who would go down - members of the community who would go down this path. This in respect of this particular charge it is certainly not a victimless crime. I accept that often people in Mr Lam's position do not necessarily know the children involved. But without people like Mr Lam being ready, willing and able to participate in this rather disgusting viewing of this sort of material then there of course would not be a market which would, and has over the years sprung up and flourished. It is reasonably concerning but I accept that people facing sentence become somewhat self-centred, they are not - very limited mention in the letter to the Court about the impact that his participation in this process has had. It is all about how his personal circumstances and how this has affected him and the charging process and his inability to work as a dentist, all of which in my view are entirely appropriate precautions taken for the protection of the rest of the community. … Turning to the second charge, there is obviously a breach of trust involved with regard to either inviting people into his home or even worse, suggesting that his house would be a sanctuary for individuals who are on short term accommodation, either leave or for other reasons require short term accommodation from his home - original home land. And he offers this property as some sort of you know ability for them to stay there whether charged or not, I don't know, but all with this background intention of filming people in their most private of circumstances, it just offends standards of common decency quite frankly, all for his own sexual gratification. I accept there may well have been people who consented to that and one would have thought he should be able to be satisfied with the people who he was approaching and consented to being filmed, but certainly the breach of trust in terms of having people in your own home and violating their privacy's to such an extent is quite obviously despicable. I accept that there has, and is before the Court evidence of rehabilitation in terms of Mr Lam identifying that his actions are inappropriate and that he is participating in a sexual offender's course. It is noted that the Department of Corrective Services has done an assessment with regard to Mr Lam in view of the sentencing assessment report that was ordered, and certainly identifies that he would be suitable to undertake such a program either in custody or in the community. I acknowledge the pleas of guilty that have been entered and accordingly a discount is awarded in respect of those, and it is also the case that I accept that he is a person of good character. Issues of good character of course in matters such as this have been commented on by the Court of Criminal Appeal on a number of occasions, but I do accept he comes before the Court with no prior criminal history.
3. Having considered the evidence, we find that for the protection of the public and the maintenance of proper professional standards Mr Lam's registration as a dentist should be cancelled. We are mindful of the harm caused to the children who are the victims of the child pornography and to the women who were filmed without their consent. The conduct occurred relevantly recently in 2018 and continued into 2019. Mr Lam was subsequently also convicted for breach of conditions as of July 2022.
4. Mr Lam does not meet the standards of ethical and professional conduct expected of a dentist. The circumstances of his offending render Mr Lam unfit in the public interest to practise dentistry. Mr Lam admitted the offences. He betrayed the trust of women that came into his home and viewed child sex abuse material. In our view, those circumstances sufficiently relate to the practice of dentistry, especially given that patients put trust in their dentists. As a dental practitioner, Mr Lam is in a position of trust and power in relation to patients, including patients who may be vulnerable. The community expects to be able to trust their dentist. Mr Lam has chosen not to engage in these proceedings. The fact that he has not engaged with these proceedings only gives us limited understanding of his remorse and insight.
5. Mr Lam's conduct adversely impacts on the profession of dentistry and is incompatible with the personal qualities essential for the practice of dentistry and brings the profession into disrepute.
6. We find that the public interest is best served by the cancellation of Mr Lam's registration as a dentist.

Period of Disqualification

1. The HCCC seeks an order under s149C(4)(b) of the National Law that the respondent is disqualified from being registered as a dentist for 3 years.
2. Mr Lam is 56 years old. In our view, a period of 3 years is an appropriate period for cancellation. Mr Lam should have known his conduct was wrong. There is limited evidence of Mr Lam's insight and rehabilitation progress.
3. A period of 3 years in which Mr Lam cannot reapply for registration will allow some time for Mr Lam to commence appropriate treatment, should he seek it.

Prohibited from providing any health service, for three years from the date of the orders.

1. Having determined to cancel the practitioner's registration, the Tribunal also has the power to make a prohibition order if we are satisfied that the practitioner poses a substantial risk to the health of members of the public.
2. Section 149C(5), of the National Law provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note - Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
3. Before considering whether to make a prohibition order, the Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
4. We consider that Mr Lam would pose a substantial risk to the health of members of the public. Mr Lam's conduct shows that he did not have concern for people's privacy and dignity and that the Tribunal is concerned about putting him in any position of power over patients or giving him access to patients' private and confidential information.
5. There is also a risk that the practitioner poses a risk in relation to children and vulnerable people. We find that the practitioner poses a substantial risk to the health of members of the public and it is appropriate to make the protective order disqualifying the practitioner from providing a health service for a period of 3 years.

Costs

1. The HCCC seeks an order that the practitioner pay the HCCC's costs as agreed or assessed.
2. The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D to the National Law. Generally, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. The HCCC proceeded with this referral in an appropriate way and there was no disentitling conduct in the way that the HCCC conducted the proceedings. On that basis, we make the order for costs.

Orders

1. The Tribunal makes the following orders. 1. Mr Lam's registration as a dentist is cancelled. 2. An application for review of the cancellation may not be made until after three years from the date of the orders. 3. Mr Lam is prohibited from providing any health service, as defined under s 4 of the Health Care Complaints Act 1993, for three years from the date of the orders. 4. Mr Lam is to pay the Health Care Complaints Commission's costs of the proceedings in the Tribunal, as agreed or assessed.

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: 18 September 2024