Health Care Complaints Commission v Smith

NCAT Occupational|2021-10-19

REASONS FOR DECISION

The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2021/113494 dated 23 April 2021 as amended at the Hearing and are set out below.

COMPLAINT The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Dental Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Late) HEREBY COMPLAINS THAT Dr. Robert Charles Smith ("the practitioner') of Dr Robert Smith [address], being a registered dental practitioner under the National Law, BACKGROUND TO ALL COMPLAINTS On 8 February 1982, the practitioner was registered as a dentist and subsequently practised in general dentistry. At all relevant times, the practitioner lived and worked at a practice that he owned at 156 Pendle Way, Pendle Hill NSW ("the practice"). Between 16 August 2018 and 21 February 2020, the practitioner ceased to have any professional indemnity insurance arrangements in place. Between 1 December 2019 and 30 November 2020, the practitioner was registered as non-practising. On 5 June 2020, two dental inspectors appointed by the Dental Council of NSW attended and conducted an infection control inspection of the practice. COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (b) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016. PARTICULARS OF COMPLAINT ONE 1. The practitioner failed to maintain adequate infection control standards in accordance with Schedule 3, ClPt 4, 5, 14 and 15 to the Health Practitioner Regulation (NSW) Regulation 2016 as particularised in the Infection Control Check-list attached and marked Schedule B. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (I) of the National Law in that the practitioner has: i. contravened section 129(1) of the National Law; and/or ii. engaged in other improper or unethical conduct related to the practice of dentistry. PARTICULARS OF COMPLAINT TWO 1 On 24 January 202, the practitioner, without professional indemnity insurance, provided dental services to Patient EM contrary to s129(1) of the Health Practitioner Regulation National Law (NSW). 2. On 16 April 2020, the practitioner, contrary to Level 3 restrictions provided for within the Australian Dental Association's Dental Services Restrictions in Covid-19, as updated to 25 March 2020, carried out denture repair work on Patient EM. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 75(1) of the National Law: PARTICULARS OF COMPLAINT THREE 1. On 24 January 2020, the practitioner, while holding non-practising registration, provided dental services to Patient EM. 2. Between about 16 February 2020 and 12 June 2020, the practitioner, while holding non-practising registration, provided dental services to up to six patients. COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(e) of the National Law in that the practitioner has contravened section 34A(4) of the Health Care Complaints Act 1993 (NSW). PARTICULARS OF COMPLAINT FOUR 1. On 27 July 2020, the Health Care Complaints Commission issued a notice pursuant to s34A of the Health Care Complaints Act 1993 to the practitioner requesting that the practitioner provide, among other things: a. names and dates of birth, as well as complete records, whether in written or electronic form, from 1 January 2017 to 27 July 2020, for six persons he admitted to attending upon in a practising capacity during the s150 proceedings on 12 June 2020; b. complete records, whether in written or electronic form, from 1 January 2017 to 27 July 2020, for Patients LH, TF and EM. 2. By response dated 11 August 2020, the practitioner refused, without reasonable excuse, to provide the records referred to above. COMPLAINT FIVE is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT 1. The practitioner failed to notify the National Board within 7 days, from 16 August 2018, that he ceased to have appropriate professional indemnity insurance arrangements in place in relation to the practitioner's practice of the profession. COMPLAINT SIX The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT SIX 1. Complaints One, Two, Three, Four and Five are repeated and relied upon individually and cumulatively.; 2. Complaints One, Two, Three, Four and Five are relied upon cumulatively.

NATURE OF THE JURISDICTION

The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of dentistry.
In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201 202, [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment" it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege."
Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". The interests of the public includes patients or potential patients of the Practitioner concerned.
As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved is said to be protective of the interests of the public at large but more particularly patients or potential patients of the Practitioner concerned. However, the public interests include indirectly the standing of the medical profession and the maintenance of public confidence in the high standards of Practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other Practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s3A of the National Law.

THE ISSUES

The issues in this matter arise out of the various complaints set out in the complaint document filed by the Applicant.
Initially, an inspection was carried out by the Dental Council which identified a number of failures. The first issue, therefore, is the allegation that the Respondent has breached regulations in infection control and which is the basis for Complaint One. The Respondent denies this and says that he has done everything required and is currently complying.
The second issue is the uncovering by the inspection of the fact that the Respondent treated patients some in contravention of COVID restrictions and while his status registered with AHPRA was non‑practising. In essence, the Respondent admits these treatments but seeks to explain the circumstances as entitling him to do so.
In the course of the investigation by the Applicant, the Applicant sought information which the Respondent refused to provide to the Applicant. The Respondent stated that he had valid reasons for refusing.
The fourth issue relates to the failure by the Respondent to have PII insurance when he performed service for Patient EM in January 2020, referred to in the Complaint and whether he performed dental treatment on the other patients referred to in the complaint while being non practicing.
The final issue is whether the conduct of the Respondent which is alleged to be unsatisfactory professional conduct also amounts to professional misconduct.

RESPONDENT'S REPLY TO THE COMPLAINT

The Respondent has not served a formal reply to the Complaint, however, he has relied on various correspondence addressed to the Health Care Complaints Commission in response.
While that response does not deal with the allegations contained in the Complaint in specific terms, the evidence before the Tribunal is reviewed later in these Reasons to reflect the approach the Tribunal should take in respect of protective orders once a decision has been made in respect of the guilt or otherwise of the Respondent on all the Complaints.

APPLICANT'S EVIDENCE

The Applicant has provided a large body of documents (Exhibit 1) some of which will be dealt with in these Reasons in order to determine the appropriate protective orders that should be made.

Section 150 Proceedings

The Tribunal was provided with a copy of the Reasons for Decision of the Dental Council of New South Wales ("Dental Council") following a s150 Hearing. The Dental Council provided reasons for its decision pursuant to which the delegates suspended the Respondent's registration on 12 June 2020 with effect from that date. The reasons for their decision are set out below.
The Tribunal also had available to it copies of the inspection reports conducted by the Dental Council which refer in detail to each alleged breach of the Respondent's obligations in respect of all elements of the Complaint against him. The individual items of breach do not warrant recording in this Decision save to say that each of the items recorded as breaches constitute significant issues of public safety. Of particular assistance to the Tribunal was a series of photographs demonstrating what the Tribunal found on its inspection in relation to the storage, dealing with handling of instruments and areas requiring hygienic treatment. The report which is set out below also deals with the failure to have a working autoclave in the practice at periods of time. Dr Robert Charles Smith holds a non-practising registration. Dr Smith completed a Bachelor of Dental Surgery at the University of Sydney in 1982. Dr Smith was first registered as a dentist in Australia on 8 February 1982. On 3 June 2020, the Dental Council of NSW (the Council) received an anonymous complaint against Dr Smith. The complainant raised concerns in relation to hygiene and poor infection control standards at his practice. An infection Control Inspection and Audit of Records was conducted at Dr Smith's practice on 5 June 2020. The Authorised Persons (APs) reported deficiencies in the infection control standards at the practice. The Council was also notified that Dr Smith was practising dentistry while holding a non‑practising registration. The APs also reported that the overall standard of record-keeping was not compliant with the Dental Board of Australia's (DBA) guidelines on record keeping. Section 150 of the Health Practitioner Regulation National Law (NSW) (the National Law (NSW)) provides for the Council to impose conditions on or to suspend the registration of a dental practitioner for the protection of the public or generally in the public interest. Action taken under section 150 is intended to be interim and may be reviewed under section 150A. An urgent hearing before the delegates of the Council was held on 12 June 2020, with Ms Arpana Subedi in attendance. Dr Robert Charles Smith was not assisted by a legal adviser during the hearing, and he did not obtain assistance from his professional indemnity insurers/association. We heard oral evidence from Dr Smith. The proceedings were recorded. A list of the documents to which the Council delegates had regard is at Attachment 1. ISSUES The central issue for the delegates to consider is whether Dr Smith poses a risk to the safety or health of the public that warrants action to be taken by the Council. We may also consider whether it is generally in the public interest for the Council to take action. To determine these issues we will consider the complaint and answer the following subsidiary questions: I. Has Dr Smith been practising dentistry while holding non‑practising registration? ii. If yes, does Dr Smith's practice comply with the Dental Board of Australia's Guidelines for Infection Control, Dental Records, Professional indemnity Insurance and Continuing Professional Development? If we conclude that Dr Smith does pose a risk to the safety or health of the public and that the public interest warrants action being taken, then we must consider the following question: i. Is it appropriate to suspend Dr Robert Charles Smith's registration? The complaint An anonymous complaint was received by the Health Care Complaints Commission (HCCC) on 02 June 2020 and referred to the Council on 03 June 2020. The complainant alleged he or she had been treated by Dr Robert Smith but did not state when. The complainant included no self-identification but did include Dr Smith's AHPRA registration number and the correct address and telephone number of Dr Smith's practice. We note the complainant answered the question for the preferred outcome of the complaint with "investigated and forced to be clean and treat people with respect". The complainant alleges "bad hygiene" Dr Smith used an old mask and gloves He did not clean his rooms and touched me with dirty gloves He is a bad dentist, he made me very dirty when using the drill During the coronavirus a dentist should be more improved with hygiene The complainant describes Dr Smith as "an absolute disgrace". Dr Smith described the complaint as erroneous and invalid. He said he did not know who the person was and the complaint was impossible because he did not do "drilling". Dr Smith said he thought it could be someone being antagonistic but was not forthcoming about who he thought that person could be. He denied it was a real complaint. With so little information from the complainant and Dr Smith's denials and resistance to engaging in discussion about the complaint, we were unable to come to any conclusion. However, we note the Council's response to the complaint was to order the Infection Control Inspection. Has Dr Smith been practising dentistry while holding non-practising registration? According to the Australian Health Practitioner Regulation Agency (AHPRA) data, Dr Smith did not renew his registration on 30 November 2017. He was unregistered in 2018 and until 07 January 2019 when he reregistered as non‑practising. Dr Smith told us he renewed his non-practising registration in January 2020. However, AHPRA data has 01 December 2019 as the date he registered. His non-practising registration is valid until 30 November 2020. Dr Smith explained he transferred to non-practising registration when he was denied insurance. He said it was because of a medical problem and a liability problem which happened "a couple of years ago". Dr Smith did not disclose the date his insurance was withdrawn. It is reasonable to think it was sometime in 2017. Dr Smith said he had to transfer to non-practising' registration because he did not want to be untruthful when he completed the Pll questions on the 2017 registration form. We deduce from what Dr Smith said he knew he could not practice dentistry without PII. Although Dr Smith said he was not in a position to disclose information without legal assistance he told us a claim was made against him by a patient as a result of the treatment he had provided. Dr Smith was reluctant to say more but he told us the Insurer did not like having to pay the claim and subsequently refused to renew his insurance. He said it took 18 months for him to find another insurer. Dr Smith provided evidence he had insured with Experien on 21 February 2020 and is covered until 21 February 2021. Dr Smith said the Dental Indemnity policy includes molestation defence with a cost limit of $1,000,000.00 and excess for extraction, cosmetic and orthodontic treatment and implant exclusions. Dr Smith told us he owns the Pendle Hill practice and has no interest in any other practice. He described the Practice as a general dental practice which is not too busy, has ups and downs, and has an emphasis on prevention. His brother and another dentist are part-time employees. In response to the question about how many days a week he works, Dr Smith said emphatically he doesn't work, he manages "the staff and other things and I don't treat patients". He added he does administration and keeps everything up to date, including infection control. He said he attends the Practice every day because he lives on the premises. In response to further questioning, Dr Smith said he didn't treat patients, he just saw patients who only wanted to see him. He said he saw patients who were in "dire emergencies", did extractions and denture repairs. Patient 2's notes for a denture repair are difficult to read but one date is 24 January 2020 and the other two days are illegible but the month and year for both are 04 and 20 respectively. Dr Smith was registered as non-practising and was not insured at the time he undertook the work in January 2020. No medical history is recorded for patient 2. We asked Dr Smith to explain the circumstances in which he saw Ms H, patient 1, whose undated, unsigned, inadequately completed medical history is included in the bundle of documents considered at these proceedings. Also, included is one page of the "Particulars of Work Done, etc": Ms H was seen on 12 February 2018 when Dr Smith was not registered to practice and was not insured. On 20 April 2020 Ms H's notes read "UL6 Palatal cusp needs..." and on 21 April 2020 the notes read "cusp exfoliated" and UL7 needs...." Dr Smith insisted he did not treat Ms Ft, he only observed. At the time of the April 2020 appointments, Dr Smith was non-practising but was insured. Dr Smith's evidence about Ms H was very difficult to reconcile with evidence he gave that he only saw patients who insisted on seeing him who were in dire emergencies. He said Ms H was not a long term patient of his and if she returned with a voucher from Westmead Hospital for UL6 to be treated he would transfer her care to his brother. His comment is hard to discern given the time between when he saw Ms H and now. An unsigned and undated medical history for Mr TF, patient 3, is included in the bundle of documents. An extraction was performed on 08 April 2020. There is no recording of an X-ray having been taken. At this time Dr Smith was non‑practising but was insured. Dr Smith admitted he may have seen as many as six patients for "simple procedures, observations, personal service". Dr Smith was adamant he did not see any patients in the time he was uninsured but his records show otherwise. Even though Dr Smith has had Pll since 21 February 2020 he told us he did not intend to re-register until November 2020. We corrected Dr Smith's misunderstanding that he had to wait until November 2020. Dr Smith confirmed he has no current impediment to re-registering and said he would re-register as soon as possible. Dental Board of Australia's Guidelines for Infection Control In response to the complaint made on 02 June 2020 Dr Smith's practice was inspected by two APs on 05 June 2020. We note the APs formed the view Dr Smith was not abiding by the AHPRA conditions for a practitioner with "non‑practising status" and that he was not practising in compliance with current Infection Control (IC) guidelines. The APs identified the two dentists who are employed by Dr Smith and recorded the practice employs two Dental Assistants/ Receptionists. The Infection Control deficiencies which were identified included autoclave vacuum test failed two weeks ago and the pressure pump causing the problem has not been rectified single-use items are reprocessed critical instruments are not batch tracked and are not sterile at point of use handwashing is undertaken in the dirty sink in the sterilisation room COVID-19 level 1 restrictions are not commonly adhered to: magazines are available in the waiting room; no verbal or written screening is undertaken. COVID-19, level 2 restrictions were breached in April 2020 Dental Assistant is responsible for the disposal of all sharps spare uncalibrated steriliser is used as "backup" tissues, pens, and treatment notes stored within the contaminated zone overall IC knowledge is deficient. The Inspection also revealed there is no practice manual dealing with IC as required by the DBA guidelines; no hardcopy/ electronic access to the current version of the Australian Guidelines for the Prevention and Control of Infection in Healthcare; no hardcopy/electronic access to the current version of AS/NZS4815. There were multiple failings in personal hygiene and hand hygiene. There were many failings and 'areas in need of attention' in surgery and surgery equipment, multiple failings in sharps and waste disposal and several failings in the reprocessing area. There were no ultrasonic cleaners. There were two autoclaves, one needed some attention, the other needed to be recalibrated or removed. Contaminated and sterile areas were not differentiated and working surfaces needed attention in order to appropriately manage the clean and contaminated zones. Dr Smith commented he thought the APs' inspection was "fair enough in the things they found" and that he had begun remedying the identified deficiencies. He said he thought he had kept IC up to the required ADA standards and expressed his surprise that was not the case. He said they did the helix test daily and had already rectified the faulty vacuum testing. He said he always made sure the autoclave was validated. Also, that they would attend to the water lines, would ensure clean and contaminated zones were kept separate, they would ensure all products were TGA approved and single-use items would not be reused. We are mindful the practice is owned by Dr Smith, that he identified himself as the person responsible for IC and accept he has begun to make good the shortfalls identified by the APs. Dental Records The Dental Records we reviewed for three patients seen by Dr Smith in 2020 were handwritten and lacked the detail required by the DBA. Dr Smith said he has some competence with computers but was not considering changing from handwritten notes. Dr Smith responded defensively to our questions about the quality of his notes. He said he thought his notes were clear, he had never had an issue with them and nothing more was needed for the "simple" work he was doing. He responded to our question about whether he thought another dentist would be able to take over the care of his patients, by telling us the APs were not concerned. An answer we considered dismissive and inadequate. We refer Dr Smith to the DBA Guidelines for Dental records, in particular, Section 3 "Information to be recorded". Dr Smith's responses to our concerns about the unsigned and undated medical history forms were even more troubling. Dr Smith said when his patients were resistant to giving information he didn't like to press them. Dr Smith did not appear to recognise the jeopardy to his patients and himself of practising blind' to health conditions/medications which could result in, at best a minor incident and at worst, a catastrophic event. Professional indemnity Insurance We are satisfied Dr Smith understands the Dental Board of Australia "Registration Standard: Professional Indemnity Insurance Arrangements". We accept he did not make a false declaration at the time of renewal of his registration and did not hold full registration when he was not insured. However, we have evidence Dr Smith undertook a denture repair and saw patient 1 when he was not insured. Dr Smith would have us believe he did not consider the denture work fell within the definition of dental practice. It is difficult to accept Dr Smith did not know in doing the repair he was doing dental work, skilled work for which he was paid. When Dr Smith saw patient 1 on 12 February 2018 he was neither insured nor registered. He was in breach of the DBA Standards. We have no evidence Dr Smith undertook any other dental work between November 2017 and February 2020 when he was uninsured and we have his word that he did not. Continuing Professional Development Dr Smith told us he was unable to provide his Curriculum Vitae (CV) because he did not have one. He said he would prepare one for the Council and commented he may be required to provide a CV to AHPRA when he applies to transfer back to full registration. Dr Smith submitted Continuing Professional Development (CPD) activity for 2016-2019 and 2019-2020. We had difficulty reconciling what Dr Smith had said about his lack of computer skills and his CPD activity which although relevant, was done online via video and webinar, Dr Smith said he owned a computer and though he didn't have "sophisticated stuff' he could access the ADA website. Dr Smith provided a Certificate of Attendance at one face-to-face activity for the period between 2016 and 2020. He did not provide his CPD log. In response to our request for evidence for other CPD activity, Dr Smith submitted two 2020 certificates of online attendance for courses run by Dental ED, an overseas education provider and one 2020 Certificate of Completion from SofaCon, Dental Summit. Discussion It was difficult to engage Dr Smith in the proceedings. He appeared defensive. He did no more than give minimal answers to questions and said he had nothing to say about his personal circumstances or his health only that he had suffered financial hardship over the last two years because of the 2017 complaint. Dr Smith told us he was constrained by the lack of legal assistance to inform us of the reason he was denied PII. Although we appreciate what he did tell us, we consider Dr Smith came to the proceedings unprepared, without legal assistance, to fully explain the circumstances which have ultimately led him to be brought before a disciplinary hearing. Dr Smith did not accept the current complaint was genuine which curtailed our inquiry into what may or may not have occurred. He denied he had worked as a dentist when he was uninsured until he was presented with evidence he could not dispute. He expressed remorse for having not complied with his non‑practising registration but throughout the proceedings minimised and trivialised the work he had done. Dr Smith's responses to questions about dental records and medical history were very troubling and in all we did not have confidence Dr Smith could practice safely. In response to Dr Smith being told we formed an intention to suspend his registration, he submitted he would transfer to full registration as soon as possible and would do no dentistry work until that occurred. The scope of non‑practising registration was explained to Dr Smith in detail. However, we could not be sure his interpretation of what a non-practising dentist could not do had been altered to the extent that in the meantime, we could trust he would not continue to work and thereby pose a risk to the health and safety of the public. What is the public interest? We are mindful we have been entrusted to protect the health and safety of the public by ensuring that only health practitioners who are suitably trained and qualified to practice competently and ethically remain registered. We acknowledge the need to regulate registered practitioners with reference to them displaying appropriate professional standards in the practice of their profession and practising in accordance with the conditions on their registration, in order to maintain public confidence in the profession and the regulation of the profession. Dr Smith did not comply with his non-practising registration, he performed dental work when he was uninsured and unregistered, his infection control was not up to standard, his compliance with Section 3 of the DBA Guidelines on dental records was well below the DBA standard. We formed the view it was not in accord with the public interest for Dr Smith to hold non-practising registration at this time. It is appropriate to suspend Dr Robert Charles Smith's registration and for the matter to be referred to the HCCC for investigation. Pursuant to section 150(1)(a) of the National Law (NSW) the delegates suspended Dr Robert Charles Smith's registration on 12 June 2020 with effect from 12 June 2020.
No witnesses were required for cross‑examination by the Respondent and the Applicant closed its case.

RESPONDENT'S EVIDENCE

The evidence of the Respondent is mainly gathered from emails and notes written by the Respondent to the Dental Council, the Health Care Complaints Commission ("HCCC") and the Tribunal. In addition, the Respondent made some oral admissions during the hearing and gave evidence in respect of which he was cross‑examined by the Applicant.
The Respondent provided some answers to the allegations made against him and provided in support of the allegations regarding the autoclave that he had provided to the Tribunal an autoclave validation report dated 7 April 2020 and a validation report for the autoclave dated 5 April 2021.
The Respondent stated that he disputed the allegations in Complaint One as all usual protocols for infection control have been adhered to and always have been. He stated that any breaches identified in the inspection have been corrected and that his operation is comparable to any surgery that one may encounter.
In respect of Complaint Two the Respondent referred the Tribunal to the ADA Code of Ethics II 2017. The Respondent stated that a dentist had an obligation towards Patients 1 and 2 as these were emergency situations as already mentioned in previous submissions. He stated that denture repairs are acceptable in emergency situations and where cultural and socio‑economic factors are involved. In respect of practising while registered as non‑practising, he stated that s129(5) of the Health Practitioner Regulation National Law (NSW) [86A] 2009 states that subclauses do not apply to non‑practising registration.
In respect of Complaint Three the Respondent stated that the failure to have insurance in those circumstances is not an offence.
In respect of s34A(4) of the Health Care Complaints Act 1993 gives leniency if there is a reasonable excuse.
In respect of the failure to provide information the Respondent stated that under the Privacy Act 2002 the Respondent had a valid reason for refusing to provide the information requested.
The Respondent also indicated that as far as he was concerned an anonymous complaint triggered this action and that that could amount to unreasonable prejudice and sought termination of the Complaint.
In respect of the conduct of the Respondent during the COVID period in breach of the COVID health orders, the Respondent referred to an ADA webinar on 26 March 2020 where it was said that as long as there is no aerosol transmission there is no reason not to do work under Level 3 COVID Health Orders.
On cross‑examination the Respondent was asked whether he agreed that when the presenter spoke about dentures she was only giving her opinion. In the response the Respondent stated that one relies on experts. It was put to the Respondent that whether he believes that when she expressed her opinion that overrides the ADA regulations, to which he agreed that it did not.

APPLICANT'S SUBMISSIONS

The Applicant filed two sets of submissions, one dealing with Stage One of the proceedings and one dealing with Stage Two of the proceedings. The need for two sets of submissions arose from the fact that the original thought was that the matter would proceed only in respect of Stage One but it was agreed out the outset that the matter would proceed as Stages One and Two.
The Applicant's relevant submissions are set out below. STAGE ONE SUBMISSIONS THE COMPLAINT 1. Dr Robert Smith (the respondent) was a registered dentist with a practice at 156 Pendle Way, Pendle Hill. Two other dentists, two dental assistants and a receptionist were at this practice. '""2. On 5 June 2020 inspectors from the Dental Council of NSW (the Council) carried out an infection control inspection and audit of records (the inspection). The inspection identified concerns in the areas of poor personal hygiene and hand hygiene (the photographs attached to the report evidently show the poor hygiene and non-compliance), no sterile gloves, unhygienic storage areas in the surgery, extracted teeth and blood-soaked gauze placed in the garbage instead of being disposed of in accordance with guidelines, SS endodontic files/reamers and other single use items being reused, autoclave vacuum test had failed at the time of the inspection report and COVID-19 restrictions breached. a. The respondent breached control standards in Schedule 3, Cll. 4, 5, 14 and 15 of the Health Practitioner Regulation (NSW) Regulation 2016 (the Regulations). See Annexure B to these submissions; and b. The Commission seeks a finding that the respondent is guilty of unsatisfactory professional conduct (UPC) under s139B(1)(a) and/or (b) in that he engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or has contravened a provision of the Regulations (complaint one). 3. The inspection identified that the respondent on 16 April 2020 carried out denture work (with an impression taken) on Patient EM in breach of level 3 COVID-19 public health order restrictions: a. The Commission seeks a finding that the respondent is guilty of UPC under s139B(1)(I) for unethical or improper conduct (complaint two). 4. The inspection also identified that the respondent carried out dentistry work on three patients when the respondent knew he was registered as non‑practising at the time (the respondent was registered as non-practising between 1 December 2019 and 30 November 2020) and, during the s150 proceedings before the Dentist Council (the Council) on 12 June 2020, the respondent admitted to treating up to six patients: a. The Commission submits this breached s75(1) of the Health Practitioner Regulation National Law (the National Law). Section 75 of the National Law provides: 75 Registered health practitioner who holds non-practising registration must not practise the profession (1) A registered health practitioner who holds non-practising registration in a health profession must not practise the profession. (2) A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken; and b. The Commission seeks a finding that the respondent is guilty of UPC under s139B(1)(b) for breaching a provision of the National Law (complaint three). 5. Whilst the respondent was being investigated, he consistently conveyed a disdain for and lack of understanding of the purpose of the regulatory regime. The respondent has been highly uncooperative with the Commission. The Commission wrote to the respondent on 22 June and 7 July 2020 requesting information, but the respondent did not reply. The Commission issued a notice under s34A(1)(a)(b) of Health Care Complaints Act 1993 (the HCCC Act) requiring the production of material. The respondent refused on grounds of privacy: a. The Commission submits (for reasons detailed below) that the reasons provided were not a "reasonable excuse" and the Commission seeks a finding that the respondent is guilty of UPC under s139B(1)(e) for breaching s34A of the Complaints Act (complaint four). 6. The investigation (and s150 proceedings) also found that the respondent did not have professional indemnity insurance (PII) from 16 August 2018 until 21 February 2020. The respondent did not notify the National Board within 7 days of 16 August 2018 that his PII had ceased. Notification of a "relevant event" is required under s130(1) of the National law and the lapse of PII is a "relevant event" (s 130(3)(a)(iii) of the National Law): a. The Commission seeks a finding that the respondent is guilty of UPC under s139B(1)(b) for breaching the National Law (complaint five). 7. A finding of professional misconduct is also sought on the basis of the complaints above (either complaints 1 to 4 individually or complaints 1 to 5 collectively). 'Section 150 proceedings 8. The Council described the respondent's participation in the s150 proceedings as "difficult to engage" and "defensive. He did no more than give minimal answers to questions and said he had nothing to say about his personal circumstances or his health. " 9. Further, the Council stated at p. 6 of its reasons for decision: "Dr Smith did not accept the current complaint was genuine which curtailed our inquiry into what may or may not have occurred. He denied he had worked as a dentist when he was uninsured until he was presented with evidence he could not dispute. He expressed remorse for having not complied with his non-practising registration but throughout the proceedings minimised and trivialised the work he had done. Dr Smith's responses to questions about dental records and medical history were very troubling and in all we did not have confidence Dr Smith could practice safely". 10. During the s150 proceedings the respondent made the following admissions or denials: a. He admitted to treating six patients while registered as non‑practising (p. 6:43, p. 9:36, p. 18 to 20); b. He thought the results of the inspection were "'fair enough" (p. 11:24) but stated he was surprised there were so many deficiencies identified (p. 12:5); and c. As for the lack of detail in his medical notes, he attributed that to the patients not wanting to provide the information (pp. 16 to 17). Reply to section 34A notice 11. On 11 August 2020 the respondent responded to the HCCC's s34A notice under the complaint by stating that he refused to comply citing the Privacy Act 1988, Australian Privacy Principles 6.1(a) and 12.3(b) and Health Records and information Privacy Act (NSW), s29(b). 12. The Commission submits that the enactments cited by the respondent and the privacy principles are not a "reasonable excuse" for not complying with the notice. Section 34A(3) of the Complaints Act expressly states that: "Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part (which refers to conciliation processes) or Division 6B of Part 2 or Part 2A of the Health Administration Act 1982 (not applicable to this context))." """"The respondent's s40 response and reply for these proceedings 13. Complaint one: As referred to in his evidence the respondent disputes this and says that "all usual protocols for infection control have been adhered to and always have been. All breaches noted have been corrected". 14. The respondent denied the basis of the anonymous complaint and comments that it was either "nefarious" or for "ulterior motive". The respondent concluded by stating that: "Such pusillanimous perversity will not be tolerated, nor will unwanted intrusions into privacy or over use of authority" 15. The complaint being anonymous was not "pusillanimous" but showed enough concern for the poor hygienic practices of the respondent to warrant that person making a complaint to the HCCC. There is no evidence of any person deriving some ulterior motive from the complaint. 16. The inspection report corroborates the complaint and the public interest concerns. 17. On 12 March 2021 the substance of complaint one was put to the respondent and the HCCC invited submissions. On 24 March 2021 the respondent replied: "I refute and reject your allegations in correspondence dated 12/03/21 whatever they may be.. Submission dated 16/09/20 still stands except to add that any concerns or issues that you infer by your addendum have been and are currently being addressed contemporaneously including infection control disciplines and maintenance and repair of equipment issues". 18. Complaint two: The respondent denies he breached COVID‑19 restrictions stating the denture repair was "simple": a. However, the COVID restrictions expressly provide that during level 3 restrictions the respondent was to defer denture concerns unless the procedure was addressing management of patients with acute dental pain (requiring extraction) or concerns about systemic disease etc. 19. Complaint three: Regarding the complaint that the respondent treated patients while registered as non-practising, the respondent does not deny he performed dentistry work but stated the patients came in distress and he performed emergency work in all cases and "they could not seek treatment elsewhere". a. The Commission notes that there were two other dentists at the practice; and b. The Commission does not accept he was the only person who could perform the work and submits he ought to have turned the patients away. 20. Complaint four: The respondent denies this Complaint relying on a "reasonable excuse". For reasons submitted, the Commission refutes that the respondent had a reasonable excuse for his non-compliance. 21. Complaint five: The respondent admitted he did not notify the National Board regarding the cessation of his PII and pleaded ignorance. PURPOSE OF PROCEEDING 22. The application is to be decided having regard to the objectives and guiding principles of the National Law (ss. 3 and 3A) which include the following relevant objects and principles: a. The protection of the health and safety of the public must be the paramount consideration (s 3A); b. 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 (s 3(2)(a)); and c. Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (s3(3)(c)). 23. The purpose of the proceeding is not to punish the respondent but to protect the public. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA stated that: "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". [Emphasis added] STANDARD OF PROOF AND COMMISSION'S SUBMISSIONS AS TO FINDINGS 24. The Tribunal, when determining the application, must have the health and safety of the public as its paramount consideration. The Tribunal must ensure that only those practitioners fit to do so engage in practice (see s3 and s3A). 25. The Commission carries the onus of proof and must satisfy the Tribunal to the required standard. The strength of the evidence necessary to meet that standard will vary according to the fact or facts to be stablished: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Leeming J, with whom Basten and Gleeson JJ agreed) applying Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 AUR 170 at 171. 26. The Tribunal is to apply their own specialist (and collective) expertise to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 27. In the present case, the evidence is cogent and largely unrefuted even though the respondent denies them. 28 The inspection reports prove complaint one in terms of breaching Schedule 3 of the Regulations and/or having a standard of care below that reasonably expected of a dentist. a. The anonymous complaint shows that there is a public interest in having the respondent address his poor hygiene. 29. The respondent states he denies the complaint. It is unclear what he refutes, and the respondent provides no evidence to suggest why he refutes the findings in the inspection reports. In other correspondence the respondent has said he has attended to maintenance and repair of equipment issues. However, the respondent has provided no evidence to corroborate those assertions. 30. The findings in the inspection report are reliable and supported by photographic evidence. In the absence of any evidence to the contrary, the Tribunal can find complaint one proven. 31. Complaint two relates to performing denture work on patient EM. The respondent provides an explanation for doing the work but does not refute the fact the work was performed. The denture work is in fact a breach of COVID level 3 restrictions. The Tribunal can find complaint two proven. 32. Complaint three relates to performing work when registered as non‑practising in breach of the National Law. Again, the respondent does not deny he performed the work but provides explanations for the conduct. The Commission submits that regardless of the reasons, the work performed breached his registration and complaint three is proven. 33. The Commission submits the respondent performed the work and had no regard for the limitation to his registration because he considered himself worthy of performing the work. 34. As regards complaint four, the reasons the respondent gave for not complying with the s34A notice do not amount to a "reasonable excuse" (already dealt with at [13] to [15] above). The Tribunal can find the respondent has breached the Complaints Act and complaint four is proven. 35. The respondent admits complaint five. CONCLUSION AND PROTECTIVE ORDERS 36. The respondent has shown no reflection on his practise or conduct; nor any insight into Commission's purpose of investigating him. There is an attitude in the respondent's replies reflective of a view that his experience in the industry enables him to practice without oversight or regulation. 37. The Commission seeks protective orders of cancellation and non‑review for 12 months.
In addition, the Applicant made brief oral submissions as follows: 1. While the Respondent may not accept the anonymous complaint he should reflect on what was said about his practice. He has not done that and doesn't see that it is a public protection issue. 2. The Applicant submitted that the evidence identified concerns about the Respondent's practice and those concerns go to the public safety both in the COVID environment and in general. 3. The Applicant submitted that the Respondent showed a reckless disregard for the risks involved. He knew what the risks were and simply did not abide by them. The Applicant pointed out that at times in the Respondent's evidence he minimised his role, he disputed some of the findings which were simple to be noticed and they were noted in the inspection report. It was submitted that the Tribunal cannot be confident that there are systems in place, and that they will be adhered to, to ensure the safety of the public.

RESPONDENT'S CLOSING SUBMISSIONS

In closing the Respondent simply stated that what the Tribunal decides is what it decides. He did submit that the original complaint and an anonymous complaint should not be relied upon. In respect of teeth being found in the garbage bins, he stated that this is simply not true. He rejected the allegation that he is cavalier and stated that he fully understands all the issues of infection control.
In addition he relied on the document which he had sent to the Health Care Complaints Commission dated 16 September 2020 which is set out below. The circumstances of the cases you cite you presently have records of, taken by your agents on 5-6-20. All these cases came as a last resort on their own volition (no appointments and not invited) and in some distress as it was an emergency situation in all cases and they could not seek treatment elsewhere. They also insisted on only seeing me. The denture repair was simple and no breach of ADA guidelines was observed. The use of personal protective measures and no aerosol transmission was consistent in all cases. The extraction case was grossly affected by periodontal disease and no surgical intervention or aerosol transmission was involved. The patient was in urgent need of relief of pain. Another case was the need for consultation and advice on a damaged tooth from which she was rejected for treatment by Westmead Dental. This seems to me to be an indictment on their negligence. It is not unethical or improper to help people in deep distress when no alternative is or was available. It is the decent thing to do. I was not aware of the requirement to notify within 7 days the Pll deficiencies and for that oversight I apologise, however I wish to draw your attention to appendix B p.104 Dental Board of Australia Guidelines Professional Indemnity Insurance Arrangements "practising without appropriate PII arrangements or failing to notify The Board within seven days that appropriate Pll arrangements are no longer in place is not an offence...." The fact you are acknowledging an anonymous complaint without basis I find improper and unethical. I have never been accused of unethical behaviour ever in almost 40 years. I can only assume the complaint was for nefarious or ulterior motives. Such pusillanimous perversity will not be tolerated; nor will unwanted intrusions into privacy or over use of authority.

DECISIONS AND REASONS

The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence contained in documents provided and the evidence given by the Respondent, having considered in detail the contents of the investigation report carried out by the Dental Council and the reasons for its decision when suspending the Respondent, and having taken into account the Applicant's very detailed submissions set out above, and the Respondent's submissions, the Tribunal is satisfied that the complaints made against the Respondent are proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
The Tribunal is satisfied that this leads to a decision as to whether the Respondent should be entitled to be practising as a dentist and what disciplinary action would be appropriate in the particular circumstances of the matter. In considering appropriate disciplinary findings the Tribunal had regard to a number of factors. These included the decision in the s150 examination, the information contained in the investigation report, and various other documents filed in the matter. The Respondent was unrepresented and was not really able to present any further evidence than the evidence reflected above.
In respect of Complaint One, the particulars of Complaint One allege that the practitioner failed to maintain adequate infection control standards in accordance with Schedule 3, clauses 4, 5, 14 and 15 to the Health Practitioner Regulation as particularised in the infection control checklist.
As mentioned above, the Tribunal had available to it the report and photographs indicating the conditions which the inspectors found when conducting the inspection. The report and photographs indicate a serious failure in infection control by a dentist and particularly a dentist with the level of experience of the Respondent. While the Respondent in his evidence advised the Tribunal that steps had been taken to remedy all aspects of the breaches as reflected in the inspection report and the photographs, the Tribunal was provided with no evidence either oral or photographic to show that and having regard to the responses given by the Respondent throughout his evidence the Tribunal determined that it has no basis upon which to simply accept the Respondent's word that the breaches have been remedied.
In respect of Complaint Two it is alleged that the practitioner contrary to Level 3 restrictions provided for within the Australian Dental Association Dental Services Restrictions in COVID‑19, as updated to 25 March 2020, carried out denture repair work on a patient in breach of those conditions. The Respondent provided to the Tribunal a copy of Bylaw II Code of Ethics and circled various sections. The Respondent suggested to the Tribunal that in emergency situations the service that he provided was acceptable and relied on the Bylaw and the ADA webinar which he had attended and in respect of which the nature of the treatment that he provided, he alleged was acceptable even under those conditions. It was put to him by the Tribunal that there are other sections of the Bylaw which would indicate that he had no right to conduct the work which he did and the Tribunal was not provided with a satisfactory response to those suggestions.
In respect of Complaint Three, it was alleged that on 24 January 2020 while holding non‑practising registration and without Professional Indemnity Insurance, the Respondent provided dental services to a patient, followed by further services to patients between about 16 February 2020 and 12 June 2020, and the practitioner conceded that while holding non‑practising registration he provided dental services for up to six patients.
In respect of these patients, the Respondent sought to rely on the fact that in his view these matters needed to be treated in an emergency situation. The Tribunal was comfortably satisfied that with a non‑practising status the Respondent was not entitled to do any treatment under any circumstances and this was put to the Respondent in cross‑examination and in questions by the Tribunal. His answer that at the time he did not know that non‑practising meant that he could not do any work, the Tribunal finds this response unacceptable.
In Complaint Four, it was alleged that the Respondent refused to provide necessary information relating to the patients and their treatment. Refusal was without reasonable excuse. The Respondent sought to rely on the Privacy Act in indicating that in his view he was not entitled to provide it even to a Tribunal with powers to request such information. In addition, the right to provide the information was pointed out to him by the Applicant and despite that the Respondent refused to provide the information. The Tribunal questioned the Respondent on whether he had thought that he could request permission from the relevant patients to which he replied that he had not requested that approval. The Tribunal believes that it was entitled to have that information available to it and that his failure to do so was is in breach of s34A of the Health Care Complaints Act 1993.
In respect of Complaint Five, it was alleged that the practitioner failed to notify the National Board within seven days from 16 October 2018 that he ceased to have appropriate professional indemnity insurance arrangements in place in relation to his practise of the profession. This was admitted by the Respondent.
In all the circumstances the Tribunal was comfortably satisfied that all complaints against the Respondent were proven. The Respondent was guilty of unsatisfactory professional conduct and professional misconduct in respect of all complaints even if Complaints One, Two, Three, Four and Five were relied upon individually and cumulatively where Complaints One, Two, Three, Four and Five are relied upon cumulatively.
The Tribunal was extremely concerned about the evidence given by the Respondent, the manner in which the Respondent gave that evidence before the Tribunal, the approach to the breaches alleged against the Respondent by the Applicant and the fact that the Respondent appeared to the Tribunal reluctant to accept that his failures were serious and that the breaches constituted considerable risk to the public. The lack of insight by the Respondent in regard to his behaviour at the time of these offences and his continuing lack of insight or remorse for his conduct at the time of these complaints, leaves the Tribunal with no alternative other than to find that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. In all the circumstances, the Tribunal is satisfied that the only appropriate order is cancellation of the Respondent's registration. In saying that, the Tribunal believes that an appropriate period of time should be allowed to pass before the Respondent is entitled to apply for a review of his registration. The Tribunal believes that the Respondent will require considerable time in which to gain insight into his behaviour and believes that it is important that the Respondent, having demonstrated a significant lack of understanding of his obligations as a dentist, despite the long period of his registration as a dentist, will be required to undertake significant professional development education. The Tribunal believes also that the Respondent requires development of insight into his behaviour and that he should be assisted in undertaking both ethical training and seeking assistance of appropriate psychological professional people. Having taken into account what the Tribunal believes is necessary for the Respondent to do, in order to be a fit and proper person to practise as a dentist the Tribunal believes that 12 months non‑review period is insufficient. The Tribunal had no basis for accepting that the matters complained of in the Complaint had been remedied by the Respondent in the 18 months, since he was suspended, and believed that in all the circumstances he would require at least as much time going forward to undertake all the necessary learning required of him, and for him to demonstrate when applying for re-registration, that he was a fit and proper person to be registered as a dentist.

ORDERS

Accordingly, the Tribunal makes the following orders: 1. The registration of the Respondent is cancelled. 2. The Respondent shall not be entitled to apply for re‑registration as a dentist for a period of two years from the date of this decision. 3. Until such time as the Respondent is re‑registered as a dentist, the Respondent must not work as a dentist or provide dental services to members of the public. 4. The Respondent shall pay the Applicant's costs as agreed or assessed. 5. The prohibition made of the disclosure of the name of the parties named in the Complaint under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) remains.

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 November 2021

Administrative Tribunal Act 2013(NSW)

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Judgment (13 paragraphs)

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