Health Care Complaints Commission v Somaey

NCAT Occupational|2021-11-25|Before: Blake AM

s of the respondent to the medical history of the patient including any update on current medications, any overall treatment plan of the patient including alternatives and potential complications, the signed consent of the patient to any procedure, details of the sterilisation of any instruments (batch numbers) used in any procedure, and if medications are prescribed, the name, dosage and administration of the medications; (iv) she is to ensure the auditor(s) provides a report to the Dental Council in the form required by the Dental Council; (v) she is to be responsible for all costs associated with this condition; (f) the respondent is to complete within 12 months of the date of this decision courses on dental hygiene and infection control, dental record keeping, and ethics, approved by the Dental Council as follows: (i) within three months of the date of this decision she is to provide evidence to the Dental Council of her enrolment in each of the abovementioned courses; (ii) within one month of completing each of the abovementioned courses, she is to provide documentary evidence to the Dental Council that she has satisfactorily completed the courses; (iii) she is to bear responsibility for any costs incurred in satisfying this condition; (g) within seven days of commencing any other employment, the respondent is to forward evidence to the Dental Council that she has provided a copy of the conditions to the principal of that place of practice; (h) the respondent is to authorise the Dental Council to exchange information with current and future persons or organisations at places where she works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions; (i) whilst the respondent's principal place of practice is in New South Wales, the Dental Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW); (j) whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, ss 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Dental Board of Australia; (4) the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH - professional registration and discipline - dentist - where dentist is guilty of professional misconduct - what protective orders should be made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 64 Health Practitioner Regulation National Law (NSW), Pt 7 Div 11 Subdiv 2, ss 5, 139B, 139E, 149, 149A, 149C, Sch 5D, cl 13 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Dental Board of Australia, "Code of Conduct for Registered Health Practitioners" (March 2014) Dental Board of Australia, "Guidelines on Dental Records" (2010) (retired) Dental Council of New South Wales, "Compliance Policy - Supervision" (April 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Sahar Somaey (Respondent) Representation: Counsel: C Mitchell (Applicant) J R Young (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Shiba Legal (Respondent) File Number(s): 2019/00343605 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the patients set out in the schedule to the complaint to any person or entity is prohibited.

Introduction

These reasons for decision should be read with, and use the same abbreviations as in, our decision in the stage 1 hearing of these proceedings: Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 (the stage 1 decision).

Overview

On 5 July 2021, we made the stage 1 decision which included the following findings: 1. that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law for failing to respond adequately and promptly respond to requests for information and records by the Dental Council; 2. that the respondent is guilty of professional misconduct within s 139E(b) of the National Law for failing to respond to urgent correspondence from the NSW Public Health Unit in a timely manner, and for failing to comply with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines.
We have decided in the stage 2 hearing of these proceedings to reprimand the respondent, to suspend her registration for three months, to impose conditions on her registration, and to order her to pay the applicant's costs as agreed or assessed.

The hearing on the papers

On 23 July 2021, the Tribunal made procedural directions for the stage 2 hearing.
On 4 November 2021, the applicant in a letter to the Registrar advised that the parties were in agreement as to the protective orders to be made by the Tribunal other than in respect of two conditions, and consented to an order dispensing with a hearing for the stage 2 hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant also advised that it seeks its costs as agreed or assessed which is not opposed by the respondent (the 4 November 2021 HCCC letter).
On 5 November 2021, the Tribunal made an order dispensing with a hearing for the stage 2 hearing.
The applicant relies on its written submissions dated 18 October 2021 (the applicant's stage 2 submissions) and its written submissions in reply dated 8 November 2021 (the applicant's stage 2 reply submissions).
The respondent relies on her submissions dated 4 November 2021 (the respondent's stage 2 submissions).

The issues

The following issues arise for determination: 1. whether and if so in what manner the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law; 2. the costs of the proceedings.
Before considering these issues it is appropriate: 1. to set out the applicable provisions of the National Law; 2. to set out the applicable provisions of the Compliance Policy - Supervision dated April 2016 of the Dental Council (the supervision policy); 3. to explain the applicable legal principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law and the exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law; 4. to summarise the evidence of the respondent and the submissions of the parties.

The applicable provisions of the National Law

Part 7 Division 11 Subdivision 2 (ss 125-127AA) contains provisions relevantly dealing with the review of conditions imposed on a practitioner's registration.
Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if - (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or …
Section 149A specifies the general disciplinary powers of the Tribunal, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; … (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; …
Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (b) the practitioner is guilty of professional misconduct; or …
Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

The applicable provisions of the supervision policy

The supervision policy sets out the requirements of a practitioner subject to a supervision condition, and specifies the requirements and nature of each category of supervision in a table which relevantly includes the following information under the headings "Type of supervision required", "Supervisor required to practise at the same practice location as the practitioner?" and "Frequency of reports provided to Council": 1. for category A: direct supervision is required at all times with the supervisor required to practise at the same practice location as the practitioner at all times, and with monthly reports to the Dental Council; 2. for category B: the supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required with the supervisor required to practise at the same practice location subject to availability for off-site supervision by phone in exceptional circumstances, and with quarterly reports to the Dental Council; 3. for category C: indirect supervision is required with the supervisor to be contactable by phone for emergencies and attend on occasion to review records and files, and with half yearly reports to the Dental Council.

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21], the Court of Appeal set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [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 … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[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."
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [21]-[22], the majority of the Court of Appeal considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
The imposition of a reprimand pursuant to s 149A(1)(a) of the National Law, which will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency (AHPRA), is a serious matter. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioners and upholds the reputation of the profession. A reprimand can only be removed from the National Register on application by the practitioner to the National Board: Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 (Hanna (No 2)) at [52].
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [72]-[74] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal at [74] relevantly held: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"

The exercise of the power of the Tribunal to award costs including the making of a fixed sum costs order under Sch 5D cl 13 of the National Law

In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46] the Court of Appeal set out the principles relevant to the exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law, and then proceeded to make a fixed sum costs order: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"

Whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8 Division 3 Subdivision 6 of the National Law

Introduction

The parties are agreed as to the following protective orders: 1. the reprimand of the respondent pursuant to s 149A(1)(a) of the National Law; 2. the suspension of the respondent's registration for a period of three months pursuant to s 149C(1)(b) of the National Law; 3. the imposition of conditions relating to audit, education, and communication with the Dental Council on the respondent's registration pursuant to s 149A(1)(b), (d) and (e) of the National Law.
The parties are in disagreement as to the imposition of condition 3(e) relating to practice restrictions, and condition 3(f) relating to supervision.
The applicant submits that the Tribunal should impose conditions 3(e) and (f) in the following terms: "Practice restrictions … (e) To practise only in a group practice approved by the Dental Council of NSW where there are at least two dental practitioners (excluding the subject practitioner: (i) Where the patients and patient records are shared between the Dental practitioners. (ii) Where there is always one other registered dental practitioner on site. (iii) Which is an accredited practice. Supervision (f) To practise under Category B supervision in accordance with the Dental Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. The practitioner is to: (i) Nominate said supervisor to the Council within 14 days of the date of this decision. (ii) At each meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on hygiene and infection control, record keeping practices and patient communication. (iii) Authorise the supervisor to provide a record of contact with the practitioner summarising the matters discussed and an assessment of the practitioner's professional knowledge of prescribing, sedation and record keeping. (iv) Ensure that the supervisor provides a report, co-signed by the practitioner, to the Council at least every three months. (v) Authorise the supervisor to inform the Council if the supervisor has any concern about the practitioner's professional conduct or personal wellbeing. (vi) Be responsible for any costs associated with the supervision process. (vii) Authorise the Dental Council of NSW to provide proposed and approved supervisors with a copy of the decision. (viii) In the event that the approved supervisor is no longer willing or able to continue as a supervisor, the practitioner must nominate another supervisor for approval by the Council within 14 days of cessation of the previous relationship or cease practise until such time as a new supervisor has been nominated and approved."
As set out in the 4 November 2021 HCCC letter the respondent submits the following modifications should be made to conditions 3(e) and (f) proposed by the applicant: "1. The respondent proposes that the condition to work in a group practice (3(e)) be modified so that the "practise only in a group practice … where there are at least two dental practitioners (excluding the subject practitioner" with "work in a practice with at least another (one) practitioner"; 2. That the supervision condition in 3(f) be category C supervision instead of category B supervision and that the frequency of reports provided to the Council be once per every three months, and the frequency of review meetings with the supervisor be once per fortnight (although the HCCC notes that that this is the frequency for category B supervision anyway)."

The evidence of the respondent

Attached to the respondent's stage 2 submissions is a copy of the email sent on 4 November 2021 by Dr Gautam Sridhar (Dr Sridhar) to the respondent's lawyers (the 4 November 2021 Sridhar email) in which Dr Sridhar relevantly states: "I spoke with Dr Somaey on Wednesday evening - she wanted to ensure that the legal team was acutely aware of some of the issues which I had raised in my earlier correspondence - a. Category B Supervision in the private sector with potential for "direct supervision" is nearly impossible. In the public dental sector, there can be numerous practitioners who can act as mentors and Supervisors but the commercial reality is that a Dentist who meets the criteria for a Supervisor would likely refuse to accept "direct supervision" due to the compromise (in terms of time) to their existing patient base or the Supervisee would have to meet the cost parameters of an experienced Dentist which would likely be impossible for the Supervisee to sustain. b. The ability to be "readily available to provide direct supervision as required" is also concerning. If this ability is at the discretion of the Supervisor then, it can be accommodated. If it is at the discretion of the Dental Council, it may be excessively restrictive to allow for a potential Supervisor to accept this role. c. The 'same location' clause also creates larger issues of acceptance by potential Supervisors and I would direct your attention to my comments in the previous email. … I have spoken with two other experienced Supervisors on this matter tonight (in a deidentified way) and neither of them would agree to Supervise with those clauses present. I have already identified my inability to do so as well. Please consider putting to the HCCC/NCAT that you have tried to obtain a Supervisor but none can be found if the above clauses exist."

The submissions of the parties

In the applicant's stage 2 submissions the applicant makes the following submissions: 1. it sets out the relevant findings in the stage 1 decision; 2. it summarises the applicable legal principles; 3. it sets out that the respondent's registration should be suspended for three months for the following reasons: 1. to ensure health services are provided safely, at an appropriate quality, and to protect the public against any further misconduct of the kind found by the Tribunal; 2. the need for general deterrence is high; 3. to maintain public confidence in the profession, to maintain the high standards of the profession, and to denounce transgressions; 4. the need for individual deterrence is also a material consideration as the potential for harm caused by her conduct was extremely high.
In the respondent's stage 2 submissions the respondent makes the following submissions: 1. neither aspect of the conduct in [2] above goes to the actual practice of dentistry by her; 2. as to condition 3(e), there is no reason that there must be at least two other dental practitioners. It is unduly restrictive and is likely to be a serious inhibition on her being able to obtain suitable employment in the future; 3. as to condition 3(f), category C should apply to her so far as "Type of supervision required" and "Supervisor required to practise at the same practice location as the practitioner?". She relies on the opinions of Dr Sridhar in the 4 November 2021 Sridhar email. She is 64 years of age and will have extreme difficulty in obtaining category B supervision. The practical effect of the condition would almost certainly be to prevent the practitioner from ever practicing again; 4. in the initial stages it is accepted that the Tribunal may wish for more frequent meetings with the supervisor and reporting to the Dental Council than would be required under category C supervision.
In the applicant's stage 2 reply submissions, the applicant makes the following submissions: 1. as to condition 3(e), if the respondent upon trying finds the condition is too restrictive, she can approach the Dental Council to vary the condition as it considers necessary with the appropriate evidence. The Tribunal may wish to consider reducing the number of practitioners required to be on site if it will make the condition less onerous; 2. as to condition 3(f), category C supervision can be introduced at a later stage at the discretion of the Dental Council upon favourable category B supervision reports. It is a matter for the Tribunal as to whether it wishes to modify the category B supervision.

Consideration

We are satisfied that it is appropriate to reprimand the respondent pursuant to ss 149(a) and 149A(1)(a) of the National Law. As set out by the Tribunal in Hanna (No 2) at [52] a reprimand of a practitioner is a serious matter. The reprimand will appear on the National Register maintained by AHPRA. It is a public record that the respondent's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioners and upholds the reputation of the profession. A reprimand can only be removed from the National Register on application by the respondent to the Dental Board of Australia.
We are satisfied that it is appropriate to suspend the respondent's registration for a period of three months pursuant to ss 149(a) and 149C(1)(b) of the National Law for the conduct in [2(2)] above having regard to the following factors: 1. the seriousness of the conduct of the respondent as we found in the stage 1 decision at [282] and [284]: "[282] We are satisfied that the respondent by her failure to respond to the request in the 28 July 2017 letter in a timely manner taken together with her failure to comply with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines while Dr El-Saedy was using her rooms after she ceased active dental care of patients in January 2017 the respondent is guilty of professional misconduct. These failures demonstrated a significant departure from proper standards. The requests in the 28 July 2017 letter were made in the context of "serious and immediate concerns about public health and infectious disease control" as referred to in the 28 July 2017 HCCC letter. This was an urgent matter given the 28 July 2017 letter was sent the day following the formation of the opinion of the NSW Blood Borne Viruses Advisory Panel that the risk of blood-borne virus transmission at her practice between 21 January 2017 and 20 July 2017 was not negligible. … [284] We are not satisfied that the fact that the respondent was no longer practising and that Dr El-Saedy was using his own equipment provides any reasonable excuse for the failure of the respondent to comply with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines while Dr El-Saedy was using her rooms after she ceased active dental care of patients in January 2017. As we have already found at [272] above, infection control is a fundamental responsibility of practitioners to ensure the health of patients. As the principal of the practice the respondent had the responsibility to ensure proper procedures for infection control were in place when Dr El-Saedy was using her rooms. The fact that the respondent was not practising after 30 January 2017 is not a mitigating factor because the 28 July 2017 HCCC questions sought patients records and information about these records between 12 August 2016 and 20 July 2017, and the 28 July 2017 SWSLHD letter sought information about her infection control practices during this same period." 1. the four reasons submitted by the applicant in [29(3)] above.
We are satisfied that it is appropriate to impose conditions pursuant to ss 149(a) and 149A(1)(b), (d) and (e) of the National Law relating to audit, education, and communication with the Dental Council on the respondent's registration as agreed between the parties, with the addition that the respondent complete a course on ethics, the deletion of compliance with the Dental Board of Australia's Guidelines on Dental Records, and the modification of the conditions relating to audit so that they commence within three months from the resumption of dental practice by the respondent and differently express the matters to which the auditor(s) should pay particular attention. The Dental Board of Australia retired the Guidelines on Dental Records on 1 October 2020.
We are not satisfied that it is appropriate to impose a condition pursuant to ss 149(a) and 149A(1)(b) of the National Law relating to practice restrictions that the respondent practise only in a group practice approved by the Dental Council where there are at least two dental practitioners excluding herself. The protective purpose of the National Law is sufficiently given effect by the requirement that there is always one other registered dental practitioner on site. While it may be in the interest of the respondent to seek practice in a group practice with at least two other dental practitioners excluding herself if this is possible, this should not be mandatory requirement.
We are not satisfied that it is appropriate to impose a condition pursuant to ss 149(a) and 149A(1)(b), (d) and (e) of the National Law relating to supervision that category C of the supervision policy should apply to the respondent so far as "Type of supervision required" and "Supervisor required to practise at the same practice location as the practitioner?" having regard to the following factors: 1. the seriousness of the conduct of the respondent as we found in the stage 1 decision at [282] and [284]; 2. the inadequate evidence of Dr Sridhar in the 4 November 2021 Sridhar email where he refers to the difficulty of arranging "direct supervision" in relation to category B. As set out in [16(2)] above category B does not require direct supervision. In these circumstances, the 4 November 2021 Sridhar email does not establish the near impossibility of arranging category B supervision.
We are satisfied that it is appropriate to amend the category B supervision condition in the supervision policy to provide for monthly reporting to the Dental Council.

The costs of the proceedings

We are satisfied that it is appropriate to make an order pursuant to Sch 5D cl 13(1) of the National Law that the respondent pay the applicant's costs of the proceedings as agreed or assessed. Consistent with the reasoning in Philipiah at [42], while the applicant was not wholly successful by failing to establish the respondent has an impairment within s 5 of the National Law and all or some of the conduct in paragraphs 1 and 3 of the particulars of Complaint Two, the applicant was successful in establishing that the respondent is guilty of both unsatisfactory professional conduct and professional misconduct.

Orders

We make the following orders: 1. the respondent is reprimanded; 2. the respondent is suspended for a period of three months; 3. the following conditions are imposed on the respondent's registration on the expiry of the suspension referred to in order (2) above: 1. the respondent is not to undertake solo dental practice; 2. the respondent is not to undertake locum positions; 3. the respondent is to practise only in a practice approved by the Dental Council of New South Wales (the Dental Council) where there is at least one dental practitioner excluding herself as follows: 1. where the patients and patient records are shared between the dental practitioners; 2. where there is always one other registered dental practitioner on site; 3. which is an accredited practice; 1. the respondent is to practise under category B supervision in accordance with the Dental Council's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body, and is to: 1. nominate the supervisor to the Dental Council within three months of the date of this decision; 2. at each meeting review and discuss her practice with her approved supervisor with particular focus on hygiene and infection control, record keeping practices and patient communication; 3. authorise the supervisor to provide a record of contact with her summarising the matters discussed and an assessment of her professional knowledge of prescribing, sedation and record keeping; 4. ensure that the supervisor provides a report, co-signed by her, to the Dental Council at least every month; 5. authorise the supervisor to inform the Dental Council if the supervisor has any concern about her professional conduct or personal wellbeing; 6. be responsible for any costs associated with the supervision process; 7. authorise the Dental Council to provide proposed and approved supervisors with a copy of the stage 1 decision and this decision; 8. in the event that the approved supervisor is no longer willing or able to continue as a supervisor, nominate another supervisor for approval by the Dental Council within 14 days of cessation of the previous relationship or cease practise until such time as a new supervisor has been nominated and approved; 1. the respondent is to submit to an audit of her practice, by a random selection of records, by a person or persons approved by the Dental Council as follows: 1. the audit is to be held within three months from the resumption of dental practice and subsequently as required by the Dental Council; 2. the auditor(s) is to assess her compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct and compliance with these conditions; 3. the auditor(s) should pay particular attention when reviewing a selection of the clinical notes of the respondent to the medical history of the patient including any update on current medications, any overall treatment plan of the patient including alternatives and potential complications, the signed consent of the patient to any procedure, details of the sterilisation of any instruments (batch numbers) used in any procedure, and if medications are prescribed, the name, dosage and administration of the medications; 4. she is to ensure the auditor(s) provides a report to the Dental Council in the form required by the Dental Council; 5. she is to be responsible for all costs associated with this condition; 1. the respondent is to complete within 12 months of the date of this decision courses on dental hygiene and infection control, dental record keeping, and ethics, approved by the Dental Council as follows: 1. within three months of the date of this decision she is to provide evidence to the Dental Council of her enrolment in each of the abovementioned courses; 2. within one month of completing each of the abovementioned courses, she is to provide documentary evidence to the Dental Council that she has satisfactorily completed the courses; 3. she is to bear responsibility for any costs incurred in satisfying this condition; 1. within seven days of commencing any other employment, the respondent is to forward evidence to the Dental Council that she has provided a copy of the conditions to the principal of that place of practice; 2. the respondent is to authorise the Dental Council to exchange information with current and future persons or organisations at places where she works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions; 3. whilst the respondent's principal place of practice is in New South Wales, the Dental Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW); 4. whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, ss 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Dental Board of Australia; 1. the respondent is to pay the costs of the applicant of the proceedings 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: 25 November 2021

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Judgment (18 paragraphs)

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Legislation Cited (1)

Cases Cited (14)