Health Care Complaints Commission v Somaey

The evidence of the applicant

1. The applicant relies on the evidence of Dr Snowdon, Dr Benjamin, Dr Giuffrida and A/Prof Wijeratne in their reports and the oral evidence of A/Prof Wijeratne, and other documents.

Dr Snowdon

1. In the 16 June 2009 Snowdon report, Dr Snowdon described the respondent as: "[having] significant personality related issues and is influenced by cultural factors which have been associated with, frankly I think, a degree of arrogance at times, an inability to work with others, a tendency to somewhat histrionic explosiveness, and somewhat paranoid perceptions of exclusion and discrimination. Cultural issues could also have influenced particularly the latter."

Dr Benjamin

1. In the 23 June 2009 Benjamin report, Dr Benjamin opined: "Sahar's presentation is consistent with the diagnosis of Adjustment Disorder with Anxiety and Depressed Mood (moderate severity)."
2. In the 8 October 2009 Benjamin report, Dr Benjamin opined: "Sahar's presentation is consistent with the diagnosis of Adjustment Disorder with Anxiety and Depressed Mood (moderate severity). There was also evidence of Personality Disorder, mainly narcissistic traits. The latter condition is a pre-existing pattern of behaviour which is characterised by an inflated sense of self and a significant sense of entitlement. This is evident in her interpersonal difficulties."
3. In the 30 May 2019 Benjamin report, Dr Benjamin stated that he interviewed the respondent on seven occasions on 23 June 2009, 29 July 2009, 11 August 2009, 15 June 2017, 20 June 2017, 13 July 2017 and 21 May 2019. He was provided with correspondence from the applicant, the 13 November 2018 Wijeratne report and the 13 August 2015 Giuffrida report. He relevantly provided the following answers to questions he had been asked: "3. What is your current diagnosis for Dr Somaey ? Dr Somaey does not appear to be suffering with a major psychiatric disorder such as Mood Disorder or Psychotic Disorder. She was diagnosed with Personality Disorder, mainly Narcissistic traits in 2009. 4. Whether you agree with the suggestion that Dr Somaey has a Narcissistic Personality Disorder? Yes. I agree that Dr Somaey suffers with Narcissistic Personality Disorder. This type of personality is characterised by inflated sense of self, a strong sense of entitlement, lacking empathy, believing that others are envious of her, and having unreasonable expectations of favourable or special treatment. 5. Does Dr Somaey suffer from any mental, cognitive or intellectual impairment (whether it be Narcissistic Personality Disorder or any other disorder or condition) that would interfere with her capacity to provide dentistry safely and competently? Please include an explanation of your reasons. Dr Somaey does not suffer with a major psychiatric disorder which could impair her cognitive functions (memory, attention, concentration or judgement) or interfere with her ability to practice dentistry competently. However, Narcissistic Personality Disorder may result in unrealistic expectations and interpersonal conflict, but, having Personality Disorder, per se, should not preclude Dr Somaey from practicing safe Dentistry."

Dr Giuffrida

1. In the 13 August 2015 Giuffrida report, Dr Giuffrida stated that he interviewed and examined the respondent for more than two hours on 7 August 2015. He relevantly recorded: 1. the purpose of the report: "You have asked me to provide an opinion as to whether Dr Somaey is currently an Impaired Practitioner within the meaning of the Health Practitioner Regulation National Law (NSW) and the potential impact on her performance and practice. …" 1. the provision of a large volume of documents which were not listed; 2. the history taken from the respondent including her dealings with the Council; 3. the result of his mental state examination of the respondent: "Dr Somaey was able to handle what was more than a two hour interview without showing any signs of fading and I thought that her concentration and attention was good in that she was able to provide a very detailed and coherent account of her circumstances and background history. I did wonder whether Dr Somaey had developed an overvalued or distorted and possibly delusional interpretation of events both in relation to the complaintant and the Dental Council. Whilst I did not think that there were any delusional or even overvalued ideas, the degree of anxiety that she described in relation to both the complainant and the Dental Council would suggest that her response was quite out of proportion to what one would reasonably judge as the seriousness or intensity of the nonetheless significant stressors in her life. As indicated I found Dr Somaey to demonstrate a good and sustained attention span over two hours and no waning of her concentration. She answered all questions clearly and to the point. In the end, partly in response to my suggestion that she had over reacted and responded inappropriately to the requirements of the Dental Council, she did in fact acknowledge and concede that her behaviour was inappropriate to the circumstances. She was in any case relieved and pleased that her suspension of registration was lifted and she was able to continue with her dental practice." 1. his diagnosis and opinion: "Whilst I would agree with Dr Mohammad that Dr Somaey developed a significant anxiety disorder, it is also clear that she developed some very significant symptoms of depression and probably of a clinically significant degree, although I thought that it fell short of a diagnosis of a major depressive episode. I thought that the most appropriate DSM-IV was an adjustment disorder with mixed anxiety and depressed mood and that the distress that she experienced both with anxiety symptoms and depressive mood were in my view out of proportion with the nature of the circumstances that challenged her. I thought first she was probably a sensitive, naive and somewhat vulnerable woman despite her considerable achievements in migrating through several countries and completing a number of qualifications in dentistry and making a life for herself and her children in Australia. Despite what were significant and probably serious anxiety and depressive symptoms, Dr Somaey has seemingly enjoyed a relief and is on the way to recovery. Dr Somaey by psychiatric definition suffers from an impairment as described, although at the present time I could not find any significant cognitive or intellectual impairment that would interfere with her capacity to practice dentistry safely and competently. Accordingly I am not of the opinion that Dr Somaey suffers from impairment within the meaning of the Health Practitioner Regulation National Law (NSW)."

A/Prof Wijeratne

1. In the 13 November 2018 Wijeratne report, A/Prof Wijeratne stated he saw the respondent on 1 November 2018 and that he had received a large volume of documents both before and after the interview. He summarised the contents of some of these documents including her dealings with the Council and the applicant. He recorded the history taken from the respondent including her past psychiatric history. He expressed the following opinion about the respondent: "Dr Somaey presents with a complex set of health, performance and conduct issues. She has been the subject of two Section 150 hearings during her ten year career in Australia; she is currently only able to work under direct supervision with no independent practice allowed. This is on the basis of the Council's concerns about seminal aspects of her practice, such as inadequate record keeping, poor infection control and a sub-standard level of treatment. A significant limitation of the current assessment is that the history provided was superficial on the whole and appeared obfuscatory at times. For instance, she made no mention of her WorkCover claim for depression, related to alleged victimisation by work colleagues in 2009, instead stating that she had practised without incident during that time. Similarly, she claimed that practice visits by the Dental Council had not detected any problems; further, that an independent psychiatrist had not only stated that she was well, but she had been unfairly investigated by the Council. Her response to multiple patient complaints appears dismissive. In particular, she has alleged that these complaints were driven by a desire for financial recompense. In minimising the complaints on the basis that they represent a small fraction of her overall clinical work, she appears not to have considered the distress and suffering experienced by the complainants. Whilst it is possible the complaint made by the ex-husband of her daughter was vindictive, its content has been largely substantiated by a Council investigation. There is a pattern of Dr Somaey refusing to attend Council hearings or to provide timely reports to the HCCC between 2013 and 2017. She has experienced symptoms such as chest pain or collapse at times of requested or actual contact with the Council. There is no evidence from her medical notes that physical pathology was responsible for any of these episodes, and she herself did not volunteer that she experienced any physical illness. Possible explanations for these episodes are that they are an intra-psychic response to extreme stress, or that the symptoms were exaggerated. She did experience well documented anxiety and depressive symptoms in 2009. This was in the context of her recent migration to Australia as a single mother, and recommencing dental practice, after a gap of at least 13 years, in a health care system culturally very different to the one she had practised in before. Currently, Dr Somaey denied any symptoms consistent with an anxiety or depressive disorder. Moreover, she presented as well on mental state examination. She denied any thoughts of self-harm. Finally, I note her treating psychiatrist's diagnosis of a narcissistic personality disorder, and that another independent psychiatrist highlighted personality traits as confounding a previous allegation of victimisation at work. Whilst information about a person's long term function in non-professional settings is a general requirement to corroborate a diagnosis of a personality disorder, a number of her behaviours in work settings are consistent with a narcissistic personality style. These include her failure to cooperate with regulatory authorities, an unrealistic view of her professional skills, practising in isolation, and unempathic response to patients who have complained. Her personality style is likely to continue to impact on her ability to communicate, and interact appropriately, with colleagues and patients alike, and to formulate appropriate management plans. In my opinion, Dr Somaey has an impairment as defined by Health Practitioner Regulation National Law (NSW)."
2. In the 20 February 2020 Wijeratne report, A/Prof Wijeratne noted that he had been provided with the 13 August 2015 Giuffrida report and the 30 May 2019 Benjamin report. He: 1. made the following comment in relation to these reports: "The further clinical documentation you have provided, namely the report of an independent psychiatrist from 2015 and the further report of her treating psychiatrist after one more clinical review, provides little in the way of extra information. I do not believe any of this further information contradicts my original opinion …" 1. opined in relation to the three questions he had been asked: "1. My diagnoses for Dr Somaey … I remain of the opinion that Dr Somaey's primary diagnosis is a personality vulnerability. … … 2. My opinion as to whether Dr Somaey is impaired for the purposes of the definition of impairment under the National Law. I believe that Dr Somaey has an impairment as defined by Health Practitioner Regulation National Law (NSW). This act defines an impairment as the presence of a (physical or) mental condition that, either detrimentally affects or, is likely to detrimentally affect the person's capacity to practise her profession. 3. What treatment for the above conditions should Dr Somaey receive? I would emphasise that I have not recommended withdrawal of her registration. Practice and health conditions, however, would seem essential to ensure the safety of the public and the public's confidence in the dental profession. I have previously recommended regular consultation with a psychiatrist or psychotherapist, with appropriate expertise as a health condition. The purpose of formal psychotherapy would be for Dr Somaey to learn greater self-reflection. It is unclear whether Dr Somaey would engage with such treatment. In addition, an education program on professionalism in healthcare would be beneficial."
3. In the 18 March 2020 Wijeratne report, A/Prof Wijeratne noted that he had been provided with the 21 February 2020 Younan report and the 21 October 2019 Zaarour report, and: 1. identified "errors of fact" the 21 February 2020 Younan report; 2. questions Ms Zaarour's opinion that the respondent does not have a narcissistic personality disorder based on her use of MMPI-2: "She has used the results of a structured rating scale, the MMPI-2 as evidence of the above. This instrument has ten clinical scales - hypochondriasis, depression, hysteria, psychopathic deviance, masculinity-femininity, paranoia, psychasthenia, schizophrenia, hypomania and social introversion. The MMPI is generally administered, scored and interpreted by a clinical psychologist who has received specific training in its use. It is not used in isolation for diagnosis. Ms Zaarour has not reported the results of MMPI validity scales that assess the accuracy of each person's responses to this questionnaire." 1. opined in relation to the three questions he had been asked: "1. Do the above reports change your opinion concerning Dr Somaey's diagnoses and whether or not she is impaired under the National Law? I would refer you to the diagnostic considerations outlined on page 7 of my report of 20th February 2020 which are unchanged, as is my opinion that she is impaired under Health Practitioner Regulation National Law (NSW). … Ongoing focus as to whether she has a personality disorder, and if so what specific personality type, does not seem helpful. I have already cautioned against a diagnosis of personality disorder, given the absence of information about long term function in non- professional settings, in my first report. The opinion expressed in my second report was that a number of behaviours in work settings, in particular Dr Somaey's response to complaints and Council proceedings, are consistent with a narcissistic personality style. In particular, I note that a formal psychiatric diagnosis is not required for a practitioner to have an impairment. For instance, in a 2003 judgment, the NSW Court of Appeal was of the opinion that once the Tribunal came to the conclusion that, whatever it was the practitioner suffered from was prejudicial to an orderly conduct of their mental and physical duties as a practitioner, the Tribunal was entitled to make a finding of impairment although it did not put a psychological label on that impairment." (In a footnote there is a reference to Grant v HCCC [2003] NSWCA 73 [12]) 2, If you maintain your opinion that Dr Somaey has a personality disorder, has she received adequate treatment for it? I have at no stage made a diagnosis of a personality disorder. 3. Any other comments you wish to make on the above reports? Both Dr Younnan and Ms Zaarour have focussed on DSM-5 criteria for narcissistic personality disorder. These criteria have been criticised as providing a "rather narrow and homogeneous definition" and "inadequate coverage of the broad population of individuals who receive the diagnosis in clinical practice Specifically, the criteria have been criticised as failing to cover core psychological features, including vulnerable self-esteem; feelings of inferiority, emptiness, and boredom; and affective reactivity and distress."
4. In his cross-examination, A/Prof Wijeratne gave the following evidence: 1. his examination of the respondent on 1 November 2021 took 1 hour 5 minutes (Tcpt, 17 February 2021, p 21(35-36)); 2. he conceded that it was a limitation not having another consultation with the respondent (Tcpt, 17 February 2021, p 23(9-12)); 3. he agreed that part of the reason for his description in the 13 November 2018 Wijeratne report of the history provided by the respondent as being "superficial" was the shortness of the assessment, but doubted the veracity of some aspects of the history (Tcpt, 17 February 2021, pp 31(20)-32(11); 33(45)-34(19));

The 19 September 2019 M&A letter

1. In the 19 September 2019 M&A letter, the respondent's lawyers relevantly stated: "15. Dr Somaey has acknowledged in the past that her co operation with the regulatory bodies has not been adequate (as noted in the report of Dr Guiffrida) and she has therefore demonstrated insight into the issues raised. Dr Somaey has been receiving treatment from a psychologist to further assist with her insight and narcissistic personality traits."

The clinical records of Ms Zaarour

1. The clinical records of Ms Zaarour record eight sessions between 7 September 2019 and 14 February 2020, and that she administered "DASS", "clinical interview did not heighlight [sic] any symptoms consistant [sic] with mental health disorders", "Her responses were not consistent with NPD", and "was given scenarios to assess narcissistic behaviour + traits". There were no presenting issues in the last four sessions.

The evidence of the respondent

1. The respondent relies on the evidence of Ms Zaarour and Dr Younan in their reports and their oral evidence.

Ms Zaarour

1. In the 21 October 2019 Zaarour report, Ms Zaarour stated that the respondent had been her patient in five sessions over several weeks and that she had used the following tools in undertaking a psychological assessment of the respondent: clinical interview; Diagnostic and Statistics Manual of Mental Disorders (fifth edition) (DSM-5); Minnesota Multiphasic Personality Inventory 2 (MMPI-2); Depression Anxiety Stress Scale. She recorded: 1. the purpose of the report: "This report will provide information regarding Ms Somaey's current psychological state, and whether she suffers from any personality disorders that may affect her performance as a health professional." 1. the findings of the psychological assessment: "Ms Somaey was not found to be displaying any signs of mental health issues in any of the assessment tools administered, apart from having mild to moderate levels of stress. Ms Somaey's level of stress was found to be in the moderate range on the Depression Anxiety, Stress Scale." 1. the finding that the respondent was not displaying any of the symptoms of a narcissistic personality disorder from the assessment tools administered; 2. her clinical impressions and recommendations "Based on the assessment and consultations with Ms Somaey, she was not found to be suffering from any significant mental health issues, apart from moderate levels of stress. The consultations and assessment tools used also found no traces for any personality disorders such as Narcissistic Personality Disorder (NPD). Discussions with Ms Somaey identified contradictions to allegations made. Ms Somaey appeared to be humble and empathetic to others which were displayed by her attitude and behaviours during sessions with this psychologist and her client base Individuals with NPD are usually disliked by others and usually have difficulties maintaining friendships and relationships; however, Ms Somaey appears to be loved by many evident by her clientele throughout her years of work. It is this psychologist's recommendation that Ms Somaey be permitted to resume her work as a dental practitioner to continue helping members in her community with their dental concerns. Ms Somaey will benefit from some therapy to help her cope with her symptoms of stress."
2. In her examination in chief, Ms Zaarour gave evidence that the respondent had been receiving consistent treatment with her, roughly every two to three weeks since 21 October 2019 (Tcpt, 17 February 2021, p 65(18-20).
3. In her cross-examination, Ms Zaarour gave the following evidence: 1. she did not obtain details of the respondent's interactions with the Council, and not accept that an accurate patient history was critical to providing an accurate diagnosis of the respondent for the reason that she based her diagnosis on the assessment tools that she used (Tcpt, 17 February 2021, pp 65(38)-71(34)); 2. there is a link between the respondent being asked to attend an interview or an inquiry or a tribunal hearing and an increase in her stress levels and anxiety (Tcpt, 17 February 2021, p 72(14-16)).
4. In her re-examination, Ms Zaarour gave evidence that the fact that the respondent was giving evidence at the Tribunal is a sign that that progress is being made with her treatment and that she is dealing with her anxiety (Tcpt, 17 February 2021, p 74(44-48)).

Dr Younan

1. In the 21 February 2020 Younan report, Dr Younan stated that he saw the respondent on 22 January 2020 and on 17 February 2020 at an interview that each exceeded one hour, and noted that he had been provided with the 13 August 2015 Giuffrida report and the 13 November 2018 Wijeratne report. He took a history from the respondent including her past psychiatric history. He relevantly: 1. examined whether the respondent had a narcissistic personality disorder according to the criteria in the DSM-5 and found: "it conclusively ascertains the fact that Dr Somaey does not exhibit traits of Narcissistic Personality Disorder and clearly does not fall within such a diagnosis." 1. expressed his agreement with the opinions of Dr Giuffrida in the 13 August 2015 Giuffrida report: "Finally, I am in agreement with Dr Giuffrida's comment "I thought that she was probably a sensitive, naive and somewhat vulnerable woman despite her considerable achievements in migrating through several countries and completing a number of qualifications in dentistry and making a life for herself and her children in Australia." I am also in total agreement of another comment that Dr Giuffrida had made: "I could not find any significant, cognitive or intellectual impairment that would interfere with her capacity to practice dentistry safely and competently."" 1. expressed his opinion that the respondent does not suffer from an impairment within the meaning of the National Law; 2. expressed his final opinion: "As explained above, I could not diagnose Dr Somaey with any psychiatric disorder or with a particular personality disorder. I considered any shortage in her personality as within the normal level. The reported past history of anxiety and depression does not stand against her ability to practice dentistry appropriately. Firstly, I considered that this past depression and anxiety as being reactive in nature rather than essentially being biological in nature; she was simply reacting to traumatic events. I agree that a person with a sensitive personality can react with more anxiety to stressors than the average person. From the psychiatric point of view, I considered her fit to practice as a dentist."
2. In his cross-examination, Dr Younan gave the following evidence: 1. he did not include that the respondent was suffering from a "phobia" in the section headed "Final opinion" in his report because his concentration was on whether she is suffering at the present time when he was interviewing her, not in the past, and any past history of anxiety of the respondent would not affect her current psychiatric condition (Tcpt, 18 February 2021, p 10(13-30)); 2. the respondent might have some residual symptoms of this phobia that could be overcome (Tcpt, 18 February 2021, pp 10(32)-11(11)); 3. he did not feel that the respondent's previous anxiety would impact on her empathy for patients (Tcpt, 18 February 2021, p 12(12-19)); 4. the respondent in her current psychiatric state is able to deal with future Council inquiries (Tcpt, 18 February 2021, pp 13(42-45); 14(14-21)).
3. In his re-examination, Dr Younan gave evidence that the fact that the respondent was participating in this hearing in which she is being asked questions about the whole of her dental practice suggests that she is able to deal now with her situational panic (Tcpt, 18 February 2021, p 11(15-29)).

Particular 1 of Complaint One

1. In the 18 February 2021 HCCC submissions, the applicant makes the following submissions: 1. it must establish the following three things: 1. the respondent has a vulnerability to stress, anxiety and depression; 2. the respondent has a history of failing to respond appropriately to patient complaints and regulatory authorities; and 3. there is a causal link between the respondent's vulnerability and her failure to respond appropriately. In other words, the reason why the respondent fails to respond appropriately is on account of her vulnerability. 1. the underlying facts referred to in [62] to [75] above demonstrate that the respondent has a vulnerability to stress, anxiety and depression; 2. the evidence comprehensively establishes that the respondent has a history of failing to respond appropriately to patient complaints and regulatory authorities, and the respondent has conceded much of this in paragraph 15 of the 19 September 2019 M&A letter; 3. the causal link between the respondent's health issues and failure to respond appropriately is apparent from the following matters: 1. the respondent's own accounts make clear that she experiences stress, anxiety and what appear to be panic attacks in connection with her interactions with the Council and the applicant. That was clear from her oral evidence, the contemporaneous explanations that she gave for her non-attendance at various interviews and inquiries of the Council and the applicant between 2013 and 2017, and the disclosures she made to her general practitioner and treating psychiatrists, particularly in 2016 and 2017; 2. the respondent's long-term treating psychiatrist, Dr Benjamin, in the 30 May 2019 Benjamin report directly links her workplace difficulties and legal problems with her stress and anxiety symptoms; 3. A/Prof Wijeratne in the 13 November 2018 Wijeratne report similarly links the respondent's health issues with her pattern of refusing to attend Council hearings or provide timely reports to the regulator between 2013 and 2017; 4. the evidence of Ms Zaarour in the 21 October 2019 Zaarour report and Dr Younan in the 21 February 2020 Younan report is consistent with a conclusion that the respondent's stress and anxiety is causally linked to her professional conduct issues; 5. the evidence establishes that the respondent's vulnerability to stress and anxiety is ongoing. The fact that she continues to undergo treatment with Ms Zaarour demonstrates her recognition of the need for and benefits of ongoing treatment.

Particular 2 of Complaint One

1. In the 18 February 2021 HCCC submissions, the applicant makes the following submissions: 1. the Tribunal would give significant weight to the conclusions of Dr Benjamin in the 23 June 2009 Benjamin report and in the 30 May 2019 Benjamin report who agreed the respondent has a narcissistic personality disorder in circumstances where he was not required for cross-examination; 2. these conclusions of Dr Benjamin are consistent the opinion of Dr Snowdon in the 16 June 2009 Snowdon report; 3. A/Prof Wijeratne in the 13 November 2018 Wijeratne report agreed that a number of the respondent's behaviours in work settings are consistent with a narcissistic personality style; 4. the views of Dr Benjamin, Dr Snowdon and A/Prof Wijeratne ought not be dismissed without clear contrary evidence, particularly where Dr Benjamin's view was not challenged; 5. the evidence of Ms Zaarour that the respondent did not have a narcissistic personality disorder should be given little weight because of the omission to take a history from her. The denial of Ms Zaarour of the relevance of the respondent's history to her assessment ought not to be accepted. The clinical records of Ms Zaarour provide limited evidence of the assessments of the respondent she says she relied on; 6. the evidence of Dr Younan that the respondent did not have a narcissistic personality disorder should be given little weight because he was given a materially inaccurate history by the respondent. The Tribunal would therefore give limited weight to his conclusion that "the reported past history of anxiety and depression do not stand against (the respondent's) ability to practice dentistry appropriately", and that he could not diagnose her with any particular personality disorder. Dr Younan also accepted that the focus of his reference to her ability to practice dentistry safely was on her clinical competence rather than her regulatory co-operation and communication.

Impairment

1. In the 18 February 2021 HCCC submissions, the applicant makes the following submissions in support of its contention that the Tribunal should find that the respondent has an impairment within the meaning of s 5 of the National Law: 1. it relies on the observations in Grant v HCCC [2003] NSWCA 73 (Grant) at [12] and Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [64], and contends that the ultimate question for the Tribunal is whether the respondent suffers from something that is prejudicial to an orderly conduct of her mental and physical duties as a dental practitioner (irrespective of whether it has a particular psychological label); 2. it relies on the observations in Health Care Complaints Commission v Dr Leonard Philipiah [2012] NSWMT 14 (Philipiah) at [49], and contends that a finding of professional misconduct where there is no question of wilfulness of conduct is not incompatible with a concurrent finding of impairment where both are made out; 3. the respondent has an impairment within the meaning of s 5 of the National Law for the reasons set out in the 13 November 2018 Wijeratne report and for the following reasons: 1. there is an extensive history of the respondent failing to cooperate with the Council, and the applicant, between 2013 and 2017. The evidence establishes that the respondent's health issues are causative of her failure to cooperate appropriately with the Council and the applicant, and are therefore prejudicial to the orderly conduct of her obligations as a dental practitioner; 2. the respondent has, or exhibits behaviour consistent with, a narcissistic personality disorder. In A/Prof Wijeratne's view, her personality type is likely to continue to impact on her ability to communicate, and interact appropriately, with colleagues and patients alike, and to formulate appropriate management plans. A key aspect of how this manifests itself is a lack of empathy with patients. As A/Prof Wijeratne observed, her response to multiple complaints appears dismissive. The evidence does not disclose any insight by the respondent into the possibility that there is a legitimate basis to the complaints made by patients, or any willingness to participate in the investigative process; 3. the Tribunal does not need to find that the respondent has a diagnosed personality disorder, as opposed to having personality traits consistent with such a disorder; 4. the respondent's failure to disclose an accurate history to A/Prof Wijeratne, Ms Zaarour and Dr Younan would cause the Tribunal concern that she has not acknowledged, let alone addressed, the complex set of factors that led her to act in a manner that was prejudicial to an orderly conduct of her duties as a dentist; 5. the Tribunal would give limited weight to the evidence of Ms Zaarour and Dr Younan in assessing the issue of impairment because they were not aware of her full history of professional conduct issues; 6. the respondent's attendance and engagement in the hearing should be accepted as evidence that her impairment may be managed with treatment and a supportive environment. However, it should not be relied on as proof that she is either cured of the underlying anxiety or stress, or that those symptoms will not re-emerge and impair future interactions with the Council or the applicant; 7. the evidence establishes that: "Dr Somaey suffered from something that is prejudicial to an orderly conduct of her duties as a dental practitioner, which prevents her from cooperating with the Dental Council or the Commission in a timely manner, and which can only be managed through ongoing treatment."

The submissions of the respondent

1. The respondent submits that the Tribunal should not be satisfied that she has an impairment within the meaning of s 5 of the National Law for the following reasons: 1. an illness if treated is no longer an impairment; 2. the circumstances in paragraph (a) of the definition of impairment no longer exist; 3. she demonstrated the absence of an impairment at the hearing by her attendance over three days, the concessions she made and her assistance to the Tribunal.

Consideration

1. In Grant at [12] Meagher JA (Beazley JA at [20] and Santow JA at [21] agreeing) rejected the submission that the predecessor of the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged the practitioner suffered from because they did not then say what sort of mental illness they relied on to constitute impairment, and held: "[12] In my view they do not have to. Once they came to the conclusion, which they did come to, that whatever it was that she suffered from was prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner, they were entitled to make a finding of impairment even although they did not put a psychological label on that impairment."
2. In Qasim at [64] Meagher JA (McColl JA at [1] and Ward JA at [91] agreeing) held that there was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an "impairment" be formed in accordance with the DSM-5 and cited Grant at [12].
3. In the light of Grant at [12] and Qasim at [64] we accept that an impairment within the meaning of s 5 of the National Law can exist where there is no diagnosis of a particular physical or mental impairment, disability, condition or disorder where the practitioner is suffering from something that detrimentally affects or is likely to detrimentally affect the person's capacity to practise the profession.
4. In Philipiah at [49] the predecessor of the Tribunal held that a finding of professional misconduct is not necessarily incompatible with a concurrent finding of impairment where both are made out and there is no question of wilfulness of conduct is raised by either category. We accept that in the circumstances of the Amended Compliant that there is no impediment to the Tribunal making a finding of impairment.
5. We are satisfied that the respondent up to 1 November 2018 was suffering from a vulnerability to stress, anxiety and depression which prevented her from appropriately responding to patient complaints and regulatory authorities, and a narcissistic personality style or similar condition, and that they each detrimentally affected her ability to practice dentistry. We accept the submissions of the applicant and do not understand the respondent to have made any submission to the contrary. In particular, we accept the opinions of A/Prof Wijeratne in the 13 November 2018 Wijeratne report.
6. In view of the terms of Particular 2 of Complaint One which specifies that the respondent "suffers from a narcissistic personality style or similar condition" it is unnecessary to determine whether the respondent was from a narcissistic personality disorder within the DSM-5. While there is evidence of Dr Benjamin in the 30 May 2019 Benjamin report and his earlier reports in support of this diagnosis and he was not required for cross-examination, there is the contrary evidence of Dr Giuffrida in the 13 August 2015 Giuffrida report, Ms Zaarour in the 21 October 2019 Zaarour report, and Dr Younan in the 21 February 2020 Younan report.
7. We are not satisfied that the respondent is currently suffering from or has a vulnerability to stress, anxiety and depression which prevents her from appropriately responding to patient complaints and regulatory authorities, and a narcissistic personality style or similar condition, and that they each are likely to detrimentally affect her ability to practice dentistry for the following reasons: 1. we do not accept the contrary opinion of A/Prof Wijeratne in the 20 February 2020 Wijeratne report and in the 18 March 2020 Wijeratne report because this opinion was not based on an examination of the respondent and does not take into account her current circumstances including her treatment by Ms Zaarour; 2. we accept the evidence of Ms Zaarour and Dr Younan that the respondent was managing her stress. The evidence of Ms Zaarour was confirmed by the absence of presenting issues recorded in the last four sessions of the clinical records of Ms Zaarour as well as her oral evidence of the respondent's regular treatment since 21 October 2019. In the light of this evidence of Ms Zaarour and Dr Younan we do not accept the evidence of A/Prof Wijeratne in the 13 November 2018 Wijeratne report that "Her personality style is likely to continue to impact on her ability to communicate, and interact appropriately, with colleagues and patients alike, and to formulate appropriate management plans". While the opinion of Ms Zaarour was somewhat undermined by her failure to take a patient history of the respondent, the opinion of Dr Younan was persuasive as it was based on two examinations of the respondent in which, and the 13 August 2015 Giuffrida report and the 13 November 2018 Wijeratne report from which, he obtained a detailed patient history of the respondent; 3. we formed the opinion, having had the opportunity of hearing her evidence over three days, that the respondent is managing her stress. While we have found that the respondent is not a reliable and credible witness, she did attempt to answer the questions asked in an extensive cross-examination. After one occasion in which she was distressed, she recovered her composure and continued giving evidence.
8. in view of our finding that the respondent is not currently suffering from or does not have a vulnerability to stress, anxiety and depression which prevents her from appropriately responding to patient complaints and regulatory authorities, and a narcissistic personality style or similar condition, we are satisfied that she does not have "a physical or mental impairment, disability, condition or disorder" within the definition of impairment in s 5 of the National Law.
9. If, contrary to our finding, the respondent does have "a physical or mental impairment, disability, condition or disorder" within the definition of impairment in s 5 of the National Law, then we are not satisfied that is likely to detrimentally affect her capacity to practise dentistry within this definition because it is being successfully managed. Because the respondent is suspended and is not practising dentistry there is no evidence that any such physical or mental impairment, disability, condition or disorder is detrimentally affecting her capacity to practise dentistry within this definition.

Conclusion

1. Accordingly, we find that the applicant has not established Complaint One by reason that the respondent does not have an impairment within the meaning of section 5 of the National Law.

Whether the respondent engaged in the conduct alleged in Particular 1 of Complaint Two

Introduction

1. The parties are in agreement that s 8.10 of the Code of Conduct is the source of the obligation of the respondent to cooperate with and adequately communicate with the Council and the Commission.
2. The 15 instances of the failure of the respondent to cooperate with and adequately communicate with the Council and the Commission set out in Particular 1 of Complaint Two can be characterised as follows: 1. the conduct in paragraphs (a) and (m) is the failure to adequately and/or promptly respond to requests in a timely manner; 2. the conduct in paragraphs (b), (c), (e), (f), (g), (j), (l) and (o) is the failure to attend s 150 interviews, and Council interviews or inquiries; 3. the conduct in paragraphs (h), (k), (n) and (p) is the provision of inaccurate information to the Council in the first three instance and to the Commission in the last instance; 4. the conduct in paragraph (i) is the failure to assist Council inspectors with an on-site audit.
3. The impugned conduct in paragraph (m) concerns the respondent's failure to respond in a timely manner to the request in the letter of the applicant dated 28 July 2017 (this letter with the two attachments is collectively called the 28 July 2017 letter) comprising: 1. a covering letter of the applicant dated 28 July 2017 (the 28 July 2017 HCCC letter) which relevantly stated: "Please now respond to questions 4 to 39 attached in the Annexure to this letter which relates specifically to addressing serious and immediate concerns about public health and infectious disease control. Please find a letter attached from Dr Kate Alexander, Acting Director, Public Health Unit, for your immediate attention." 1. an attached list of 36 questions relating to infection control, and patients records between 12 August 2016 and 20 July 2017 (the 28 July 2017 HCCC questions); 2. an attached letter dated 28 July 2017 of the Acting Director of the Public Health Unit of the South Western Sydney Local Health District (the 28 July 2017 SWSLHD letter) which relevantly stated: "The NSW Blood Borne Viruses Advisory Panel met on 27 July 2017 to discuss the infection control practices at your Fairfield clinic as referred by the NSW Dental Council. The Panel has considered the findings of the investigation into your practice and is of the view that the risk of blood-borne virus transmission between 21 January 2017 and 20 July 2017 was not negligible. The Panel has therefore recommended that patients who had an invasive procedure during this time period should be contacted and advised to consult their general practitioner to request hepatitis B, hepatitis C and HIV screening. Notifications to patients will assist in early diagnosis and reducing the risk of transmission of infectious diseases. Due to the lack of information regarding infection control practices at your Fairfield clinic between 12 August 2016 and 20 January 2017, the Panel could not determine there was a negligible risk of blood- borne virus transmission during this time period. If you are able to provide evidence of adequate infection control practice between 12 August 2016 and 20 January 2017 it may not be necessary to notify patients you have seen during this time period. To assist with determining infection control between August 2016 and January 2017, please answer all the questions that the Health Care Complaints Commission has asked you. Please also provide steriliser records from 12 August 2016 onwards, which will assist in determining whether patient notification is required for this time period. If it cannot be determined that infection control during this time period was adequate, patient notification will include all patients seen from 12 August 2016 to 20 July 2017. To notify patients directly, we require records of patients seen between 12 August 2016 and 20 July 2017 including patient names, dates of birth, contact details, dates and details of procedures undertaken (to identify patients who underwent an invasive procedure). If patient records cannot be provided, a public media release will be necessary to inform any patients you have seen during this time period of the need for blood-borne virus screening. Alternatively, if you are able to provide the patient records from this time period this would enable patients to be individually contacted, and a public media release may not be necessary."
4. As to the failure in paragraph (m), as the respondent has conceded that she did not respond to the request in the 28 July 2017 letter in a timely manner, it is unnecessary to consider whether this failure constituted a breach of s 8.10 of the Code of Conduct.
5. As to the failure in paragraphs (n) and (p), as the respondent in the 28 February 2020 Somaey affidavit gave evidence that the incorrect dates were either a typographical or a transposition error, and this evidence was not challenged in cross-examination and is not inherently implausible, we accept her explanation and will not further consider these alleged failures.
6. Before considering the four types of conduct alleged to constitute a breach s 8.10 of the Code of Conduct, it is appropriate to consider the scope of this obligation.

The scope of the guidance in s 8.10 of the Code of Conduct

1. We do not regard the good practice specified in s 8.10 of the Code of Conduct as creating an absolute obligation and any that departure from the good practice will constitute a breach of the section. Section 1.1 indicates that the Code of Conduct is guidance to practitioners. While not expressly stated in the Code of Conduct, there may be circumstances where a practitioner will have a reasonable excuse for not applying the guidance in the Code of Conduct. It follows that in considering whether a practitioner has failed to follow any guidance in Code of Conduct it is necessary not only to consider whether the guidance applies in the particular circumstances, but whether in all the circumstances the practitioner had a reasonable excuse for not following the guidance.

Whether the respondent failed to adequately and promptly respond to requests of the Council for information and records

Introduction

1. This impugned conduct of the respondent is alleged in paragraph (a) of Particular 1 of Complaint Two, and is based on her failure to adequately and promptly respond to the requests for information and records in four letters of the Council sent in the period from February 2013 to June 2013.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence and submissions of the parties.

The underlying facts

1. In December 2012, the respondent provided six pages of material to the Council relating to the treatment of Patient A.
2. On 12 February 2013, the Council sent a letter to the respondent referring to a complaint by Patient A (the 12 February 2013 Council letter). The letter invited her to provide a response and asked her to "ensure" that certain information was included, including a typed transcript of any hand-written notes, a copy of the patient treatment record, all financial records pertaining to the patient, all relevant clinical records (including original radiographs) and a typed submission outlining her treatment of Patient A and the management of the complaint of Patient A. The letter drew attention to s 145B(1)(a) of the National Law and enclosed a copy of ss 145-145J of the National Law. A response was required by 5 March 2013. The letter relevantly stated: "The Council's paramount consideration In dealing with complaints concerning a dental practitioner's professional performance, health or conduct In NSW under the Law is the protection of the health and safety of the public."
3. On 13 March 2013, the Council sent a letter to the respondent, noting that no response had been received to the 12 February 2013 Council letter, drawing attention to s 145B(1)(a) of the National Law, and stating "the Council requires all the requested information including original radiographs to this complaint by Wednesday, 20 March 2013" (the 13 March 2013 Council letter).
4. On 19 March 2013, the respondent sent a letter to the Council. She informed the Council that she had "come to the conclusion" that Patient A's claims were irrelevant to any dental treatment she provided (the 19 March 2013 Somaey letter). She offered to refund to Medicare all of the money she had received concerning Patient A.
5. On 25 March 2013, a representative from the Council called the respondent and again requested any original radiographs or other records. She said that the original radiographs were given to Patient A and she had provided the rest of the records to the Council.
6. On 15 April 2013, the Council sent a letter to the respondent, notifying her that the matter had been referred to its Assessment Committee (the Assessment Committee), and again requesting that she provide the information set out in the 12 February 2013 Council letter, with one addition: details of all continuing professional development undertaken in the past 12 months (the 15 April 2013 Council letter). The Council asked that any response be "comprehensive". A response was required by 29 April 2013.
7. On 29 April 2013, a Council representative spoke by telephone with the respondent and then sent a follow up email, notifying her that copies of radiographs originally provided to the Council were not of diagnostic qualify, and asking her to forward digital radiographs of diagnostic quality and details of her CPD undertaken in the last 12 months. A response was requested "as a matter of urgency".
8. On 17 May 2013, the Assessment Committee sent a letter to the respondent requesting information from her, including the full details of the person who provided the treatment to Patient A, all records concerning her treatment of Patient A, and evidence of CPD undertaken in the past 12 months (the 17 May 2013 Council letter). A response was requested by 27 May 2013.
9. On 28 May 2013 at 3.40pm, a representative of the Assessment Committee telephoned the respondent and queried the absence of any response to the 17 May 2013 Council letter. She first denied knowledge of the letter, then advised she had already sent everything she had, and sought to end the phone call "advising that she was busy".
10. On 28 May 2013 at 4.51pm, a representative of the Assessment Committee sent an email to the respondent attaching the 17 May 2013 Council letter, and requesting that a response be provided by 3 June 2013.
11. On 4, 5 and 6 June 2013, a representative of the Assessment Committee telephoned the respondent's office, and then her mobile phone, seeking a response to the 17 May 2013 Council letter. A message was left on each occasion. None of these calls were returned.
12. On 6 June 2013, the Council sent an email to the respondent, noting "our numerous attempts to contact you", asking her to treat the request with priority and produce the requested information as soon as possible. A response was requested by close of business on the following day, 7 June 2013.
13. On 14 June 2013, the Assessment Committee sent a letter to the respondent by which it gave notice under s 164G of the National Law that it required the full name of all people who treated Patient A, all records relating to her treatment of Patient A, and evidence of CPD in the previous 12 months (the 14 June 2013 Council letter). The letter requested a response by 1 July 2013.
14. On 7 November 2013, M&A filed a submission with the Council (the 7 November 2013 M&A submission) relevantly stating that "She is computer illiterate and found it difficult to properly extracted the clinical notes requested from her computer system in what appeared to be a legitimate manner".

The evidence of the applicant

1. The applicant relies on the 31 January 2014 Somaey statement in which the respondent relevantly: 1. provided a detailed explanation of her treatment of Patient A over 10 appointments; 2. annexed dental records relating to her treatment of Patient A; 3. states that she did not understand the purpose of the request in the 12 February 2013 Council letter; 4. states that in response to the 15 April 2013 Council letter she provided a list of courses she had attended over the last three years; 5. states that she did not understand what the request for evidence of CPD undertaken in the past 12 months in the 17 May 2013 Council letter meant; 6. annexes a statement of an employee who states that Patient A took his file containing his dental records on 17 November 2012; 7. does not deal with the 14 June 2013 Council letter; 8. acknowledges that the responses to the Council were inadequate because they were not sufficiently timely or detailed.

The evidence of the respondent

1. The respondent gave oral evidence on this issue. In cross-examination she relevantly: 1. as to the 12 February 2013 Council letter, said that she provided to the Council what she had at the time including her computer records relating to Patient A, but could not remember if she provided a typed submission outlining her treatment of patient A (Tcpt, 17 February 2021, pp 51(14)-53(6)); 2. as to the 15 April 2013 Council letter, said that she did not understand what was meant by a comprehensive response (Tcpt, 17 February 2021, pp 56(32)-57(19)); 3. as to the 17 May 2013 Council letter, said that she did provide all her records to the Council (Tcpt, 17 February 2021, pp 58(5)-59(2)); 4. as to the 14 June 2013 Council letter, said that she did provide all her records to the Council, she did not understand what a notice under s 164G of the National Law meant, and could not remember if she responded (Tcpt, 17 February 2021, pp 60(46)-61(45)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were repeated in oral submissions, the applicant submits that the evidence comprehensively establishes that the respondent failed to cooperate and adequately communicate with the Council between February and June 2013. The Council was conducting a legitimate inquiry into the treatment of Patient A, and she did not cooperate with either the inquiry or the associated complaints procedure. Nor did she provide information to the Council relevant to their investigations. Instead, she repeatedly failed to respond to correspondence, repeatedly failed to return phone calls, and most importantly, did not at any point provide the information asked for.

The submissions of the respondent

1. The respondent submits that there was not a failure to cooperate by the respondent. She provided the information which she had, and that information simply did not satisfy the Council. That is not a failure to cooperate.

Consideration

1. We are satisfied that the respondent failed to adequately and promptly respond to requests of the Council for information and records for the following reasons: 1. we infer from the absence of any such document before the Tribunal that she did not provide a typed submission outlining her treatment of Patient A and the management of the compliant of Patient A to the Council. Her evidence that she did not understand what was meant by a comprehensive response so far as it applied to such a submission called for in the 15 April 2013 Council letter is not accepted. Such a response by subsequently provided in the 31 January 2014 Somaey statement; 2. we infer from the absence of any such document before the Tribunal that she did not provide a copy of the records on her computer relating to the treatment of Patient A to the Council. Her evidence to the contrary is not accepted; 3. her only response, apart from speaking on the telephone, to extensive communications from the Council or the Assessment Committee to her between February 2013 and June 2013 was the 19 March 2013 Somaey letter which was not responsive to the 12 February 2013 Council letter; 4. she has already acknowledged that her responses to the Council were inadequate because they were not sufficiently timely or detailed in the 31 January 2014 Somaey statement.
2. This failure of the respondent to adequately and promptly respond to requests of the Council for information and records in the 12 February 2013 Council letter, the 15 April 2013 Council letter and the 17 May 2013 Council letter constituted a failure to follow the guidance in s 8.10 of the Code of Conduct. This failure of the respondent to adequately and promptly respond to requests of the Council for information and records in the 14 June 2013 Council letter constituted a failure to follow the guidance in s 8.10 of the Code of Conduct and a contravention of s 164G of the National Law. These requests were made in the context of a complaint by Patient A against the respondent arising out of his treatment by her. The delay was prolonged as the request was answered by the 31 January 2014 Somaey statement. This lack of cooperation was not due to any lack of understanding on her part. Notwithstanding that her attention was drawn to s 145B(1)(a) of the National Law in the 12 February 2013 Council letter and the 13 March 2013 Council letter, she did not cooperate. On the contrary, in the 19 March 2013 Somaey letter she advised that she had "come to the conclusion" that Patient A's claims were irrelevant to any dental treatment she provided. She had no reasonable excuse for not following the guidance in s 8.10 of the Code of Conduct and complying with the obligation under of s 164G of the National Law.

Whether the respondent failed to attend s 150 interviews, and Council interviews or inquiries

Introduction

1. This impugned conduct of the respondent is alleged in paragraphs (b), (c), (e), (f), (g), (j), (l) and (o) of Particular 1 of Complaint Two, and is based on her failure to attend s 150 interviews, or Council interviews or inquiries specified in those paragraphs.
2. There is no controversy between the parties that the respondent failed to attend the particularised s 150 interviews, interviews or inquiries. The issue is whether the respondent had a reasonable excuse for not doing so.
3. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence and submissions of the parties.

The s 150 hearing on 8 November 2013

1. On 1 November 2013, the Council conducted an inquiry into the complaint of Patient A. The respondent attended and gave evidence.
2. On 4 November 2013, the Council sent a letter to the respondent advising that a s 150 hearing had been fixed for 8 November 2013 at 9.30am. In this letter the Council stated "It is anticipated you will attend these proceedings"… "If you do not attend these proceedings, the Council may determine the matter in your absence."
3. On 7 November 2013, M&A filed a submission with the Council (the 7 November 2013 M&A submission) in which they relevantly sought an adjournment to take a statement from her and extract the electronic records referable to Patient A.
4. On 8 November 2013, the Council granted an adjournment of the s 150 hearing until 14 November 2013 at 8.30am.

The s 150 hearing on 14 November 2013

1. On 8 November 2013, the Council sent a letter to the respondent advising that the adjourned s 150 hearing had been fixed for 14 November 2013 at 8.30am. In this letter the Council stated "it is anticipated you will attend these proceedings"… "If you do not attend these proceedings, the Council may determine the matter in your absence."
2. On 14 November 2013, the Council conducted a s 150 hearing into the complaint of Patient A. The respondent failed to attend the hearing. The respondent's lawyer relevantly said: "On the last occasion she felt very confronted by the whole set up and that she felt that she was so stressed that often the answers she gave were not accurate, if she turned up today she possible [sic] would give more inaccurate answers, and she feels quite traumatized by the whole process. … We have honestly told her time and time again that it is in her best interests and told her the things that you could possibly order and nothing seemed to assist her."

The Council inquiry on 3 July 2015

1. Prior to the Council inquiry on 3 July 2015, M&A provided a letter dated 19 June 2015 of Dr Yaser Mohammad, a mental health clinician, who stated that she was unable to attend the inquiry "as this will exacerbate her level of stress".
2. On 3 July 2015, the Council conducted an inquiry into the complaint of Patient A. The respondent failed to attend the inquiry.

The Council performance interview on 11 May 2016

1. Prior to the performance interview on 11 May 2016, the respondent advised the Council that she would not be attending due to "health issues".
2. On 11 May 2016, the Council conducted a performance interview regarding the complaint of Patient B. The respondent failed to attend the performance interview.

The Council inquiry on 20 January 2017

1. On 20 January 2017, the Council conducted an inquiry into the complaints of Patients B, C and D. The respondent failed to attend the inquiry.

The s 150 hearing on 22 June 2017

1. On 22 June 2017, the respondent provided a submission to the Council (the 22 June 2017 Somaey submission) which included a certificate of sickness of Dr Ayad Admon Abed dated 21 June 2017 that she was suffering from acute chest pain and would be unfit for her usual duties from 21 June 2017 to 23 June 2017, and a discharge referral of Fairfield Hospital dated 21 June 2017 which recorded a diagnosis of chest pain.
2. On 22 June 2017, the Council conducted a s 150 hearing into the complaint of Patient E. The respondent failed to attend the hearing.

The s 34A interview on 28 July 2017

1. On 24 July 2017, the applicant sent a letter to the respondent advising that a s 34A interview had been fixed for 28 July 2017at 10.00am (the 24 July 2017 HCCC letter).
2. On 27 July 2017 at 4.00pm, a representative of the applicant emailed the 24 July 2017 HCCC letter to the respondent.
3. On 27 July 2017 at 6.56pm, the respondent emailed a representative of the applicant advising that she would not be attending the s 34A interview and attaching the 27 July 2017 Arslan medical certificate.
4. On 28 July 2017, the respondent failed to attend the s 34A interview.

The Council review hearing on 8 June 2018

1. On 13 March 2018, the respondent by her lawyers made an application under s 150A of the National Law for review of the Council's decision to suspend her registration.
2. Prior to the review hearing on 8 June 2018, M&A notified the Council that the respondent would not attend the review hearing because she was overseas.
3. On 8 June 2018, the respondent did not attend the review hearing.

The evidence of the applicant

1. The Somaey Medicare records record that she treated six patients on 20 January 2017.

The evidence of the respondent

1. In the 28 February 2020 Somaey affidavit, the respondent relevantly: 1. stated that she meant no disrespect to those involved in the Council inquiry process when she did not attend the s 150 hearing on 8 November 2103 and 14 November 2013. She sent a representative to explain her situation and hoped prior to 8 November 2013 that if she had a little more time, she would be able to attend, and that the trauma of 1 November 2013 would pass with a little time. In fact, by 14 November 2013, the trauma got worse and it has got worse over time; 2. annexed a certificate of attendance of a course on Infection Control Management in Dental Practice for 6.5 hours on 29 July 2017.
2. The respondent gave oral evidence on this issue. In cross-examination she relevantly: 1. as to the s 150 hearing on 8 November 2013, said that the statement in the 7 November 2013 M&A submission "When questioned by the council previously she was so distressed that she was unable to give proper answers to the questions" was based on the information that she gave her lawyers (Tcpt, 18 February 2021, p 20(31-45)); 2. as to the s 150 hearing on 14 November 2013, said that her stress and anxiety levels were so high that she thought it was possible that she might give more inaccurate answers (Tcpt, 18 February 2021, p 25(23-28)); 3. as to the Council inquiry on 3 July 2015, said that she was unable to attend because of the same feelings of stress and anxiety she had experienced as a result of the 1 November 2013 hearing (Tcpt, 18 February 2021, p 26(45-47)); 4. as to the Council performance interview on 11 May 2016, said that the health issues that prevented her from attending were the stress and anxiety (Tcpt, 18 February 2021, p 27(16-19)); 5. as to the Council inquiry on 20 January 2017, denied treating any patients on 20 January 2017, instead stating that she was at home due to stress and had a specific recollection of the date due to a family event. She said that the entries on 20 January 2017 in the Somaey Medicare records were the result of claims made in respect of treatments performed on prior days (Tcpt, 18 February 2021, pp 28(22)-32(31)); 6. as to the s 150 hearing on 22 June 2017, said that she could not remember the diagnosis she was given when she went to hospital (Tcpt, 18 February 2021, p 40(4-36)); 7. as to the s 34A interview on 28 July 2017, said that she could not recall what the medical issue was that prevented her from going to the interview (Tcpt, 18 February 2021, pp 44(44)-46(43)).
3. There was no cross-examination of the respondent in relation to the Council review hearing on 8 June 2018.

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, the applicant submitted that it does accept that there is a causal link between the respondent's stress and anxiety, and her failure to attend interviews. It is unremarkable that she felt some level of stress and anxiety when asked to attend for an interview. In the circumstances, the Tribunal would be satisfied that her pattern of non-attendance at eight separate interviews or inquiries was a further manifestation of her failure to cooperate.
2. In oral submissions, the applicant modified its position, and accepted that there is a causal link between the respondent's stress and anxiety, and her failure to attend interviews. The applicant submitted that the failure to cooperate was established by the repeated inability of the respondent to comply with requests from the Council or the applicant, and there was no attempt by the respondent to suggest that the interview be re-scheduled, or conducted under different conditions, or even that the questions be done via writing. There is simply a blanket failure to engage when attendance is sought. The stress and anxiety that she felt when being asked about why she had not produced documents in relation to patient A is not a sufficiently good reason for continued non-cooperation over several years. Even though attendance at these interviews and inquires other than the s 34A interview on 28 July 2017 was not mandatory, good practice mandated that she should have attended them.
3. Further, the applicant submitted that the Tribunal would find that the Somaey Medicare records are the most accurate, contemporaneous record of what occurred on 20 January 2017 and that the respondent treated patients on that day having regard to the following matters: 1. it is the first time she has said she was at home on that day; 2. her evidence is contrary to the Somaey Medicare records which is a business record, and records the date of service rather than the date of the claim; 3. her explanation of keeping a store up of claims related to work that she had done does not make sense; 4. there is no evidence corroborating that she did not treat patients on that day. She was unable to produce the appointment diary, either off the original computer, the backup disks or the cloud provider.

The submissions of the respondent

1. The respondent made the following submissions: 1. as to the s 150 hearing on 8 November 2013, she had no obligation to attend; 2. as to the s 150 hearing on 14 November 2013, she had no obligation to attend; 3. as to the Council inquiry on 3 July 2015, she provided a medical certificate; 4. as to the Council performance interview on 11 May 2016, she was still suffering from the stress and anxiety caused by the Council inquiry on 1 November 2013; 5. as to the Council inquiry on 20 January 2017, she was still suffering from the stress and anxiety caused by the Council inquiry on 1 November 2013. Whether she saw patients on that day is not relevant to this issue; 6. as to the s 150 hearing on 22 June 2017, she had no obligation to attend; 7. as to the s 34A interview on 28 July 2017, paragraph (o) if proved does not establish a contravention of s 34A of the HCC Act because it does specify that she was without reasonable excuse; 8. as to the Council review hearing on 8 June 2018, it cannot be regarded as within the scope of any duty to assist in terms of the determination of any complaint; 9. the removal by the Council of restrictions on her registration on 15 September 2016 should be taken into account.

Consideration

1. There is a fundamental contradiction between the applicant's complaint that the respondent has an impairment and its complaint that she failed to cooperate with and adequately communicate with the Council and the applicant by reason of her failure to attend s 150 hearings, interviews and inquiries in circumstances where the impairment was the reason for this failure.
2. Having found that that the respondent up to 1 November 2018 was suffering from a vulnerability to stress, anxiety and depression which prevented her from appropriately responding to patient complaints and regulatory authorities, we are satisfied that she had a reasonable excuse for not attending the eight s 150 hearings, interviews or inquiries the subject of this complaint. It is strange that the applicant accepts there is a causal link between the respondent's stress and anxiety, and her failure to attend interviews, and yet continues to press this aspect of Particular 1 of Complaint Two.
3. If, contrary to our finding, the respondent's stress, anxiety and depression did not constitute a reasonable excuse for not attending these s 150 hearings, interviews or inquiries, then we are satisfied that the fact that the respondent, leaving aside the s 34A interview on 28 July 2017, had no obligation to attend them did not provide a reasonable excuse for not following the guidance in s 8.10 of the Code of Conduct. Further, we are not satisfied that this section applied to the Council review hearing on 8 June 2018 because it did not relate to "the treatment of a patient or client and with any complaints procedure that applies to a practitioner's work".
4. We are not satisfied that the removal by the Council of the conditions on the registration of the respondent on 15 September 2016 has any relevance as the conditions were directed to clinical practice and not attendance at s 150 hearings, interviews and inquiries.
5. While we have found that the respondent did treat patients on 20 January 2017, we agree with the respondent that this is not relevant to this complaint. Similarly, the attendance the respondent at a course on 29 July 2017 as part of her continuing professional development (CPD) is not relevant to this complaint. Dr Younan's evidence, which we have accepted, was that at the time her phobia did not "impact her ability [to] practice dentistry in the clinic" (Tcpt, 18 February 2021, p 9(5-8)).

Whether the respondent provided inaccurate information to the Council

Introduction

1. This impugned conduct of the respondent is alleged in paragraphs (h) and (k) of Particular 1 of Complaint Two, and is based on the provision of information by her to the Council about practitioners who were practising from her rooms.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence of the respondent and the submissions of the parties.

The underlying facts

1. On 21 June 2017 at 5.26pm, a Manager of the Council sent an email to its Executive Officer (the 21 June 2017 at 5.26pm Council email) which relevantly stated: "Please accept the following summary of key issues for the Council to consider: • [name omitted] and I entered the practice at 3.22pm. The receptionist confirmed that there was a dentist working in Room 22. • When we entered Room 22. Dr Somaey was on the floor praying. • When asked, Dr Somaey said that she saw her last patient on 30 January 2017. She also said that she continues to pay rent for the room. • She reported that no one else practises from her rooms."
2. On 22 June 2017, the respondent in the 22 June 2017 Somaey submission relevantly stated: "Supporting documents have been attached to this email demonstrating that Dr Somaey is present in clinic in order to book patients for Dr Razan Jameel and Dr Hamdy El-Saedy. … If the clinic was not up to standard in the meantime, it is due to its lack of use over the past 5 months. The clinic has been used on only two Saturdays by another dentist. Dr Hamdy El-Saedy, who brings his own equipment and material when practicing [sic]."

The evidence of the respondent

1. The respondent gave oral evidence on this issue. In cross-examination she relevantly said that: 1. she told the inspectors that Hamdy El-Saedy (Dr El-Saedy) came on two Saturdays to test the clinic as to whether he would buy it or rent it (Tcpt, 18 February 2021, pp 33(38)-34(5), (21)-(22)); 2. her son-in-law went to the clinic on one day to practise on artificial teeth to prepare himself for a Dental Council exam (Tcpt, 18 February 2021, p 34(22-24)).
2. In re-examination the respondent relevantly said that: 1. it was at least one month or a half month since Dr El-Saedy had last practised in her rooms (Tcpt, 18 February 2021, p 64(16-19)); 2. her son in law would go to the practice every day (Tcpt, 18 February 2021, p 64(21-22)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were repeated in oral submissions, the applicant submits that the contemporaneous evidence in the 21 June 2017 at 5.26pm Council email should be preferred to the oral evidence of the respondent. Further, there were inconsistencies in the 22 June 2017 Somaey submission as to the number of practitioners working from her practice, as well as a lack of clarity as to the frequency of the use of her rooms.

The submissions of the respondent

1. The respondent made the submission that the evidence had been quite clear that the only practitioner who practiced from her rooms was Dr El-Saedy, and he only went there on two occasions on a Saturday. This evidence had not been the subject of challenge.

Consideration

1. While we are satisfied that the reported statement of the respondent in the 21 June 2017 at 5.26pm Council email "that no one else practises from her rooms" is an accurate record of what the Council inspectors were told by her, we are not satisfied that it was inaccurate. This statement is properly to be understood as referring to the time it was made, namely on 19 June 2017. In view of her evidence, which we accept, that it was at least one month or a half month since Dr El-Saedy had last practised in her rooms, there was no failure of the respondent to cooperate with and adequately communicate with the Council in making this statement.
2. We are not satisfied that the respondent in the 22 June 2017 Somaey submission provided inconsistent information about whether other practitioners were practising from her rooms. The statement "The clinic has been used on only two Saturdays by another dentist, Dr Hamdy El-Saedy" was referring to the past rather than the then current circumstances as at 22 June 2017.
3. We are not satisfied that Dr Razan Jameel (Dr Razan), who is referred to in the 22 June 2017 Somaey submission, was practising from the respondent's rooms. The attached SMS messages of Dr Razan which were made on three separate days, one unidentified, one on 14 June 2017, and one on 19 June 2017 do not on their face contain this information. The question of whether Dr Razan was practising from the respondent's rooms was not explored in the oral evidence.

Whether the respondent failed to assist Council inspectors with an on-site audit

Introduction

1. This impugned conduct of the respondent is alleged in paragraphs (i) of Particular 1 of Complaint Two, and is based on the events occurring during an on-site audit conducted by Council inspectors on 19 June 2017.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence of the respondent and the submissions of the parties.

The underlying facts

1. On 20 June 2017 at 4.59pm, a Manager of the Council sent an email to the Council and its Executive Officer (the 20 June 2017 at 4.59pm Council email): 1. which relevantly stated: "At 3.25pm on 19 June 2017, [name omitted] and I attended the premises of Somaey Dental Services. Dr Sahar Somaey was present and allowed us access into her practice." 1. which attached an infection control checklist which relevantly stated: "The inspection is not complete as Dr Somaey collapsed to the ground when asked to produce the required documentation. Dr Somaey required medical attention and took no further part in the inspection."

The evidence of the applicant

1. The Ware Street records include the following entry for 19 June 2017: "Monday June 19 2017 16:54:04 Registered Nurse - [name omitted] Pt was found fainted on the floor at the Dentist section of the centre and breathing however losing consciousness on and off while waiting for ambulance. The nurse has communicated to the staff responsible for dispatching the ambulance to the area at around 1600 hours. Nurse Mima and nurse Xiao Xin had attended to the pt and made sure that the pt stays alert, while waiting for the ambulance to arrive. Pt was tachycardia with a heart rate of 130 beats/min. HR decreased to 110-118 after administration of oxygen of 3L via hudson mask. The paramedics arrived at around 1630 hours. Paramedics has done separate general observations and had asked the pt if she wanted to go to hospital and, the pt has stated that she is feeling better and does not feel the need to go to the hospital, therefore the paramedics obtained consent from the pt that she did not go to the hospital via her own choice in paper. … Reason for contact: FAINTED AND CALLED AMBULANCE"

The evidence of the respondent

1. The respondent gave oral evidence on this issue. In cross-examination she relevantly said that she was praying when the Council inspectors arrived. She could not remember being asked to produce some patient records during the on-site audit because she collapsed. She suffered anxiety which "hit the roof" because of the way the Council inspectors entered the clinic and because they searched in her personal bag (Tcpt, 18 February 2021, pp 34(27)-35(10)).
2. In re-examination the respondent relevantly said that Muslims pray five times a day and she went to the practice at 3.00pm where she prayed in a small room like a waiting area beside the dental room (Tcpt, 18 February 2021, pp 62(44)-63(11)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were relied on in oral submissions, the applicant makes the following submissions: 1. the respondent's collapse, which it does not suggest was not genuine, was caused because she could not produce the material requested the Council inspectors. Despite feeling better just over an hour after the collapse, she did not attempt to produce any of the material that the Council had been seeking earlier in the day, either at that point or any later point; 2. viewed in isolation, the respondent's collapse would be insignificant. But when viewed in the context of a broader pattern of non-cooperation, as well as her failure to take any steps to assist in the audit once she was feeling better just one hour later, the Tribunal would find that her conduct was a further manifestation of her failure to cooperate.

The submissions of the respondent

1. The respondent made the submission that it appeared that the applicant was suggesting that she collapsed because she knew that the Council inspectors were going to find out something and that this was never put to her in cross-examination.

Consideration

1. There is a fundamental contradiction between the applicant's complaints that the respondent has an impairment, and that she failed to cooperate with and adequately communicate with the Council by reason of her failure to subsequently produce documents sought by the Council inspectors. There is no evidence that the Council inspectors asked her to produce the requested documents when she recovered from her anxiety.

Conclusion

1. We find that the applicant: 1. has established that the respondent failed to cooperate with and adequately communicate with the Council and it by reason of: 1. her failure to adequately and promptly respond to the requests for information and records in the 12 February 2013 Council letter, the 15 April 2013 Council letter, the 17 May 2013 Council letter and the 14 June 2013 Council letter; 2. her failure to respond to the 28 July 2013 letter in a timely manner; 1. has not established that the respondent otherwise failed to cooperate with and adequately communicate with the Council and the Commission.

Whether the respondent engaged in the conduct alleged in Particular 2 of Complaint Two

Introduction

1. The three instances of the failure of the respondent to exercise adequate management of infection control and hygiene control in continuing to attend and manage the practice while other practitioners were using her rooms after she ceased active dental care of patients in January 2017 set out in Particular 2 of Complaint Two can be characterised as follows: 1. the conduct in paragraphs (a) and (b) is poor cleaning and hygiene in the practice; 2. the conduct in paragraph (c) is the opinion of the respondent that the infection control standards and hygiene issues at the practice were adequate.
2. There was no controversy between the parties that between January 2017 and June 2017: 1. the following obligations to maintain infection and hygiene control were applicable to the respondent's practice, when allowing other dentists to use it for a fee: 1. the practice was required to have the Australian Guidelines in either hard copy or electronic form: cl 1.1(c) of the Infection Control Guidelines; 2. every dental practitioner at the practice was required to act in accordance with the requirements set out in the documents described at clause 1.1 of the Infection Control Guidelines including the Australian Guidelines: cl 2.1(c) of the Infection Control Guidelines; 3. every dental practitioner at the practice was required to ensure the premises in which he or she practises are kept in a clean and hygienic state to prevent or minimize the spread of infectious diseases: cl 2.1(a) of the Infection Control Guidelines; 1. that as the principal of the practice the respondent had overall responsibility for the its infection prevention and control program.

Whether there was poor cleaning and hygiene in the practice

Introduction

1. This impugned conduct of the respondent is alleged in paragraphs (a) and (b) of Particular 2 of Complaint Two, and is based on the results of the on-site audit conducted by Council inspectors on 19 June 2017.
2. There was no dispute between the parties as to the accuracy of the results of the on-site audit conducted by the Council inspectors on 19 June 2017 as set out in the infection control checklist attached to the 20 June 2017 at 4.59pm Council email.
3. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence of the respondent and the submissions of the parties.

The underlying facts

1. In the 20 June 2017 at 4.59pm Council email a Manager of the Council relevantly stated: "The authorised persons have identified the following issues: • Non-compliance with infection control standards as set out in the Dental Board of Australia's Guidelines. The areas of non compliance present a high risk of cross infection risk. Somaey Dental Services is a danger to public safety."
2. The infection control checklist attached to the 20 June 2017 at 4.59pm Council email relevantly included the following summary of the on-site audit conducted by Council inspectors on 19 June 2017: "The Ultrasonic unit was full of solution, not validated, and with no record of foil testing. The surgery sinks had water droplets in them and a cotton pellet was present on a bench. Dr Somaey explained this was due to daily cleaning. Disposal of sharps and pathological waste is not compliant. Dr Somaey was not able to offer an explanation for the presence of used instrument packages stored in a drawer and cupboards. The re use of single use burrs, reuse of stainless steel root canal files, are non compliant. Oil and water stained packages, unpackaged implant components are non compliant Rotary NiTi files are present that are tarnished and broken. Unpackaged soiled ultrasonic tips and diamond burrs were observed in surgery drawers. Instruments must be free of debri prior to sterilisation to ensure sterility Rotary NiTi files are present that are tarnished and broken. Bent and corroded critical instruments stored in oil and water stained packages, rendering them non sterile. There is no evidence the steriliser has been used to reprocess instruments in the last 6 months. These areas of non compliance present a high risk of cross infection risk"

The evidence of the respondent

1. The respondent gave oral evidence on this issue. In cross-examination she relevantly stated: 1. after she had the condition of practising under supervision imposed in January 2017, she was still leasing room number 22 in which the practice was located (Tcpt, 18 February 2021, p 52(38)-(40)); 2. she was the owner of the computers, the records and the equipment that was kept inside the room (Tcpt, 18 February 2021, p 53(2)-(4); (22)-(23); (28)-(30)); 3. Dr El-Saedy brought everything he used at the clinic except the dental chair (Tcpt, 18 February 2021, pp 53(36)-54(6)); 4. everything in the clinic when the Council inspectors came on 19 June 2017 was hers (Tcpt, 18 February 2021, p 54(8)-(10)); 5. she accepted that on 19 June 2017 there were infection control issues in the practice, but said Dr El-Saedy was responsible (Tcpt, 18 February 2021, p 55(3)-(21)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were substantially repeated in oral submissions, the applicant submitted that irrespective of Dr El-Saedy's use of the practice on two Saturdays in the first half of 2017, the respondent remained responsible for the hygiene of her practice for the following two reasons: 1. she was the owner and principal of the practice. The practice management systems were hers; the main equipment in the practice was hers; and she charged rent to Dr El-Saedy to use her premises from time to time; 2. she owned the equipment that was criticised by the Council inspectors. In those circumstances, her obligation was personal, and not merely as practice principal, to ensure that her personal dental equipment was not an infection risk to others practising from those premises.

The submissions of the respondent

1. The respondent made the submission that the allegation of inadequate management is based entirely on the fact of the audit, and the control checklist which was produced following the audit. However, there is no actual allegation as to what is the alleged deficiency that she is supposed to have engaged in.

Consideration

1. We are satisfied that the respondent's practice continued after 30 January 2017 when the Council imposed conditions on her registration. She continued leasing the premises from which the practice had been conducted, kept her equipment there and leased the rooms to Dr El-Saedy.
2. We are also satisfied that the respondent was the principal of the practice within cl 1.2.4 of the Australian Guidelines and as such had overall responsibility for infection prevention and control in the practice which included compliance with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines.
3. We are further satisfied that the respondent by reason of the matters set out in the infection control checklist attached to the 20 June 2017 at 4.59pm Council email did not comply with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines. However, we are not satisfied that this infection control checklist establishes that there was no evidence of good infection control since 12 August 2016. The infection control practice of the respondent between 12 August 2016 and 30 January 2017 was not explored in the cross-examination of the respondent and not canvassed in the submissions of the parties.

Whether the respondent expressed the view that the infection control standards and hygiene issues at the practice were adequate

Introduction

1. This impugned conduct of the respondent is alleged in paragraph (c) of Particular 2 of Complaint Two, and is based on a statement made by the respondent in a conversation she had with the Executive Officer of the Council on 21 June 2017.
2. There was no cross-examination of the respondent about her statement.
3. Before considering this issue it is appropriate to set out the underlying facts, and summarise the submissions of the parties.

The underlying facts

1. In a file note dated 21 June 2017 the Executive Officer of the Council recorded the contents of her telephone conversation with the respondent on that day (the 21 June 2017 Council file note) including the following sentence: "When I advised that there were concerns about infection control standards at the surgery she queried specifics and was of the belief that it was all fine."

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were relied on in oral submissions, the applicant submitted that the Tribunal should be satisfied the respondent made the impugned statement.
2. In in oral submissions, the applicant submitted that "This is simply a question of whether a particular conversation occurred."

The submissions of the respondent

1. The respondent made the following submissions: 1. there is no evidence produced in relation to the alleged phone call; 2. even if the phone call was accepted, then it really does not take the matter very far, because the respondent is expressing her belief as to the adequacy of the infection control standards and hygiene issues at the practice; 3. the real issue is what is it that is alleged that the respondent did or did not do relating to the maintenance of infection and hygiene control in the practice.

Consideration

1. We are satisfied that the 21 June 2017 Council file note accurately records the contents of the telephone conversation between the Executive Officer of the Council and the respondent on that day, and the respondent expressed the belief that the infection control standards at the surgery were all fine.
2. However, this allegation is misconceived. The expression of this belief by the respondent does not establish that she failed to exercise adequate management of infection control and hygiene control in continuing to attend and manage the practice while other practitioners were using her rooms after she ceased active dental care of patients in January 2017.

Conclusion

1. We find that the applicant has established that the respondent did not 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 by reason of the matters set out in in the infection control checklist attached to the 20 June 2017 at 4.59pm Council email.

Whether the respondent engaged in the conduct alleged in Particular 3 of Complaint Two

Introduction

1. The five instances of the failure of the respondent to exercise adequate dental practice management (including retention and management of clinical records of her patients) set out in Particular 3 of Complaint Two relate to circumstances in 2013, in February 2014, on 19 and 21 June 2017, and on 30 November 2017.
2. There is no dispute between the parties that the obligation of the respondent to maintain proper records including clinical records of her patients is found in s 8.4 of the Code of Conduct.
3. Because the complaints in paragraphs (d), (e) and (f) concern the failure to have patient records at her practice as at three separate dates in 2017 and the response of the respondent to these three complaints is that her patient records were stolen, we have considered these complaints together.

Whether the respondent in 2013 exercised inadequate dental practice management

Introduction

1. This impugned conduct of the respondent is alleged in paragraph (a) of Particular 3 of Complaint Two, and is based on her failure to keep handwritten patients notes or appointment books and her lack of knowledge and experience of computers in which she was maintaining clinical records in 2013.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence and submissions of the parties.

The underlying facts

1. In the 7 November 2013 M&A submission, M&A relevantly stated: "She is computer illiterate and found it difficult to properly extracted the clinical notes requested from her computer system in what appeared to be a legitimate manner".
2. On 31 July 2015, the Council found that the respondent in relation to his treatment of Patient A had engaged in unsatisfactory professional conduct within the meaning of s 139B of the National Law and in accordance with s 148E of the National Law cautioned her and imposed orders and conditions. In its report the Council relevantly referred to advice provided by M&A on two unspecified occasions, the first which was presumably by the 7 November 2013 M&A submission, and the second at a later time (the subsequent Somaey advice): "39. Dr Somaey produced two treatment plans both dated 1 September 2012. These documents were printed from her electronic records. Initially Dr Somaey's solicitors had advised the Council that Dr Somaey was not computer literate and that was why there was a delay in producing this document. Later they advised that Dr Somaey was in fact computer literate but she did not have the skills to print this document."

The evidence of the respondent

1. In the 28 February 2020 Somaey affidavit, the respondent relevantly gave the following evidence: "28 In relation to the complaints concerning practice management and in particular the clinical records, in 2013 I regarded myself as having in fact a very good knowledge and experience of computers. All of the records were kept on computer and I regularly used both the internet and email. I simply do not understand the suggestion I should have kept hand-written patient notes as I lacked the knowledge and experience of computers. It is simply not true. …"
2. The respondent gave oral evidence on this issue. In cross-examination she relevantly stated: 1. the clinical records of Patient A were all recorded in her computer (Tcpt, 17 February 2021, pp 52(1)-(8), 59(19)-(36)); 2. in 2013 she had very good knowledge and experience with computers, her records were kept on computer and she regularly used the internet and email. She also knew how to print those documents (Tcpt, 18 February 2021, p 22(3)-(13)); 3. she could not remember giving her lawyers instructions that she found it difficult to extract the clinical notes as submitted in the 7 November 2013 M&A submission (Tcpt, 18 February 2021, p 23(6)-(18)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were substantially repeated in oral submissions, the applicant made the following submissions: 1. the 7 November 2013 M&A submission and the subsequent Somaey advice both present difficulties for the respondent in view of her oral evidence that she was not only was she computer literate, but also could print documents. If her oral evidence is accepted, that means that the 7 November 2013 M&A submission and the subsequent Somaey advice were both wrong; 2. if the factual accuracy of either the 7 November 2013 M&A submission or the subsequent Somaey advice is accepted, then this complaint is proved and the Tribunal should find that the respondent's oral evidence about being computer literate was not credible. In the alternative, if this complaint is not proved because the factual accuracy of the 7 November 2017 submission is not accepted, then the Tribunal should take into account, at the very least in any assessment of her credibility, that an erroneous factual submission was made to the Council, on instructions, in support of an effort to obtain an adjournment.

The submissions of the respondent

1. The respondent made no submissions on this issue.

Consideration

1. We are not satisfied that the respondent did not keep handwritten patients notes or appointment books in 2013. As set out in the 7 February 2014 Council inspector letter at [235] below, the council inspector during an inspection on 6 February 2014 located an appointment book. As set out at [252(3)] below, in June 2017 the respondent had 28 folders of patients' records from early in 2017 going back to 2014.
2. We are also satisfied that the respondent kept patient records on a computer in 2013 as set out in the 7 November 2013 M&A submission and as stated by the respondent in her oral evidence, and had the knowledge and experience of computers to maintain patient records on a computer.
3. The submission in the 7 November 2013 M&A submission that the respondent was computer illiterate and found it difficult to properly extract the clinical notes requested from her computer system in what appeared to be a legitimate manner is contradictory. If she was computer illiterate, then she would have been unable, rather than found it difficult, to properly extract the clinical notes requested from her computer system.
4. Accordingly, we are not satisfied that the applicant has established that the respondent exercised inadequate dental practice management in 2013.

Whether the respondent in February 2014 exercised inadequate dental practice management

1. This impugned conduct of the respondent is alleged in paragraph (b) of Particular 3 of Complaint Two, and is based on her failure to keep records whereby it was possible to identify who was practising and treating patients and rendering dental services at her practice in February 2014.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence and submissions of the parties.

The underlying facts

1. On 6 February 2014, a Council inspector carried out an inspection of the respondent's practice.

The evidence of the applicant

1. The Council inspector in a letter dated 7 February 2014 to the Council (the 7 February 2014 Council inspector letter) relevantly made the following report of his inspection of the respondent's practice on 6 February 2014 when she was not present: "On entering the premises and asking to see the dentist I was advised the front desk does not handle dental matters and to proceed down the hall way to door 20 where the dentist practices. Door 20 has the name of Dr Sahar Somaey displayed on the door. The name on the door would indicate that Dr Sahar Somaey practiced there. On entering this door I produced identification to the only person in the rooms who identified herself as Sylana Gawzal and stated she was the cleaner. She declared she only cleaned the floors and did not know if a dentist practiced there, or what the name of the dentist might be. During the inspection she remained seated and observed the whole time. She was able to show me how to access the computer for the appointments etc... She had no knowledge of how or when the rubbish bin on a work bench was filled. I proceeded to empty part of this bin which showed used gloves and other rubbish which was obviously very recent. … Appointment Books November-December 2013 computer appointment book indicated it was a busy practice on all days of the week but gave no indication of the identity of the dentist. … The hand written appointment book has some days with one or two appointments entered. These had writing in, what I presume to be, Arabic. The appointment book kept on the computer shows: [details of appointments on six days in February 2014 are omitted] HI Caps Machine. Dated 4 February 2014 in the HI Caps machine was a docket of settlement for $200-00 under the name Dr Sahar Somaey with provided number 2878684W. All stationery was in the name of Dr Sahar Somaey including appointment cards, referrals and dental laboratory prescription pads. The photographs show a denture on an articulator with no other identification. On a note attached to the cupboard door above the denture stating "HAMDY EL-SAEDY 0229184F" … Summary. This is a practice where paid dental services are being rendered; where nobody has any idea which dentist is rendering the services, where the only name displayed inside and outside the Centre is Dr Sahar Somaey, where a dentist rendered treatment during November and December 2013 but is unknown to any person in the Centre and he has since left the Centre and the dentist now rendering dental treatment is not known."

The evidence of the respondent

1. In the 28 February 2020 Somaey affidavit, the respondent relevantly gave the following evidence: "28 … I note that there is also an allegation against me concerning a council inspection in February 2014, however, there was only one person in the practice who provided dental treatment and that was me. There was no issues as to the identity of the service providers as there was only a single service provider."
2. The respondent was not cross-examined on this issue.

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were relied on in oral submissions, the applicant submitted on the basis of the 7 February 2014 Council inspector letter that the Tribunal would accept that the Council inspector was unable to identify who precisely was practicing and treating patients and rendering services there. In particular, it was not clear whether Dr El-Saedy (in addition to the respondent) was practicing from there too.

The submissions of the respondent

1. The respondent made no submissions on this issue.

Consideration

1. We are not satisfied on the basis of the 7 February 2014 Council inspector letter that the respondent exercised inadequate dental practice management. The statement in the "Summary" that "nobody has any idea which dentist is rendering the services" is a reference to one person who was the cleaner of the premises. The statement in the "Summary" that "the dentist now rendering dental treatment is not known" was made notwithstanding his observation "where the only name displayed inside and outside the Centre is Dr Sahar Somaey" and in circumstances where he could not read the appointment book and the one HI Caps record he observed was in the name of the respondent.
2. While accepting the 7 February 2014 Council inspector letter contains an accurate record of the observations and opinions of the Council inspector, we are not satisfied that the respondent was practising in breach of s 8.4(a) or s 8.4 (b) of the Code of Conduct.

Whether the respondent on 19 and 21 June 2017 and on 30 November 2017 exercised inadequate dental practice management

1. This impugned conduct of the respondent is alleged in paragraphs (d), (e) and (f) of Particular 3 of Complaint Two, and is based on her failure to have patient records at her practice on 19 and 21 June 2017 and on 30 November 2017.
2. Before considering this issue it is appropriate to set out the underlying facts, and summarise the evidence and submissions of the parties.

The underlying facts

1. The infection control checklist attached to the 20 June 2017 at 4.59pm Council email relevantly includes the following summary of the on-site audit conducted by Council inspectors on 19 June 2017: "…None of the required documentation was present."
2. The 21 June 2017 Council file note relevantly includes the following sentence: "She further stated that the missing clinical record was due to them being stolen, along with her 'stamp', which she had reported to the police."
3. On 16 August 2017 at 10.07am, the respondent's lawyer sent an email to the a representative of the applicant which relevantly stated: "In relation to the patient records, it is my understanding that she has a paper file for some parts of the patients files (for example patient consent forms) and a computerised file for other things such as consultation notes. I understand that only the paper files have been stolen."
4. On 31 October 2017 at 12.49pm, the respondent's lawyer sent an email to the a representative of the applicant which relevantly stated: "Dr Somaey has previously reported to the Dental Council that her physical patient files were stolen earlier this year …"
5. On 30 November 2017 at 2.40pm, the respondent's lawyer sent an email to a representative of the applicant attaching the respondent's response to the 28 July 2017 HCCC questions which contains the following questions and answers: "Patient records 36. Can you provide all patient records for patients seen between 12 August 2016 and 20 July 2017? 37. What type of records are there? Both paper based and electronic clinical records are maintained. Consent forms, treatment plans, dental charts, patient detail forms any documents which are signed, are paper. Clinical notes are stored electronically. The paper records have been stolen from the practice. Electronic billing records are maintained"

The evidence of the respondent

1. In the 28 February 2020 Somaey affidavit, the respondent relevantly: 1. gave the following evidence: "30 I did collapse on 19 June 2017; I was hospitalised as a result. I had meticulously kept records until the time that I left the practice at the end of January, but after that the records were out of my control. They had to be left in the practice because they would be used by Dr Hamdy El-Saedy who inherited most of my patients. The statement to Inspectors that there were patient records missing was simply a statement of fact. I have no explanation for it. 31 Sometime shortly before then, I became aware that a provider stamp was also missing. This caused suspicion in my mind that not only were there patient records missing but also the provider stamp. It was on this that I made my conclusion that the patient records and provider stamp had been stolen, but I accept that there was insufficient evidence to make this conclusion. I did report the loss of the provider stamp to the police and this also heightened in my mind the notion that it had been stolen. 32 However, whether the word missing or stolen is used there were records which had left the practice without explanation. These records included the referrals of the child dental benefit scheme which required paper vouchers to be maintained. These records include the formal consent of the parents to the dental treatment of the children and are not provided electronically. All of these vouchers had gone from the practice which I found particularly strange. … I did report to the Police that there were other items missing from the practice including 2 very expensive hand pieces and the stamp. Annexed and marked with the Letter "A" is a photo of the Fairfield Local Area Command COPS Event Number." 1. annexed the Fairfield Local Area Command COPS Event Number which is undated and relevantly records "stamp + document".
2. The respondent gave oral evidence on this issue. In cross-examination she relevantly said that: 1. the patient records that went missing were from the first half of 2017 back to 2014 (Tcpt, 18 February 2021, pp 57(10)-(41)); 2. the patient records were stored in the cupboard, but at that time it had no keys (Tcpt, 18 February 2021, pp 57(43)-(47)); 3. at least 28 folders were stored in a cupboard. While the folders themselves were there, the contents had been taken out and were missing (Tcpt, 18 February 2021, pp 57(43)-58(36)); 4. she could not remember when she reported to the police that her records were missing (Tcpt, 19 February 2021, pp 13(10)-(36)).

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, which were substantially repeated in oral submissions, the applicant submitted that the Tribunal should find that the impugned conduct occurred.
2. In oral submissions, the applicant's counsel in discussion with the presiding member said he was not suggesting that the respondent had removed the patient records, but "What the applicant is particularly complaining about there is that this is the obligation that arises from cl 8.4 subs (b) (of the Code of Conduct), which is the requirement that records are held securely." The evidence of the respondent that the patient records were kept in a cabinet that was unsecured, and not at least a secure cabinet, is enough to engage that responsibility.

The submissions of the respondent

1. The respondent made the following submissions: 1. the complaint in paragraph (d) deals with the patient records were removed, but does not, in terms, allege that there was any failure to engage in proper security of the records; 2. there is no allegation that there was a failure of security; 3. it does not follow where documents go missing that there is a breach of security; 4. the mere fact that the applicant can show, or that there is an admission that there was some step that could have been taken, particularly when one is looking back in hindsight, that might have made things better, does not establish that the management process was inadequate.

Consideration

1. We are satisfied that the events alleged in paragraphs (d), (e) and (f) occurred. However, we are not satisfied that these findings are sufficient for the applicant to establish that the respondent exercised inadequate dental practice management. The fact that the patient records went missing does not establish inadequate dental practice management.
2. The applicant did not allege a failure by the respondent to securely keep these patient records. Without such an allegation the applicant cannot establish the respondent exercised inadequate dental practice management arising from the circumstance that the patient records went missing.

Conclusion

1. We find that the applicant has not established that the respondent failed to exercise adequate dental practice management (including retention and management of clinical records of her patients) in 2013, in February 2014, on 19 and 21 June 2017, and on 30 November 2017.

Whether the respondent is guilty of unsatisfactory professional conduct

Introduction

1. The applicant has not established the impugned conduct of the respondent other than the conduct in: 1. paragraphs (a) and (m) of Particular 1 of Complaint Two by reason of her failure to adequately and/or promptly respond to requests in a timely manner; and 2. Particular 2 of Complaint Two by reason of 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.
2. It follows that the question of the respondent is guilty of unsatisfactory professional conduct is limited to consideration of the conduct of the respondent in [259] above.
3. As to the failure in paragraph (m) of Particular 1 of Complaint Two the respondent's counsel in oral submissions conceded that this conduct constituted unsatisfactory professional conduct (Tcpt, 19 February 2021, p 39(36)-(38)). For the reasons set out below, we consider that this concession was properly made the by the respondent.
4. Before considering this issue it is appropriate to set out the applicable principles for establishing unsatisfactory professional conduct.

The applicable principles for establishing unsatisfactory professional conduct

1. Section 36(1)(a) of the Medical Practice Act 1992 (NSW) (MP Act) at the time of its repeal by s 1 of the Health Practitioner Regulation Amendment Act 2010 (NSW) (HPRA Act) was in substantially the same terms as s 139B(1)(a) of the National Law. This section had been amended by s 3 and cl 1.3[1] of Sch 1 of the Health Registration Legislation Amendment Act 2004 (NSW) to relevantly insert the words "significantly below the standard". In In Re A Medical Practitioner and the Medical Practice Act (Medical Tribunal (NSW), 3 September 2007, unrep) (Medical Practitioner), the Medical Tribunal of New South Wales relevantly observed at [9]-[12] in relation to this amendment: "[9] The PSC recorded the amendment to the legislation which was passed in 2004 and which introduced the concept of conduct "significantly below" the standard to be expected of a practitioner of equivalent level of training or experience. This was in contrast to the previous legislation which defined unsatisfactory medical conduct as "any conduct that demonstrates a lack of adequate knowledge, skill, judgement or care by the practitioner in the practise of medicine". [10] The change was twofold. Firstly, it introduced the concept of different levels of experience and skill requiring different standards so that the registrar would not be held accountable for failing to be as skilled as the most eminent specialist; and, secondly, it introduced the idea that the conduct had to be "significantly below" the standard. […] … [12] As a general principle, the use of the term "significant" may in law be taken to mean not trivial, of importance, or substantial."
2. We consider that the observations in Medical Practitioner at [9]-[12] are relevant to the determination of whether the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within s 139B(1)(a) of the National Law.
3. As an expert tribunal the Tribunal is entitled to form its own view as to whether such knowledge, skill, judgment possessed or care is below the applicable standard: Health Care Complaints Commission v Grech [2021] NSWCATOD 14 (Grech) at [20].
4. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 (Achurch) at [41] the Tribunal considered the of the words "improper" and "unethical" in s 139B(1)(l) of the National Law: "[41] "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54])."
5. Achurch at [41] has been subsequently followed by the Tribunal: Health Care Complaints Commission v Youssef; Health Care Complaints Commission v McArthur [2021] NSWCATOD 2 at [147].
6. The word "other" in s 139B(1)(l) of the National Law limits the operation of that provision to conduct not falling within s 139B(1)(a)-(k): Achurch at [31]; Grech at [22].
7. An accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].

The failure of the respondent to adequately and promptly respond to the requests for information and records in the 12 February 2013 Council letter, the 15 April 2013 Council letter, the 17 May 2013 Council letter and the 14 June 2013 Council letter

The failure of the respondent to respond to the 28 July 2017 letter in a timely manner

1. The respondent by early 2013 and mid-2017 had been registered as a dentist for six years and 10 years respectively. Given her length of experience we are satisfied that the respondent by these failures breached s 8.10 of the Code of Conduct, and thereby is guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law as this conduct demonstrated that her skill or judgment in the practice of dentistry was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience.
2. In view of this finding it is unnecessary to consider whether the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(l) of the National Law. However, if contrary to our finding, the respondent is not guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law, then we are satisfied that the respondent by breaching s 8.10 of the Code of Conduct is guilty of unsatisfactory professional conduct within s 139B(1)(l) of the National Law because her conduct was both improper and unethical.

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

1. Infection control is a fundamental responsibility of practitioners to ensure the health of patients. The respondent as the principal of the practice had the responsibility to ensure proper procedures for infection control were in place when Dr El-Saedy was using her rooms. We are satisfied that the respondent by not complying 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 by reason of the matters set out in in the infection control checklist attached to the 20 June 2017 at 4.59pm Council email is guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law as this conduct demonstrated that her skill or judgment in the practice of dentistry was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience, being ten years in 2017.
2. In view of this finding, it is unnecessary to consider whether the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(l) of the National Law. However, if contrary to our finding, the respondent is not guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law, then we are satisfied that the respondent by not complying with cll 1.1(a) and 2.1(a) of the Infection Control Guidelines is guilty of unsatisfactory professional conduct within s 139B(1)(l) of the National Law because her conduct was both improper and unethical.

Whether the respondent is guilty of professional misconduct

Introduction

1. The Particulars of Complaint Three are that the Particulars of Complaint Two cumulatively justify a finding of professional misconduct, and that two or more of the particulars of Complaint Two taken together justify a finding of professional misconduct.
2. Just as in the case of the question of whether the respondent is guilty of unsatisfactory professional conduct, the question of whether the respondent is guilty of professional misconduct is limited to consideration of the conduct of the respondent referred to at [259] above.
3. Before considering this issue it is appropriate to set out the applicable principles for establishing professional misconduct, and the submissions of the parties.

The applicable principles for establishing professional misconduct

1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] Basten JA (Leeming JA at [23] agreeing) relevantly said: "[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. …
2. In Health Care Complaints Commission v Bui [2021] NSWCATOD 77 at [126]-[128] the Tribunal set out the principles for determining whether conduct constitutes professional misconduct: "[126] Our task is to decide whether the conduct found by us to amount to unsatisfactory professional conduct amounts to "professional misconduct", that is, whether it is of a "sufficiently serious nature" to justify an order for suspension or cancellation. This requires us to make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. As Basten JA emphasised in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, in referring to the definition of professional misconduct in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, the definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: [67]. [127] In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. [128] The offending conduct is to be measured by the extent to which it departs from proper standards and not by reference to the worst cases. To do the latter would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297."

The submissions of the applicant

1. In the 18 February 2021 HCCC submissions, the applicant submits that the conduct the subject of Complaint Two is of such a departure from the accepted standards of the profession as to warrant a finding of professional misconduct for the following reasons: 1. the nature and duration of the conduct is significant. The respondent failed to cooperate with investigations and inquiries by the Council and the Commission over a five year period (February 2013 to June 2018). The nature of the infection control failures at her practice were also significant; they placed patients at risk of a blood-borne virus transmission that was "not negligible"; 2. the risk to patients through lack of infection control falls on the serious end of the spectrum of unsatisfactory professional conduct; 3. while the respondent made a number of concessions during her oral evidence, those concessions were late and sufficiently vague as to render them of limited assistance as expressions of insight and remorse. Her limited insight and remorse is also demonstrated by the relatively recent and inaccurate histories she gave to each of the three experts: these histories were obfuscating at best; misleading by omission at worst. Any insight and remorse subsequently shown by her during her oral evidence can only be given limited weight in the circumstances; 4. the gravity of the respondent's impugned conduct is serious when measured by reference to the extent it departs from proper standards. It is a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence; 5. deterrence of other practitioners from repeating the same misconduct justifies a finding of professional misconduct. The respondent's work as a dentist requires cooperation with the Council and the Commission when investigating patient complaints, even when that process involves stress and anxiety to the practitioner. The need to reinforce to other practitioners the need to cooperate with such investigations, even in time of significant stress and anxiety, is manifest. The infection control issues at her practice also placed at risk the care and safety of patients who attended her practice for treatment by another dentist. The need to reinforce the responsibility of practice owners, and principals, looms large in this case.

The submissions of the respondent

1. The respondent submits that the Tribunal should not be satisfied that the conduct of the respondent rises to professional misconduct for the following reasons: 1. as to her failure to respond to the 28 July 2017 letter in a timely manner, the information that she had was extremely limited. She had no real explanation as to how and why the placing of patients at risk of a blood-borne virus transmission could have occurred, particularly in circumstances where Dr El-Saedy had been going to the practice and brought his own equipment in there, and that, if there had been any issue, that he would have reported it to her; 2. as to 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, there is no suggestion that she was in any way responsible for the condition of the premises as they were discovered in June 2017.

Consideration

1. We consider that the applicant's submissions relating to insight and deterrence are not applicable to the determination of the question of whether the respondent is guilty of professional misconduct in a stage 1 hearing. These considerations will inform any stage 2 hearing.
2. 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.
3. We are not satisfied that the 27 July 2017 Arslan medical certificate provides any reasonable excuse for her failure to respond to the 28 July 2017 letter by 2 August 2017. This medical certificate, without specifying the nature of the illness and how the illness affects the ability of the respondent to continue her usual occupation in this period, was inadequate: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]. In any event, in circumstances where the respondent was able on 29 July 2017 to attend a 6.5 hour CPD session, then she was able to give consideration to the requests in the 28 July 2017 letter. In this instance, the respondent displayed a disregard to an important request from the applicant that cannot be linked to any stress or anxiety as her personal attendance was not required. What was required was the timely provision of information about infection control practices and patient records that could have been disclosed through her lawyers. Further, her departure to Saudi Arabia on 2 August 2017 does not provide any reasonable excuse for her failure to respond to the 28 July 2017 letter by that date as on 15 August 2017 her lawyer on her behalf sent an email to the applicant, referring to this letter and outlining her future plans to practise in Australia but not answering any of the questions in this letter.
4. 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.
5. We are not satisfied that the failure of the respondent to adequately and promptly respond to the requests for information and records in the 12 February 2013 Council letter, the 15 April 2013 Council letter, the 17 May 2013 Council letter and the 14 June 2013 Council letter was of a sufficiently serious nature to justify suspension or cancellation and so constitutes professional misconduct when taken together or viewed cumulatively with the two other proven instances unsatisfactory professional conduct in 2017. After a prolonged delay she fully answered these requests by the 31 January 2014 Somaey statement. However, this failure when considered with her failure to respond to the 28 July 2017 letter by 2 August 2017 referred to in [283], demonstrate that the respondent's failure to respond to requests for information from the regulator was not an isolated incident.
6. Accordingly, we find that by her failure to respond to the requests in a timely manner particularised in paragraph (m) of Particular 1 of Complaint Two and 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 particularised in Particular 2 of Complaint Two the respondent is guilty of professional misconduct within s 139E(b) of the National Law.

Orders

1. Having found that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) of the National Law by her conduct particularised in paragraph (a) of Particular 1 of Complaint Two, and is guilty of professional misconduct within s 139E(b) of the National Law by her conduct particularised in Complaint Three so far as it relates to the conduct particularised in paragraph (m) of Particular 1 of Complaint Two and in Particular 2 of Complaint Two, it will be necessary to have a stage 2 hearing to determine what if any protective orders should be made against her. Accordingly, it is appropriate to adjourn the proceedings for directions hearing on a date fixed by the Registrar to make appropriate directions for the stage 2 hearing, and to otherwise dismiss the proceedings.
2. We make the following orders: 1. the proceedings are adjourned for a directions hearing on a date fixed by the Registrar to make appropriate directions for the stage 2 hearing to determine what if any protective orders should be made against the respondent in respect of her conduct: 1. particularised in paragraph (a) of Particular 1 of Complaint Two; 2. particularised in Complaint Three so far as it relates to the conduct particularised in paragraph (m) of Particular 1 of Complaint Two and in Particular 2 of Complaint Two; 1. the proceedings so far as they concern the remaining conduct alleged against the respondent are dismissed.

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: 05 July 2021