Health Care Complaints Commission v Starkenburg

Findings and Reasons

The practitioner's failures to meet the most basic standards of infection control and hygiene across a range of areas of his practice in 2014 constitutes a gross breach of the required professional standard; it posed a serious, and sustained, risk to the health of his patients.
The evidence, including findings of later inspections and the practitioner's oral evidence at hearing, convinced the Tribunal that this risk continues to be present and that it cannot be met by the imposition of conditions on registration. Deregistration of the practitioner is the only appropriate order, for the reasons that follow.
The practitioner's evidence was that he currently saw two or three patients per week and did not have a dental assistant. The process of taking a patient history was a "pretty casual" 15 minute chat which took place in the waiting room (a room shared with other practices on the same level of the building).
Although the practitioner had upgraded some equipment and procedures, and subsequent inspections found the premises to be improved, the Tribunal continues to hold grave concerns as to the ability of the practitioner to practice safely.
The Tribunal regards the risk posed by the practitioner as heightened in light of the fact that he is a very experienced practitioner, and yet the breaches that occurred have been gross, repeated, and occurred over a considerable period. The practitioner faced a serious complaint of unhygienic premises in 1998, with a number of repeat inspections as a result. The complaint that triggered these proceedings occurred in late 2014, with a number of repeat inspections as a result.
The most recent inspection report of 22 November 2016 noted that the practice is "now mostly compliant with infection control requirements" but there were on-going concerns with hand hygiene, out of date stock and inadequate health records. The practitioner's response to this was that the 2016 inspection had been brief and that it had been "bad luck" that the inspector had happened to find out of date materials and an incomplete health record. The practitioner had no other answer at the hearing for how he could still not have fully resolved the identified deficiencies in his practice some two years after the original inspection.
The Tribunal concluded that the practitioner was prepared to take steps to appear compliant with professional standards but did not fully appreciate the importance of those standards, nor would he necessarily comply with them in the absence of on-going monitoring.
The practitioner's conduct in relation to the autoclave machine is indicative of the practitioner's repeated failings and superficial attempts at compliance with fundamental standards of infection control and hygiene. When the 2014 inspection occurred a technician was present, testing and calibrating the autoclave machine. The inspector's statement to the HCCC noted that the machine's records indicated that it had not been serviced since July 2011, although such maintenance should occur every 12 months. When the inspector returned on 24 July 2015 she found no evidence that the machine had been serviced or calibrated again, when records indicated that this was due to occur on 19 May 2015. On 10 December 2015 a further report by the same inspector found that the autoclave machine had been replaced with a newer model but was not being used appropriately: Dr Starkenburg informed me that all instruments had been reprocessed using the new autoclave. However, on examining the instruments, I noticed that all the bags had brown stains which appeared to be rust and all the bags had large watermarks present. …Further discussion revealed he was using a domestic toast rack in the autoclave. This rack had rust marks present on it…
The December 2015 inspection records the inspector's findings that Dr Starkenburg was "somewhat confused" about the requirements of Autoclave testing.
On 22 November 2016 a further inspection occurred, again with notice given to Dr Starkenburg, and the inspector noted that the "steriliser was in the process of having its annual validation completed on the day of the inspection."
At the hearing the practitioner's evidence was that the autoclave machine worked "fine", as did the ultrasonic cleaner, and that he tested them himself; however he also acknowledged that he had only learnt how to test the ultrasonic cleaner with aluminium foil as a result of the 2014 inspection and had previously assumed it was working because it was noisy when it was turned on. We conclude that the practitioner was content to simply assume that equipment essential to infection control and hygiene was working and, moreover, to calibrate or service it only when faced with compliance measures.
A further example of the practitioner's attitude to professional standards and obligations related to his on-going professional education. As a result of the December 2014 s 150 hearing the Council required the practitioner to undertake three specific courses on infection control before he could apply for a review of his suspension under s 150A. The practitioner undertook these courses in early 2015, amounting to 13.5 hours of CPD, and he presented the evidence of such to Council. However at the s 150A hearing in 2015 when asked about his CPD obligations more broadly the practitioner expressed the view that he was required to undertake eight hours of CPD per year. In fact the requirement under the current DBA Guidelines on Continuing Professional Development is a minimum of 60 hours over 3 years, of which 80% must be "clinically or scientifically based". The Council report of 23 March 2016 lifting the suspension specifically expressed concern about the practitioner's lack of understanding of his professional obligations to maintain CPD.
At the time of the Tribunal hearing, the practitioner had still not taken steps to ensure that he understood, or complied with, his CPD obligations. The DBA Guidelines on CPD were included in full in the HCCC materials served on the practitioner. In answer to a question from the Tribunal the practitioner stated that he thought he needed "about 25 hours" of CPD but could not specify which types were required. Asked if he had fulfilled this obligation in the past year, the practitioner stated that that he had a friend who was a "dental supply guy" whom he accompanied to conventions, and that one of the courses he had undertaken as part of this travel was about 16 hours. We note that this was the same answer that the practitioner gave to the s 150A inquiry in 2015 when asked whether he had complied with his CPD obligations.
The practitioner added that he watched a lot of material on YouTube. The practitioner expressed surprise when informed that reading journal articles could count towards CPD. He stated that he read a lot on the internet but did not keep track of his reading, or a CPD log, did not subscribe to any dental journals, and was not able to indicate whether the material he was reading was authoritative in the sense that it was evidence-based or peer-reviewed. This contributed to the Panel's overall view that record keeping and other forms of professional compliance was a long term, systemic issue with this practitioner.
At the hearing Counsel for the HCCC asked the practitioner what he understood the purpose of health records to be. The practitioner responded to the effect of, "I think the problem is more litigation. You need records if you are being sued. Most of my patients are down at heel and come in if they have a toothache. There is no need for elaborate records. I have a limited practice of poor people."
The practitioner gave evidence that he now had a computer programme which kept more thorough records. However the practitioner could not identify the name of the dental program he used for electronic records, and also stated that he would not necessarily ask patients about their medical history or medications, and if he did take a history would not make contemporaneous notes.
In order to better assess Dr Starkenburg's level of understanding of infection control in the dental practice setting, the Tribunal dental practitioners asked Dr Starkenburg to describe his current diagnostic and treatment protocols in certain clinical situations. Dr Starkenburg's responses showed a level of understanding that was so poor as to represent a significant risk to the public.
Dr Starkenburg was asked how he would diagnose and treat a patient who presented with a facial swelling as a result of an infected mesio-angular impacted lower third molar tooth. He was unable to provide a satisfactory diagnostic protocol (and indeed had to be prompted that it would be advisable to take an x-ray). Dr Starkenburg said that he routinely treats these types of cases by applying hydrogen peroxide. Asked if his treatment would be different if the patient in this scenario was a diabetic, Dr Starkenburg replied that his treatment would be the same adding that the patient "would be fine in a couple of days" following the application of the hydrogen peroxide. The clinical situation described represents a situation which may have a very significant risk of potentially dangerous complications. Dr Starkenburg's responses indicated a lack of skill, knowledge and care that fell very substantially below that standard expected of a responsible dental practitioner in current Australian practice.
The practitioner did not appreciate the importance of personal protective equipment (PPE), was not able to describe the correct order in which to don PPE, and admitted that he "does not always glove up to get instruments out". He also admitted that he has the dental materials he requires already out on the "slab next to me" and doesn't remove contaminated gloves prior to dispensing and mixing materials for patient use. The practitioner was also not able to accurately describe how to 'decontaminate' the dental equipment and surfaces after treatment was completed and the patient had left the surgery, nor accurately explain the decontamination process in the central sterilising area.
We note that the November 2016 inspection report found that the practitioner passed most elements of the infection control check-list; but the inspector did not observe the practitioner undertake a dental procedure, as the previous inspector had done. The Tribunal concluded from the practitioner's oral evidence that he is still not compliant with fundamental aspects of the relevant standards: Australian Dental Association (ADA) Guidelines for Infection Control; 3rd ed 2015 and NHMRC, Guidelines for the Prevention and Control of Infection in Healthcare, 2010; Australian/New Zealand Standard 4815, Office-based health care facilities - Reprocessing of reusable medical and surgical instruments and equipment and maintenance of the associated environment, 2006.
At a number of points in the disciplinary and inspection processes that led to these proceedings, it appears that other dental professionals have expressed the view to the practitioner that it is very hard to simultaneously maintain sterile instruments and perform complex dental work without the assistance of a dental assistant (that is: to mix materials, handle instruments, provide suction and so on). The professional members of the Tribunal also put this view to the practitioner (after he had indicated that in his current practice he would mix materials with gloved hands and return to the mouth of the patient wearing the same gloves).
In the s 150A proceedings the response of the practitioner was that he would engage an assistant. This has not occurred. The practitioner had also stated at the s 150A hearing and since that he only undertakes "simple dentistry". For example the November 2016 inspection report concludes, "The compliance requirement for all surgical procedures was discussed, and Dr Starkenburg undertook to limit his procedures to simple extractions."
In the course of discussion, Dr Starkenburg revealed that he had undertaken procedures for his patients such as the provision of an implant - the surgical placement of the implant fixture he had undertaken himself, crown and bridgework involving multiple units and complex periodontal surgery. He stated that he does bone regeneration following every extraction (Dr Starkenburg apparently uses Bio-Oss - a bone substitute derived from bovine bone). The practitioner stated that he had also recently done a course in venepuncture so that he can utilise platelet rich fibrin in periodontal treatment. This platelet rich fibrin would be obtained by Dr Starkenburg centrifuging the blood of his patients. All of these procedures require a high level of technical skill, knowledge and competence accompanied by an impeccable attention to infection control. They are procedures that are not normally undertaken by a sole general dental practitioner operating without a suitably trained chairside assistant. The responses to questions put to Dr Starkenburg by the Tribunal dental practitioners relating to these procedures confirmed that Dr Starkenburg's practice was definitely not limited to "simple" dentistry.
For a practitioner who worked part time and had repeatedly referred to his profession as a hobby, Dr Starkenburg showed no appreciation for the risk profile of some of the procedures he either conducted, or some of the dental technology he saw on-line and professed an interest in. This further enlivened the Panel's concerns as to the practitioner's clear lack of insight. The Tribunal concluded that Dr Starkenburg was practicing at a level which was substantially beyond his level of competence.
It was of concern that the practitioner did not appear to follow basic diagnostic procedures for complex or invasive treatments. For example he stated that he would assess an acute alveolar abscess by tapping on the teeth, would treat an impacted wisdom tooth with a couple of drops of hydrogen peroxide, and would not always obtain an x-ray prior to an extraction. When questioned about to whom he would refer a patient with an impacted wisdom tooth, the practitioner was unable to name a specialist oral surgeon or other dental practitioner that he would consult with, or refer complex matters, to beyond, "a Greek fellow in Randwick."
The practitioner characterised his patients as "down at heel" and "mostly poor". When questioned about the paucity of his past record keeping by the HCCC, the practitioner stated that the reason why he was unable to provide phone numbers for a number of his patients to the Health Department was because many of his patients did not have telephones due to poverty. The practitioner repeatedly characterised all his patients as "friends", and stated that he often provided free or discount treatment.
The 2014 inspection report included photographs which, even to the lay person, depict a treatment room that was cramped, disorganised and visibly dirty, and dental equipment which was dirty and rusty. The 2016 inspection report also included photographs of visibly dirty dental materials. Yet there is no recorded complaint from any of the practitioner's approximately 100 annual patients, and the practitioner only came to the attention to the regulatory authorities because one patient was dissatisfied with the colour of a veneer. The practitioner's claims of the disadvantaged socio-economic status of his patients, and of their ties of friendship to him, give us enhanced concern that any future breaches would also not be brought to light through patient complaints.
Finally, it was of very grave concern to the Tribunal that the practitioner still does not accept that his gross breaches of infection controls standards had placed his patients at risk of transmission of blood or saliva borne viruses. The practitioner repeatedly stated that he "would notice" a spot of blood. He also stated that there may have been some risk of measles infection because of the dust in the practice, or some other infection transmitted by dust, but was adamant that there had been no other risk posed by his previous breaches.

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Judgment (6 paragraphs)

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Cases Cited (9)