Health Care Complaints Commission v Sun

Background

1. The practitioner, who was born in 1971, migrated with his parents from South Korea to Australia when he was aged 15 years. In 1998 he obtained the degrees of Bachelor of Medicine/Bachelor of Surgery from the University of Sydney.
2. In 2003 the practitioner obtained the degree of Bachelor of Dental Surgery from the University of Sydney and on 9 December 2003 was granted registration as a dentist.
3. In 2007 the practitioner obtained fellowship of the Royal Australasian College of Dental Surgeons (Oral Maxillofacial Surgery).
4. An evidentiary certificate from Aphra discloses that the practitioner held specialist registration until September 2014 when his registration was suspended. His registration was suspended from 16 September 2014 until 14 October 2014. Thereafter he held general and specialist registration from 14 October 2016 until 6 January 2017. He is currently unregistered.
5. The practitioner came before a joint Impaired Registrants panel (Dental Council of NSW and Medical Council of NSW) in August 2011 when a report was received about his illicit drug use and thereafter conditions were placed on the practitioner's registration. The practitioner commenced using methylamphetamine (colloquially known as "Ice") following the death, in tragic circumstances, of his older brother.
6. On 10 July 2013 proceedings under s 150 of the National Law were convened by the Medical and Dental Councils at the conclusion of which practice and health conditions were imposed on the practitioner's registration.
7. On 21 April 2014 the practitioner was arrested by NSW Police and charged with possession and supply of a prohibited drug (methylamphetamine).
8. Following asserted breaches by the practitioner of the conditions on his registration further s 150 proceedings were convened on 16 September 2014. Written reasons for the joint Council's decision were published on 19 March 2015. The practitioner's registrations, both medical and dental, were suspended.
9. On 2 December 2014 the practitioner supplied methylamphetamine to an undercover police officer in exchange for payment of $6,500. On 20 February 2015 he offered to supply an undercover police officer with $75,000 worth of methylamphetamine.
10. On 18 February 2015 the practitioner was charged with goods in custody and possession of a prohibited drug. He received an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
11. On 22 June 2016 the practitioner's registration as a medical practitioner was cancelled following disciplinary proceedings in this Tribunal. A period of three years was imposed before which the practitioner could apply for a re-instatement order (see Health Care Complaints Commission v Sun [2016] NSWCATOD 80).
12. On 4 October 2016 in separate disciplinary proceedings in this Tribunal in respect of the practitioner's dental registration he was found guilty of both unsatisfactory professional conduct and professional misconduct. The Tribunal determined that on the practitioner's release from incarceration his registration should be subject to conditions including a condition that he practise under Level C supervision.
13. On 30 June 2017 in the District Court of New South Wales at Sydney, his Honour, Judge Toner SC sentenced the practitioner to an aggregate period of imprisonment of five years commencing on 20 February 2015 and expiring on 19 February 2020. His Honour fixed a non-parole period of three years to commence on 20 February 2015 and expiring on 19 February 2018.
14. On 26 September 2018 the practitioner was arrested and bail was refused. He was incarcerated for the balance of his parole period (28 February 2020). He remained in gaol until 19 June 2020 when he was released. His bail was revoked on 15 May 2021.
15. In November 2018 the practitioner was charged with offences under the Drug Misuse and Trafficking Act 1985 namely that between 17 September 2018 and 26 September 2018 he "did on three or more separate occasions during a period of thirty consecutive days, supply a prohibited drug, namely methylamphetamine, for financial or material reward". A second count under the same Act asserted that "Between 4 September 2018 and 10 September 2018 at Burwood, in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine, being more than the indictable quantity applicable to methylamphetamine".
16. The two counts were heard at a criminal jury trial at Parramatta which took place between 11 March 2021 and 5 May 2021. The jury found the practitioner guilty of both counts.
17. On 13 August 2021 in the District Court of New South Wales at Sydney, his Honour Judge Bennett, SC sentenced the practitioner to an aggregate term of imprisonment of 7 years to commence on 23 November 2020 and expiring on 22 November 2027 with a non-parole period of five years. The practitioner is first eligible for parole on 22 November 2025.
18. The practitioner has lodged an all grounds appeal to the Court of Criminal Appeal against his 2021 convictions.

Issues to be determined

1. On 5 September 2022 the practitioner's lawyers filed a Reply to the Amended Application for disciplinary findings and orders. This document is a response to an Amended Complaint filed by the HCCC on 1 April 2022.
2. In the Reply the practitioner admits the background to all complaints set out in the Amended Complaint. He admits all the particulars of the three complaints but denies he is not a suitable person to hold registration as a dentist.
3. Section 165H of the National Law provides as follows: 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
4. While the practitioner does not dispute any particular of the three complaints agitated by the HCCC, he disputes the evaluation of his admitted criminal convictions in 2017, and the conduct and findings of the two earlier disciplinary proceedings results in a determination that he is not a suitable person to hold registration.
5. Accordingly, it is necessary that we address below the three complaints and particulars thereof. To aid understanding of the complaints, which we summarise below, we now annex as "Appendix A" to these reasons a copy of the Amended Complaint.
6. The HCCC provided a detailed Proposed Statement of Agreed Facts. During the hearing, the practitioner's counsel confirmed that all matters in the Statement of Agreed Facts were accepted by the practitioner. We have taken the matters set out in the Agreed Statement of Facts in our determination of Complaint Three and our consideration of appropriate protective orders.

Relevant Law

1. We now briefly note the relevant principles to be applied in disciplinary proceedings under the National Law.
2. The objects underpinning the National Law are found in ss 3 and 3A (the latter being a NSW provision). Section 3 contains provisions which are relevant to these proceedings.
3. Section 3(2)(a) and 3(3)(c) provide as follows: (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … (3) … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
4. Section 3A, a NSW provision, is particularly relevant. It provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
5. The onus and standard of proof in disciplinary proceedings under the National Law are the subject of well-established principles. Although the rules of evidence do not apply (as distinct from legal professional disciplinary proceedings for professional misconduct), it is generally established that the applicable standard of proof is that discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Gautam v Health Care Complaints Commission [2021] NSWCA 85). How a tribunal exercises its discretion to arrive at an evaluative judgment is discussed by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]-[21] as follows: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.[footnotes omitted]
6. In this matter reliance is placed by the HCCC on s 144 (a) and (e). Those provisions are as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

The admitted complaints

1. In the Amended Complaint, the HCCC rely first on the practitioner's two convictions on 30 June 2017 in the District Court of New South Wales of supply of methylamphetamine in commercial quantities. These particulars, which we note are conceded by the practitioner, are established by the Certificates of Conviction and are referred to in the sentencing remarks of his Honour Judge Toner SC.
2. The particulars (particulars 3 and 4) relate to the practitioner's most recent and what we construe as his most significant criminal conviction. These particulars are established on the evidence before us which includes his Honour Judge Bennett SC's lengthy summing up to the jury, and his sentencing remarks. His Honour found that the practitioner and a witness on whom he relied "were both untruthful in the evidence they gave regarding assertions said to have been uttered by the offender to [the witness] in which he alleged threats by Witness A causing him to fear". His Honour found the practitioner was not acting under any duress when he conducted the supply transactions for both counts. His Honour made the following findings: I am satisfied beyond reasonable doubt that the offender is guilty of the offence, that the jury appropriately returned verdicts of guilty, and that a no time was the offender acting under the influence of duress such as he alleged, or otherwise. I am satisfied he resorted to this as a device to explain his involvement both for the purposes of trial and in mitigation of penalty.
3. It is relevant to note that the jury rejected the practitioner's assertions of duress leading to his supply of drugs, or his attempt to minimise his involvement in the criminal enterprise. Further, it is highly relevant that these two offences occurred within months of the practitioner being released on parole in June 2018.
4. The second complaint sets out the practitioner's conviction in Central Local Court on 24 August 2015 for possession of a prohibited drug 2.10 grams of clear like crystal substance, and having in his possession a number of credit cards reasonably expected to have been stolen.
5. We accept that the Certificate of Conviction and order made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) establishes this complaint.
6. Complaint Three cites the early disciplinary proceedings before the Tribunal in respect of the cancellation of the practitioner's medical registration and also relies on the July 2017 conviction and an Agreed Statement of Facts taken into account in the District Court when sentencing the practitioner. Complaint Three does not rely on the particulars of the criminal convictions in 2021 to support the complaint the practitioner is not a suitable person to hold registration.

The practitioner's statement and evidence

1. The practitioner relied on a bundle of documents (1-19) which became Exhibit 1 in these proceedings. The practitioner's counsel conceded that while the documents had been filed with the Tribunal, the documents had not been properly served on the HCCC because of the size of the file which was purported to have been served by email.
2. The solicitor/advocate for the HCCC considered the documents on which the practitioner relied, which were largely historical in nature, during the hearing and did not object to the tender.
3. The practitioner gave evidence under oath. During the course of his cross-examination, we granted him a certificate under s 128 of the Evidence Act 1995 (NSW).
4. We also received a statement of the practitioner dated 20 September 2022 the contents of which he confirmed under oath in his oral evidence. Again, this document was not served in accordance with the Tribunal's directions, but no issue was taken by the HCCC. We accept that that practitioner's solicitors have been hampered in their communication with the practitioner as a result of his incarceration.
5. At para 4 of his statement the practitioner states that since being in gaol "I have had a chance to reflect to myself about what went wrong. I have also been able to identify and participate in my rehabilitation. I want to be a better person". He also asserts that he has been abstinent from drugs, and that he is working hard on his drug addiction.
6. At para 13 of his statement, the practitioner refers to his conduct in 2018 (which lead to his 2021 convictions) and states this occurred as "I had to give into threat made by Witness A, a seasoned criminal mainly for drug supply and one violent charge (possession of knife in public place) over 40 years and is well connected with bikkie gang". At para 15 the practitioner advances the position that he "truly believe[s] I am an asset to the Community".
7. At para 21 the practitioner asserts that his 2018 charges were "mainly due to harassment, threat, intimidation on the background of PTSD but free of drug addiction".
8. In specifically addressing Complaint Three the practitioner states: In respect of my denial of complaint 3, that I am not a suitable person to hold registration as a dentist, I say the following. I understand that presently while I am in gaol I am not able to practice and that I have had an addiction to drugs. The basis for my denial is that I have abstained from drugs for a long period of time and I am working to get my life back on track so that I may return to practice after my release and having completed appropriate refresher training.

The practitioner's submissions

1. The practitioner's counsel provided written submissions on 26 October 2022. The submissions primarily address the practitioner's position that he is a fit and proper purpose to practise dentistry.
2. After referring to concessions made by the practitioner, at para 16, the submissions refer to the practitioner's statement that he wants to be a better person. The submissions refer to the practitioner's full-time employment with Corrective Services Industries. We note that no up to date evidence of any work undertaken by the practitioner whilst in gaol was adduced at the hearing and consequently we give no weight to any specific employment as asserted in the submissions. We accept it is likely that the practitioner has engaged in some type of work during his incarceration and note that the only evidence before us is a certificate from CSI Industries dated 30 May 2016 which significantly pre-dates the practitioner's latest conviction.
3. The submissions refer to the NSW Justice Sentencing Assessment Report dated 17 June 2021. This report under the heading "Responsivity" notes that the practitioner has insight into his offending upon the community "such as the social impacts of drug addiction, family breakdowns, and the ongoing issues related to medical and physical impairment caused by substance abuse". The report notes that the practitioner is assessed as having a "Low-Medium" risk of re-offending. The report also notes that the practitioner asserted that his re-offending occurred in the context that "he felt under duress to commit the offences and that he 'gave in' to the demands of an associate whom he had met during a previous period of incarceration". Again, we note that the alleged duress defence was not accepted by the jury.
4. The submissions, very fairly, note there is limited objective material before us in respect to rehabilitation or reformation of character. It is however submitted that some weight should be given to the practitioner's sworn evidence given at the hearing.

The HCCC submissions in reply

1. The HCCC provided written submissions dated 9 November 2022 in reply to the submissions made on behalf of the practitioner.
2. The submissions point out that the practitioner's material in support of his assertions of reformation of character are of limited assistance to the Tribunal because his references either pre-date or do not mention the complaint before the Tribunal.
3. The submissions further point out that material relied on by the practitioner in respect of treatment is limited to a brief letter from a counsellor of four sessions in 2018, a report from an addiction psychiatrist (also in respect of attendances in 2018) and a general practitioner in respect of drug testing also in 2018.
4. It is submitted that the practitioner's material, including his statement asserting self-reflection "falls short of establishing that he has completed relevant professional training, completed successful rehabilitation treatment and demonstrated genuine reformation of character".
5. The submissions also address the period before which the practitioner may seek re-instatement noting the caution expressed by the Court of Appeal in using comparative cases in fixing the length of non-review cases.
6. The submissions conclude by addressing principles relevant to the awarding of costs.

Is the practitioner a suitable person to hold registration?

Some preliminary considerations

1. The starting point for our discussion on this topic the decision the Court of Appeal in Windsor v Health Care Complaints Commission [2020] NSWCA 110. In this appeal Gleeson JA explained that the underlying conduct, which resulted in complaints of criminal conduct under s 144 (a) may be the basis for findings that a practitioner is otherwise not a suitable person to hold registration under s 144(e).
2. His Honour said at [112]-[115] The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). That is also reflected in the language of s 149C(1) where the "is otherwise" limitation in s 144(e) is not repeated in s 149C(1)(d). In Health Care Complaints Commission v Do, the same particulars of underlying conduct were characterised by the Tribunal for the purposes of a complaint under s 144(b) as supporting both a finding of "unsatisfactory professional conduct" within the meaning of s 139B(1) of the National Law and a finding of "professional misconduct" as defined in s 139E of the National Law. Similarly, underlying conduct with respect to the circumstances of a criminal offence which is of a sufficiently serious nature to render a practitioner unfit to practise (s 149C(1)(c)), may also be characterised as rendering the practitioner unsuitable for registration(s149C(1)(d)). Importantly, the meaning of "suitability" is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii)), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b)). Health Care Complaints Commission v Haasbroek involved four complaints made against a medical practitioner; two relied on criminal convictions - one for assault occasioning actual bodily harm and one for domestic violence (s 144(a)); the third relied on unsatisfactory professional conduct (s 144(b)); and the fourth relied on circumstances rendering the practitioner unsuitable to hold registration (s 144(e)). The practitioner admitted the first three complaints and disputed the fourth. The fourth complaint was based on the particulars of the earlier complaints and some additional conduct. In accepting that the same particulars of the underlying conduct could be relied upon for the fourth complaint, the Tribunal said at [60]: On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.
3. We are conscious that cl 5 of Schedule 5D of the National Law permits us to receive and admit (as we have done) as evidence in any proceedings "(a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction)".
4. We have already observed, notwithstanding our conclusion about the very serious nature of the practitioner's conduct in 2018 not long after his release on parole, and the evidence adduced at his criminal trial referred to in his Honour Judge Bennett SC's summing up and sentencing remarks, that conviction or the underlying facts leading to the conviction are not relied on by the HCCC in respect of the complaint brought under s 144(e).
5. Before us, Ms Bayley on behalf of the HCCC, submitted that it was unnecessary to rely on the 2018 charges (and 2021 conviction) to establish Complaint Three. In adopting this position she relied on the wording of s 149C(1)(c) of the National Law.
6. Section 149C(1)(c) provides as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied - (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. [out emphasis]
7. We note that s 149C(1)(c) is a power granted to the Tribunal if a complaint, brought under s 144(a) to suspend or cancel a practitioner's registration, and the circumstances of the offence render the practitioner unfit to practice. A practitioner's registration may also be cancelled under s 149C(1)(d) if the practitioner is not suitable to hold registration. Thus, it is apparent that s 149C(1)(c) and (d) involve different language and concepts.
8. The words "unfit" and "suitable" are not defined in the National Law. We have regard to those words in context of the overriding objectives of the National Law and in particular having regard to the health and safety of the public.
9. We note that "unfit" is defined in the Macquarie Dictionary as follows: adjective 1. not fit; not adapted or suited; unsuitable; not deserving or good enough. 2. unqualified or incompetent. 3. not physically fit or in due condition.
10. "Suitable" is defined as follows: Adjective: such as to suit; appropriate; fitting; becoming
11. Complaint Three is not agitated under s 149C(1)(c) (unfitness) it is brought under s 144(e). It is in our view unfortunate that the 2018 conviction was not particularised in Complaint Three. The facts underlying this serous conviction of supply of methylamphetamine posing a serious risk to the health and safety of the public suggest the practitioner is not appropriate or suitable to hold registration. We accept it may be relied as the basis of an order under s 149C(1)(c) if it is established the practitioner is "unfit" to practise.
12. It is apparent from the HCCC's submissions that, although s 144 refers to the grounds on which a complaint may be brought against a registered practitioner, it is submitted that those same grounds may be relied on in respect of an unregistered practitioner having regard to s 139G of the National Law. We accept that to be the case. Accordingly, as the Tribunal is to determine suitability to practise as at the date of the hearing, if particularised, in our view, the 2021 conviction would have been relevant.

Is the practitioner unfit to practise by reason of his criminal convictions?

1. We note that the practitioner concedes Complaints One and Two. We are independently satisfied those complaints are established. It follows we are satisfied that the underlying circumstances of his criminal conduct which involved the supply of a drug which has and is causing great harm to certain vulnerable sections of the community render him unfit in the public interest to practise the profession of dentistry. In reaching this conclusion we have taken into account the wording of s 149C(1)(c) namely "unfit in the public interest to practise the practitioner's profession" and the interpretation of "public interest" as explained by Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [68] albeit in the context of proceedings under s 150. His Honour explained: First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.
2. We found the practitioner's evidence given in cross-examination to be inherently unreliable, in particular, his denials in respect of ownership of the bag located behind the fire-door containing his prescription pad, and 39 Medicare cards not in his name. His evidence sought to downplay or minimise his involvement in the supply of methylamphetamine. We agree with the comments of the Tribunal in Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [19]-[20] as follows: Moreover through his actions in selling highly addictive illicit drugs within his community, the practitioner adversely affected the health and safety of the public. In sentencing remarks in one of the criminal proceedings the Judge referred to methamphetamines as a 'scourge' upon the community because of their devastating health and welfare effects, and we echo that concern here. We find therefore that there is a close nexus between the criminal conduct and professional role and responsibilities, even though the charged conduct did not occur in the workplace.
3. The facts of the 2017 offences disclose that the practitioner was an active participant in the supply of methylamphetamine for financial reward. Given his qualifications, he could not have been in any doubt about the harm likely to be caused to the community by persons having access to the drug he supplied.
4. We conclude that the establishment of Complaints One and Two means it is appropriate that we conclude, had the practitioner been registered, we would have cancelled his registration on the basis that his criminal convictions establish he is unfit in the public interest to practise the profession of dentistry.

Is the practitioner suitable for registration as a dentist?

1. We have earlier discussed the dictionary definition of "suitable" and the distinction between "unfit" to practise because of criminal convictions and "not suitable for registration".
2. We note that some earlier Tribunal decisions have referred to the criteria or eligibility for registration as useful in assessing suitability for registration. Section 55 of the National Law sets out matters which may render a person unsuitable for registration.
3. Section 55(1)(b) gives some guidance to "unsuitability" under the National Law. It provides as follows: (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or
4. We note that the HCCC relies on the findings of the two earlier disciplinary proceedings in this Tribunal in support of Complaint Three. We accept that the Tribunal in the medical proceedings found the practitioner provided misleading, incomplete, inconsistent and or untruthful information to the Medical Council, to the Council appointed psychiatrist, and the delegates at the s 150 hearing. It is also submitted that the practitioner regularly breached conditions on his registration including conditions relating to urine drug testing and that he fabricated airline boarding passes in an attempt to mislead the Council about his whereabouts. In short, it is submitted his conduct demonstrated, at that time, that he acted in an unethical manner and was not trustworthy.
5. Further, the HCCC places reliance on the findings in the Dental disciplinary proceedings including sending an inappropriate email, failing to make and retain adequate clinical records, and the absence of clinical records for a number of patients.

Consideration - not suitable to hold registration.

1. First, we note that all the evidence relied on by the HCCC in respect of Complaint Three is past conduct. That conduct is relevant but may not of itself be determinative of present suitability to hold registration (see Health Care Complaints Commission v Brush [2015] NSWCATOD 120).
2. Secondly, we take into account the fact that while the practitioner asserts he is drug free, this is in circumstances where he is living in the controlled environment of a corrective facility. His ability to remain abstinent from drugs has not been tested to any significant extent since his incarceration in 2018 when his parole was revoked.
3. Thirdly, the practitioner has a history of dishonesty with regulatory authorities as disclosed in the medical disciplinary proceedings. As earlier noted, we found the practitioner's response to questioning about his attempt to remove the bag containing his prescription pad and 39 Medicare cards from the fire hose cupboard in the front of his surgery to be inherently unreliable. It is to be remembered that this occurred in circumstances where the practitioner was found in possession of methylamphetamine and 17 credit cards in names other than those of the practitioner. Our assessment of his evidence casts significant doubt on his professed reformation, insight and honesty.
4. Overall, the gist of the practitioner's case is his professed belief that he is an asset to the community (perhaps because of his surgical skills) and the only reason that he would not be suitable to hold registration on his release from custody is because of his former drug addiction. We find the practitioner's stance demonstrates a degree of naivety about his serious improper conduct, or lack of insight into that conduct. It overlooks the very serious nature of his 2017 conviction and the harm caused to the community by the supply of methylamphetamine as well as his deceptive conduct as demonstrated by his interactions with the Medical and Dental Councils as well as poor clinical practise including, in particular, his record keeping failures.
5. In summary, we found the arguments advanced by the HCCC to demonstrate the practitioner is not currently suitable to hold registration have weight. The practitioner may, in due course on his release, demonstrate his ability to remain drug free, and to engage in activities demonstrating reformation of character, but at present we could not be satisfied that he is suitable to hold registration. Matters relevant to suitability may be tested on an application by the practitioner for a re-instatement order.

Appropriate protective orders

1. As noted at the commencement of these reasons, the practitioner did not dispute the protective orders sought by the HCCC.
2. We are satisfied, given the practitioner's concessions in respect of Complaints One and Two, and our determination of Complaint Three, that it is appropriate for us to find, if the practitioner had been registered, we would have cancelled his registration.
3. We also agree, having regard to the seriousness of the practitioner's conduct, the time required for him to establish his drug free status, to act as a deterrent to other practitioners from engaging in like conduct, and having regard to his present earliest release date, that a period of five years before he can apply for re-instatement is appropriate (see the comments of Payne JA in Chen at [88]

Costs.

1. The HCCC seeks an order for costs. It is not in dispute that the Tribunal may make a costs order in favour of the HCCC. The Tribunal's power to award costs is found in cl 13 of Schedule 5D of the National Law.
2. The principles to be applied when considering an application for costs are succinctly explained by Meagher JA in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.
3. We are satisfied that the HCCC have been wholly successful in these proceedings. Accordingly, we will make an order that the practitioner pay the HCCC's costs as agreed and failing agreement, as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW).

ORDERS 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law) the Tribunal determined that if Young Hoon Sun (the practitioner) had been registered it would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law the National Board is required to record the fact that if the practitioner had been registered the Tribunal would have cancelled the practitioner's registration. 3. The practitioner may not seek a re-instatement order for a period of 5 years from the date of these orders. 4. The practitioner shall pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

APPENDIX "A" Appendix A - HCCC v SUN - 2019 00271110 (1043055, pdf) 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

Amendments 16 November 2022 - Coversheet: Order numbering amended 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: 16 November 2022