Health Care Complaints Commission v Tran

Health Care Complaints Commission v Tran - [2024] NSWCATOD 1 - NSWCATOD 2023 case summary — Zoe

[5]

Complaint Two

Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner contravened s 130(1) of the National Law.
The Particulars of Complaint Two are that: 1. the practitioner failed to give written notice to the Dental Board of Australia (Board) that he was charged with the assault offence, being an offence punishable by 12 months' imprisonment or more, within 7 days of becoming aware of that charge on 7 August 2013; 2. the practitioner failed to give written notice to the Board that he was the subject of a finding of guilt for the assault offence, being an offence punishable by imprisonment, within 7 days of becoming aware of that finding on 4 September 2013.
In his Reply, the practitioner admits Complaint Two and his underlying conduct.
In addition, in relation to Particular (1) the practitioner relies on pars 3.1 to 3.5 of the s 40 letter in which he states: 3.1 I confirm that I did not lodge a Notice of Certain Events or otherwise notify Ahpra of either the charge on 19 July 2013 nor the Court's finding of guilt, without conviction, on 4 September 2013. I am ashamed to say that I was not aware of the requirements of section 130(1) of the National Law at that time. 3.2 As I have mentioned above, I did not have legal representation in relation to the Local Court matter. I do recall speaking to a lawyer who was at the Court on that day, who explained to me what the Magistrate's decision meant. I understood from him that the outcome I had received meant that a section 10, no conviction in my criminal history. 3.3 I did not in any way mean to withhold providing this information to Ahpra. I simply did not would have given the notice to Ahpra. 3.4 I now have an understanding of section 130(1) of the National Law. I now know I had to declare It. If I had been aware of the requirements under the National Law I would have given the notice to Aphra. 3.5 I now have an understanding of section 130(1) of the National Law. I now know that with respect to police matters, I need to report the following to Aphra within 7 days of my awareness:

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Complaint Three

Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(b) or (I) of the National Law in that the practitioner: 1. contravened s 109 of the National Law; and/or 2. has engaged in other improper or unethical conduct relating to the practice or purported practice of the dental profession.
The Particulars of Complaint Three are that: 1. in his application for renewal of registration made on or around 4 October 2013, the practitioner failed to disclose details of a change in his criminal history that occurred during the preceding period of his registration, being his plea of guilty and finding of guilt in relation to the assault offence on 4 September 2013, contrary to s 109(1)(b) of the National Law; 2. in his applications for renewal of registration made on or around 15 November 2011, 1 November 2012, 4 October 2013, 10 October 2014, 6 November 2015, 28 October 2016, 7 October 2017 and 9 November 2019, the practitioner failed to disclose details of complaints made about the practitioner to the Commission prior to the date of each application, being (to the extent they were notified to the practitioner prior to the date of the relevant application): 1. a complaint by Patient A to the Commission notified to the practitioner on or around 21 July 2010; 2. a complaint by Patient B to the Commission notified to the practitioner on or around 8 August 2010; 3. a complaint by Patient C to the Commission notified to the practitioner on or around 30 September 2011; 4. a complaint by Patient D to the Commission notified to the practitioner on or around 17 March 2014; and 5. a complaint by Patient E to the Commission notified to the practitioner on or around 14 April 2016, contrary to s 109(1)(e) of the National Law.
In his Reply, the practitioner admits Complaint Three and his underlying conduct.
In addition, in relation to Particular 1, the practitioner refers to par 4.1 of the s 40 letter. Relevantly, he states: (c) I understood that I did not have a criminal history as a result of the Magistrate's decision on 4 September 2013. Instead, I understood my offence to have been that I had driven my car without proper registration as per the infringement notice) and I felt that by providing that information to Ahpra, I had made a correct disclosure. (d) I now understand the expression 'criminal history' means … that I should have disclosed the charges, my plea of guilty and the finding of guilt by the court.
In relation to Particular 2, the practitioner refers to par 4.2 of the s 40 letter where he relevantly states: (c) In my application for renewal to Ahpra created on 8 October 2010 and received by 2 June 2011 (Tab 4), I responded to question 11 as follows: 11 Have you had a complaint made about you to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health? Answer: Yes Comments: HCCC - patient not satisfied with service provided." (d) I believe that I disclosed to Ahpra the complaints that the HCCC had made me aware of on 21 September 2010. (e) From the documents contained in Tab 4, I note that the format of the questions changed for the following years. But, I am unable to recall what the Ahpra explanatory notes were at those time(s) to assist me to explain why I have answered the renewal questions the way I have. (f) [I] note in my renewal application to Ahpra created on 24 September 2011 and received on 15 November 2011 (Tab 4), I responded to revised question 11 as follows: 11 Have you previously disclosed to Ahpra all known complaints made about you to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners in Australia or elsewhere]? 'Complaints' refers to matters other than those made since 1 July 2010, under the National Law and already reported to Ahpra. If you are not aware of any complaints made about you please select N/A Answer: Yes" (g) And, that I did the same for the renewal application to Apra created on 21 September 2013 and received on 14 October 2013 (Tab 4). (h) I note that for the balance of the renewal applications to Ahpra that have been included at Tab 4 (namely created 20 September 2014 and received on 10 October 2014; created 27 September 2015 and received on 6 November 2015; created 2 October 2016 and received on 28 October 2016; created 1 October 2017 and received on 7 October 2017; and created 6 October 2019 and received on 9 November 2019) that I have responded with the 'Answer' as 'N/A'. (i) As I have said above, I honestly cannot recall what the explanatory notes were for each of these renewal applications and therefore cannot provide any further explanation on why I have provided the response I have. … (k) In any event, I did not intentionally withhold any information. Given the matters were being handled by the HCCC, I assumed that a regulator was aware of the complaints and my responses. I will ensure that I carefully read all associated notes when renewing my registration and if I have any queries, I will ring my professional association, ADA NSW.

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Complaint Four

Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) or (I) of the National Law in that the practitioner: 1. has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the dental profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. has engaged in other improper or unethical conduct relating to the practice or purported practice of the dental profession.
In his Reply, the practitioner admits Complaint Four and his underlying conduct.
In addition, in relation to the allegation that he was guilty of satisfactory professional conduct under s 139B(1(a) of the National Law, he refers to letters from patients and colleagues and to character references from colleagues.
The Particulars of Complaint Four are that: 1. between in or around March 2020 and 27 August 2020, the practitioner: 1. failed to establish and implement appropriate standards of hygiene, cleanliness and infection control in the Practice, [2] including: 1. failed to ensure that the treatment room in use and the dental laboratory in the Practice had clearly defined clean and contaminated zones; 2. failed to ensure that surfaces within contaminated zones were able to be, and were, decontaminated or cleaned and sterilised after each patient; 3. failed to ensure that surfaces outside contaminated zones were able to be, and were, cleaned: 1. in the case of general work surfaces, at least after each session or when they became visibly soiled; 2. in the case of sinks and wash basins, at least daily or when they became visibly soiled; and 3. in the case of other environmental surfaces, at least weekly; 1. failed to ensure that floors and walls in the Practice were maintained in a clean and hygienic condition; 2. failed to ensure that all bulk supplies, including tissues, were stored outside the contaminated zone, protected from contamination including from splashes and aerosols, and otherwise stored in a clean and hygienic environment; 3. failed to ensure that dental bleaching liquid and other consumables were stored in a clean and hygienic environment; 4. failed to ensure that all air and water lines from any device connected to the dental water system that entered the patient's mouth were adequately flushed; 5. failed to ensure that instruments were sterile at the point of use, and otherwise failing to implement appropriate infection control measures for instruments, including: 1. failing to perform instrument reprocessing in an appropriate location, with minimal risk of contamination; 2. failing to perform and document a helix test and a vacuum test of the Practice's autoclave each working day, in accordance with the manufacturer's specifications; 3. before 25 June 2020, failing to use an appropriate sterilisation cycle when sterilising instruments in the autoclave; 4. failing to implement an effective Batch Control Identification (BCI) system for critical instruments; and 5. failing to use the autoclave between 1 March 2020 and 8 April 2020, despite treating patients during that period; 1. failed to ensure that contaminated single-use items, including matrix bands, were disposed of promptly; 2. failed to ensure that sharps, including orthodontic wires, were discarded in clearly labelled, puncture- and leak-proof containers or otherwise disposed of safely; 3. failed to ensure that contaminated waste was: 1. appropriately labelled; 2. stored safely; and/or 3. disposed of by a licensed or accredited contractor and otherwise safely; and 1. failed to develop and/or implement an adequate infection control manual or other documented procedure addressing the matters in subparagraphs (i) to (xi) above; and 1. provided dental services to patients in an environment that did not meet appropriate standards of hygiene, cleanliness and infection control, including for the reasons in subparagraph (a) above, 1. the Australian Dental Association (ADA) "Guidelines for Infection Control - Third Edition" dated 2015; 2. the National Health and Medical Research Council "Australian Guidelines for the Prevention and Control of Infection in Healthcare" dated May 2019; 3. Australian/New Zealand Standard AS/NZS 4815:2006 "Office-based health care facilities - Reprocessing of reusable medical and surgical instruments and equipment, and maintenance of the associated environment" and/or AS/NZS 4187:2014 "Reprocessing of Reusable Medical Devices in Health Service Organisations"; 4. the Board "Guidelines on infection control" dated 1 July 2010; and/or 5. cll 2 and/or 6 of the Board "Code of Conduct" dated March 2014 (Code of Conduct); 1. between 28 March 2020 and 26 April 2020, the practitioner performed dental examinations and treatments outside of the circumstances permitted by the ADA's COVID-19 Level 3 Restrictions, including: 1. on 6 April 2020, treatment relating to the restoration of a posterior tooth for Patient F; and 2. on 14 April 2020, non-urgent endodontic treatment for Patient G; and 3. otherwise performing general oral examinations for patients in non-urgent circumstances, contrary to: 1. the advice of the Australian Health Protection Principal Committee (AHPPC) dated 25 March 2020: 2. the Board's direction conveyed in the "Update from the Dental Board of Australia and Ahpra" dated 2 April 2020; and/or 3. cll 2, 5.4 and/or 6 of the Code of Conduct. 1. between 22 November 2019 and 27 August 2020, the practitioner: 1. did not hold a current radiation management licence for the x-ray machine at the Practice in circumstances where: 1. the x-ray machine was regulated material for the purposes of the Radiation Control Act 1990 (NSW) (Radiation Act); and 2. the practitioner was a person responsible for that regulated material for the purposes of s 6 of the Radiation Act, contrary to s 6(2) of the Radiation Act; 1. the practitioner failed to maintain clear, accurate, legible and otherwise adequate patient records, including: 1. in relation to the practitioner's treatment of Patient F on 6 April 2020, the practitioner failed to record (legibly or at all): 1. the patient's medical history; 2. the type and dosage of local anaesthetic used; and/or 3. sufficient detail of the restorative procedure performed; 1. in relation to the practitioner's treatment of Patient G on 7 April 2020, the practitioner failed to record (legibly or at all): 1. the patient's medical history; 2. sufficient detail about the treatment undertaken; 3. sufficient detail about the diagnosis; 4. sufficient detail about treatment planning; 5. the patient's informed consent; and/or 6. a radiograph after obturation of the root canals; 1. in relation to the practitioner's treatment of Patient H on 23 April 2020, the practitioner failed to record (legibly or at all): 1. the reason for the extraction; 2. COVID-19 precautions taken; 3. batch tracking for instruments used in the extraction; 4. the patient's informed consent, including any explanation of risks and possible unfavourable outcomes; and/or 5. any post-operative instructions including medication to be used, contrary to cll 2(e), 3.5(f) and/or 8.4 of the Code of Conduct.
In relation to the Particulars, the practitioner notes that he has admitted the conduct the subject of Complaint Four in his letter to the Council of 14 May 2021.

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Complaint Five

Complaint Five is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in other improper or unethical conduct relating to the practice or purported practice of the dental profession.
The Particulars of Complaint Five are that: 1. on 18 September 2020, the practitioner gave false and/or misleading evidence to the Dental Council of NSW (Council) in a hearing held under s 150 of the National Law, in that: 1. the practitioner stated to the effect that a vacuum test of the Practice's autoclave would be performed and recorded every working day, when in fact that did not occur; 2. the practitioner stated to the effect that a Helix test of the Practice's autoclave would be performed and recorded every working day, when in fact that did not occur; 3. in response to a photograph of used matrix bands located at the Practice, the practitioner stated to the effect that the matrix bands were not his and that his landlord may have brought them into the Practice after 27 August 2020, when in fact the matrix bands did belong to the practitioner; 4. the practitioner stated to the effect that he only did emergency work or work on "family members" during the period when the ADA's COVlD-19 Level 3 Restrictions were in place, when the practitioner performed non-emergency work and work on patients other than family members during that period; and 1. on 14 May 2021, the practitioner made a false and/or misleading submission to the Council in a request for review under s 150A of the National Law, in that: 1. the practitioner stated that "[t]he dental X-ray unit was and has always been certified and licensed as provided by the EPA's record", when the radiation management licence for the Practice's x-ray machine had expired and was not current between 22 November 2019 and 27 August 2020; and 2. at the time of making his submission to the Council on 14 May 2021, the practitioner knew the true facts as set out in subparagraph (a) above.
In his Reply, the practitioner admits Complaint Five and his underlying conduct.
In addition, relation to Particulars 1(a) and (b), the practitioner says: Please refer to my state of mind at the time. Vol 4, s 40 submission, page 706, para 5.11(a). With that, it is still not an excuse. I am ashamed and remorseful.
In addition, relation to Particulars 1(a) and (b), the practitioner says: Admitted and also admitted previously to the Council in letter dated 14 May 2021. Point 9 of my shortcomings "9/ The photograph of the old Tofflemire matrix bands demonstrated a serious breach of reusing single use items. These Tofflemire matrices are single use items and must be discarded once used ... I accept my responsibility and will not let this ever happen again."
In relation to Particular 2(b), the practitioner says: Admitted but not intentionally misleading the Council as I believed once the radiation management license has been renewed it would be inferring to cover retrospectively for the period dated back to the first date of the renewal year. I am truly sorry that I misled the Council in this instance.

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Complaint Six

Complaint Six is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in: 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
As to the Particulars of Complaint Six, the Commission relies on Complaints One to Five individually or in any combination.
In his Reply, the practitioner admits Complaint Six and his underlying conduct.
In addition, relation to the Particulars the practitioner refers to the s 40 letter where he states: 7.1 I would like to make some statements about my conduct generally: (a) I did not intentionally mislead or deceive Ahpra or the Council. (b) Whilst the practice issues (unhygienic practice etc) occurred during a very challenging period in my life, I accept full responsibility for my professional failings. (c) I should have recognised that I needed to delegate more administrative duties to enable me to ensure the professional standards were being met by myself and staff. I should have exercised oversight to ensure the Practice was to standard and I failed to do so. (d) I should have identified my own vulnerabilities at the time and taken steps to manage them, including attending my GP. (e) I now fully comprehend the situation I had placed myself in and recognise my inability to manage significant stressors without suitable support and treatment. I need to manage my own health to protect the health of my patients. I would never again risk the safety or health of my patients and the public. (f) I am very ashamed and extremely remorseful for my professional failings. 7.2 I've also enclosed a reference from 20 years ago. It is my objective to once again be practising at a standard that invites such positive comments (Annexure 10). 7.3 I ask the Commission to give consideration to deferring any decision making until Ahpra has considered the report of Dr Samuels and made a decision as to whether my registration will be reinstated. If it is, I would ask that the Commission consider referring me to the Dental Council for management under the performance and health pathways.
Dr Samuels is a forensic psychiatrist who carried out an assessment of the practitioner on 6 July 2022 and prepared a report dated that day. We will discuss that report below.

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Dr Blefari's complaint

Dr Blefari sent a complaint to the Council on 13 September 2020. He had worked as a locum at the practitioner's Practice on 9 and 10 September 2020. In his complaint he relevantly stated: When I arrived I discovered that the practice was well below what is required to operate a dental practice and treat the public thus I refused to treat any patients. The [practitioner] had been evicted by the owner of the building a few [days?] before this for not paying his rent for many months. The new owner of this dental surgery was hoping to employ a dentist to work for him. The owner is an accountant. On the 9/9/20 the employed nurse from the same agency was also very vocal in her reluctance to not treat any patients; we subsequently spent the day cleaning up this place which could only be described as disgraceful and only seen in 3rd world countries After this I was informed by the owner - Walter Guan - that a few weeks prior to these dates he engaged the services of a professional cleaning company whose employees have said that they are willing to testify how dirty this place was. I personally was shocked at how dirty it was on the day so to be told it was even dirtier before leaves one shaking ones head. I also found evidence of the reuse of materials that should be once only use; an Xray unit that did not have a compliance sticker and really too many things to talk about When Dr Tran was evicted he came back with a locksmith and broke into the surgery where he subsequently went about repossessing his former dental tools and materials. I say former as according to the lease all the items in the suite are now the property of the owner of the suite. The owner has a video clearly showing Dr Tran removing items from this address. I spent the 10th September cleaning up the place as best as I could and am now trying to help Mr Guan get the surgery into shape so that it may be used as a dental surgery in the future. On the 11/09/2020 I was also in attendance and Dr Tran took it upon himself to send a dental technician to try and have his former very old dental chair removed and relocated to number 27 Villawood Place as Dr Tran has visions of resurrecting his former practice just down the round .

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Mr Guan's complaint

Mr Guan appears to be the property manager for the owners of the premises where the practitioner conducted his practice. On 16 September 2020, he sent a complaint to the Council relevantly stating what he observed when repossessing the premises for unpaid rent. Some of his opinions, such as opining that certain matters were a breach of the Radiation Act, or references to breach of Australian Standards, we will ignore, as no basis is set out on which Mr Guan could give those opinions.
But relevantly Mr Guan stated: … 2. Piles of rubbishes accumulated inside the back of premise 3. Great majority of medications presented on the table inside Victor's theatre were expired, the oldest one we found expired in 2003, 17 years ago, while quite a big number of them expired in 2007, 13 years ago. …
Once Mr Guan had evicted the practitioner he found: 1. Xray machine in the clinic has no certification. …' 2. Most of medication or dental materials kept in the clinic were out of date. 3. Operating theatre was seldom clean, even the only sink in the theatre were not clean, Victor has placed rusted instrument tips there. … 4. Impression materials were prepared in a dirty, unhygienic environment. … 5. Autoclave was keeping in a highly unhygienic environment. The condition has been so unhygienic to a level that the dental nurse we originally intended to engage would refuse to take the job of cleaning it up. She honestly believed that the dentist shouldn't be practicing, because if a patient has HIV, there would be a high chance of passing it on to the next patient. … … 8. Victor has accumulated rubbish containing medical waste including needles inside the premise, piles of rubbishes have been accumulated in the back where they were exposed to rain water, and contaminated water could run into the drain and sewerage system. These are highly unhygenined. 9. Owner of the neighbour property complained to me after Victor's eviction that many occasions Victor had put rubbish bags in the back in the common area, where birds or cats rigged out the rubbish bags, needles with blood on it exposed. (Grammatical errors as in original)

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The s 150 Decision

The Council published its decision in respect of the hearing held on 18 September 2020 on 29 October 2020. In its Introduction, the Council notes: On 13 September 2020, the Dental Council of NSW (Council) received a complaint from a dental practitioner, Dr Vincent Blefari. Dr Blefari stated that the owner of the premises hired him as a locum to work at the practice on 9 September 2020. On arriving at the practice, Dr Blefari alleged the condition of the rooms was 'disgraceful' and extremely dirty. Dr Blefari refused to treat patients due to the unhygienic nature of the practice. Dr Blefari further alleged that he discovered several other issues that concerned him including evidence that single use materials had been reused and that the x-ray unit did not have a compliance sticker. Whilst present at the surgery on 11 September, Dr Blefari stated that Dr Tran sent a dental technician in his employ to collect a dental chair from the surgery as Dr Tran plans to open a new surgery in new premises close by. He also alleged that the practitioner has previously illegally obtained access to the practice and removed items that are property of the owner of the premises. On 16 September 2020, the Council received a complaint from Mr Walter Guan, the landlord or owner of the premises of Dr Tran's former practice. Mr Guan stated that Dr Tran was evicted from the premises on 19 August 2020 due to unpaid rent. On gaining entry to the property, Mr Guan alleged that the practice was in a dirty and unhygienic state. There were piles or rubbish including medical waste and used needles stored at the back of the premises. Mr Guan further alleged he located expired medication within the premises. Mr Guan also reported that the x-ray machine was operated without certification and there was evidence that the autoclave was not operating on every day that the surgery was open, implying that instruments were not properly sterilised. Mr Guan stated that the "operating theatre" was unclean and rusty instruments had been left in the sink. On 17 September 2020, the Council considered the complaints by Dr Blefari and Mr Guan, that raised serious concerns regarding the infection control standards at Dr Tran's previous place of practice. The Council determined that due to the potential risks to public safety, proceedings pursuant to section 150 of the Health Practitioner Regulation National Law (NSW (the National Law (NSW)) were warranted.
In considering the question "Does the practitioner's practice pose a risk to the health or safety of the public?" the Council relevantly stated: Considering the disparity between Dr Tran's stated protocols and the evidence that these protocols were not actually practised, generated considerable concern for the Panel. The admission of Dr Tran that he had breached Level 3 COVID-19 restrictions also generated concern for the Panel. The photographic evidence submitted in by the complainants showed a dental practice, which was extremely untidy, dirty and unkempt. The Panel considered whether the photographs could have been staged for the complainants' submission. The conclusion was that the number and type of infection control breaches noted would not be possible to be staged by a person who is not a health practitioner, as was one of the complainants.
In conclusion, the Council Panel stated that it was genuinely concerned about the practitioner's apparent disregard of infection control guidelines, and that his propensity to hoard unwanted and contaminated waste had generated considerable unease. The Panel was unable to formulate any conditions to place on the practitioner's registration which they considered would be protective of the public.

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The s 150 Decision

The Council Panel published its decision in respect of the hearing held on 27 August 2021 on 29 September 2021. The Council Panel records that it asked the practitioner to explain how his practice had reached "such a state of disarray". The Decision records: Dr Tran advised that the practice environment deteriorated due to a combination of equipment they could that there was not time to clean up afterwards. Dr Tram indicated that while the standards in the practice may have deteriorated it was not as bad as portrayed in the photographs when he was seeing patients. He made the point that he could not imagine any patient would allow themselves to be treated in a clinical space that resembled the photographs. The Panel drew Dr Tran's attention to a photograph of the practice on page 25 of the Section 150A documents. Dr Tran was asked to identify what he saw as issues with the treatment room as depicted in the image. Dr Tran identified: - There was clutter on open shelves that inhibited cleaning and disinfection of surfaces which could lead to cross contamination; - Not visible in this photo but evident in others was the back of treatment chair was covered in stickers, which posed an infection risk due to contamination of what was supposed to be a clean site; - There were no clearly defined clean and dirty zones; - Equipment was on benches when it should have been stored away; and - Evidence of insufficient storage. In addition to the above, Dr Tran was able to identify more generally that his practice also had the following infection control issues: - An absence of clear protocols for cleaning the premises, - There was no floor cleaning conducted by his staff; - Appropriate testing of the autoclave was not undertaken; - The ultrasonic cleaner was not tested; - The sterilisation area and lab were not separated into clean and dirty zones; - There was inadequate cleaning of some lab equipment; - Waste storage could have been improved.
The Decision also records the following: If Dr Tran's suspension was to be lifted what are Dr Tran's plans for the future? Dr Tran was asked what his plans were should his suspension be lifted. As he began to respond, Dr Tran became what can only be described as deeply upset and agitated. He began sobbing, striking himself about the head and grimacing. It appeared that he was exerting a huge effort to control his emotions but was unable to do so.
The Panel concluded: The Panel carefully considered all the evidence when considering Dr Tran's request for a review of the original decision to suspend his registration. The Panel acknowledges the significant time and commitment demonstrated by Dr Tran in identifying areas of his practice which required remediation and then taking the necessary action to address it. We were able to conclude that there appears to have been significant improvement in this space and that Dr Tran has shown insight into his past practice deficits. However, we are also mindful that our primary responsibility is to ensure the safety and well-being of the public. In observing Dr Tran throughout the course of the hearing we now hold significant concerns for his mental health. When our observations are further considered in the context of returning to clinical practice, managing stressful situations and ensuring appropriate infection control practices are implemented in his practice we hold concerns for both his well being and that of any patients under his care. Accordingly, while we agree to lift his suspension, we have determined that the following orders are to be placed on Dr Tran's registration.
Those conditions were: Public Condition 1 Not to practise dentistry. Private Condition 1 To attend for a health assessment by a Council directed health assessor (psychiatrist) The professional costs of this assessment undertaken pursuant to this condition will be met by the Council.

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Dr Samuels' evidence

Dr Samuels relevantly records that: 1. on 13 and 16 September 2020, the Council received complaints regarding the practitioner's performance that raised serious concerns regarding the infection control standards at the practitioner's previous place of practice; 2. on 18 September 2020, a hearing was held before the Panel and: 1. the Panel was genuinely concerned about the practitioner's apparent disregard of infection control guidelines, and the practitioner's propensity to hoard unwanted and contaminated waste generated considerable unease for the Panel; 2. the Panel was unable to formulate any conditions to place on the practitioner's registration which they considered would be protective of the public; 3. the Council suspended the practitioner's registration on 18 September 2020 with effect from 21 September 2020; 4. the Council referred the matter to the Commission for investigation; 1. on 14 May 2021, the practitioner made an application for review of the Council's decision to suspend his registration. 2. on 27 August 2021, a hearing was held before the Panel with Dr Tran in attendance at which: 1. the Panel acknowledged the significant time and commitment demonstrated by the practitioner in identifying areas of his practice which required remediation and then taking the necessary steps to address it. The Panel concluded that there appears to have been significant improvement in this space and that the practitioner had shown insight into his past practice deficits; 2. in observing the practitioner throughout the hearing, significant concerns for the practitioner mental health were formed by the Panel. In considering their observations in the context of returning to clinical practice, managing stressful situations and ensuring appropriate infection control practices are implemented in his practice, the Panel held concerns for both Dr Tran's wellbeing and that of any patients under his care; 3. the Council set aside the practitioner's suspension and imposed conditions on his registration to not practise dentistry and to attend for a health assessment with a Council directed psychiatrist.
Dr Samuels then sets out the practitioner's psychosocial history, his developmental history, his educational, family and medical histories. As to the practitioner's mental status, Dr Samuels stated: Mental Status Examination 55. Dr Tran was a very pleasant, cooperative man but odd in manner and quite intense. He was anxious through the interview and at times when discussing his family background became quite tearful. His mood appeared to be euthymic but he was quite emotionally labile at times. His speech was normal paced and his thought form was normal but his responses at times were somewhat circumstantial, over-detailed and not always relevant. It was difficult to encourage him to provide succinct responses to questions. 56. Apart from a religious comment at the beginning and at the end of the interview, this was not a prominent aspect of his presentation today. 57. Because of Dr Tran's very detailed responses, this was a lengthy interview and as I had another patient I indicated to him that we needed to terminate the interview. It was quite difficult for him to leave. He became highly emotional, shook my hands, was quite tearful and told me that although he had not come to see me by choice it was good to have "a listening ear". 58. He stressed to me that he felt very confident about infection control, that he had done a lot of CPD and felt competent to work in his own practice. He eventually left my office in a tearful state but reiterating how grateful he was for my having listened to him. He did make a comment about "the will of God". 59. I strongly advised him to continue to keep seeing his psychologist, given the ongoing stress.
Dr Samuels then provides his opinion as follows: Psychiatric Issues … 65. Since his suspension, Dr Tran has undertaken psychological treatment, he has improved his knowledge of infection control and other areas of dentistry and has been working part-time for Amazon. He has not required antidepressants and he has not seen a psychiatrist. At the present time his mood appears to be euthymic, but some emotional lability was evident. He certainly presents as anxious. He does not present as clinically depressed but he certainly remains very emotional about his early development and the issues that have occurred in the last few years, particularly with his landlord and the previous practice. 66. His Adjustment Disorder seems to be largely resolved but given his current emotionality would strongly recommend that he continues to have contact with his treating psychologist. He certainly has some odd personality traits which my stem from his adverse early development. He is somewhat obsessional, rigid and inflexible, there is a degree of religiosity, his affect is intense and labile. It is likely that the difficult interactions with the police in 2013, the more recent difficulties with the landlord and his unusual interactions with the Council stem from his personality style.
Dr Samuels then sets out his answers to questions asked of him by the Commission: Q1. Whether Dr Tran is impaired [1] in accordance with the following criteria: Does Dr Tran have a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect their capacity to practise the profession? 67. Dr Tran still presents as somewhat depressed and anxious. I would not regard him as being impaired within the meaning of the National Law. He seems to be functioning reasonably well at the present time, he is not pervasively depressed, he has no significant sleep or appetite disturbance, he is not overly anxious, he is not suicidal, there are no evident psychotic symptoms, he has never exhibited manic-type symptoms and there are no substance misuse issues. It is clear that he continues to struggle with the traumas of his early development and the issues with his landlord and subsequent involvement with the Dental Council have been issues that have been very stressful for Dr Tran. He does seem to have some unusual personality traits that impact upon his interpersonal interactions. He has engaged quite well with Ramsey Andrews, seems to benefit from seeing him and I would strongly encourage him to continue in therapy. He has taken measures to address deficits in infection control. Q2. Whether Dr Tran is safe to practice and if not please provide reasons? 68. At this point I have no significant concerns from a psychiatric or psychological point of view in regard to his fitness to practice. Given the history of events that have brought him to the attention of the Council and AHPRA it would be important for ongoing monitoring of his infection control procedures to occur and I certainly would recommend that he continues to see his psychologist as there obviously are unresolved issues from the past and Dr Tran is still struggling to sort out ongoing legal issues with his former landlord and to get access to dental equipment and patient records in order to resume practice. Q3. Whether Dr Tran has good insight into the impairment or condition and is able to detail strategies to self-identify their impairment and mitigate any risk that any such impairment or condition may present to public safety and delivery of safe care. 69. Dr Tran still has some ongoing depressive and anxiety symptoms related to his adjustment disorder which seems to have largely resolved. He indicates that he gets benefit from seeing Ramsey Andrews and talking about what has happened and I feel confident he will continue to see Ramsey Andrews for ongoing support. I would strongly advise him to do this. 70. I do not see his depressive and anxiety symptoms as being so severe that they would impact on public safety or the delivery of safe care. However unless he has better insight into the way he comes across to others particularly when stressed, there is potential for further conflict with judicial or health regulatory authorities. 71. Dr Tran seems to have a better knowledge and understanding of infection control issues but this is something that the Council will need to have a process to monitor.

[26]

Events Since My Review Application

The practitioner was suspended by the Council on 18 September 2020, following a s 150 hearing.
On 14 May 2021, he lodged an application pursuant to s 150A of the National Law requesting a review of his suspension.
On 27 August 2021, the Council decided to set aside his suspension and to impose the following conditions on his registration: Public Condition 1 Not to practise dentistry. Private Condition 1 To attend for a health assessment by a Council directed health assessor (psychiatrist) The professional costs of this assessment undertaken pursuant to this condition will be met by the Council.
In accordance with the Council's request, the practitioner attended an appointment with Dr Parsons, psychiatrist, and he provided an undated report to the Council.
The practitioner failed to apply to renew his registration by 30 September 2021, and subsequently his registration with the Australian Health Practitioner Regulation Agency (AHPRA) lapsed on 1 November 2021. He says that he failed to renew his registration: because at the time, I was so much occupied and overwhelmed with the solicitors for the civil court case with the landlords, the responses required by the HCCC, the attempt of trying to ask the Dental Council for the review process, and the most important was re-educating myself in terms of infection prevention control, making and updating manuals and caring for a stressful, low energy family, and looking for jobs to do, learning warehousing work. Besides, I did not think I could do anything unless the suspension was lifted, so I overlooked to remember to renew my registration.
On or around 26 November 2021, he applied to AHPRA for general registration as a dentist under s 77 of the National Law.
On 18 August 2022, AHPRA granted him registration, subject to the following conditions which remain current: Health Conditions 1. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner. a. is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: i failure to attend for treatment; ii termination of treatment or iii a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner/s. Infection Control Audit 2. To submit to an audit of his dental practice(s), by a person or persons approved by the Dental Council of NSW and: a. The audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council. b. The auditor(s) is to examine and assess infection control standards c. To ensure the auditor(s) provides a report to the Council of their findings in the form required by the Council. d. The practitioner is responsible for all costs associated with this condition.

[27]

The Reply/Prior Responses to Commission

Here the practitioner notes that in his Reply he admitted all the Complaints and all the particulars of each Complaint. He also provides references to his various responses to the Commission to similar effect.
In a sub-section titled "Improving my Knowledge, Skill and Judgment", the practitioner lists some 134 matters for the period 21 September 2020 to 29 July 2023. These include Infection Control Bootcamps, reading various materials published by the ADA, listening and/or watching various podcasts and the like on a range of subjects from nutrition and wellness, infection control, mandatory reporting, oral cancer screening, antibiotic use in periodontal therapy, "top tips for relaxing extractions" and much more.
The practitioner says that for the CPD Cycle from 1 December 2019 to 30 November 2022, he has completed about 116 hours of CPD.
He concludes this section of his statement by saying: 4.5 I have recently returned to practice (please see below, Section 7 - Current Work and Future Plans) at Summerhill Dental Group and was required to undertake induction training which included site induction, staff immunisation status updates, surgery principles, protocols and procedures for different areas of the dental practice. 4.6 Additionally, I now regularly interact with both dental peers at the practice and outside the practice to discuss interesting and/or challenging matters to continue to learn and grow from others and their experience. 4.7 I would have liked to be able to engage in a further 1:1 education program, via Morrison Advocacy or Ms Elizabeth Milford to continue to develop my dental knowledge, and to hopefully assuring the Tribunal of my commitment and true desire to apply my dental knowledge to the highest possible standard. Unfortunately, my wife and I do not presently have the financial means to meet the cost of such a program. With the assistance of ADA(NSW), we are trying to establish a mentoring relationship to assist in my return to practice and to extend my peer network and my ability to discuss and share information and learn from others, via their independent critical assessment and thinking. In the meantime, I will continue to utilise the peer networks I have now at work and informally.

[30]

Remorse and What's Expected of me as Professional

In summary, the practitioner states that there is not a day he does not think about improving the health and care of his patients. He says he wants to be a dentist to serve others and to give back to the community. He understands that his relationship with patients and regulators is based on trust, and his breach that trust in the past. he says He that he has "heart achingly realised" that he has let down, not only God, but his family, his patience, his staff, and his professional colleagues.
He says he finds it difficult but necessary to read back over the events the subject of the complaints.
He concludes by saying: 7.7 This experience has been an unforgettable experience filled with enormous shock, shame, guilt, and regrets compounded with the agonising heartache, deep self-reflection, and self-realisation. I want to assure the Tribunal the safe return of my dentistry with me reaching out to obtain the clear guidance, assessment, and support from the Peer Advisors of the ADA and my professional colleagues. This suspension and subsequent reapplication process for the registration, addressing the HCCC numerous times and the nightmares of obtaining professional indemnity insurance (received almost all rejections except one from MIPS company) have had a devastating effect on me, and it has also been terrible for my family with three young children, who are purely innocent. The impacts for the family have been huge ranging from mood swings, anxiety, family financial struggle, tiredness, stress, and more. Grateful to God, my wife and I support one another caring for these children while maintaining other responsibilities. In short, this experience has touched the inner core of my mind, soul, spirit, and my remaining strength given to me. 7.8 I have done everything in my power to understand my responsibilities to ensure the proper conduct so the safety of the people I care for in dentistry is assured. I have let down too many people and the dentistry professional organisation and most importantly, God's grace given to me to be a Jesus Christ 's servant.

[33]

Mr Ramsey Andrews

In a report dated 25 July 2023, Mr Andrews states: 1. he has had 31 consultations with the practitioner since 27 October 2020; 2. the practitioner was initially referred for anxiety and depression and was experiencing low mood on a daily basis, significantly reduced memory and concentration, feelings of hopelessness and helplessness, hypervigilance, consistent worried thoughts about the future as well as constant fatigue; 3. since his initial consult, the practitioner's symptoms have significantly improved and Dr Nguyen no longer believes that the practitioner meets the criteria for any mental health condition according to the DSM-V; 4. the practitioner been provided with Cognitive Behaviour Therapy (CBT), and Acceptance and Commitment Therapy (ACT) which have been effective in assisting him with management of anxiety and depression. 5. during his course of treatment, the practitioner has also been provided with several tools and strategies to assist with self-regulation of his mood to ensure that he engages in positive behaviours in the future and to ensure that he maintains his positive efforts thus far in being a productive member of society; 6. throughout his treatment, the practitioner has been highly receptive to psychological intervention and has been well engaged in treatment to date.
The report concludes with Mr Andrew's setting out the practitioner's current treatment plan which is: Mr Tran is currently attending psychological consultations once every 6 weeks whereby the focus is to reinforce the psychological evidence based strategies he has learnt thus far. This will ensure that Mr Tran continues to apply these strategies which he has been successfully demonstrating in the workplace and in his family and social settings.
In oral evidence Mr Andrews described the practitioner's level of engagement as "quite high, very proactive to improve himself and to apply the theory to his own life". Mr Andrews said that the practitioner had made a lot of progress since October 2022 and exhibited "a lot more insight", was less anxious and had a lot more control. Mr Andrews said that the practitioner did not meet the criteria for a diagnosis of generalised anxiety or depression.
Mr Andrews had not observed any labile conduct in the previous six months.
Mr Andrews did not recall seeing any reports from any psychiatrist about the practitioner, including Dr Samuels. After checking his notes, Mr Andrews confirmed that he had not seen Dr Samuels' report.

[35]

Dr David Pham

Dr Pham has known the practitioner since they attended university. He states in his statement: I am the principal Dentist and owner of Summer Hill Dental Group. I have practiced here for 20 years. Earlier this year Victor Tran communicated to me the issues he has been dealing with on a professional level. These included multiple interactions with the Dental council and Health Care Complaints Commission, as well as problems with his previous landlord and legal issues. After taking the time to listen to the issues that Victor was dealing with, I felt compelled to assist him to try and restore his registration as a Dentist. At this time Victor's attitude was very contrite and appreciative of any assistance I could provide. Given the multiple issues faced, the amount of time since Victor had worked as a Dentist, and the available resources at my practice we implemented a conservative work schedule for Victor where clinically he would see patients Thursdays and every alternative Saturday morning. This schedule afforded us time to mutually share ideas about patient treatments, care, records, infection control and staffing amongst other things. Victor commenced work with the Practice on the 18th of February 2023. During this period I observed Victor to be a clinically competent operator who interacted very well with his patients. The scope of work was general dentistry including regular examination and hygiene visits, restorative work, exodontia, endodontics and removable prosthodontics. He was very aware of infection control protocols as well as good record keeping. He was very helpful in assisting and directing Dental staff on issues of sterilising of the instruments and the surgeries. I am grateful to have had the opportunity to share and learn with Victor during this period of time. I believe that Victor is very aware of his responsibilities as a professional Dentist having overcome past challenges. I also believe Victor is a kind and compassionate individual with good character.
In oral evidence at the hearing, Dr Pham confirmed his positive assessment of the practitioner. Dr Pham said that feedback from patients about the practitioner was "good", and that his dental nurses recorded that the practitioner's patient notes were "very detailed". Dr Pham said that from his personal observations the practitioner he had no concerns about his ability to practise dentistry including the practitioner's dental control skills.

[36]

Relevant law and authorities

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and … (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; and … (3) The guiding principles of the national registration and accreditation scheme are as follows-- … (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.
Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 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.
Section 109 of the National Law which relevantly provides: 109 Annual Statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following-- (a) a declaration by the applicant that-- … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; Note: See the definition of "criminal history" which applies to offences in participating jurisdictions and elsewhere, including outside Australia. … (e) details of any complaint made about the applicant to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners.
Section 130 of the National Law which relevantly provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2A) To avoid doubt, a registered health practitioner is not required to give the National Board written notice of an event within the meaning of paragraphs (e) or (f) of the definition of relevant event if the notification is prohibited by the Health Insurance Act 1973 of the Commonwealth. (3) In this section - relevant event, in relation to a registered health practitioner, means - (a) the practitioner is charged with - … (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or (b) the practitioner is convicted of or is the subject of a finding of guilt for - … (ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or …
Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct that demonstrates 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law (again, an additional provision for NSW), provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

[37]

Meaning of the expression "improper or unethical conduct"

As for s 139B(1)(l), the meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in various cases including Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69] Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [21] and following, and further considered in Health Care Complaints Commission v Konigson [2021] NSWCATOD 186.
In Konigson the Tribunal stated at [93]-[95]: 93. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].

[40]

The Commission's submissions

We note that the Commission's written submissions were prepared prior to the practitioner's cross-examination. Nevertheless, its statement of the relevant principles are correct and unexceptional.
In summary, the Commission submits that, having particular regard to the seriousness of the practitioner's conduct and the associated needs for denunciation and general deterrence, the appropriate orders are for the practitioner's registration as a dental practitioner to be cancelled, with a one-year non-review period.
The Commission submits that there are four main reasons why the appropriate protective orders are for the practitioner's registration to be cancelled with a one-year non-review period.
First, the practitioner engaged in serious misconduct over a period of approximately ten years spanning a range of areas of his professional and clinical practice.
Secondly, given the wide-ranging and long-standing deficiencies in the practitioner's professional practice, the Tribunal would be satisfied that these deficiencies are not the result of a mere lapse in judgment, and could not be described as isolated shortcomings. The Commission notes that Dr Samuels points to features of the practitioner's personality and mental health that are likely to have contributed to the events the subject of the complaints.
Thirdly, there are reasons for concern about the extent to which the practitioner has addressed and developed insight into the matters that gave rise to the complaints.
Fourthly, the Tribunal would not yet have confidence that the practitioner can return fully to practise in a safe and responsible way, at least not on a full-time basis or as a sole practitioner.
In oral submissions, Mr Fuller submitted that the Tribunal would have continuing concern about the practitioner's emotionality, the fact that the practitioner had not provided his treating psychologist Mr Andrews with a copy of Dr Samuels' report, the practitioner's level of insight and reflection, and that the practitioner had only had a limited opportunity to practise in a safe way.

[41]

The practitioner's submissions

Similarly to the Commission, the practitioner's written submissions were prepared to the hearing.
Nevertheless, the practitioner asks the Tribunal not to cancel or suspend his registration, but instead impose conditions that mirror those he has been working under. He submits that he has already been subject to a period of approximately two and a half years suspension where he could not practice, and that the interests of the public are best served by protective orders that enable him to continue his part-time practice at Summerhill Dental Group and gradually return to full time work.
The practitioner then addresses what he says are mitigating factors in respect to each complaint.
In relation to Complaint One, the practitioner states: 1. it is clear from the transcript of the proceedings in the Local Court that the incident happened at a moment of great stress for him, when he was sleep deprived with a newborn infant and desperate to try to communicate with the police officer at a moment of frustration and upset; 2. the Magistrate described his actions as "a low level assault" that was "towards the lower end of the scale and out of character" for the practitioner; 3. in the s 40 letter he stated (amongst other matters): I am extremely remorseful for my actions back then. It does not reflect my attitude to the police or authority generally. I appreciate the summary in your letter paints a picture of an arrogant person who does not respect authority. That is not my personality or attitude. When I reflect on it now, and the documents in the Commission's letter, I was not managing my stress well at a demanding time in life. The work I have done with Mr Andrews, including my acceptance and commitment therapy (ACT) has helped me to identify this and to realise that when I was in crisis and despair I became narrow minded and didn't see things clearly. I now realise that I have a lot of support and that I could have reached out to family, friends and neighbours for help and did not need to believe that I should be able to do it all on my own.
In relation to Complaint Two, the practitioner repeats what he stated in the s 40 letter, namely: I did not have legal representation in relation to the Local Court matter. I do recall speaking to a lawyer who was at the Court on that day, who explained to me what the Magistrate's decision meant. I understood from him that the outcome I had received meant that a section 10, no conviction in my criminal history. I did not in any way mean to withhold providing this information to Apra. I simply did not know I had to declare it. If I had been aware of the requirements under the National Law I would have given the notice to Ahpra. I now have an understanding of section 130(1) of the National Law. …
In relation to Complaint Three, the practitioner the practitioner repeats what he stated in the s 40 letter, namely: I understood that I did not have a criminal history as a result of the Magistrate's decision on 4 September 2013. Instead, I understood my offence to have been that I had driven my car without proper registration (as per the infringement notice) and I felt that by providing that information to Ahpra, I had made a correct disclosure.
The practitioner also asks the Tribunal to take into consideration that as he speaks English as a second language, court proceedings are confusing even to native English speakers, that he was unrepresented in proceedings and that he received a "non-conviction bond". He also submits that he has accepted responsibility for his failure, but says there was no intention to deceive the regulator.
In relation to Complaint Four, the practitioner states that he explained in the s 40 letter the "enormous stress" he was under at the time; that there is no evidence that these issues had been a problem throughout his practice previously; that he had demonstrated genuine remorse and that he has done "an enormous amount of work" to address his shortcomings. That work included further education on sterilisation and infection control, undergoing mentoring, induction and work in the Summer Hill Dental practice and "getting the mental and physical health support he was previous lacking".
In relation to Complaint Five, the practitioner refers to his Reply and the s 40 letter. He accepts that his evidence was misleading, but submits that he is an inherently honest person. He asks the Tribunal to take into account the enormous stress of the proceedings before the Council has impacted on him since 2020, at a time when he was already operating under enormous strain.
The practitioner submits that there are ten factors which suggest that the appropriate protective order is that he continue to work: 1. he has demonstrated significant insight into his past mistakes and is not likely to repeat them; 2. the circumstances that led to Complaint Four occurred at a time when he was under enormous stress and that situation has now resolved; 3. he has a good support network for his physical and mental health with Dr Nguyen and Mr Andrews; 4. he is no longer isolated in solo practice and is well supported in the group environment; 5. he enjoys the support of a respected senior colleague Dr Pham who is prepared to continue to support him and to facilitate any conditions imposed; 6. he has sensibly started as a dentist part-time and is happy to work up gradually up to full time; 7. he has completed an extensive number of hours in training and education, including on infection control; 8. he was not able to practice for over two years and a further period of suspension is not in the best interest of the public, since it will be very difficult for him to maintain his clinical skills while cancelled or suspended; 9. he has proven himself to be committed to abiding by any conditions imposed by the Dental Council and he would commit himself to any conditions imposed by the Tribunal; 10. further restrictions are not "necessary to ensure health services are provided safely and are of an appropriate quality".
In conclusion, Dr Dwyer submitted that the practitioner is a professional who has worked hard for his family and community and suffered a significant set back in 2020, after a dispute with his landlord led to financial and emotional stress. Dr Dwyer submits that the practitioner has shown considerable resilience in responding to the complaints and devoting himself to additional, learning and to a mental and physical health routine. Dr Dwyer submits that the practitioner has demonstrated insight, and a passion for his profession, and will be a committed dentist in the service of the community in future practice.
In oral submissions, after amplifying her written submissions, Dr Dwyer submitted that, in relation to deterrence, "you can see the remorse" exhibited by the practitioner, and his great sense of shame. She submitted that the practitioner had demonstrated great resilience, and that many of the stressors of the past (such as the landlord and COVID) were no longer issues.

[42]

Consideration

As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: [Prakash v Health Care Complaints Commission [2006] NSWCA 153] at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include: the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; the unacceptability of certain kinds of conduct; and the maintenance of confidence in the high standards of the profession. 96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
We accept that the practitioner: 1. is remorseful; 2. has taken considerable efforts to improve his understanding of infection control procedures; 3. has sufficient insight such that there is no there is no need for there to be an element of personal deterrence in any protective order.
That said, the practitioner exhibited at the hearing the same emotional lability observed by Dr Samuels. No doubt that was, in part, a function of appearing before the Tribunal where his right to practise his profession was being considered.
We were also concerned that none of the practitioner's "insights" considered the possibility that his poor hygiene may have caused his patients harm by infection, and that he could not tell us how many patients, if any, had been notified of any risk.
Nevertheless, regardless of specific or personal deterrence to the practitioner, there is a need to give general deterrence to the profession, particularly so where, as here, a practitioner has misled the Board, given false and/or misleading to the Council, and has shown a misunderstanding of his fundamental obligations relating to hygiene, cleanliness and infection control.
We consider that practitioner's misconduct, in this case over a 10 year period, is unacceptable and a clear message needs to be sent to the public, as well as the profession, of the seriousness with which the Tribunal regards the conduct of the practitioner.
His misconduct did not just relate to his clinical practice, but also related to his lack of respect for legal authorities, such as the police and his own regulators.
We view his conduct of misleading the Board and the Council to be particularly reprehensible. As the Tribunal stated in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 the Tribunal stated at [89]: It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81].
Similarly, as the Tribunal said in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34]: It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the National Law that practitioners comply with the reporting obligations which form part of the system. In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners.
We found it concerning that the practitioner had not provided his treating psychologist with a copy of the report of Dr Samuels. This seems to be consistent with a lack of insight into his problems or a willingness to address the matters identified by Dr Samuels.
We think there is substance in the Commission's submission that it is not clear to what extent the practitioner has developed insight to address the features of his personality identified by Dr Samuels. Therefore, we accept the Commission's submission that we cannot have confidence that the practitioner can return fully to practice in a the safe and responsible.
Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration.
Objectively, the totally of his professional misconduct in such a range of areas, is cumulatively of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. That misconduct includes:

assaulting police officer in the execution of their duty in September 2013;
failing to give the required notice and disclosure of the assault offence to the Board;
failing to disclose in the period 2011 to 2019 several complaints made against him by patients;
having serious deficiencies in the standards of hygiene and infection control, record-keeping and x-ray licensing at his dental practice;
practicing in breach of COVlD-19 guidelines; and
giving false and/or misleading information to the Council on two occasions after he was called to account over the deficiencies in his practice over a period of some 10 years,

We have come to that conclusion given the objective seriousness of the totality of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
Any order short of deregistration would be an inadequate response to the seriousness of his misconduct.

At a glance

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Decision date

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Judgment (45 paragraphs)

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Legislation Cited (4)

Cases Cited (22)

Cited By (2)