CQZ15 v Minister for Immigration and Border Protection
BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Source
Original judgment source is linked above.
Catchwords
CQZ15 v Minister for Immigration and Border ProtectionBEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Judgment (38 paragraphs)
[1]
Introduction
By Decision given on 10 February 2020 delegates of the respondent Dental Council of NSW determined to suspend the registration of the appellant Dr Myles Edward Holt as a dental practitioner pursuant to the provisions of section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The appellant instituted an appeal against this decision on a point of law pursuant to the provisions of section 159B of the National Law and also sought a stay of the decision to suspend his registration pending the hearing of the appeal.
In Holt v Dental Council of New South Wales [2020] NSWCATOD 37 ("the stay decision") I granted a stay of the suspension decision on certain conditions.
These reasons for decision deal with the appeal brought by the appellant.
The power to suspend the registration of the appellant was exercised pursuant to section 150 of the National Law which is in the following terms;
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest -
(a) by order suspend a registered health practitioner's or student's registration; or
(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or
(c) by order impose on a student's registration the conditions the Council considers appropriate.
(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens -
(a) the complaint about the practitioner or student is disposed of;
(b) the suspension is ended by the Council.
(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must -
(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b) refer the matter to the Tribunal as a complaint.
(4) A Council for a health profession may take action under this section -
(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and
(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.
(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.
(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who -
(a) is not a registered health practitioner or student in the health profession for which the Council is established; and
(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
Matters relevant to the right of appeal on a point of law and to the jurisdiction and powers of this Tribunal are contained within sections 159B and 159C of the National Law
159B Appeals on point of law [NSW]
(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.
Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
(2) Subsection (1) does not limit a right of appeal under section 159.
(3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section.
(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
159C Tribunal's powers on appeal [NSW]
(1) On an appeal against a decision of a Council, the Tribunal may by order -
(a) confirm the decision; or
(b) set aside the decision; or
(c) set aside the decision and make a new decision (being a decision that the Council could have made).
(2) The Tribunal's order must not cause a suspension or conditions Imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
It is uncontroversial that the power to deal with this appeal is to be exercised by the Tribunal as currently constituted.
[2]
The nature and extent of the jurisdiction and powers of the delegates under section 150 of the National Law
Before examining the decision which is the subject of this appeal, it is first necessary to have regard to some of the principles established by relevant authorities dealing with the provisions of section 150. They have recently been discussed by Harrison AsJ in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708
10 In determining whether it must act under s 150 of the National Law, the role of the relevant Council or Tribunal is not to make findings of fact or a determination of the merits of any complaint.
11 In Lindsay v NSW Medical Board [2008] NSWSC 40 ("Lindsay"), Hall J considered the interlocutory nature of an action made under s 66 of the Medical Practice Act 1992 (NSW), which was the predecessor provision to s 150 of the National Law. His Honour's comments are equally applicable to s 150 of the National Law. In Lindsay, Hall J stated at [79]:
"[79] An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining the matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s. 66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act."
And at [28] and following Her Honour said;
Section 150 of the National Law mandates action in the event that the relevant Council (or in these proceedings, the Tribunal standing in its shoes) is "satisfied it is appropriate to do so" in either of two circumstances which have been described as two "limbs". They are identified as follows:
"...if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) [the first limb] or if satisfied the action is otherwise in the public interest [the second limb]." (emphasis added)
Counsel for the plaintiff has submitted that on a fair reading of s 150 of the National Law, the word "otherwise" must be given work to do. As such, the "public interest" referred to in the second limb must mean something separate from, and beyond, "the protection of the health or safety of any person or persons" from the first limb: see, for example, Hanna v Medical Board of NSW [2017] NSWCATOD 27 ("Hanna") at [18]; Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [21]- [22].
It is the plaintiff's case that the separation of the two limbs in s 150 of the National Law is significant. The second limb of s 150 of the National Law is derived from an amendment in 2008 to its predecessor provision, s 66 of the Medical Practice Act. In the Second Reading Speech to the Legislative Council, Parliamentary Secretary Penny Sharpe stated that the amendment adding the second limb was introduced for the following reason:
"...to clarify that the actions under this section must be guided by what is needed to protect the public interest. The Board...should look to the outcome which best addresses the statutory purpose of the protection of the public or is otherwise in the public interest".
The plaintiff referred to several cases which help define the meaning of "public interest" for the purposes of interpreting s 150 of the National Law. They are that the "public interest":
(1) "...directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances... The expression 'the public interest' is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination...The indeterminate nature of the concept of 'the public interest' means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination.": see McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at [9]- [11] (Tamberlin J);
(2) "...is a term embracing matters, among others, of standards of human conduct...the interest is therefore the interest of the public as distinct from the interest of an individual or individuals": see Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 ("Smith"); and
(3) is referred to in order "to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": see Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681 (Wilcox CJ and Keely J).
As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18].
[3]
Factual background to the decision of the delegates
Before returning to a consideration of the principles referred to above, it is appropriate to consider the factual background concerning the proceedings before the delegates, and then consider the course of the proceedings before them. The following narration is taken from an extract from the stay decision at [13] and following.
The respondent was made aware of a complaint concerning the appellant submitted by email on Sunday, 10 November 2019. A heavily redacted copy of the complaint to conceal the identity of the complainant indicates that it was submitted with respect to the appellant and two other persons whose identities had been redacted but who are also referred to as dentists. The complainant said that he or she wished to remain anonymous. The complaint also said that it related to a total of 5 "practitioners." The form of complaint asserted that all 5 practitioners involved
teach and practice techniques that I believe are outside their personal scope of Practice and possibly outside the definition of Dentistry. The next course is scheduled for May 2020 in Sydney. I am uncertain how many other Practitioners are involved in using these ridiculous techniques on patients.
The main issues I am concerned about are:
Patients being put at risk with Dentists practising outside of their Scope
Dentists training other Dentists to practice outside of their Scope
The use of Carboxy Therapy around the eyes (screenshot attached) surely cannot be even remotely related to Dentistry
As a result of my complaint, I want:
Reprimand and severe sanction
Dr Holt to not be allowed to continue his program in NSW.
At the time that the complaint was made the appellant did not conduct a traditional dental practice and although he was registered as a dentist in NSW he was involved in a full-time capacity as Director and Head Trainer of the Australian Academy of Dental-Facial Ascetics ("AADFA"). The appellant is the director and proprietor of Global Health Care Entrepreneurs Pty Limited which trades as AADFA and conducts a business training dentists and other health practitioners in the provision of facial injectables such as botulinum toxin and dermal fillers. This business was described by the appellant as "the provision of continuing professional development."
The respondent appointed delegates who convened a hearing under section 150 on 7 January 2020.
By letter dated 4 January 2020 the appellant provided a great deal of information to the respondent concerning the training courses and concerning his understanding that the only issues to be addressed during the hearing were
whether the treatment is within the scope of practice for dental practitioners and dentistry
whether it is within your (my) individual scope of practice and
the potential risk of harm to the public.
When the proceedings commenced the delegates identified the above matters as being the only matters of concern to be addressed during the hearing.
During the course of the proceedings on 7 January 2020 the appellant was closely questioned by the delegates concerning his qualifications and experience in the procedures covered by AADFA, the processes and protocols by which persons were trained to be instructors in the courses and by which persons were trained to perform those procedures. He produced documentation as required by the delegates during the course of the hearing and was asked to produce more. In addition, the appellant was closely questioned concerning the processes themselves and the medications used in those processes including in the case of regulated medication the procedures by which they were acquired and stored and utilised by persons undergoing training. The appellant was also questioned concerning emergency procedures and protocols, and the availability of emergency equipment such as a defibrillator. The questioning also extended to the contractual relationships between AADFA, its trainers, persons attending its courses and any "patients" upon whom procedures were to be demonstrated during the courses. The appellant was closely questioned about the nature and extent of insurance cover provided with respect to AADFA's operations. During the course of the hearing there was frequent discussion between the delegates and the appellant concerning the boundaries of the practice of dentistry and the interrelationship between these matters and the cosmetic industry.
Towards the end of the hearing that day the delegates asked the appellant to produce a number of documents required by them before coming to a decision. That list was comprehensive in nature and included assessments of participants in courses, training manuals, the appellant's latest CPD log, protocols dealing with life-support and CPR training, training records and contracts with trainers. The delegates initially asked for those documents to be provided by the following morning but relented when informed that the appellant would need to travel from Sydney to his home in Brisbane in order to access them. The appellant was also permitted to provide an explanatory statement to the delegates.
By letter dated 14 January 2020 the appellant forwarded a 9 page letter said to constitute a "reflective statement and submissions." In that letter the appellant dealt with a number of matters which had been discussed in the hearing and which covered some areas of the operations of AADFA which "while technically compliant, could do with close review and implementation of tighter controls and more stringent protocols." The appellant dealt with a number of areas on the website of the organisation where amendments would be made to enhance clarity, address accreditation of the courses the scope of practice of dentists who participated in training, and other matters.
That letter also attached documents required by the delegates. However, the appellant declined to produce some documents because they were commercially sensitive.
In that letter the appellant raised concerns that the delegates were travelling beyond the three areas identified at the commencement of the hearing as being the areas of concern to the respondent, and that these matters should limit the scope of the hearing.
On 15 January 2020 the respondent issued a notice requiring production of documents by the appellant by 5 PM on 17 January 2020. That deadline was subsequently extended after the intervention of the appellant's solicitors.
The delegates conducted a further hearing on 4 February 2020. During the course of this hearing the appellant was questioned by the delegates concerning a number of discrete matters including
(1) the nature of the medications used, whether it was permissible to use compounded medications, whether those medications were regulated by Schedule 4 requiring approval by the Therapeutics Goods Administration (TGA), the composition of the compounded medicines, and the reason for the use of the compounded product in training sessions
(2) the nature and extent of insurance policies effected by AADFA with particular reference to particular policies, copies of which had been furnished to the respondent by the appellant including particular cover provided by particular sections of the policies, whether trainers were covered, what was the subject matter of a particular endorsement on 14 January 2020, whether patients were covered by a policy and the dates that certain policy changes came into effect
(3) details concerning the "train the trainer" program used by AADFA.
(4) The applicant's background as a practising dentist
(5) information concerning the author of a letter from the Singapore Dental Council in 2014
(6) information in a number of complaint documents obtained by the respondent, given to the delegates, and revealed to the applicant on the day of that hearing.
The appellant said that he had never seen some of the complaint documents previously and some dated back more than a decade and related to notifications about which no action had been taken by the Dental Board of Australia. The appellant made specific reference to a matter concerning a complaint originating in the Northern Territory which had been ongoing for 6 years, which had been referred to the Northern Territory Director of Public Prosecutions (DPP) for investigation and about which he said that no investigations had taken place. The appellant also conceded that he had undertaken not to perform endodontics in response to a number of complaints made about his treatment in this area
(7) whether a Master's degree in Health and Medical Law qualified the appellant as a lawyer.
Acting on the advice of the delegates, the Council suspended the appellant's registration effective 10 February 2020. On 14 February 2020 the appellant filed in this Tribunal an appeal from the decision of the Council and an application for stay of the suspension order. Those documents were amended on 5 March 2020 following receipt of the written reasons issued by the delegates on 2 March 2020.
It will be necessary to elaborate on some of the above narration when dealing with the appellant's specific grounds of appeal.
[4]
The reasons for decision of the delegates
At this stage It is convenient to briefly describe the reasons for decision of the delegates, but further reference will be made to these reasons when dealing with the appellant's specific grounds of appeal. The narration which follows contains substantial extracts from the stay decision at [26] and following;
In their reasons the delegates first identified the complaint which had been made about the appellant and described it in the following terms
The complaint dated 10 November 2019 included screenshots of the website purportedly of AADFA. One screenshot contains an image of a person having a substance injected into the lateral area of the upper eyelid. The caption on the screenshot states '#carboxytherapy at the AADFA "FAT" module! Carboxy Therapy creates new collagen, which thickens the skin and improves the skins appearance! If you suffer from dark circles or fine lines under the eyes and don't know how to treat it - Visit AADFA.net and find a certified practitioner in your area!'
A screenshot, allegedly of the Registration Form for the 'Advanced Facial Fat Reduction Training for Dentists (Fat)' module by AADFA, states 'a two-day training module which carries 16 hours of verifiable scientific CPD and focusses on the administration of the latest fat dissolving injections and various other technologies, including Carboxy Therapy, to treat facial fat deposits, like double chin and jowls. An exciting combination of group discussions, demonstrations and dozens of patient treatments'.
The delegates described further information which had been obtained as follows
Further information was obtained by the Council from the AADFA website, including various videos of persons performing treatments.
The AADFA website lists the course offerings as including:
• Fundamental: initial training in botulinum toxin and dermal fillers for dentists
• Friends: fundamental dental-facial aesthetic training for dental auxiliary teams
• Face: fundamental dermal science training for dentists and dental teams
• Further: advanced training in botulinum toxin and dermal fillers for dentists
• Phlebotomy (blood concentrates): venepuncture and concentrated growth factor (CGF) training for dentists, hygienists and therapists
• Fiber: facial thread lift training for dentists
• Fat: Advanced facial fat reduction training for dentists.
The above listed courses will be referred to collectively in this document as 'the Course/s'. The "fat" module will be specifically referred to as the Fat Module as it is this module which is specifically referred to in the 10 November 2019 complaint.
Participants in the Courses are required to provide their own "patient" to undergo the procedure which is the focus of the Course.
The delegates then said that "the complaint and associated materials, including the screenshots of the AADFA website, photographs and videos raised the following issues of concern" which they described as follows
• Are the techniques being taught within the definition of dentistry?
• Has Dr Holt had suitable education, training and/or certification of competence to ensure both his practice and teaching methods do not pose risks to patients and/or participants and/or their "patients" in the courses he provides through AADFA?
• Are the Courses provided by Dr Holt conducted in a manner that accords with relevant legislation, registration standards and professional guidelines to ensure the safety of participants and "patients"?
• Are participants of the Courses being taught techniques (including but not limited to carboxy therapy and fat reduction injections, so called lipolysis) which are outside the definition of dentistry?
• Is Dr Holt practising outside his individual scope of practice and outside the definition of dentistry?
• Are participants completing the Courses with an expectation that they are competent to include the techniques in their individual scope of practice and that this is within the definition of dentistry?
• Are there robust processes/assessments conducted during the Courses to determine if participants are competent to safely include the techniques in their practice?
• Are the techniques being performed, during the Courses, in a safe manner and in accord with legislation for the use of the injected substances and guidelines for infection control and the safe handling of waste materials?
• Are the Courses being conducted in a manner consistent with the Dental Board of Australia Code of Conduct, particularly in relation to consent processes and the requirement for all registered dentists to have adequate professional indemnity insurance?
I observe that the "issues of concern" which were dealt with by the delegates in their decision are far more extensive than those raised, albeit in summary form, at the first hearing. The appellant complains that he was not made aware that the specificity contained in the description of these issues of concern would be matters of significance to be considered by the delegates. Whilst the transcript reveals that many of these matters were considered by the delegates in their voluminous exchanges with the appellant during the course of the hearing, the appellant asserts that the delegates did not confront him with this comprehensive list of concerns during the course of the hearing.
In their Decision the delegates referred to a number of matters to be considered at the later hearing on 4 February 2020 outlined in a letter of 29 January 2020 from the respondent to the appellant's solicitors. Those matters included but were not limited to
(1) the veracity of information provided at the section 150 proceedings held on 7 January 2020
(2) Schedule 4 medication, particularly for the Fat Module - procurement, supply, handling
(3) whether the equipment and/or medicines used at all courses for the purposes of theoretical coursework, as well as practical demonstrations and training sessions, were and are approved for use in Australia by the TGA
(4) participants being appointed to "Trainer role" - selection process, preparation and training
(5) insurance arrangements for participants and "patients"
(6) processes for infection control, emergency procedures and waste disposal at the courses
(7) concerns raised about Dr Holt's veracity/honesty as a result of his complaints history both in Singapore and in Australia
(8) public interest considerations.
After setting out the above background material, the delegates then identified the matters to be considered by them in the following terms
The central issue for us to consider is whether Dr Holt poses a risk to the safety or health of the public that warrants action to be taken by the Council. We may also consider whether it is generally in the public interest for the Council to take action. To determine these issues, we must answer the following subsidiary questions:
1. Are there previous complaint matters that should be considered?
2. Does the practitioner have the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected?
3. Does the practitioner's behaviour accord with the public interest?
In their reasons for decision the members considered a number of discrete matters which I shall deal with seriatim.
[5]
Are there previous complaint matters that should be considered?
In dealing with this matter the delegates said that section 41O of the National Law required them to take into consideration any previous complaints to the extent that they reasonably considered the matter to be relevant to the complaint before them. For completeness I note that section 41O is in the following terms
41O Other matters to be taken into account [NSW]
In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint -
(a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint -
(i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and
(ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8;
(b) a previous finding or decision of a Council inquiry in relation to the practitioner or student;
(c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student;
(d) a written report made by an assessor following an assessment of the practitioner's professional performance;
(e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner.
I interpolate that complaints and notifications must be taken into consideration subject to the qualification that, in the case of the delegates, they "reasonably consider the matter to be relevant to the complaint". The notice of appeal raises the entitlement of the delegates to consider these matters in the context of the section 150 proceedings involving the applicant.
In their reasons, the delegates noted that there had been "multiple previous complaints" about the appellant, and that many of them were closed with no further action. However, they said that a number of the notifications of complaints "raise concerns about Dr Holt's behaviour and/or the safety of the Courses he provides." Included was an allegation that the appellant had been dishonest, and unethical and fraudulent. The delegates then noted that the complaint had been closed because it appeared to relate to an "employment matter."
The delegates referred to a series of complaints from the then President of the Cosmetic Physicians Society of Australia complaining whether the procedures being offered in the courses were within the scope of the practice of dentistry, and expressing concerns relating to safety. The delegates then noted that these notifications had been "discontinued." Nevertheless, they expressed concerns that there had been complaints of cash payments for referrals, unethical behaviour, unacceptable and threatening behaviour and concerns about legal issues relating to the use of schedule 4 medications. The delegates referred to a number of other complaints in similar vein.
The delegates noted a complaint concerning work performed by the appellant in the field of endodontics and that he had agreed that a condition should be placed on his registration that he not practise in this area.
There is also reference by the delegates to ongoing disputation between a Dr Vrodos and the appellant and a number of legal proceedings arising out of an unfair dismissal case brought by Dr Vrodos against the appellant. The ongoing disputation about this matter had been referred to the Northern Territory DPP where, seemingly, it is currently dormant.
The delegates referred to a notification made by the appellant's mother alleging that he was HIV positive and other matters. The delegates noted that that matter had been closed with no further action because the appellant had provided clear blood tests.
The delegates dealt with these matters in their reasons for decision in the following terms
We acknowledge that most of the complaints against Dr Holt have been closed with no further action following consideration of his responses. We are however concerned that a number of the previous notifications may demonstrate a pattern of deceptive behaviour that has not previously been recognised and/or considered in the consideration of complaints against Dr Holt.
We are particularly concerned at the matters which have been stayed in the NTCAT awaiting the outcome of the Board's referral of the matter to the NT DPP. If the allegations in this matter are true, this would represent a serious breach of the Code of Conduct and potentially the Law.
Section 150 is contained within Subdivision 7 of Division 3 of Part 8 of the National Law. Accordingly, section 41O will apply. However, section 41O is confined to matters dealing with a "complaint". It is arguable that some of the matters ultimately considered by the delegates traversed matters which were outside the complaint as originally made. A ready example is the investigation undertaken by the delegates concerning the insurance arrangements which applied to the conduct of the courses. More generally these matters are referred to in [16] and [20] above. Arguably, therefore, section 41O would not apply to these matters which were outside the parameters of the complaint as originally formulated. If this were the case, any consideration by the delegates of prior complaints with respect to all of the issues which they took into account in making their determination might not be justifiable or appropriate.
In making these preliminary observations I have considered whether these additional matters investigated by the delegates in the course of dealing with the original complaint might be able to be subsumed within the original complaint. In considering this matter I had regard to the provisions of section 139F of the National Law
139F References to "complaint" [NSW]
In Subdivisions 1-6 of Division 3 and in Subdivisions 1 and 2 of Division 6, a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act.
It is arguable that the legislature in enacting section 139F was intending to confine any extension of what might be considered as becoming part of a complaint to those matters referred to in that section. I have previously observed that section 150 is contained within Subdivision 7 of Division 3. It therefore falls outside the provisions of section 139F and the delegates would arguably have fallen into error in considering the prior complaints, as they ultimately did, in determining to suspend the appellant.
I should stress that this conclusion is expressed in tentative terms. The parties did not raise it during the course of the hearing or in submissions, and I have not invited the parties to make submissions on it because, as will be seen, I have determined independently that the delegates denied the appellant procedural fairness in dealing with the complaints in the manner which they did.
[6]
Does the appellant have the necessary standard of practice, knowledge and understanding to ensure the protection of the health and safety of the public
In dealing with this matter in their reasons the delegates considered whether the techniques of lipolysis were outside the definition of dentistry, whether the appellant was practising outside his individual scope of practice and the definition of dentistry, whether participants who completed the courses had an expectation that they were competent to use the techniques, whether "robust processes/assessments" conducted during the courses were appropriate, whether the techniques being performed during the courses were safe and compliant with legislation for the use of injected substances and guidelines for infection control and the safe handling of waste materials, and whether the courses were being conducted consistent with the Code of Conduct of the Dental Board of Australia particularly relating to consent processes, dental records and the requirement for adequate professional indemnity insurance.
After examining all of these matters in great detail, the delegates concluded as follows;
We are of the view that Dr Holt's provision of training to other dentists in the Fat Module and potentially other Courses at AADFA, poses risks to public safety for the following reasons:
• It is unclear if all the techniques being taught are within the definition of dentistry;
• It is unclear if the Courses are being provided in a setting that appropriately uses TGA approved equipment, meets infection control standards and has adequate emergency equipment available;
• It is unclear if the applicable legislation for schedule 4 medications, particularly in regard to the compounded solution for injection lipolysis and multi-use of botulinum toxins, has been adhered to during provision of the Courses;
• The supply and enabling of the injection of schedule 4 medications in circumstances where appropriate assessment of medical history and informed consent may not have been adequately undertaken by the participants of the Courses;
• Concerns that Course participants may not be provided adequate guidance and information regarding their competence, or not, to provide the treatments and any legal and professional issues that may arise from this, including but not limited to patient safety concerns following attendance at the Courses;
• Concerns that there may not be appropriate mechanisms to protect the public and participant dentists from professional indemnity requirements in the event of complications, misadventure or negligence.
[7]
The public interest
The delegates next posed the question whether the appellant's behaviour accorded with the public interest. In dealing with this issue the delegates said;
We are of the opinion that along with the primacy of protection of the public, it is also a serious responsibility of the Council to ensure the public has confidence that practitioners deliver safe and effective regulated health services.
Practitioners are expected to practise within the definition of dentistry and in accord with the Dental Board of Australia Code of Conduct, the standards and guidelines of the profession and all relevant legislation. We have raised concerns that in the courses Dr Holt provides including, but not limited to the Fat Module, there may not be compliance with the Poisons and Therapeutic Goods legislation for the handling of schedule 4 medications nor the Board's Code of Conduct. These are issues that have the potential to diminish public trust in the practitioner and the profession.
We are also mindful of, and concerned about, the previous history of complaints relating to Dr Holt and in particular the matters which remain to be resolved by the NT DPP and the NTCAT. The allegations against Dr Holt are serious. In the event that adverse findings are made as a result of those proceedings serious questions will be raised about Dr Holt's trustworthiness.
Patients or clients trust practitioners because they believe that they will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. We consider that the issues raised by the previous history of complaints, and the concerns that Dr Holt may engage in commercial considerations which have the potential to influence or compromise the practitioner's primary duty to the patients in his care during the provision of the Courses, have the potential to diminish trust in the practitioner, the profession and the ability of the regulatory system to protect the health and safety of the public.
The delegates then determined that the appellant's practice potentially posed a risk to the safety or health of the public and that the public interest warranted action being taken. Having so concluded the delegates noted that their role was not to investigate the complaint matters and that further detailed investigation and consideration would be required "as part of the ongoing management of the complaint."
[8]
Action under section 150
In dealing with this matter, the delegates said
Given our concerns about multiple issues relating to the way the Courses are conducted, particularly in relation to issues of patient selection and consent processes, indemnity insurance cover for participants and "patients", procurement and handling of schedule 4 medications, and potential commercial relationships, we consider there are risks to patient safety that require us to take action under s150.
We have also expressed concerns regarding the public interest aspects of this matter which are again potentially serious if findings against Dr Holt are made in the NT matters.
In determining to suspend the appellant's registration, the delegates said
We seriously considered if there were conditions of registration that could be imposed that would be adequate to protect the health and safety of the public while the investigation continues. Conditions including; only restricting Dr Holt from providing the Fat Module, restrictions requiring all products and equipment used in Courses to be TGA approved, and auditing of Courses in relation to the issues of concern were considered.
We consider that it would not be feasible to monitor conditions on Dr Holt's registration given the nature of his practice and we are concerned that the nature of the risks to public safety and the public interest require any action to apply across all of Dr Holt's practice.
It is our view that given the concerns for risk to the health and safety of the public and in the public interest suspension of registration is required.
[9]
The grounds of appeal
The appellant raised a number of grounds for appeal which he said enabled it to be characterised as an appeal on a point of law. These were
Pursuant to section 159B of the Health Practitioner Regulation National Law (NSW) No 86a, the Applicant appeals the decision of the Respondent of February 10th 2020 with respect to the points of law identified in the Grounds of Appeal.
The Grounds of Appeal are:
1. The Respondent erred in law by denying the Applicant procedural fairness in that:
(a) the Respondent made requests of the Applicant that were inadequately particularised and irrelevant;
(b) the Respondent relied in its reasons upon allegations which were not put to the Applicant at the hearings;
(c) the Respondent relied in its reasons upon documents which were not put to the Applicant at the hearings;
(d) with no notice, the Respondent put to the Applicant documents of unknown provenance;
(e) the Respondent denied to the Applicant any opportunity to tender relevant documents about which the Respondent expressed concerns in its reasons;
(f) the Respondent failed to disclose to the Applicant the evidence, findings and process of reasoning relied upon in its reasons;
(g) the Respondent failed to provide to the Applicant any notice, or any adequate notice, in relation to matters relied upon in its reasons; and
(h) the Respondent failed to afford to the Applicant any opportunity, or any adequate opportunity, to address matters relied upon in its reasons.
2. The Respondent erred in law by proceeding on the basis on mere suspicion and speculation rather than logically probative evidence.
3. The Respondent erred in law by denying the Applicant procedural fairness in that:
(a) the Chair of the Committee was not neutral;
(b) the Chair of the Committee was not free from non-pecuniary bias; and
(c) the presence of the Chair of the Committee gave rise to actual, alternatively a reasonable apprehension of, bias.
4. The Respondent erred in law by failing to take into account relevant considerations in the making of the decision.
5. The Respondent erred in law by taking into account irrelevant considerations in the making of the decision.
6. The Respondent erred in law in that the decision to suspend:
(a) was more onerous than necessary to achieve the purposes of the legislation; and
(b) was unreasonable and disproportionate.
7. The Respondent erred in law in that:
(a) the Respondent is required to take immediate action if required for the protection of the health or safety of persons; but
(b) the Respondent prolonged the proceedings so that the time taken to make a decision was some three months after the compliant was received; and
(c) accordingly, any need to take the action on an immediate basis had passed.
8. The Respondent erred in law by conducting the proceedings in a harsh and oppressive manner and abused its power in that the Respondent:
(a) requested large volumes of documents;
(b) requested documents that were irrelevant to the issues for the Respondent;
(c) did not consider the documents it requested in its reasons; and
(d) otherwise conducted the proceedings in bad faith.
The above grounds of appeal may conveniently be summarised as covering three areas, namely bias, denial of procedural fairness and legal unreasonableness. I shall deal with each of these matters in turn.
[10]
Bias
This ground is expressed in the appellant's Notice of Appeal as follows;
3. The Respondent erred in law by denying the Applicant procedural fairness in that:
(a) the Chair of the Committee was not neutral;
(b) the Chair of the Committee was not free from non-pecuniary bias; and
(c) the presence of the Chair of the Committee gave rise to actual, alternatively a reasonable apprehension of, bias.
The factual basis for this ground is set out inter alia in an affidavit sworn by the appellant dated 17 April 2020.
The appellant asserts that the Chair of the delegates, Dr Kavita Lobo was known to the appellant because they had studied together at the University of Sydney, as had Dr Lobo's husband Dr Sridhar. The appellant said that Dr Sridhar had provided assistance to four other dentists arising out of their involvement with AADFA training courses, and in an earlier affidavit asserted that Dr Sridhar provided assistance to his professional indemnity insurer broker, Experien. There is also a suggestion in the 17 April, 2020 affidavit that the delegates may have had access to material which the appellant had provided to each of the four other dentists in support of his contention that AADFA training was appropriately recognised and was within the legitimate area of the practice of dentistry. In these circumstances the appellant said that the relationship between Dr Lobo and Dr Sridhar might be such that it gave him "concern" that Dr Lobo may not bring an open mind to the decision-making process in the eyes of a lay observer. Furthermore, the appellant said that Dr Sridhar had completed AADFA training courses with him, that Dr Sridhar and he "have been in disputes about matters of insurance and dental practice" which were unspecified, and that Dr Sridhar "regularly appears as a support person in hearings before the (Council), often when Dr Lobo is sitting."
The difficulty about these assertions is that there is simply no indicia of any kind in any material provided by the appellant that would give rise to a reasonable apprehension that in some way Dr Lobo was privy to any relevant information which had been provided to her by Dr Sridhar. The material which the appellant had provided to each of the four dentists who presumably were being advised by Dr Sridhar was most likely given by them to the respondent. There is no suggestion that that material contained anything damaging to the appellant, because it was created by him, and there is no suggestion in any event that that material was made available to the delegates in any improper manner. Accordingly, there is no basis for any consideration of bias by Dr Lobo simply because Dr Sridhar was her husband.
In asserting actual or apprehended bias against Dr Lobo the appellant said that while he and Dr Lobo had both been students they were both passengers in a motor vehicle which was involved in an accident and that there had been a difference between them about legal action which the appellant had taken against the driver resulting in Dr Lobo never speaking to the appellant again. Given that the appellant graduated in 1999, it must be assumed that this incident occurred many years ago.
I am unable to detect in the written reasons of the delegates, or in the manner in which the delegates conducted themselves in the course of the proceedings as reflected in the transcripts any matter which would tend to prove that Dr Lobo has indicated actual bias towards the appellant to the requisite standard such that it could be said that she approached the decision-making process with a closed mind or that she had prejudged the outcome of the proceedings without reference to the evidentiary material provided by the appellant and the submissions which he made. It is clear from a reading of the transcript of the proceedings and the reasons of the delegates that all of them were concerned about whether or not the courses being conducted by the appellant travelled beyond the area of the legitimate practice of dentistry and whether the processes and procedures being taught and the manner in which they were being taught created any risk to the health or safety of the public. These concerns do not per se indicate bias; they reflect the legislative basis for the enquiry being undertaken by the delegates.
Similarly I do not conclude that there is any factual basis for the assertions of the appellant that there was a reasonable apprehension of bias by Dr Lobo in the circumstances. The relevant principles are set out in the well known decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
In their joint judgment Gleeson CJ, McHugh, Gummow and Hayne JJ. said at [33] that the matter was to be resolved
by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance.
Accordingly, I reject the appellant's submission that there has been demonstrated any relevant apprehension that by reason of Dr Lobo's conduct in connection with the proceedings before the delegates or by reason of any association with the appellant, and, for completeness, her husband Dr Sridhar that a fair-minded lay observer might reasonably apprehend that she might not have brought an impartial mind to the determination to be made by the delegates.
Dr Lobo did not at any stage of the proceedings indicate that she had known the appellant whilst they were students. It might be thought that in circumstances of this kind it would have been prudent for Dr Lobo to have disclosed this fact at the commencement of the proceedings and then announce, assuming she was so inclined, that she did not intend to recuse herself. The omission by Dr Lobo to make reference to this is not necessarily fatal to the integrity of the proceedings. In Ebner, in their joint judgment their Honours referred to this matter in the following terms
71 To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise. The point can be illustrated by what happened in Clenae. The fact that the judge did not disclose his shareholding gives no different or additional right to the present appellants. All that they were denied by the fact that there was no disclosure was an opportunity to put an argument which we consider must fail.
72 Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
Given that there is no evidentiary basis for concluding that there was actual bias or apprehended bias on the part of Dr Lobo, her failure to draw attention to a past association with the appellant has no impact upon the determination of this issue. I reject this ground on the basis that no bias whether actual or apprehended has been established against Dr Lobo in accordance with the well-established applicable principles.
[11]
Denial of procedural fairness
In broad terms, the appellant relied specifically on 8 matters encompassed within Ground 1, and the matters referred to in Ground 8. I shall refer to the details of these grounds shortly.
As an example of the specific grounds relied upon by the appellant, he alleged that he was required to make available documents, sometimes on short notice, which were alleged to have "little relevance at a section 150 hearing." These included competency assessments for training courses, theoretical assessments, information packs for participants, dentists and trainers, the "Train the Trainer" program, the appellant's CPD log, contracts for trainers, any protocol for CPR training and a log of CPR training. These requests were said to characterise the delegates as entering into an investigative process, and in particular seeking documents for the purpose of ascertaining whether there had been some demonstrated non-compliance with a code or rule or guideline which was outside the matter with which the delegates were dealing. It was said that issues such as compliance with the appellant's CPD requirements were removed from and not relevant to the complaint which the delegates were tasked to consider.
The appellant also complained that a large part of the documents which he was required to produce were not relevant to the matter before the delegates, corroborated by the fact that they were not referred to at all in the reasons of the delegates. It was said that they did not relate to anything involving the matter before the delegates or any issue of public safety. The appellant noted that the delegates had used a section 150J notice to seek production of commercially sensitive and confidential documents.
In general terms, the appellant also complained that the delegates relied upon matters in their decision which they had not raised with him during the course of the proceedings, or about which he had not had an opportunity to address them. Furthermore, the appellant alleged in Ground 8 that the proceedings were conducted in a harsh and oppressive manner and that the delegates had abused the power vested in them through the respondent.
[12]
The functions and powers of the delegates in section 150 proceedings
In order to deal with this aspect of the appellant's case concerning the manner in which the delegates conducted the proceedings, it will be necessary to consider the nature and extent of the functions and powers of the delegates in dealing with section 150 matters. This is a matter which pervades all of the grounds of appeal.
I have previously discussed the general principles which apply to section 150 proceedings commencing at [7] above. The respondent Council was entitled to delegate its functions under section 150 by reason of section 41J of the National Law which is in the following terms
41J Delegation by Council and Executive Officer [NSW]
(1) A Council may delegate to a person the exercise of any of its functions, other than this power of delegation.
(2) An Executive Officer of a Council may delegate to a person the exercise of -
(a) any of the functions of the Executive Officer under this Law, other than this power of delegation; or
(b) any functions delegated to the Executive Officer by the Council, unless the Council otherwise provides in its instrument of delegation to the Executive Officer.
(3) In this section, a reference to a person includes a reference to a group of persons, including a committee.
The delegates were appointed to conduct the section 150 proceedings by the Executive Officer of the respondent in turn acting under delegation. The delegation was expressed to have extended to the power of the respondent to act under Part 8, Division 3, Subdivision 7 of the National Law. Part 8 deals with "Health, performance and conduct." Division 3 deals with Complaints and Subdivision 7 deals with "Powers of a Council for protection of public." Section 150 is included within subdivision 7. Accordingly, the delegates in performing their functions under section 150 were acting as the Council.
Included within the powers of the Council is the power to make enquiries about the complaint concerning the respondent by reason of section 145B of the National Law
145B Courses of action available to Council on complaint [NSW]
(1) The following courses of action are available to a Council in respect of a complaint -
(a) the Council may make any inquiries about the complaint the Council thinks appropriate;
(b) the Council may refer the complaint to the Commission for investigation;
(c) the Council may refer the complaint to the Tribunal;
(d) the Council may refer the complaint to a Committee;
(e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council;
(f) the Council may -
(i) refer the practitioner or student for a health assessment; or
(ii) refer the matter to an Impaired Registrants Panel; or
(iii) refer the professional performance of the practitioner concerned for a performance assessment;
(g) the Council may direct the practitioner or student concerned to attend counselling;
(h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993;
(i) the Council may refer the complaint to another entity, including, for example, a National Board;
(j) the Council may determine that no further action should be taken in respect of the complaint.
(2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated.
(3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993.
(4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.
Arguably, the Council had not delegated its powers under section 145B to the delegates. All of the requests for documents to be produced by the appellant were made by the respondent Council and none emanated under the names of the delegates. Even though the power to make enquiries under section 145 B(1)(a) had not been delegated to the delegates, they arguably had power to consider any matter outside of the complaint for the purpose of section 150, which prima facie would entitle them to extend their enquiries during the proceedings beyond the parameters of the complaint as originally framed.
In order to consider these submissions of the appellant it is necessary to retrace some of the history of the matter. I have referred to the original complaint in [9] above. On 20 November, 2019 the respondent wrote to the appellant enclosing a copy of the complaint, asking that he respond and that he provide documents pertaining to all educational courses or programs about the "Advanced Facial Fat Production Training for Dentists" program, outlining his involvement in the provision of the courses, and providing a current CV and log of his CPD activities. The appellant provided a detailed response on 22 November 2019. After being informed that a hearing was to be conducted under section 150 on 7 January 2020 the appellant provided a further detailed response on 4 January 2020. In both these responses the appellant denied that the courses which were being provided were outside the scope of practice for dental practitioners, that there was any potential risk of harm to the public and asserted that the work that he performed was within the individual scope of his practice. He provided voluminous documents in support of his responses to the matters raised by the Council.
Neither section 150, nor the general provisions of the National Law prescribe the manner in which a Council may carry out its important functions under section 150. Those functions are directed to the protection of the health and safety of the public and the public interest.
As is obvious, the overriding concern of the National Law is the protection of the health and safety of the public. Registration is to be confined to practitioners who are suitably trained and qualified to practice in a competent and ethical manner. The objects of the legislation include the following
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
(b) the registration of students undertaking -
(i) programs of study that provide a qualification for registration in a health profession; or
(ii) clinical training in a health profession.
(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;
…………………………………….
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.
The plain words of the legislation indicate that the ability to suspend under section 150 responds, inter alia, to any situation where suspension is appropriate to protect the health and safety of any person or persons, or the public generally. Where the conduct of a dental practitioner whether by act or omission adversely affects the health and safety of those protected by the legislation, then the ability to suspend under the legislation is enlivened. This requires an identification of the adverse impact on health and safety and the establishment of a causal relationship between that adverse impact and the conduct of the dental practitioner. It is not necessary for there to be actual harm suffered by any person. Because the concept is one of protection, it is sufficient if it can be demonstrated that there is a potential for harm. There are also considerations of public interest described in [7] above.
In Kirby v Dental Council of NSW [2018] NSWSC1869, Barrett AJ in the Supreme Court of NSW when considering the provisions of section 150 said at [6];
Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment.
The judgment of Barrett AJ in Kirby was upheld in the NSW Court of Appeal in Kirby v Dental Council of NSW [2020] NSWCA 91. In the course of his judgment in the Court of Appeal, Brereton JA, (Payne JA and Emmett AJA agreeing) dealt with a submission that in those proceedings delegates of the Dental Council of NSW had created an appearance of bias in circumstances where they had been involved in a decision to commence proceedings under section 150 and had also been involved in decisions of the Council to carry out certain investigations. Brereton JA referred in the course of his discussion to an extract of the judgement of Gageler J in the High Court of Australia in lsbester v Knox City Council [2015] HCA 20 who said:
63 There has been said to be a "general rule which is strictly applied that the same person cannot be accuser and judge ... where ... the principles of natural justice are required to be observed" [Australian Workers' Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 at 616; [1948] HCA 35]. The rule is best understood, at least in an administrative context, not as a free-standing rule of law but instead as referring to a factor the identification of which will almost inevitably give rise to a clear-cut application of the ordinary test for the appearance of disqualifying bias. Rarely could a fair-minded observer not think it appropriate to say of a person: "[i]f he is an accuser he must not be a judge" [Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 384]. That is because a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person.
For the purpose of determining whether there was an apprehension of bias on the part of the delegates in Kirby, Brereton JA considered the nature of the involvement of the delegates in matters leading up to the conduct of the section 150 hearing. Brereton JA described the part played by the delegates as being in the nature of the role of "accuser." His Honour said;
82 While it goes without saying that the role of accuser and adjudicator are generally incompatible, the question whether an adjudicator is also a prosecutor is treated as one of substance, and not mere form. Thus in R v Medical Board of South Australia; ex parte S, a member of the board was not disqualified by reason of having attended to the giving of notices and other steps preliminary to the hearing. King J said (emphasis added):
... Members of a tribunal which is authorized to receive complaints, investigate conduct and formulate charges, as well as to hear and determine the charges, may nevertheless "go out of their way to put themselves in a special position as prosecutors and thus to disable themselves from sitting in a quasi-judicial capacity at the inquiry" (Maclean v. The Workers Union [[1929] 1 Ch 602 at p 626]). This is so even if, as a consequence, there remains no tribunal which can adjudicate upon the conduct: R. v. Optical Board of Registration; Ex parte Qurban [[1933] SASR. 1]. But in this case the Board has done no more than that which is directly involved in or reasonably incidental to the performance of its statutory functions. It cannot properly be regarded as accuser, complainant or prosecutor... No member of the Board involved himself in the preparation or conduct of the case against the applicant beyond what was required of him by his duty under the statute.
83 In Ward v Bradford Corporation, Lord Denning MR observed that the prior involvement of the members of the relevant tribunal (which included amending the relevant rules to allow them to institute proceedings of their own motion, which they then proceeded to do) did not go to the justice of the case, but only to points of procedure, while Phillimore LJ observed that in their prior involvement, the members were "careful not to enter into the merits". It has often been recognised that in the context of tribunals which do not have staff to attend to the tasks of collecting evidence, preparing and notifying charges, and acting as "counsel assisting", some or all the members will inevitably take a more active pre-trial role than would a judicial officer, and apparent bias does not arise from the mere fact that a member of the tribunal, in the absence of a person appointed for the purpose, receives the complaint and issues a notice to show cause.
……………………………………………….
93 In a statutory context where the Council is bound to act if a particular state of affairs appears to it, and is entitled to act of its own motion, participation in a "decision" merely to embark on a consideration of whether or not to act is a necessary step implicitly required of the Council by the legislation. Unlike a committal proceeding, or the function of the Legal Services Commissioner in question in Murray v Legal Services Commissioner, the decision to embark on a consideration of exercising the s 150 function is not a preliminary decision which involves a requirement to be satisfied of anything, to any standard. It is no more than a decision to examine whether to exercise any of the Council's powers under s 150, in a context where, if there is no complaint at all, it is open to do so of its own motion. It cannot have been contemplated or intended that merely by participating in a decision to embark on consideration of whether or not to exercise its s 150 power, members of the Council would thereby be disqualified from deciding whether that power should indeed be exercised.
……………………………………………
110 The applicant's submissions raised as a distinction that here the Delegates had participated in "an active step to initiate an additional and unrelated investigation into the applicant's practice which was over and above that arising from the original Complaint, over and above the recommendation arising from the consultation session between the Council and the HCCC, and over and above the recommendation from the Complaints and Notifications Committee". That was a reference to the infection control practices inspection, which was unrelated to the complaint about use of Cansema, and was initiated by the Council of its own motion. However, all the Council did was to authorise an inspection, effectively by way of an "audit". In circumstances where there was to be an inspection of Dr Kirby's practice in any event, it was efficient to conduct an infection control inspection concurrently. A decision to extend the scope of an inspection to a matter not included in the complaint is not an adoption of a position as to whether the outcome of any inspection warrants any s 150 action. An objective bystander aware of all of the circumstances could not have thought that this manifested an intention to "get" the applicant on an alternative ground, if the original complaint were not sustained. That is borne out by the subsequent conduct of the s 150 proceedings, in which infection control did not play a significant part.
111 As the respondent submitted, the analogy with Christie was a close one. The Delegates' prior involvement consisted of authorising an inspection of Dr Kirby's practice (analogous to arranging for samples to be taken from a horse, and sending the samples for analysis), and upon considering the results of the inspection, agreeing that the Council should consider whether or not s 150 action should be taken (analogous to Dr Capp's receipt of the result of the samples sent for analysis, consulting with other committee members, and agreeing that the result should be referred to the committee for inquiry). Thus the primary judge's description of the position of the Delegates as "closely analogous to that occupied by Mr Capp in Agricultural Societies Council of NSW" was correct. And that conclusion had been reached prior to the reference to Agricultural Societies Council of NSW v Christie, which served mainly to illustrate by analogy a decision already independently reached, to which multiple factors had contributed, all of which pointed against the Delegates being associated with pursuing a particular outcome such as would have given them an interest incompatible with acting as decision-makers, coupled with a statutory regime that implicitly involved the body authorised to take action under s 150 being the body which determined whether or not to embark on consideration of doing so.
112 ……...in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O'Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby's practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their role as Council's delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or taken together, as to associate them in any reasonable view with contending for any particular outcome of that consideration. They would not be viewed by a fair-minded lay observer to be accusers or prosecutors, and their prior involvement would not be viewed as such as to invest them with a relevant "interest" in the outcome.
The above observations made by his Honour concerning the roles of the delegates in conducting the section 150 proceedings are relevant to the determination of these proceedings, for reasons which I shall shortly develop.
[13]
Did the delegates become accusers? The appellant's position
I now come to consider the fundamental question as to whether the delegates crossed their legitimate boundary of enquiry and trespassed into an area which would characterise them as accuser, complainant or prosecutor, such that procedural fairness would be denied if they continued to deal with the proceedings.
The appellant argued that in greatly expanding their area of enquiry during the course of the hearings the delegates had in effect, by way of analogy consistent with the reasoning of Brereton JA extracted above "participated in an active step to initiate an additional and unrelated investigation into the appellant's practice which was over and above that arising from the original Complaint". That is, in so expanding this area of enquiry the delegates had strayed into the area of becoming accusers and furthermore had associated themselves in any reasonable view with contending for a particular outcome of that consideration, thus precluding themselves from determining the proceedings in a manner consistent with procedural fairness.
In support of this argument I observe that the delegates' task as initially formulated was to consider the application of section 150 in the context of the complaint as originally formulated. Their reasons for decision, and what was said by them during the course of the proceedings as revealed in the transcripts do not demonstrate why they embarked upon a course of action which greatly expanded the field of enquiry which they undertook. All that is known is that they did so. In circumstances where the appellant was subjected to the prospect of suspension of his registration or the imposition of conditions on his registration, it behoved the delegates to have regard to the appellant's legitimate concerns to be afforded procedural fairness in understanding the reasons for their concerns when commencing this process. The powers of the delegates in considering the desirability of making orders under section 150 in the context of the complaint as originally formulated would enable them to extend their field of enquiry beyond that originally contemplated, but normally one would expect that this would only occur if the delegates had some reasonable basis or reason for doing so. From what is known, or more accurately not known, of the motive of the delegates, the appellant was entitled to argue that the delegates were embarking upon some form of "fishing expedition" when they greatly expanded the area of enquiry in the manner which I have previously described.
However, provided they applied procedural fairness and provided they did not trespass into the area of accuser, complainant or prosecutor by arguably advocating for a particular outcome, the delegates were entitled to expand the area of enquiry.
There may be matters which need to be considered under section 150 which will not require a great deal of investigation or evidentiary material. For example, if hypothetically a dental practitioner was arrested by police whilst driving home from attending his or her dental practice clearly under the influence of an intoxicating substance, the mere recitation of the facts based on available police records including any charge sheet would arguably justify suspension under section 150, subject of course to giving the dental practitioner an opportunity to put forward any explanatory material.
Much will depend upon the level of detail readily available to the Council and its delegates. The example provided above would not hypothetically require the Council to embark upon any further investigative enquiries. There will be other matters which may act as the catalyst for further enquiries. This is what occurred in the context of these proceedings. The complaint brought before the Council was of limited breadth; that patients were being put at risk because the appellant was practising outside of his scope of practice and that he was training other dentists to practice outside of their scope of practice. Specifically, it was alleged that the use of Carboxy Therapy around the eyes was not even remotely related to the practice of dentistry.
On one view, it would have been sufficient if the delegates had engaged in a process which examined the above matters. However, they determined to extend their enquiries beyond those matters, and in doing so examined in some detail the subject matter of the courses being conducted by AADFA, the appellant's training processes and procedures simpliciter, the underlying insurance cover as arranged by AADFA, whether the courses were appropriately accredited, whether there were robust competency assessment processes in place, whether trainers were being appropriately trained, whether appropriate patient consent was secured, whether Schedule 4 medications were being procured and handled according to law, whether there were adequate processes in place for emergency procedures and disposal of clinical waste, and whether the equipment being used was TGA approved as medical devices. In order to examine these matters the delegates descended into a great deal of detail, and assumed an investigatory role, especially in dialogue with the appellant during the course of the proceedings.
This gives rise to concerns as to how the delegates should conduct themselves in the course of carrying out their expanded investigatory processes. Once the delegates determined to enquire into the greatly expanded area beyond the complaint as originally formulated, they embarked upon their own investigative path and assumed the role of investigators. In normal circumstances investigators are bound by basic rules of procedural fairness because, if they fail to properly and appropriately enquire into and examine all relevant matters, they will compromise the ability of a prosecutorial body to commence proceedings based on their investigations. A compromised investigation will compromise the ability to take action based on its contents. This is more so where the person carrying out the investigation will also play a prominent role in determining whether to use the results of the examination for the purpose of conducting an enquiry, as is the case in these section 150 proceedings.
As will be seen, it is arguable that in confining their various lines of enquiry to seeking documentation from the appellant and only engaging in discussion with him, the delegates did not undertake any other enquiries designed to test what the appellant had told them, so as to allow them to either accept or reject what he had said in a considered manner. It is arguable that these processes adopted by the delegates in carrying out their investigative role led them to express their conclusions in the manner in which they did, such as to cause them to breach the principles of legal unreasonableness, which I shall discuss later. For reasons which will become obvious, it is not necessary that I pursue this particular aspect further.
[14]
Did the delegates become accusers? The contrary position
The contrary position is that in expanding the areas of concern beyond those contemplated by the complaint as originally formulated, the delegates have done no more than that which is directly involved in or reasonably incidental to the performance of their statutory functions. That is, the decision to expand the matters under consideration for the purpose of the section 150 hearings was no more than a decision to examine whether to exercise any of the Council's powers under s 150 in a context where, if there is no complaint at all, it was open to the Council to do so of its own motion. That is, it cannot have been contemplated or intended that merely by participating in a decision to embark on a consideration of whether or not to exercise its s 150 power, delegates of the Council would thereby be disqualified from deciding whether that power should indeed be exercised. It would follow that there was no incompatibility between requiring the appellant to produce records and other material required by them, for the purpose of consideration whether section 150 action could be taken; and, on the other hand, their role as Council's delegates for the purpose of considering whether section 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or taken together, as to associate them in any reasonable view with contending for any particular outcome of that consideration. They would not be viewed by a fair-minded lay observer to be accusers or prosecutors, and their prior involvement would not be viewed as such as to invest them with a relevant "interest" in the outcome. (Of course, it would have been preferable for the delegates to have informed the appellant of their motivation for expanding their area of enquiry).
[15]
Did the delegates become accusers? Conclusion
I regard the determination as to whether the delegates inappropriately strayed into the role of accuser, complainant or prosecutor in the circumstances of these proceedings as being finely balanced. In circumstances where nothing is particularly known about the motivation of the delegates, it would be inappropriate to assume that they had some particular interest in finding an excuse to make an order against the appellant adverse to his interests. Their motives may have been dictated by curiosity, or some desire to assume the role of investigators or to be thorough in discharging their role.
A determination whether the appellant's position succeeds is ultimately a matter of impression. On the one hand, as I have said, the delegates did not express any reason or motive for the additional investigations which they carried out. There could be no doubt in the appellant's mind that these were matters of concern to the delegates, albeit he did not exactly understand what significance they would make of their interrogation of him and of their consideration of the copious documents which he produced at their request. On the other hand the delegates were charged with the responsibility of protecting the health and safety of the public, and the powers given to them under section 150 are wide ranging. The delegates provided extensive reasons which enabled the appellant to understand why the delegates had determined to suspend his registration. In all the circumstances I do not conclude that in conducting their extensive investigations beyond the parameters of the complaint as originally framed that the delegates could be characterised as having acted as accusers, complainants or prosecutors to the extent that per se they compromised their ability to afford the appellant procedural fairness.
However, this conclusion is subject to the delegates having actually afforded procedural fairness to the appellant to such an extent that their decision did not become tainted. The appellant must have been informed to the extent practicable of the nature of the matters of concern to the delegates, must have been given to the extent practicable an opportunity to respond, and the delegates must have determined the outcome of the proceedings in an appropriate manner complying with the principles of legal reasonableness.
I shall return to the conduct of the proceedings by the delegates when dealing with the individual grounds of appeal raised by the appellant.
[16]
Particular grounds of alleged procedural unfairness
I now come to deal with each of the specific grounds relied upon by the appellant in alleging that the respondent had denied the appellant procedural fairness. The appellant said that he was denied procedural fairness in that;
[17]
Ground 1(a) the respondent made requests of the appellant that were inadequately particularised and irrelevant.
The appellant asserted that at the end of the first day of hearing the delegates sought documents which were not adequately particularised, they had "little relevance" to the section 150 hearing, were relevant only to an investigation, and in that they enquired into the appellant's CPD compliance they dealt with a matter which was not the subject of the complaint before them. Furthermore, many of the documents were not referred to in the reasons for decision and were in any event irrelevant to the complaint or "any issue of public safety."
In order to properly consider this ground, it is necessary that I outline all of these documents and at what stage of the proceedings they were provided to the delegates by the appellant These documents included competency assessments for training courses, theoretical assessments, information packs for participants, dentists and trainers, the "Train the Trainer" program, the appellant's CPD log, trainer contracts, and protocols for and logs of CPR training.
The transcript of the first day of the proceedings held on 7 January, 2020 shows that the delegates commenced discussing the business of AADFA with the appellant, the courses that he conducted, the experience of the appellant in conducting these courses, the experience of trainers conducting portions of the course, the use by the appellant of a competency assessment tool, particularly in Singapore, the utilisation of techniques of carboxytherapy and fat dissolving injections, available scientific evidence validating these techniques, the teaching by the appellant of a module on Facial Aesthetics in a Masters' program conducted by Kings College, London, the organisational structure of AADFA, the content of the courses run by AADFA, the acquisition and storage of medication used in the courses, the making and retention of clinical records of treatment given during the courses, the obtaining of informed consent from the patients of dentist students undertaking treatment during the courses, protocols to deal with emergency procedures and safety precautions, the extent of practical hands-on training given to course participants, contract arrangements between AADFA trainers and participants, availability of professional indemnity insurance, a description of the various medications used in the courses, the indicia for the use of certain techniques, and preferred techniques.
There then followed discussion between the appellant and delegates concerning recognition by the Dental Board of Australia of the techniques taught and used in the courses and the equipment used to administer the treatment. Later, the appellant was asked questions about his CPD log which he had previously provided to the respondent.
At the conclusion of the hearing that day the appellant was asked to provide additional documentation to that which he had previously supplied which the delegates wished to consider prior to coming to a decision. These were documents which were referred to in the course of exchanges between the appellant and the delegates. They included the theoretical assessment as well as the competency assessment for the range of training courses provided, the information pack that is given to participants and patients, the "Learning objectives and outcomes" for each of the courses, the cover page of a confidential decision of the Dental Board of Australia in 2017 dealing with the scope of cosmetic dental practice, the appellant's CPD log, a form of contract between AADFA and trainers, protocol for AADFA staff for advanced life support and CPR training, record logs of who completed the training, copies of paid invoices for training, evidence of staff attendance, and "Write few reflections which aspects of website communication (the appellant) would amend or comments."
The summary recitation of the exchanges between the appellant and the delegates which occurred on 7 January, 2020 is indicative that the matters discussed all had some relevance to the courses being conducted by the appellant through his association with AADFA, which were the subject of the complaint which had been referred to the respondent, and about which the section 150 proceedings were being conducted. Furthermore, the appellant does not appear to have indicated to the delegates at the conclusion of the hearing that day or subsequently that he did not understand what documents he had to produce.
The factual basis for this ground has not been made out.
[18]
Ground 1(b) the Respondent relied in its reasons upon allegations which were not put to the appellant at the hearings
This ground is based upon a history of prior complaints made against the appellant which were put to him during the course of the second hearing. It is said that not only did the delegates fail to raise these matters with the appellant during the first hearing but they had failed to raise with him the complaints upon which they relied in their reasons as justifying in part the order for suspension of registration.
I have previously pointed out at [32] that it was mandatory for the delegates to consider prior complaints made about the appellant to the extent they reasonably considered the prior complaints to be relevant to "the complaint" being considered by them by reason of section 41O of the National Law. (I have also previously expressed doubts whether the delegates were entitled to use this information under section 41O with respect to matters which were outside the subject of the complaint as originally formulated).
The appellant said that he was first confronted by the delegates with a bundle of documents totalling 267 pages relating to complaints previously made on the morning of the second hearing on 4 February 2020. During the course of the hearing that day the delegates raised with the appellant the identity of the author of a letter issued under the letterhead of the Singapore Dental Council. The appellant suggested that any doubt about the authorship of the letter had been motivated by a communication from a person involved with him in a civil case which had a Northern Territory connection. After receiving an explanation Dr Lobo informed the appellant that the delegates had no further questions of him. There then followed the following exchange
Appellant; Okay, could I then just confirm with you the documents that are in the materials that I was not taken to will not form the basis of the Council's determination on whether to take immediate action?
Dr Lobo; All documents in this bundle will be considered when making the decision
Appellant; okay, then as a matter of procedural fairness you need to put the allegations to be evidenced by those documents
The delegates then adjourned in order to "seek advice."
When the delegates returned some 20 minutes later the appellant again asked the same question at the invitation of the delegates. The following exchange took place
Dr Lobo; Okay so as I said to you before all the documents in the bundle form part of the documents that are considered by the delegates. We have asked all the questions that we have related these documents but if there's anything in particular you wish to draw our attention to or if you have any questions then please raise them
Mr Wright (barrister for the appellant who was in attendance); You haven't had time to go through and because of the time I'm going to talk directly. You haven't had time to go through those documents we only got them today and provided submissions. You haven't provided submissions in relation to those so there is a complaints history there which is evident which if that's going to the consideration then Dr Holt needs an opportunity to address that and I don't think that it's appropriate to do it orally because he doesn't know what you're going to take into account stop for example is a history isn't there….the LK (name anonymised), lots of material there. Perfectly good explanation for it but if he's not going to be taken to the allegation per se and the relevance of it and I don't think they can be relied upon. Is that what you're saying Myles?
Appellant; If you have specific questions about them then I'm happy to provide comment.
Associate Professor O'Rielly; We've had the information which we've given you and I'm asking if you've got any particular comments which you would like to make about those particular cases.
Appellant; I think broadly I would say that of each and every notification that I've received and in the submissions that were put to me there are documents that I have never seen before in my life some dating back more than a decade in spite of the notifications that I was made aware of I took them seriously, reflected in my practice, submitted substantial responses and in many of those issues those substantial responses then went on to form policy that was put in place by the Dental Board of Australia and that is reflected in one of the no further action notifications that I received. The vast majority, I'd say all of those notifications amounted to no further action so they were given their due consideration, taken seriously and responded to. A lot of the notifications that were in the bundle were predating the fact sheet on the use of Botulinum and dermal fillers by the Dental Board and certainly the ones concerning scope of practice and you will note that my extensive responses to that issue were then essentially mirrored in the fact sheet came after and was certainly used to inform as I in those responses extensively laid out how all of those procedures fit within the practice of dentistry laying out pieces of legislation from State Health Departments to TGA to Dental Boards.
The appellant went on to make comment about documents relating to a Northern Territory matter and another complaint concerning his practice in the area of endodontics which had been resolved by him undertaking not to perform endodontic dental work. The appellant concluded by repeating that he had been denied procedural fairness by not having been taken to particular aspects of the complaints and referring again to the large volume of material that had just been provided to him.
Included within the bundle of complaint documents are documents relating to 14 matters. Of these 10 are noted as either "no further action" or "no action." Of the remaining 4, one of them is the complaint currently before the Council, one complaint by Dr Vrodos was said to have been stayed because of a concurrent police investigation, and another was the subject of the undertaking not to practice endodontics. The final matter is a complaint by LK (name anonymised) said to have been transferred to HPCA.
A number of the complaints related to whether the appellant was engaged in conducting courses and training other dentists in procedures which were outside the scope of practice of dentists as they extended into the field of cosmetic dentistry. None of these particular complaints were discussed by the delegates with the appellant, although a substantial portion of the hearings did discuss the nature and extent of the practice of dentistry and whether the subject matter of the courses strayed outside this area.
Included within the papers and discussed with him during the course of the hearing is a decision of the Disciplinary Committee of the Singapore Dental Council. Following an inspection report the Council made a complaint against the appellant dated 15 July, 2014 on the basis that he had purported to use a qualification "FIADFE (New York)" which had not been approved by the Council for use by him. This was despite the fact that he had received a previous letter of warning dated 4 September 2013 about using an unauthorised qualification. The Committee found that this was a serious matter and imposed the maximum fine of SD 50,000.
In their reasons dealing with the complaint documents the delegates said, relevantly
We note that there have been multiple previous complaints relating to Dr Holt, as detailed in the document provided by AHPRA on 16 January 2020 and made available to Dr Holt and us prior to the 4 February s150 hearing.
We note that many of the notifications were closed with no further action. For many of the notifications, Dr Holt made detailed submissions.
We are concerned that a number of the notifications (Regis 287, 00210063/0023612, 00239078, 00251572, 00317930) raised concerns about Dr Holt's behaviour and/or the safety of the Courses he provides.
Notification Regis 287 (2006) includes phrases such as "Dr Myles Holt is dishonest and in breach of the ethics of this profession" and "I believe his character to be fraudulent and his professional ethics flawed". The notification was closed by the then Dental Board of NSW as it was deemed not to be in the then Board's jurisdiction as it appears to relate to an employment matter.
The notifications 00210063/0023612 (2012), 00239078 (2013) and 00251572 (2014) are from the then President of the Cosmetic Physicians Society of Australia (CPSA), Dr Caswell, and an un-named Past President of the CPSA. The matters raised in the notifications are similar in that they raise concerns about whether procedures being taught by Dr Holt in Courses are within the scope of practice of dentists, other issues relating to the safety of the Courses and Dr Holt's behaviour. Extensive documentation was made available from both the notifier of 00210063/0023612 (2012) and 00239078 (2013), and Dr Holt in response to the notifications.
We acknowledge the notifications made by the persons from the CPSA were discontinued. We are concerned however at many of the allegations made in the notifications including;
• Cash payments for referrals of family, friends and colleagues
• Behaving in an unethical way within the course and playing on patients' insecurities about their appearance
• Behaviour consistently displayed is unacceptable and threatening
• Concerns about the legal issues relating to the use of schedule 4 medications.
The 2012 notification by Dr Caswell included a copy of a letter, which was purportedly addressed to AHPRA and sent by Dr Holt to the notifier (Dr Caswell). The author of the letter to AHPRA (undated) provides a detailed response to the allegations. In this letter, the author says "..the esteemed King's College London; one of the world's leading medical training facilities where I graduated with my basic dental degree in 1997…" and further in the letter "AADFA….has gained accreditation from several overseas dental boards and manufacturers in the process". It is unclear to us that either of these claims are true however, Dr Holt's CV states that he obtained his basic dental degree from the University of Sydney in 1999.
In 2013 a notification was made by Dr Vrodos from Darwin, Northern Territory. The initial notification was in relation to allegations relating to Dr Holt's period of working at the Palmerston Dental Surgery (PDS) from July 2010 until May 2011, when reportedly his contract was terminated by Dr Vrodos. According to the notification, Dr Holt and Dr Vrodos had been engaged in legal proceedings, for unfair dismissal of Dr Holt, since 2011 until the notification date in 2013.
Dr Vrodos alleged that Dr Holt had been negligent in his diagnosis and treatment of a patient, had altered treatment notes in an attempt to cover-up his mistakes, and had been dishonest and deceitful regarding contractual obligations. A review of Dr Holt's clinical records had allegedly revealed further cases of misdiagnosis, practising below a minimum standard of care and not being honest with patients. Dr Vrodos also alleged that Dr Holt had lied about his previous professional history.
As a result of the 2013 notification, the Dental Board of Australia arranged for an independent specialist endodontist to review Dr Holt's endodontic treatment and care of 11 separate patients. The reviewer was of the opinion that for each of the 11 patients Dr Holt's performance was below the standard reasonably expected. On 14 October 2016 the South Australia Registration and Notifications Committee of the Dental Board of Australia (Board) determined to propose to caution Dr Holt and impose conditions on his registration. In response to the proposal Dr Holt reportedly submitted that the opinion of the independent specialist endodontist should not be given any weight because some of the records provided were incomplete and had been altered to render them inaccurate.
Following consideration of Dr Holt's submissions AHPRA requested complete patient records for 9 of the patients, from the notifier, and had a second independent specialist endodontist review the complete records. In October 2017 the second reviewer provided a report stating that, in their opinion, the practitioner's performance was below the standard reasonably expected. The Board was not satisfied that the clinical records had been fabricated and/or altered in any way and did not accept the practitioner's (Dr Holt's) assertions in this regard.
On 4 December 2017 the Board decided to caution Dr Holt and impose conditions requiring him to undertake education and complete a period of supervised practice in the area of endodontics. The Board considered the caution was appropriate as Dr Holt apparently conceded that on 4 November 2010, he had retrospectively changed the records of a patient (DS) and deleted information. Dr Holt's professional conduct was considered unsatisfactory. The conditions were considered appropriate to ensure appropriate oversight and monitoring of Dr Holt's practice while he undertook the necessary education and training to ensure public health and safety.
In December 2017, Dr Holt sought a review of the Board's decision to impose conditions by way of appeal to the Tribunal. In March 2018, Dr Holt submitted to the Tribunal, amongst other things, that the conditions were not necessary as he was not, at that time, practising operative dentistry and did not wish to ever perform endodontics again. The Tribunal invited the Board to reconsider its decision in light of the new information provided by Dr Holt. On 22 February 2019 the Board reconsidered its decision, set it aside, and proposed a new decision. The new proposed decision was that a condition be imposed "The practitioner must not practise in the area of endodontics". On 25 February 2019 Dr Holt offered a written undertaking to the Board which effectively mirrored the proposed condition. The Board accepted the undertaking and under section 225 of the National Law the undertaking was recorded on the National Register of practitioners.
In March 2015, Dr Vrodos made another notification (00303028) against Dr Holt. This notification alleged that Dr Holt had "consciously, purposely, misled proceedings at the Darwin Local Court by; providing fabricated, false, fraudulent documents as evidence, and lying under oath". These allegations related to the unfair dismissal matters being heard at Darwin Local Court between 1 April and 4 April 2014. Dr Vrodos provided copies of correspondence between his legal team and the Singapore Dental Council (SDC) in support of his allegations.
The correspondence between Dr Vrodos' legal team and SDC appear, on the face of it, to show that Dr Holt provided dates relating to his initial application for registration and the granting of registration, along with correspondence purportedly from the SDC, which were not verified by the SDC as being correct. Dr Vrodos alleged that Dr Holt had knowingly given false information to the Court. Dr Vrodos included excerpts, purportedly from the Court transcript, showing Dr Holt's evidence about his initial registration dates in Singapore which are different to the dates provided in the correspondence provided to Dr Vrodos' legal team by the SDC.
According to a decision of the Northern Territory Civil and Administrative Tribunal (NTCAT) dated 14 November 2019, the notifications by Dr Vrodos resulted in the Dental Board of Australia referring the matters to the NTCAT alleging that Dr Holt had behaved in a way constituting professional misconduct or unprofessional conduct within the meaning of section 196(1)(b) of the National Law. The substance of the allegations was that Dr Holt had fabricated or falsified documentation relating to his employment as a dentist and had relied upon that documentation in seeking registration as a dentist. Further the Board alleged that Dr Holt had tendered fabricated/falsified documentation in civil proceedings between him and a former employer (PDS) in the Local Court of the Northern Territory and that he had knowingly given false evidence in those proceedings. The Board also alleged that Dr Holt had relied on the transcript of the Court proceedings (knowing it to contain untruths) in support of a notification against Dr Vrodos.
According to the NTCAT decision, on 7 August 2019 the Board's solicitor sent an email to Dr Holt and the NTCAT which stated' "…we have recently received instructions from the Board to refer this matter to the Director of Public Prosecutions for investigation…". On 8 August 2019 Dr Holt applied for an order permanently staying the Tribunal proceedings and requiring that the Board pay his costs. The proceedings before the Tribunal were stayed until further order.
At the 4 February s150 hearing, Dr Holt said that this notification matter had been going on for six years and had now been referred to the Director of Public Prosecution (DPP) in the Northern Territory. Dr Holt said he had been granted a "stay" in the Tribunal while the matter was considered by the DPP (NT). Dr Holt stated that he did not believe the DPP was interested in the matter and it was only brought about because Dr Vrodos was unhappy at having lost the unfair dismissal case before the Local Court.
On 1 December 2015 a notification was received by AHPRA from Ms Janette Lister, who according to the information provided by AHPRA is Dr Holt's mother. The notification alleged that Dr Holt is HIV positive and that he does not disclose this to persons he trains or treats during his training courses. The notifier further alleged that "on many occasions" she observed Dr Holt dumping used needles into her household rubbish bins. She alleged that when she protested about this "unsafe practice" she was verbally abused by Dr Holt. The notifier further alleged that Dr Holt began asking fellow dentists to dispose of used needles he accumulated following his Botox and face filler training sessions. It was also reported, in the notification summary, that the notifier said "the practitioner is deceptive and sets his own standards when training people. There is nobody overseeing AADFA and she feels this is also placing people at risk". This notification was closed with no further action on 12 May 2016 because Dr Holt reportedly provided blood test results and the Board determined that "there is no evidence from these results that show you have an impairment" and "there is insufficient evidence to substantiate that you have a health impairment that does or may detrimentally affect your practice".
On 15 February 2016 a notification was made to AHPRA by LK.(Name anonymised) LK had reportedly been a "patient" at a Course provided by Dr Holt via AADFA and was unhappy with both the results of the treatment and Dr Holt's response to her requests for assistance following the treatment. Both LK and Dr Holt provided extensive details about this matter. As the Course had been provided in NSW the matter was referred to the Dental Council of NSW for management. According to information provided by the Council, the matter was closed with "no further action after Council process".
On 26 February 2016 Dr Holt made a self-notification to AHPRA regarding a disciplinary decision concerning him in Singapore. The issue related to Dr Holt using a title (FIADFE New York) on certificates issued to participants at the Courses, held in Singapore, which was not approved by the Singapore Dental Council (SDC). In the decision of the disciplinary committee (Committee) of the SDC it is noted that Dr Holt had been issued a letter of warning regarding his use of the title in September 2013, some nine months prior to 14 June 2014 which was the date of use of the title cited in the decision. Dr Holt made a plea of "guilty" to the charge and the Committee accepted that he was remorseful and contrite for his conduct. In the alternative to suspension of his registration, the Committee determined that a fine of $50,000 (SGD) was appropriate.
We note in relation to the SDC findings that the Committee commented that a breach of the relevant section (of the Singapore legislation) is a serious one that should attract a punishment involving a period of suspension. The Committee noted that "the use of any unapproved qualification …. Could potentially misrepresent to any person relying on that qualification that the person possesses that qualification, or alternatively that the said qualification had been approved by the SDC when in fact it has not been approved. This is all the more serious when the qualification was used in connection with the conduct of courses for fellow dentists".
Summary
We acknowledge that most of the complaints against Dr Holt have been closed with no further action following consideration of his responses. We are however concerned that a number of the previous notifications may demonstrate a pattern of deceptive behaviour that has not previously been recognised and/or considered in the consideration of complaints against Dr Holt.
We are particularly concerned at the matters which have been stayed in the NTCAT awaiting the outcome of the Board's referral of the matter to the NT DPP. If the allegations in this matter are true, this would represent a serious breach of the Code of Conduct and potentially the Law.
In discussing their reasons for decision, and in particular whether it was in the public interest that the appellant's registration be suspended the delegates referred to the complaints history and said
We are also mindful of, and concerned about, the previous history of complaints relating to Dr Holt and in particular the matters which remain to be resolved by the NT DPP and the NTCAT. The allegations against Dr Holt are serious. In the event that adverse findings are made as a result of those proceedings serious questions will be raised about Dr Holt's trustworthiness.
Patients or clients trust practitioners because they believe that they will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. We consider that the issues raised by the previous history of complaints, and the concerns that Dr Holt may engage in commercial considerations which have the potential to influence or compromise the practitioner's primary duty to the patients in his care during the provision of the Courses, have the potential to diminish trust in the practitioner, the profession and the ability of the regulatory system to protect the health and safety of the public.
It is clear that at no stage during the hearing did the delegates afford the appellant an understanding that that they would conclude that the previous complaint notifications may demonstrate a pattern of deceptive behaviour on his part and that serious questions had been raised about his trustworthiness as matters which would found a decision to suspend him on the basis of the public interest. These are serious matters. There can be no question that there was any particular urgency in dealing with the proceedings which would have prevented the delegates from raising these matters with the appellant, as witnessed by the fact that they did not publish written reasons for their decision until 2 March, 2020.
In submissions the respondent sought to rebut this conclusion by relying on a letter from the Executive Officer of the respondent dated 29 January 2020 to the appellant's solicitor. That letter said in part
I note your request for further information regarding the reconvening of the section 150 proceedings. In addition to the initial concerns that led to the section 150 being convened on 7 January, 2020, which were previously provided to Dr Holt, further information is now available to the Council that is relevant to the matter before it. These issues are to be further discussed at the reconvened section 150 proceedings, where Dr Holt will have the opportunity to respond. These issues include, but are not limited to:
• the veracity of information provided at the section 150 proceedings held on 7 January, 2020
• Schedule 4 medication, particularly for the Fat Module - procurement, supply, handling
• whether the equipment and/or medicines used at all courses for the purposes of theoretical coursework, as well as practical demonstrations and training sessions, were and are approved for use in Australia by the Therapeutics Goods Administration (TGA)
• participants being appointed to "Trainer role" - selection process, preparation and training
• insurance arrangements for participants and "patients"
• processes for infection control, emergency procedures and waste disposal at the courses
• concerns raised about Dr Holt's veracity/honesty as a result of his complaints history both in Singapore and in Australia
• public interest considerations
This letter clearly states that the issues which were identified, including concerns about the appellant's veracity and honesty were to be further discussed and that the appellant would have the opportunity to respond. The transcript reveals that this did not occur in any fashion which provided the appellant with an understanding of the particulars of the concerns of the delegates about his veracity and honesty, nor was he given any opportunity to respond to those particulars.
In submissions the respondent asserted that the appellant had made submissions with respect to the complaints history. I have previously set out at [106] an extract from the transcript which records the submissions made by him. The appellant did not address any particular allegations concerning his honesty and veracity arising out of the complaints matters. Nor could he have done so in the absence of any particulars of any such concerns raised by the delegates in that exchange.
The appellant was thereby denied an opportunity to make submissions about matters which were material to the decision of the delegates. This constituted a failure to afford procedural fairness to the appellant which thereby constituted jurisdictional error on their part. This is exemplified in the joint judgment of Bell, Gageler and Keane JJ in the High Court of Australia in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 Their Honours said
2 The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
…………………………………….
38 Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness . For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice"[32]: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision[33].
(citations omitted)
I conclude that the manner in which the delegates failed to raise these matters with the appellant and dealt with them without affording him an opportunity of addressing their concerns constituted a denial of procedural fairness. It was not sufficient for the delegates to have given the appellant a large volume of documents and ask him to divine what matters might ultimately be of concern to them, reserving unto themselves the right to use them in any manner which they saw fit. The appellant should have been informed of the matters that concerned the delegates in determining to suspend his registration and he should have been given an adequate opportunity of addressing them. None of this occurred.
This ground of appeal is upheld
[19]
Ground 1(c) the Respondent relied in its reasons upon documents which were not put to the Applicant at the hearings
The basis of this ground is that the delegates informed the appellant that they would consider and take into account all of the documents which had been provided by him, without specifying any particular document. The appellant submitted that the delegates should have drawn to the appellant's attention each document upon which they relied.
It is true that the appellant supplied a great deal of documentation to the delegates in the course of the enquiry which they conducted and which arguably they transformed into an investigation by reason of the additional matters which were raised during the course of the second hearing. However, the transcript clearly reveals that many of the documents were discussed during the hearings. This ground would have merit if the appellant could identify any document relied upon by the delegates for the purpose of their conclusions which the appellant was not given an opportunity to discuss with them. In the absence of any identification of any particular document, the appellant is unable to make out this ground.
I conclude that the factual basis for this ground has not been made out.
[20]
Ground 1(d) with no notice, the Respondent put to the Applicant documents of unknown provenance
The appellant submitted that at the beginning of the hearing on 4 February 20 he was provided with 2 documents which had not previously been given to him. The first was an extract from the website of AADFA which was not dated but was said by the delegates to have been taken in December 2019 and the second a 2011 webpage of an organisation not controlled by the appellant. The appellant provided a transcript reference to an exchange between the delegates and the appellant during the course of the hearing.
The transcript of the proceedings reveals that the appellant queried the provenance of a document shown to him that day purporting to be a screenshot of the AADFA website. The delegates informed him that they did not know who had taken the screenshot but that it was taken "in December" and they were unsure why the document had not been provided previously.
There is no suggestion in the transcript that the delegates intended to take the contents of the screenshot into account, nor is there anything contained in their reasons which would indicate that they have done so.
I cannot find any reference in the transcript to the 2011 document. However a letter from the appellant to the respondent dated 6 February, 2020 which enclosed certain insurance documents and made a number of submissions identifies that document as purporting to be a copy of material from the website of the International Academy for Dental-Facial Aesthetics. The appellant said he had never seen the document before, he did not author it, he did not authorise it in any way and there was no reference to the date of production or the website link from which it was derived.
In any event, the transcript shows that the screenshot was referred to by the delegates in connection with their enquiry about the nature and extent of any accreditation of the courses being conducted by AADFA. In circumstances where the appellant admitted that despite representations to the contrary on the website that none of the courses was accredited at that time, the matters referred to in this ground did not affect the outcome of the conclusions reached by the delegates. I can see no reference to reliance on the 2011 document in the reasons of the delegates.
I conclude that the matters referred to in this ground did not affect the reasoning or conclusions reached by the delegates and I reject this ground.
[21]
Ground 1(e) the Respondent denied to the Applicant any opportunity to tender relevant documents about which the Respondent expressed concerns in its reasons
This submission is raised in connection with the enquiry conducted by the delegates concerning the insurance arrangements which applied to the courses and the manner in which they were conducted. Pursuant to a request made by the delegates the appellant provided them with a number of insurance documents.
A "Business Insurance" was issued by QBE Insurance (Australia) Ltd through the services of Experien General Insurance Services Pty Limited ("Experien") for the period 15 July 2019 to 15 July 2020. The insured was AADFA. The business of the insured was shown as "Registered training organisation." The cover included a Broadform liability section in familiar form. An endorsement excluded liability caused by, contributed to by, or arising from injury to any contractor or subcontractor or labour hire personnel of the insured or any of their employees acting in such capacity. The professional indemnity section contained an exclusion relating to the rendering of or failure to render professional advice or service and for personal injury arising directly or indirectly in the treatment or nursing of a patient or in the use of medical apparatus or equipment or in the provision of drugs, food or drink for any patients.
A Dentistry Professional Indemnity and Public and Products Liability insurance policy was issued by CGU through Experien in favour of the appellant current from 1 May 2019 to 1 May, 2020. Its cover included in addition to dental services and treatment a range of cosmetic and therapeutic treatments including facial dermal filler and botulinum toxin treatments. There is also reference to professional services including training services of AADFA and training courses whilst a contracting trainer to AADFA. The policy document is in familiar form and includes cover for professional indemnity insurance and public and products liability insurance.
A practice entity indemnity insurance policy was issued by CGU through Experien providing for cover from 16 January, 2020 to 25 August, 2020. The insured is Global Health Care Entrepreneurs Pty Limited trading as AADFA. The policy was expressed to replace a Malpractice Establishments insurance policy. It is expressed to provide insurance cover for claims made against the insured inter alia for civil liability for breach of duty. The cover extends to claims or losses caused by employees and former employees in the provision of health care services.
The above documents extend over 114 pages.
On 6 February 2020 the appellant forwarded a number of insurance documents to the respondent. Included in those documents were;
1. "Further insurance documents demonstrating that AADFA policies after a 12 month period; providing continuous coverage over the years for the students; and documenting endorsement and there is insurer led changes to the policy schedule and wording to provide clarity but without changing the fundamentals of coverage - noting particularly that wording changes surrounding "students" was for clarification purposes only and that this coverage has always been in place under section 4.2 B) of the policy documents as previously provided to Council"
2. a statutory declaration from Evan Kravitz an insurance broker employed by Experien who had arranged professional indemnity insurance for the appellant and AADFA.
3. A redacted copy of an insurance policy held by a dentist engaged by AADFA as a clinical trainer showing an endorsement covering that role in training courses.
Mr Kravitz attested that he arranged professional indemnity insurance for the appellant and for AADFA. He said that the appellant's indemnity insurance covered his education clinical practices "in relation to many possible risks including, but not limited to, patient claims against students and students against students and students and patients against him are evidenced by……" policies issued by Vero and CGU, with schedules attached. Mr Kravitz said that he conducted a review of the appellant's insurances following the initiation of the section 150 hearing in order to ensure that the insurance in place extended to cover a student performing work on another student. That cover commenced from 16 January 2020.
Finally, Mr Kravitz noted that the business description of "registered training organisation" is a business description utilised by the insurer. The attached insurance documentation extended over 23 pages.
There was extensive dialogue between the delegates and the appellant during the course of the hearing on 4 February 2020 concerning the insurance arrangements. It commenced by Dr Lobo asking the appellant "Can you tell us what this policy covers?" but without referring to any particular policy document. This then required the appellant to endeavour to explain each of the policy documents which had been made available. The appellant then commenced a general overview of the QBE business insurance policy, his dental indemnity policy and the professional risks practice entity indemnity insurance. He explained his understanding that there was insurance cover for AADFA as a training entity for the students whilst performing treatments during the course of training which protected patients, and also protected students should they decide to treat each other. He explained that he relied on his broker to arrange this insurance.
The appellant also explained that individual dentists who were acting as trainers would be required to have their own professional indemnity cover endorsed to extend to training work performed for AADFA.
At one stage Dr Lobo expressed incredulity that the amount of the premium paid had been blacked out in the copy provided by Experien. She asked why the premium was shown as zero. The appellant offered to seek advice from Experien.
Another delegate, Ms Gill then referred the appellant to the specific consent forms issued to patients upon whom treatment was to be demonstrated. The appellant responded that he was unable to recall the specific wording used in the consent forms and speculated about why the wording might have been in the form as suggested by Ms Gill.
In the course of general discussion the appellant asserted that it was his understanding that persons upon whom work was performed during the course of a training session as patients would be entitled to protective insurance cover in the event that something went wrong.
When the delegates adjourned for a break the appellant was asked to seek clarification about the entity indemnity insurance policy and to ascertain the effect of an endorsement made on 14 January 2020. He was also asked to clarify some confusion in the period of cover of that policy. The appellant did clarify, however, that persons who were training in the course were expected to have their own professional indemnity cover apply, but once their training was complete, they would then be covered under an AADFA policy. The delegates sought a copy of the relevant policy.
At the conclusion of this lengthy discussion concerning insurance arrangements the delegates said that they were trying to establish that persons who were participating in a training course and that the patients that they brought with them for that purpose all had insurance cover. At the end of a break the appellant discussed some of the details of the policies and endeavoured to answer queries raised by the delegates concerning dates of cover, amounts of policy premium and the like. He said that he would need to obtain further documentation from Experien. I shall assume that it is as a result of this dialogue that the appellant provided the further information concerning the insurance matters enclosed with his letter of 6 February 2020.
The appellant submitted that in considering and dealing with matters relating to insurance the delegates had strayed beyond a consideration of the complaint as originally formulated and matters reasonably associated with the complaint. The appellant said that the delegates had embarked upon an investigative examination of the insurance arrangements and, by doing so, had engaged in an "unnecessarily oppressive" hearing and demonstrated that the delegates were "trawling for any basis to find against the appellant."
There can be no doubt that the delegates expanded their enquiry beyond the matters of complaint as originally formulated. However, as I have previously explained they were entitled to do so, provided that they afforded the appellant procedural fairness whilst engaged in the section 150 processes.
It is arguable that the delegates conducted themselves in a manner which was unfair to the appellant as instanced by their enquiry into the underlying insurance arrangements. The transcript of the proceedings is indicative that the delegates expected the appellant to be able to provide information to them in complex matters at very short notice and to provide documentation at equally short notice. If it were not for the fact that the appellant was afforded an opportunity of providing further submissions and documentation after each of the hearings, I would have concluded that the appellant had been denied procedural fairness.
However, I do not perceive from the narrative which I have set out above that the delegates denied the appellant any opportunity to tender documents relevant to the insurance enquiries which they had raised. The appellant provided the documents prior to the second hearing and provided additional documents and an explanation from his insurance broker after the second hearing.
There is no factual basis which has been established to support this ground and I reject it.
[22]
Legal unreasonableness
I propose to deal with the remainder of the grounds relied upon by the appellant under this heading. These grounds are as follows
1.(f) the Respondent failed to disclose to the Applicant the evidence, findings and process of reasoning relied upon in its reasons;
1.(g) the Respondent failed to provide to the Applicant any notice, or any adequate notice, in relation to matters relied upon in its reasons; and
1.(h) the Respondent failed to afford to the Applicant any opportunity, or any adequate opportunity, to address matters relied upon in its reasons.
2. The Respondent erred in law by proceeding on the basis on mere suspicion and speculation rather than logically probative evidence.
4. The Respondent erred in law by failing to take into account relevant considerations in the making of the decision.
5. The Respondent erred in law by taking into account irrelevant considerations in the making of the decision.
6. The Respondent erred in law in that the decision to suspend:
(a) was more onerous than necessary to achieve the purposes of the legislation; and
(b) was unreasonable and disproportionate.
7. The Respondent erred in law in that:
(a) the Respondent is required to take immediate action if required for the protection of the health or safety of persons; but
(b) the Respondent prolonged the proceedings so that the time taken to make a decision was some three months after the compliant was received; and
(c) accordingly, any need to take the action on an immediate basis had passed.
8. The Respondent erred in law by conducting the proceedings in a harsh and oppressive manner and abused its power in that the Respondent:
(a) requested large volumes of documents;
(b) requested documents that were irrelevant to the issues for the Respondent;
(c) did not consider the documents it requested in its reasons; and
(d) otherwise conducted the proceedings in bad faith.
It is first necessary to set out the relevant legal principles dealing with legal unreasonableness. The modern formulation is based upon the decision of the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18. Li has been the subject of commentary and explanation in subsequent proceedings which have applied the principles espoused in that case.
In Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 in a joint judgment Allsop CJ, Griffiths and Wigney JJ in the Full Federal Court of Australia summarised the relevant principles in relation to "legal unreasonableness" as a ground of judicial review in terms which I gratefully adopt, at [58] and following.
First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
This appeal is primarily concerned with whether the outcome of the Minister's exercise of power was legally unreasonable. That said, some of the primary judge's reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister's reasons and alleged errors in the decision-making process.
Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).
Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].
Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
(citations omitted)
[23]
The reasons and reasoning processes of the delegates
Having regard to the above principles I now come to consider the reasons and reasoning of the delegates, in the context of the several grounds of appeal referred to above. However, before doing so I repeat observations at [75] concerning the statutory context within which the delegates exercised their jurisdiction and power to make the order suspending the registration of the appellant.
Where the conduct of a dental practitioner whether by act or omission adversely affects the health and safety of those protected by the legislation, then the ability to suspend under the legislation is enlivened. This requires an identification of the adverse impact on health and safety and the establishment of a causal relationship between that adverse impact and the conduct of the dental practitioner. It is not necessary for there to be actual harm suffered by any person. Because the concept is one of protection, it is sufficient if it can be demonstrated that there is a potential for harm. There are also considerations of public interest described in [7] above.
The reasons and reasoning of the delegates must be tested against the matters set out above.
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; the High Court considered the appropriate principles to be applied in the judicial review of decisions of Minister's delegates refusing a claim for refugee status. At [24] Kirby J in a separate judgment concurring with the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ said
….What are the principles which should guide the judge conducting that review and appellate courts supervising such a decision?
1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law ;
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker;
3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law;
4. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense;
5. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts;
6. In reviewing reasons and decisions of the delegates of the Minister, such as are in contest in this appeal, it is appropriate to take into account the fact that they were not untrained laymen. They had obvious expertise for the performance of their functions. By the evidence, they also had legal advice available to them. They were obviously familiar with relevant legal authority, including of this Court. Standard paragraphs for their decisions were prepared evidencing what were suggested to be considered positions on common matters of approach which, it was accepted, they had to take into account. The decisions committed to them are extremely important for the persons involved. But they are also important to Australia as a recipient nation. This is because the composition of its community is in question. Its conformity with an important international convention is at stake. Its reputation as a country of refuge which decides claims of refugee status according to law is involved. A decision that legal error has been demonstrated in the reasoning of a delegate does not automatically entitle the applicant to be accepted as a "refugee". It simply secures to him or her the basic entitlement, enjoyed by every person sheltering under the laws of this country, citizen or not. Every person is entitled to have such serious decisions made by the application of the true legal test. If error is shown, the claim is not upheld. Refugee status is not automatically granted. The matter is simply recommitted (in this case to the Tribunal) for redetermination according to law;
(citations omitted)
In considering the reasons and reasoning of the delegates I shall endeavour to encapsulate these 6 principles as stated by Kirby J in Wu Shan Liang
In their reasons for decision the delegates addressed a number of discrete matters, and I will deal with each of them seriatim.
[24]
Does the practitioner have the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected?
I firstly observe that the delegates have used the word "ensure", which connotes something which is absolute in the sense of guaranteed. This is not the test. As was observed in Reid, discussed above, all medical, and presumably, dental procedures will carry some risk to the health, safety or well-being of a patient. The protection of the health or safety of any person or persons is not to be considered in absolute terms, but what is appropriate or adequate in all the circumstances. If the delegates were to have proceeded on the basis that the appellant's standard of practice, knowledge and understanding was sufficient to remove any and all risk to the health and safety of the public, they would have fallen into error. However, for reasons which I shall develop, I do not perceive that the delegates approached the determination of these proceedings on that basis, applying the principles espoused by Kirby J in Wu Shan Liang above.
The delegates proceeded to examine the appellant's scope of practice and the definition of dentistry. In discussing the Scope of Practice Registration Standard issued by the Dental Board of Australia the delegates noted that "dental practitioners must only perform dental treatment for which they have been educated and trained in programs of study approved by the National Board and in which they are competent."
Later, the delegates discussed whether the techniques taught in the courses conducted by the appellant fell within the definition of dentistry. They acknowledged that the use of botulinum toxins and dermal fillers have been accepted by the Board as coming within the definition of dentistry. They then proceeded "however, we remain concerned that the addition of other techniques, such as carboxy therapy, injection lipolysis and thread lifts may not." They noted that the appellant commenced teaching the Fat Module in 2019 and that AADFA had said that it had initiated education about this technique into the sphere of dentistry.
Significantly, the delegates then noted that it was not their role to determine if these techniques did fall within the definition of dentistry even though they appeared to be "adjunct cosmetic procedures that are not in mainstream dental practice in Australia." This observation corroborates the investigative role that the delegates were then pursuing with the appellant in determining firstly whether the Fat Module fell within the area of dentistry and, secondly, whether the appellant was competent and qualified to teach courses in this technique.
This leads to a further question as to whether dentists are entitled to service patients in matters outside their sphere of expertise, assuming that those matters are unregulated, and such service may be provided by unregistered persons, as would appear to be the case in the "beauty industry" as referred to in material provided by the appellant in the proceedings.
In the course of their reasons the delegates referred to information provided by the appellant that he had not obtained any formal qualifications from any formal accredited program to qualify him as knowledgeable and experienced in undertaking these procedures and in training others to do so. The appellant said that he was not aware that any such programs existed globally.
Notwithstanding that the appellant had informed the delegates that he had attended conferences in 2018 and 2019 including sessions regarding cosmetic and aesthetic uses of facial injectables, the delegates said
We also noted that Dr Holt was unable to answer questions related to competency assessments in any of the courses that he had attended. Given the absence of any documented competency assessment or formal qualification, we hold concerns about Dr Holt's individual scope of practice and his ability to teach these procedures.
I note that as a matter of logic the possession of documented competency assessments and qualifications will tend to support a conclusion that a person is competent in those relevant matters, and to some extent may militate against an impression that the person is not so competent. Nevertheless, the lack of these manifestations of competency may not be determinative that such a person is incompetent to perform those matters. Much will depend upon what the delegates intended by the use of the words "we hold concerns" and the part that such a conclusion played in their overall decision. I shall return to this aspect later in these reasons.
The delegates used a similar line of reasoning in dealing with the following matters
Dr Holt declined to provide training materials for all the Courses as requested on 15 January 2020 under s150J. As we have not had the opportunity to review the materials provided to participants it remains unclear the extent to which the teaching of the various techniques is done in the context of dental or dento-facial treatment relating to the definition of dentistry or if it is more focussed on aesthetic/cosmetic/facial rejuvenation applications.
It is also unclear the extent to which the teaching materials reflect a critical appraisal of the scientific literature, reflect accepted dental practice and address contemporary clinical and professional issues, such that participating dentists could be assured the techniques are within the definition of dentistry. These matters are outlined in the Board Guidelines on continuing professional development to provide guidance as to appropriate CPD activities.
In each of the above extracts the delegates have expressed "concerns" and used the expression "it is also unclear" as a means of conveying doubt about the subject matter of each of the paragraphs. However, as will be seen, it was necessary for the delegates to be able to transform each of these areas of doubt into a positive finding that would justify a conclusion that it was appropriate to take action under section 150 for the reasons set out therein. For reasons which I shall later address, the delegates have failed to consider whether the doubts that they have expressed allow them to conclude that there exists circumstances by which they could be satisfied that it was appropriate to suspend the registration of the appellant for the protection of the health or safety of any person or persons or in the public interest.
The delegates also sought to use material on the AADFA website to justify a conclusion that facial rejuvenation services were outside the area of traditional dental treatment. They said, relevantly
A screenshot from the AADFA website discusses the "Dental Spa" concept and states "offering traditional dental treatments alongside facial rejuvenation services". This seems to imply that facial rejuvenation services are not within the sphere of traditional/mainstream dental treatments which raises concerns about whether or not a dentist introducing these techniques into their practice is working within the definition of dentistry.
In so expressing themselves the delegates appear to be saying that in promoting "traditional dental treatments" as well as "facial rejuvenation services" it should be implied that the latter are not part of the former, and therefore fall outside the definition of dentistry. I disagree that this conclusion follows as a matter of logic. Whether or not a particular area of treatment falls within the definition of dentistry will depend upon a detailed examination of the treatment itself and a comparison of those details with what is encompassed within the practice of dentistry. I do not perceive that either of these exercises has been undertaken by the delegates as reflected in their reasons. I am unable to conclude that the delegates were entitled to express the concerns that they did on the basis that AADFA was promoting a "Dental Spa" concept by proposing that dentists provide facial rejuvenation services alongside traditional dental treatments.
[25]
Are participants being led to believe the Courses are accredited courses?
The delegates considered this matter in the context of whether the conduct of the courses presented any risks to the health and safety of the public.
In dealing with this matter the delegates first noted that they had been informed by the appellant that the courses being provided by him had been accredited in jurisdictions where that is required. As at December 2019 the AADFA website referred to its courses as being the only courses "recognised and accredited by regulatory bodies, insurance companies and product manufacturers." As it transpired the appellant informed the delegates at the 4 February 2020 hearing that the courses were not currently accredited in any jurisdiction, although they had previously been accredited in Singapore.
The delegates referred to other material which had been provided to them which represented that AADFA courses had gained recognition and accreditation from a number of entities and concluded
Our concern is that if participants are led to believe the Courses have been "accredited" by regulatory authorities and/or that Dr Holt holds a position of influence in the professional decision making about these procedures and their place in dentistry, they may assume that they do not need to do their own due diligence in assessing if the Courses meet the requirements of the Board's Code of Conduct, guidelines and all legislation.
Senior counsel for the appellant said that the impact of these matters on participants had not been put to the appellant during the course of the hearings. I do not regard such a matter, which represents a conclusion based on information provided as being something which should necessarily have been put to the appellant as a matter of procedural fairness. The questions of representations and accreditation are matters which should properly have been raised by the delegates with the appellant, as they were.
However, whether and to what extent participants in the courses may have been dissuaded from undertaking their own due diligence in assessing the courses is arguably a matter of speculation. Consideration of the transcripts and, more importantly, the reasons of the delegates leads to a conclusion that the delegates did not have available to them any information about or from any participant in any of the appellant's courses concerning whether or not the participant's participation and any competencies gained through the courses would be adversely impacted upon because the courses were not appropriately accredited.
This gives rise to a consideration as to whether such speculation is permissible within the broad area of discretion which reposes within the delegates, and which falls outside what is legal unreasonableness. As discussed in Eden above, this task requires the evaluation of the decision "by reference to the subject matter, scope and purpose of the relevant statutory power" and is "likely to be fact dependent." The ultimate task for the delegates was to identify and have regard to risks to the health or safety of the public and the public interest in determining whether it was appropriate by reason of any particular factual situation or circumstances to take action under section 150. My consideration of the factual material available to the delegates concerning this matter leads me to conclude that there was no proper and appropriate basis upon which they could speculate that participants may assume there was no requirement to undertake their own due diligence in determining whether or not to undertake a course and that thereby, there was created an identified risk to the health and safety of the public or the public interest which justified suspension of the appellants registration.
I conclude on this basis that this finding trespassed into the area of legal unreasonableness.
[26]
Are the competency assessment processes robust enough to ensure the safety of the public?
In their reasons the delegates discussed competency assessment forms which had been provided to them by the appellant during the course of the hearing on 7 January 2020. A form was provided the next day which was said by the appellant to be a "draft" version of guidelines for trainers. The delegates noted that by letter dated 14 January 2020 the appellant said that he had found the opportunity to enter into a detailed discussion with the delegates concerning a number of matters including competency assessment processes to be "exceedingly helpful in clarifying expectations" surrounding his practice and the guidelines which he had developed. In that letter he said that he would closely review and strengthen the competency tools which were being used.
In their decision the delegates said that they were "concerned" that it was unclear when the appellant had made changes to the competency assessment tool and guidelines for trainers. They said that although the revised forms appeared to be more detailed "it is unclear to us if a single assessment, during which the participant does not have to achieve a pass on all assessment items, is robust enough for them to be deemed competent and able to access professional indemnity insurance, and apply the techniques in their own practice." Furthermore, the delegates expressed concern that even though AADFA had been promoting courses for more than 10 years it was only then undertaking to strengthen the confidence it had in the assessment tools it had been using. Finally, the delegates noted that the appellant had not produced confirmatory documentation that approximately 20% of participants were assessed at the first instance as failing to demonstrate competence.
Again, much depends upon what the delegates intended to mean when they expressed these "concerns". Having regard to the manner in which the delegates expressed themselves and the context in which those expressions have occurred, I would understand that the reference to these "concerns" was made in the sense that they were troubled about when the appellant had made changes to the competency assessment tool and guidelines. Such a concern might be justified in the sense that AADFA had been operating for some time and yet the appellant was still finessing certain aspects of its operations. Nevertheless, the time at which an assessment is to be made as to whether section 150 is enlivened is at the time that the decision is made. That is, the delegates should have assessed the appropriateness of suspending the appellant's registration on the factual bases existing at the time that their decision was made. Assuming for the sake of discussion that there had been past deficiencies in the operations of AADFA which by then had been rectified to the satisfaction of the delegates, the delegates would have required some other basis for the suspension of the appellant's registration.
The second expression of doubt is characterised by the words "it is unclear to us" whether the single assessment was appropriate in the circumstances which they described. I would understand the use of the words "it is unclear to us" as meaning that the delegates did not know whether the single assessment was so appropriate. There is no indication in their reasons that the delegates had undertaken any consideration of the competency assessment process and the competency tools used by AADFA in the context of the courses which were being provided and by reference to the experiences of any participants. Unless the delegates had embarked upon these processes, it was inappropriate for them to have relied on the fact that they were "unclear" about these matters.
It seems that the delegates have proceeded on the basis that they required the appellant to satisfy them about all aspects of each and every issue which they had raised. If this is the case, it is clear from the transcripts that such investigative processes as were undertaken by the delegates in their dialogue with the appellant did not traverse in any detail the competency assessment processes and the competency tools with respect to each and every one of the courses conducted by AADFA. Likewise, they had not required the appellant to produce any participants for examination by them, or any trainers who had provided training services in the courses. In these circumstances it was inappropriate for the delegates to draw any factual conclusions which would permit them to apply the provisions of section 150 in the manner in which they did.
If the delegates had desired that investigative processes be undertaken in this, or any other area, there were facilities available to the respondent to allow this to happen. For example, section 145B of the National Law provides
145B Courses of action available to Council on complaint [NSW]
(1) The following courses of action are available to a Council in respect of a complaint -
(a) the Council may make any inquiries about the complaint the Council thinks appropriate;
(b) the Council may refer the complaint to the Commission for investigation;
(c) the Council may refer the complaint to the Tribunal;
(d) the Council may refer the complaint to a Committee;
(e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council;
(f) the Council may -
(i) refer the practitioner or student for a health assessment; or
(ii) refer the matter to an Impaired Registrants Panel; or
(iii) refer the professional performance of the practitioner concerned for a performance assessment;
(g) the Council may direct the practitioner or student concerned to attend counselling;
(h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993;
(i) the Council may refer the complaint to another entity, including, for example, a National Board;
(j) the Council may determine that no further action should be taken in respect of the complaint.
(2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated.
(3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993.
(4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.
The delegates did not pursue any appropriate investigative processes with respect to this particular issue, nor indeed other issues which they considered. For reasons which I have set out above, it was inappropriate that they formed a conclusion based solely on the fact that they were in doubt about certain matters having discussed them with the appellant and having considered such documentation as they had required him to produce. Once the delegates proceeded to develop their areas of enquiry, the investigations which they undertook needed to be appropriate and sufficiently thorough in covering the area of enquiry, and any deficiencies should, in fairness to the appellant, have been accommodated within their reasons. Furthermore the delegates were obliged to come to an appropriate basis for the making of orders under section 150, and, as I will discuss later they have failed to do so.
In these circumstances the delegates failed to adhere to the principles of legal reasonableness in dealing with these matters.
[27]
Are the trainers adequately prepared for their role in assessing the competence of participants?
These matters went to the concerns of the delegates about whether the courses presented any risks to the health and safety of the public.
In their reasons the delegates repeated the fact that some of the techniques being used including injection lipolysis and carboxy therapy were new to Australia. They noted that the appellant had provided documentation covering training, infection control and emergency procedures, informed consent, "train the trainer", and risk assessments. They noted that in some cases some persons may have undertaken training as trainers before completing a session qualifying them to be a trainer.
In making their concluding remarks about this matter the delegates said;
We accept it is likely many of the Trainers may have had experience in their own practices of using botulinum toxins and dermal fillers since undertaking their training at AADFA, given those techniques are specifically discussed in the Board Fact Sheet. It is unclear though if Trainers have had on-going clinical experience in the use of some of the other techniques such as those taught in the Fat Module, given the Fat Module was only introduced in Australia in 2019.
We are concerned that Dr Holt did not provide substantive evidence to demonstrate how many Trainers have attended 'train the trainer' sessions, nor a schedule of the quarterly sessions. It is unclear the extent to which Trainers are prepared for their role and if they have adequate understanding of all policies and protocols to ensure the safety of the "patients" being treated under their supervision.
Again, it is unclear whether and to what extent the delegates were concerned about whether trainers had clinical experience in the new techniques involved in the Fat Module. There is no attempt to describe what is involved in applying these techniques, even though one of the delegates is a qualified cosmetic surgeon, and there is simply no discussion about or description of what form of risk to the health or safety of the public might be created by the use of these techniques. Furthermore, it might be thought that evidence to demonstrate how many trainers had attended training sessions might be something that could be acquired during an investigative process, rather than during the course of a section 150 hearing. Finally, it is necessary to understand what the delegates intended to say when stating that it was "unclear" whether trainers were prepared for their role and whether trainers had an adequate understanding of relevant policies and protocols, as matters calling for attention under section 150.
In stating that they were "concerned" that the appellant did not provide substantive evidence of the number of trainers who had attended "train the trainer" sessions and a schedule of the quarterly sessions, I assume that the delegates were indicating that they were troubled by these matters, in that they did not have this information. However, a lack of information of this kind does not permit the delegates to conclude that these matters might entitle them to make an order under section 150. The lack of this information means that the delegates did not have that information before them in order to assess whether there were any relevant risks to the health and safety of the public or whether the public interest was otherwise engaged. Such lack of information does not of itself justify the making of any conclusion adverse to the appellant. If the delegates required that information upon which to make an informed decision, there were means available to them to either enforce production of that information by the appellant, or by relying on the provisions of section 145B set out above.
In determining that the extent to which trainers were prepared for their role and the other matters referred to were "unclear" I shall assume also that the delegates were again saying that they did not know about these matters. Again, as I have previously observed, ignorance about a state of affairs is no proper or appropriate basis for making a positive, albeit tentative determination adverse to the appellant.
In these circumstances the delegates failed to adhere to the principles of legal reasonableness in dealing with these matters.
[28]
Are the processes for patient consent and professional indemnity insurance arrangements adequate for the protection of the participants and patients of Courses?
In order to consider the reasoning of the delegates concerning these matters it is first necessary to set out their summary of the requirements of the Australian Dental Board contained in a fact sheet dealing with the use of botulinum toxin and dermal fillers by dentists. The delegates set out the following information concerning the expectations of the Board;
• practice in accordance with the Board's regulatory standards, codes and guidelines by:
o performing only those dental procedures for which they have been educated and trained and are competent
o practising within the definition of dentistry contained in the Board's Guidelines for scope of practice
o ensuring they have appropriate professional indemnity insurance arrangements in place for all aspects of their practice
o meeting the Board's recency of practice requirements
o acting in accordance with the standards set out in the Code of conduct including expectations about informed and financial consent, and
o completing ongoing continuing professional development that contributes to the development, maintenance and enhancement of knowledge, skills and performance.
• adhere to the relevant state and territory drugs and poisons legislation and regulations by using scheduled medicines only for the purpose that the authority is granted. This is usually described in terms such as 'for dental therapeutic use', and
• understand and comply with the requirements of the Therapeutic Goods Administration (TGA) in relation to:
o the advertising of therapeutic goods
o approved uses of botulinum toxin and dermal fillers for use in Australia, and
o 'off-label' use of botulinum toxin and dermal fillers
The delegates reviewed the processes for the selection of "patients" on whom procedures were to be demonstrated during the courses, including patient consent and patient medical history. They noted that the course participants were encouraged to arrange for their own patients, so as to allow them to review the patient after treatment and to provide further treatment if required. Participants were encouraged to arrange for an existing patient, a staff member, friend, family member or colleague to attend the course as "the patient." The delegates reviewed the information pack and consent forms which were provided to each of the patients and noted the following concerns;
• "patients" are informed that (for the Fat Module) the medications being used are "not officially licensed and is therefore considered off-label use". Further the form states "My dentist has determined that there is a substantial body of research supporting the off-label use for the stated condition";
• "patients" sign that they are undertaking the procedures which are "medical procedures that carry with them certain potential complications and side effects, both local and systemic", "at my own risk";
• The possible complications and side effects are listed which includes nerve damage (up to 4% of cases), skin and muscle ulceration/necrosis/death, difficulty breathing or swallowing (2% of cases), anaphylaxis, and others;
• "Patients" are asked to agree to; "I may require emergency, life-saving or corrective treatment and I am aware I am solely responsible for any costs associated with such treatment".
It was unclear to us, from the information supplied by Dr Holt that is sent to the participants and the "patient", whether the participant dentist would have enough knowledge and understanding of the treatments they had not yet had training in, to be able to ensure informed consent of their "patient". We are particularly concerned about participants in the Fat Module advising "patients" about a compounded product which is for "off-label use", prior to the participant dentist attending the Course (refer to later section of this document). We also are concerned that arranging for an existing patient, staff member, friend or family may not be appropriate if that person felt an obligation to attend and felt undue pressure to do so. If a "patient" felt any level of coercion in the process this would be inconsistent with the Code of Conduct item 3.14.
The concerns in relation to whether or not adequate indemnity insurance arrangements exist arise mainly from the consent form where the "patient" agrees that they are solely responsible for any costs associated with any treatment, even emergency or life-saving treatment. We also note there is no information in the pre-course information sent to the participant dentist regarding insurance cover arrangements whilst they are treating their "patient" therefore it is unclear if participants are aware of what, if any, professional indemnity insurance would cover their "patient" were an adverse event to occur.
The concerns of the delegates that participating dental practitioners would not have the requisite knowledge to obtain informed consent are not corroborated by the procedures described by the appellant when providing information to them on 7 January 2020. The appellant said that the participating patient was furnished information directly by AADFA after his or her details had been given to it, and the patient would meet with the qualified trainer prior to any treatment being given during the course. That information was said to include treatment options, the nature of the treatment, side-effects and potential complications. In addition, the appellant said that he undertook an assessment of each potential participant patient with reference to their medical history and other treatment details which had been forwarded by the participating dentist.
Notwithstanding these procedures which are undertaken on the day of the course, the participating patient will have previously signed the patient consent form at a consultation with the participating dentist. The dentist will have been in receipt of a document which outlines the procedures, the side-effects, and the information contained in the consent form. The appellant explained that even though the participating dentist may have obtained consent prior to having been trained in the relevant procedure, that this was not the only consent process. He explained the initial consent form as assisting in streamlining the selection of patients and in the nature of "a pre-assessment".
The delegates failed to refer to and consider this material, and to assess its relevance in reaching their conclusions. It was inappropriate for the delegates to have expressed their concerns without reference to and consideration of these matters.
I have previously referred to the insurance arrangements effected by AADFA, which were subjected to detailed scrutiny by the delegates during the course of the hearing process, and especially at the hearing on 4 February 2020. The transcript reveals that the delegates descended into a level of detail including questions about why a particular replacement policy showed a "nil" premium, the dates of cover provided by certain policies and why a policy showed that the business of AADFA was a registered training organisation, when they had previously been told by the appellant that it was not. (The explanation provided by the appellant's broker was that the description of registered training organisation was utilised by the insurer for its own internal purposes). The delegates also expressed concern that the broker was paying a commission to AADFA, presumably questioning such a commercial arrangement. A number of these questions were clearly unrelated to anything that the delegates were required to consider in connection with the section 150 process. Whether and to what extent matters of this kind tainted their thinking is, however, a matter of conjecture.
During the course of the hearing the appellant emphasised that the insurance cover provided extended to patients either through the AADFA cover if the person providing treatment during the training course had been appropriately trained, or through the course participant's own professional indemnity insurance cover if he or she had not concluded their training.
In their reasons the delegates were critical of the insurance arrangements effected by the appellant and AADFA, and the information they had been given. They seemingly failed to appreciate that the practice entity indemnity insurance policy was intended to replace a Malpractice Establishments insurance policy. They seemingly also failed to appreciate that the reference to "students" in the policy was intended to cover participants in the courses. They rejected the information provided by Mr Kravitz because he was "not certifying the coverage of the policies on behalf of the insurer. Rather, he is providing comment on the intent of the brokerage firm…. We are not satisfied that the contents of the statutory declaration are in any way related to the opinions or intentions of the insurer, CGU."
The delegates had been provided with copies of the relevant insurance policies. If they doubted the opinions concerning the cover provided by a professional insurance broker, it would have been appropriate to reject that opinion by reference to the policy wording. There is no indication in their reasons that they attempted to do so. Nor is there any indication that the delegates were competent to do so.
In dealing with the information made available to them by the appellant concerning insurance arrangements in their reasons, the delegates said;
We have significant concerns about the veracity of information provided to us in relation to professional indemnity insurance, especially in relation to an appropriate 'master policy'.
On review of the insurance documentation provided by Dr Holt we identified the following concerns:
o all parties involved, including "patients", participants and trainers may not be adequately protected by insurance and we are concerned that this is not in line with the Dental Board of Australia registration standard on professional indemnity insurance;
o participant dentists are possibly being misled about insurance requirements and thereby, breaching their personal registration requirements;
o "patients" may not be adequately protected in the event of complications, misadventure or negligence.
There are two elements to the above conclusions. In dealing with the information furnished to them concerning the insurance arrangements the delegates said that they had "significant concerns" about its veracity. In making this statement they have not said specifically whether they had rejected the veracity of the information. I shall assume for the purpose of considering this matter that the delegates were in serious doubt that the information which had been provided was true, as it applied to the overall professional indemnity insurance arrangements.
If the delegates were pursuing an investigative role concerning insurance arrangements, they would have followed up their enquiries by looking carefully at and analysing the nature and extent of the insurance cover. They do not describe in their reasons their knowledge and understanding of commercial insurance arrangements and their familiarity with the wording of insurance policies. They eschewed any reliance on a professional insurance broker, albeit that Mr Kravitz had been retained by the appellant to provide appropriate insurance cover. They have clearly not, on the basis of the documentation made available to them had regard to information made available concerning the references to "students" and registered training organisations where these occur in the policy documents. It may be assumed that the delegates were not undertaking an investigation into the appellant's insurance arrangements. Two of the delegates are dental surgeons, one is a cosmetic surgeon and I am unaware from the papers filed in these appeal proceedings concerning the qualifications of the fourth delegate. In the absence of any professed expertise in this area, there must be some doubt concerning the ability of the delegates to have expressed their opinions about the insurance arrangements.
The second element is the actual language used by the delegates in expressing their concerns about the insurance arrangements.
In describing the extent of cover they said that the named persons "may not be adequately protected." I would understand this as meaning that they did not know whether such protection existed. Perhaps they were looking to the appellant to satisfy them about these matters. However, he gave them copies of all of the policy documents and thy had the benefit of an expression of opinion from the insurance broker who had arranged the insurance cover on his behalf. The extensive cross examination of the appellant by the delegates during the course of the hearings as disclosed in the transcripts indicates that they had expectations that the appellant would have the requisite knowledge of the nature and extent of the commercial insurance arrangements. During the course of the hearings the appellant sought access to his broker and to documents available in the offices of AADFA and was granted a number of adjournments for this purpose. This is an example where in embarking upon an investigative role in the course of dealing with a complaint in the context of a section 150 hearing, the delegates have entered specialised territory without being able to form any appropriate conclusion that there was an actual lack of relevant insurance protection. As I shall discuss later in these reasons for decision, this lack of knowledge is not an appropriate basis either alone or in combination with other matters to justify a conclusion that there is a resultant risk to the health or safety of the public or that the public interest is engaged.
The same comments may be made with respect to the two other conclusions concerning the insurance arrangements formulated in the delegates' reasons. They concluded the participant dentists were "possibly being misled" about insurance requirements, and that patients "may not be adequately protected". Both these expressions indicate a lack of knowledge on the part of the delegates about these matters, and that they simply do not know whether dentists are possibly being misled or that patients are adequately protected.
I conclude that the tentative basis upon which the delegates have expressed themselves concerning these matters, and the bases used to express these tentative conclusions did not constitute in all the circumstances, an appropriate justification for the making of orders under section 150. It follows that the delegates failed to adhere to the principles of legal reasonableness in dealing with these matters.
[29]
Are schedule 4 medications being procured and handled in a manner consistent with the legislation?
The transcript of the hearings reveals that this matter arose against a background that some of the techniques being taught in the courses were not regulated procedures and could be undertaken by anyone without any qualifications. The appellant nominated chemical peels, micro needling, micro dermabrasion and, in some States, laser treatment as being unregulated. This also included carboxytherapy. However, injection lipolysis was said by the appellant to be regulated and to involve the administration of medication requiring a prescription, as referred to in Schedule 4 of the TGA regime. There followed a discussion between the appellant and the delegates concerning the receipt, storage, transportation and administration of the Schedule 4 botulinum toxin.
Prior to the hearing on 4 February 2020 the appellant had provided the delegates with some information concerning this Schedule 4 prescribed medication. However, it emerged during the hearing that he also used a compounded product which was not TGA regulated. He told the delegates that the compounded product was used during the training courses because he said it was safer as there was a 4% risk of nerve damage using the schedule 4 product.
The appellant gave the delegates the source from which he acquired the compounded product, which he named as "A C Pharm."
In their reasons the delegates referred to the fact that they had asked the appellant to provide further information about the provision of the injection medication for lipolysis which was discussed in the course of the second hearing.
The further information sought was "history of order forms/supply requests/purchase order to any third-party provider regarding any schedule 4 medication, including drug name, quantity, strength, delivery recipient and delivery address". In submissions of 14 January 2020, Dr Holt supplied copies of orders and Tax Invoices to and from "Anti-aging" at Canterbury, Victoria. The orders included Dysport (botulinum toxin) 500 unit and 300 unit vials and Belotero (dermal filler). No documentary information was provided by Dr Holt then or since that confirms where he procures the schedule 4 compounded product (Phosphatidylcholine and Sodium Deoxycholate).
The delegates noted that they did not know whether A C Pharm was a licensed manufacturer with the TGA. They further noted that a manufacturing licence was required if compounded medicines were to be supplied by wholesale. However, such a licence was not required if medicines are compounded only on a prescription or order for a particular person for therapeutic application to that named person. They concluded;
In the absence of any documentary evidence of the prescribing, procurement, supply chain, and handling of the compounded schedule 4 medication used in the Fat Module, it is unknown to us if the compounded product is being prescribed and obtained in accord with the legislation. We will pass this onto the Pharmacy Council of NSW for consideration.
………………………………………….
We are concerned that the Pharmacy Board Guidelines on compounding of medicines specifically states: "compounding of sterile injectable medicines poses significant risks to the public if the requirements of the relevant legislation, guidelines and practice standards are not strictly adhered to throughout the compounding and supply process". It is not clear that the processes for the prescribing or the supply and handling of the compounded schedule 4 medicine is being done in accord with applicable legislation. We are also concerned that if participants of the Fat Module are also procuring the compounded product for use in their practice, on completion of the Fat Module, they too may not be doing so in accord with the legislation.
If either Dr Holt, or participants in the Fat Module, are obtaining a compounded schedule 4 medication not in accord with the applicable legislation this could pose significant risks to public safety.
I am unable to ascertain from the transcript that any of the matters of concern extracted above were specifically put to the appellant by the delegates in the course of the hearing.
In addition, the delegates expressed concern that the appellant ordered botulinum toxin in 300 or 500 unit vials for multiuse, notwithstanding that these vials were designated for single use and that participants in the courses were administered 100 units only. The appellant explained this on the basis that it was "industry-standard" to use multiuse vials as a means of saving costs.
Finally, the delegates expressed concern about a form provided by the appellant which purported to constitute a contract between AADFA and training venues which made provision for the storage of scheduled medication.
As with the other matters under consideration, the conclusions of the delegates in this matter are expressed in negative terms. They do not know whether the compounded product is being prescribed and obtained in accordance with law because they do not have the appropriate evidence to determine this. Absent such information which would enable the delegates to make an informed determination about this matter, the expression of a tentative conclusion that "this could pose significant risks to public safety" has no appropriate basis for making an order under section 150. This approach is tantamount to challenging any health practitioner to provide positive evidence about any particular matter concerning his or her practice and justifying suspension of registration on the basis that the evidence is not forthcoming.
I observe that amongst the 1708 pages of the appeal books filed in these proceedings there are 57 pages of TGA approvals of a range of named devices and medicines. I shall assume that this material was before the delegates. If there was concern about this particular matter, it is something which the delegates were able to pursue further. There is nothing within their reasons that indicate that they did so.
I conclude that the tentative basis upon which the delegates have expressed themselves concerning these matters, and the bases used to express these tentative conclusions did not constitute in all the circumstances, an appropriate justification for the making of orders under section 150. It follows that the delegates failed to adhere to the principles of legal reasonableness in dealing with these matters.
[30]
Can we be satisfied that the processes for emergency procedures and disposal of clinical waste at the Courses is adequate?
Under this heading the delegates considered the suitability of the places where training courses were provided, described by the appellant as being either a dental practice, a dental training facility or a conference facility. The delegates said that they were not told of any specific training venues and were not provided with copies of contracts with venues to verify what contractual arrangements were made. The appellant had told them that a first-aid kit was provided by the venue which he checked, and he ensured that oxygen and a defibrillator were available.
In their reasons the delegates said they had been told by the appellant that there was always someone from AADFA on-site who had advanced life support and CPR certificates of currency. They noted that the appellant provided evidence that he had completed CPR and advanced resuscitation training on 3 February 2020. However, they commented that it was unclear when the appellant had last received certification in these procedures prior to this date. The appellant had been asked to supply records to confirm that AADFA staff had up-to-date certification for emergency resuscitation. The appellant informed the delegates that certificates concerning individuals had not been kept, but there would be a record of when they had attended courses paid for by AADFA. In their reasons, the delegates said;
Dr Holt was asked to provide a record log of the training for AADFA staff and the evidence to support this. In his 14 January submissions, Dr Holt provided a list of current AADFA staff certifications for emergency procedures. The list includes dates when recertification is due for each person. No other evidence was provided to support this document.
Finally, the delegates referred to arrangements for disposal of sharps and clinical waste. The appellant told them during the hearing that a trainer in each state was obliged to remove sharps and arrange for their disposal, and he supplied corroborative material to this effect. The appellant informed the delegates the clinical waste was disposed of by licence contractors. The delegates then noted that the AADFA Infection Control Manual dated 23 October 2019 provided that sharps and clinical waste such as bloodsoaked gauze were all to be put into the sharps' containers.
I do not apprehend that the delegates expressed any particular conclusion about these matters in terms of the application of section 150 in the body of their reasons. However, they made reference to these matters in their summary, which I shall address later.
[31]
Is equipment used at the Courses TGA approved as medical devices?
In dealing with this matter the delegates in their reasons first noted that the patient consent forms referred to patients receiving treatment in the nature of "medical" procedures. From this they reasoned that all of the equipment used should be medical devices as defined in the Therapeutic Goods Act and accredited by the TGA accordingly.
However, the delegates noted that they had been told by the appellant that the machine used for the carboxy therapy was not TGA registered because it was considered to be a cosmetic device. The delegates then reasoned as follows;
We consider that use of a device that is thought to be "cosmetic in nature" and therefore does not require TGA registration may be inconsistent with the argument that the carboxy therapy procedure is within the definition of dentistry. We also consider it would be prudent for a practitioner to not use a device that was not TGA registered when treating patients, in line with the Code of Conduct item 2.2 p) which states' "Good practice involves; facilitating the quality use of therapeutic products based on the best available evidence and the patient or client's needs". It is also unclear to us if participating dentists would be aware that the carboxy therapy machine, which they may choose to purchase following them doing the Fat Module, is not TGA registered.
It is unclear to us if all equipment used in AADFA Courses is TGA registered or not.
The above reasoning proceeds on the basis that because carboxy therapy is regarded as cosmetic in nature and that the machine by which it is administered does not require TGA registration, this "may be inconsistent" with the practice of dentistry. However, this reasoning is inconsistent with other cosmetic procedures applied by dentists such as teeth whitening.
During the course of the hearings the delegates engaged in detailed discussion with the appellant as to whether cosmetic procedures fell within the scope of dentistry. The appellant said that dentists acquired proficiency in head and neck anatomy and "procedures performed on muscles of mastication, muscles of facial expression, dermal structures are considered to fall within what would be deemed associated structures." When confronted by the delegates with a definition of dentistry which was directed to "injuries, diseases, deficiencies, deformities or lesion of the human teeth, mouth, jaws or associated structures" the appellant responded that cosmetic procedures dealt with "deficiencies" within the structures. He referred to teeth whitening as being purely cosmetic and dealing with a "deficiency" in the structure of the teeth. In addition, the appellant relied on statements by the Australian Dental Board which made it clear that certain cosmetic techniques fell within the province of dentistry. When asked specifically about whether the use of threads constituted a surgical or nonsurgical procedure, the appellant responded;
The threads that we're teaching are purely polydioxanone…… The're biodegradable…. So we choose procedures that are non-surgical and minimally invasive and destructive …. Its non-surgical, proven scientific treatments, and essentially when we look at the broader cosmetic industry, treatments that are being done already by perhaps arguably less trained, lesser qualified individuals, part of - a big part of why we brought these into the dental profession is our strong belief that there are a lot of these treatments being done in the industry by people that shouldn't be doing them, and I would rather than in the hands of a well-regulated, ethical moral dentist than perhaps some of these other people out there doing it.
There then followed a detailed discussion between the appellant and the delegates concerning the contribution to be made by dentists in the cosmetic field, comparison with general medical practitioners also providing cosmetic services, and the need for certain treatments to be undertaken by persons other than dentists with specialist surgical qualifications.
I have referred to the above material because it is clear that the complaint about the appellant as originally formulated concerned the boundaries applying to the practice of dentistry, in the context of the cosmetic procedures being propounded by the appellant.
The delegates did not address in the body of their reasons any concerns relating to any matter relevant to any order under section 150 with respect to this particular matter. However, they made reference to this matter in their summary, which I shall address later.
[32]
Other issues of concern
In their reasons the delegates then dealt with a number of other "issues of concern" being;
1. in a written submission dated 30 November 2019 the appellant said his New Zealand registration status was non-practising. In the hearing on 4 February 2020 the appellant informed the delegates that he had general registration in New Zealand. They commented "It is unknown to us when Dr Holt's registration status in NZ was changed to or from non-practising. If Dr Holt had been practising, through provision of treatments to "patients" at the Courses, whilst not holding general registration in NZ, we would be concerned at his adherence to applicable legislative requirements in that jurisdiction. Whilst we acknowledge those matters are outside our jurisdiction, it does raise the question of the veracity of information provided by Dr Holt."
2. Even though the appellant had informed the delegates that AADFA had no commercial relationship with any suppliers or manufacturers of products used in the courses and had asserted that AADFA did not take kickbacks or sponsorships, AADFA had received a referral fee from an insurance broker, as noted at [200]. The delegates thought that this may contradict the statements made by the appellant.
3. The AADFA website noted that it offered "numerous commercial promotions/marketing/advertising and sponsorship opportunities". The delegates said that it was unclear whether this was inconsistent with the Dental Code of Conduct concerning conflicts of interest and financial and commercial dealings.
4. In correspondence with the Council the delegates noted the appellant had used the post-nominal LLM. In fact, he had completed a degree of Master of Health and Medical Law and had misrepresented his degree to that extent. When confronted with this the appellant had agreed that at the hearing on 4 February, 2020 that he would change the use of LLM, yet in an email sent to the Council on 6 February, 2020 the appellant had used the post-nominal LLM (Hth&Med) which the delegates suspected remained incorrect. They regarded this as misleading and misrepresentative conduct by the appellant in connection with his qualifications. They expressed concern that the appellant would continue to act in this way particularly having been the subject of an adverse order from the Singapore Dental Council about the misuse of his titles, to which reference has been made earlier.
[33]
The conclusions of the delegates with respect to risks to public safety
The reasons and reasoning of the delegates are crucial in determining whether they exceeded their statutory jurisdiction and powers which are circumscribed within section 150.
In considering these reasons and reasoning it is appropriate to have regard to what was said in the High Court of Australia by McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing) in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 while discussing jurisdictional error of the statutory Refugee Review Tribunal. Their Honours said, at [82] and following
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia[ [1995] HCA 58; (1995) 184 CLR 163, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
Before commencing my consideration of the reasons and reasoning of the delegates in expressing their conclusions with respect to the risks to public safety created by the appellant's conduct of the courses, it is appropriate to repeat the summary which I have earlier set out in [75] of the essential ingredients which must be established in order to justify the use of the power created by section 150.
Under the heading "Summary" the delegates said
We are of the view that Dr Holt's provision of training to other dentists in the Fat Module and potentially other Courses at AADFA, poses risks to public safety for the following reasons:
• It is unclear if all the techniques being taught are within the definition of dentistry;
• It is unclear if the Courses are being provided in a setting that appropriately uses TGA approved equipment, meets infection control standards and has adequate emergency equipment available;
• It is unclear if the applicable legislation for schedule 4 medications, particularly in regard to the compounded solution for injection lipolysis and multi-use of botulinum toxins, has been adhered to during provision of the Courses;
• The supply and enabling of the injection of schedule 4 medications in circumstances where appropriate assessment of medical history and informed consent may not have been adequately undertaken by the participants of the Courses;
• Concerns that Course participants may not be provided adequate guidance and information regarding their competence, or not, to provide the treatments and any legal and professional issues that may arise from this, including but not limited to patient safety concerns following attendance at the Courses;
• Concerns that there may not be appropriate mechanisms to protect the public and participant dentists from professional indemnity requirements in the event of complications, misadventure or negligence.
There are a number of observations which need to be made concerning the above conclusions. The use of the word "summary" would normally convey the meaning that what follows is a summary of matters and conclusions which have already been stated. However, the opinion concerning risks to public safety is stated in definitive terms namely "for the following reasons." Consistently with the judgement of Kirby J in Wu Shan Liang cited previously I propose to consider the material contained in the summary within the context of the discussion of each of these matters by the delegates which is contained within the body of their reasons for decision and which I have earlier summarised.
Before doing so I note that the opening words of the material included within the summary express the view that the training carried out in the Fat Module does pose a risk to public safety for the reasons set out. However, the view expressed with respect to the other courses being conducted is that they "potentially" may pose risks to public safety. There is a lesser degree of risk with respect to these other courses, and no indication about the nature and extent of the risk that may be created by the conducting of these other courses.
The potentiality of the risks with respect to the other courses is compounded by the manner in which the delegates have expressed themselves concerning each of the six stated reasons. The words used lack particularity in assigning any degree of risk in each of these reasons with respect to all of the courses.
The first reason is expressed as being that it is "unclear" if all the techniques being taught are within the definition of dentistry. This lack of clarity could be described as applying to all of the techniques or some of the techniques. Clearly, however, some of the techniques are within the definition of dentistry, especially the use of botulinum toxins and dermal fillers as conceded by the delegates. On this basis the reference to "all" must be a reference to every one of the techniques on the basis that there are some clearly falling within the definition.
The delegates have not specifically described why the protection of the public might be compromised if the content of the courses fell outside the definition of dentistry. There is no suggestion in any of the material that if they did so, dentists would be performing work which was regulated in some way because it fell within an area of practice unique to some other regulated area of health practice. It is possible that if dentists performed work outside the definition of dentistry, they may not fall within the cover provided by their professional indemnity insurance. However, there is no evidentiary material about this, and the insurance cover which I have summarised appears to extend to procedures covering cosmetic work. Furthermore, there seems to be no material to form the basis of any expression of opinion by the delegates that if work was performed during the conduct of the courses which was outside the sphere of dentistry that the persons performing that work would be doing so in a manner which created any particular risk to the health and safety of the public.
This reasoning must be considered in the context of the observations of the delegates concerning their role in conducting the section 150 proceedings
We acknowledge that it is not our role to determine if the various other techniques taught in the Courses, including but not limited to carboxy therapy, lipolysis and thread lifts, are in the definition of dentistry or not although many of the techniques appear to be adjunct cosmetic procedures that are not in mainstream dental practice in Australia. There is a lack of clarity regarding whether or not such procedures, which appear to be for cosmetic/aesthetic/facial rejuvenation purposes rather than for the treatment of any injuries, diseases, deficiencies, deformities, lesions on or of the human teeth, mouth, jaws or associated structures, are within the definition of dentistry. At this time, there does not appear to be any specific guidance/statement from the Dental Board of Australia.
I conclude that the delegates have not expressed any reason why this matter should create any risk to public health or safety in the conduct of any of the courses. This is especially so concerning those courses other than the Fat Module which are qualified by reference to "potentially" for the reasons which I have earlier set out.
The second and third reasons also use the opening words "it is unclear". These words may convey a meaning that the delegates do not know simpliciter whether these matters are being addressed. Another meaning is that the delegates have doubts that these matters are occurring.
I have previously referred to the discussion of these matters between the delegates and the appellant. The delegates conducted the proceedings by requiring the appellant to furnish them with a great deal of information and then questioning him about that information. It seems from the dialogue which occurred as revealed in the transcript, and to which I have made reference earlier in these reasons that the delegates proceeded on the basis that they expected the appellant to provide them with acceptable and appropriate information about every matter of concern to them. They expected that the appellant would satisfy any and all concerns which they had.
The delegates do not appear to have had recourse to any other source when considering what they had been told by the appellant. For example, the appellant furnished information about whether some of the equipment was approved, or capable of being approved by the TGA. He explained to them the infection control measures which were taken and the emergency equipment which was available, and by whom it was to be provided. It is clear from their reasons that the delegates were not satisfied with the information given to them by the appellant. This is especially so in their consideration of the use of the compounded product for injection lipolysis. However, they did not pursue their dissatisfaction by recourse to other sources, nor do they appear to have brought any of their own specialist knowledge to bear on their examination of the information given to them by the appellant. The upshot is that whilst they may not have accepted everything that the appellant told them, neither did they have any expressed basis to reject any particular piece of information.
Knowledge about something consists of information which is acquired through our primary senses. We test the validity of that information by reference to other information to determine whether it is justified, true and to be believed. It is not sufficient or appropriate to reject information conveyed by someone without having the means of testing its validity. But this is what the delegates have in effect done in the circumstances of these proceedings. They have rejected the information given by the appellant on the bases that they were not satisfied by the nature and extent of that information, and that it did not extend to certain matters and was therefore deficient. However, they have not described or otherwise said anything about those matters of deficiency, they have made no effort to consider those areas of deficiency and have not indicated whether a lack of information about those matters justifies a finding or conclusion that as a whole the particular matter might adversely affect the health and safety of those protected by the legislation.
By way of example, the delegates were "unclear" whether the courses were being provided in a setting that appropriately met infection control standards and had adequate emergency equipment available. The only information available to them about these matters was that contained in the documents provided by the appellant and in the information which the appellant gave them during the hearings and by way of written submissions. In the course of their reasons for decision the delegates referred to the fact that on 7 January, 2020 the appellant had given them a one and a half page document which included "notes on infection control, emergency procedures and informed consent." They also referred to a number of documents given to them on 4 February 2020 "relating to infection control, including an AADFA Infection Control Manual dated 23 October, 2019…". These are the only references to these matters which I can find in their substantive reasons for decision. There is no discussion at all about the adequacy of the information provided, and in particular about any perceived deficiencies including the basis therefor. It follows that there is simply no discussion at all by the delegates to justify the conclusion made in their summary that the courses posed risks to public safety because "it is unclear" that the courses are provided in a setting that appropriately meets infection control standards and has adequate emergency equipment available.
The next reason is expressed in terms that Schedule 4 medications were administered in circumstances where appropriate assessment of medical history and informed consent "may not have been adequately undertaken" by course participants. Again, these were matters which were discussed during the course of the hearings by the delegates with the appellant. The appellant informed the delegates about the protocols that were adopted by AADFA, concerning the introduction of the "patients", their assessment by course participants, and the procedures undertaken by him and other trainers in endeavouring to obtain informed consent. During the course of the dialogue as revealed in the transcript the delegates expressed concern about these matters, and the appellant provided information in response. The delegates did not pursue these matters further by approaching any course participant or any of the "patients" used during the training course. They thought that they did not have to do so, because as they were at pains to point out in connection with other issues, they were not carrying out an investigation. However, as I have previously stated, there were procedures available to the delegates if they had wished to pursue these matters further.
It follows that the delegates were then required to consider this particular matter and other matters on the basis of such information as they had available to them. In doing so they were required to ensure that there was a proper and appropriate basis for making an order under section 150. They needed to feel that there existed some occurrence or circumstance which would enable them to conclude that there was a risk to the health and safety of the public.
As with all of these matters, in the context of the matter currently being considered, the delegates must have felt an actual persuasion that an appropriate assessment of medical history and informed consent had not been adequately undertaken by the course participants and that this created a risk to the health or safety of the public. In circumstances where the delegates have used language indicating that these matters "may not have been adequately undertaken" within the context of their overall reasons, I am not persuaded that they were entitled to conclude that this particular matter created a risk to public safety.
The last two reasons are expressed in terms that the delegates had "concerns" that certain matters may not have occurred. I would read this as conveying the meaning that the delegates were troubled by or worried about these matters and had some doubt about them. However, expressing these matters in negative terms so as to indicate concerns that they may not have existed is not the same as concluding that they do exist, or they exist in a particular manner.
In addition, as in the case of all the reasons, it was necessary for the delegates to conclude that because of these matters, there was created a risk of appropriate degree to the health or safety of the public, and to identify at least in general terms that risk. The delegates have failed to do so.
This conclusion applies to all of the six reasons espoused by the delegates as justifying a determination that for the purposes of section 150 the provision of training to other dentists in the relevant courses created a risk to the health and safety of the public. On this basis I would conclude that the exercise of discretion by the delegates miscarried as a matter of law, because it could not be justified on any reasonable basis of reasoning and thus did not comply with the principles of legal reasonableness.
[34]
The conclusions of the delegates with respect to public interest
It is necessary to set out the totality of the reasons of the delegates in concluding that the public interest justified orders being made under section 150. The delegates said
We are of the opinion that along with the primacy of protection of the public, it is also a serious responsibility of the Council to ensure the public has confidence that practitioners deliver safe and effective regulated health services.
Practitioners are expected to practise within the definition of dentistry and in accord with the Dental Board of Australia Code of Conduct, the standards and guidelines of the profession and all relevant legislation. We have raised concerns that in the courses Dr Holt provides including, but not limited to the Fat Module, there may not be compliance with the Poisons and Therapeutic Goods legislation for the handling of schedule 4 medications nor the Board's Code of Conduct. These are issues that have the potential to diminish public trust in the practitioner and the profession.
We are also mindful of, and concerned about, the previous history of complaints relating to Dr Holt and in particular the matters which remain to be resolved by the NT DPP and the NTCAT. The allegations against Dr Holt are serious. In the event that adverse findings are made as a result of those proceedings serious questions will be raised about Dr Holt's trustworthiness.
Patients or clients trust practitioners because they believe that they will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. We consider that the issues raised by the previous history of complaints, and the concerns that Dr Holt may engage in commercial considerations which have the potential to influence or compromise the practitioner's primary duty to the patients in his care during the provision of the Courses, have the potential to diminish trust in the practitioner, the profession and the ability of the regulatory system to protect the health and safety of the public.
The first matter dealt with by the delegates concerned compliance with the standards, guidelines and legislation applying to the practice of the profession. Again, these are matters which are expressed in tentative terms to the effect that the delegates "have raised concerns" that there "may not be" compliance with these matters. I conclude that the meaning of the words used by the delegates is not sufficient to justify the making of an order under section 150, for the reasons which I have set out above in dealing with the public safety. It is inappropriate to purport to apply section 150 in suspending the appellant's registration on any basis other than by feeling an actual persuasion of the occurrence or existence of facts appropriate to attract the public interest.
The second matter concerns the history of complaints. I have already concluded that in dealing with these matters the delegates failed to afford procedural fairness to the appellant. This would per se enable me to conclude, as I do, that the delegates were not entitled to rely upon these matters as justifying the orders made by them.
It is also questionable whether the delegates were entitled to rely upon serious allegations made against the appellant in proceedings which had not yet been finalised after many years, in the context that adverse findings might be made against him. It might have been appropriate for the delegates to have taken these matters into account if they had had access to the underlying evidentiary matters which were being litigated in those proceedings, they had closely examined that evidence and had afforded the appellant an opportunity of addressing them about it. However, there is no indication in their reasons nor in the transcript that this occurred. In the circumstances I would conclude that the delegates were not entitled as a matter of procedural fairness to rely on the possibility that adverse findings might be made against the appellant.
[35]
Conclusions
For the reasons furnished above I conclude that the delegates erred in law in making an order under section 150 of the National Law. The errors identified are such that they taint the whole of the reasoning and conclusions of the delegates. In these circumstances the appeal must be allowed, and the decision of the delegates set aside.
Having regard to the state of the information available to the delegates it would not be appropriate to substitute any order for that of the delegates under section 159C(1)(c) of the National Law.
[36]
Costs
The question of costs has not been argued before me. I shall reserve costs and grant liberty to apply which must be exercised within one month of this date.
[37]
Orders
I make the following orders
1. The appeal is allowed
2. The order made by the delegates on 10 February 2020 is set aside.
3. Costs are reserved with liberty to apply which must be exercised within one month of this date.
[38]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 June 2020