1 The applicant has, by the act of publishing an advertisement in "The Australian Women's Weekly" in October 2002, engaged in unprofessional conduct which is not of a serious nature.

2 I determine that the applicant be reprimanded.

1 On 10 November 2004 the Dental Practice Board of Victoria ("the board"), constituted by a panel of five members ("the panel"), found that the applicant, Dr John Kozeniauskas, had engaged in unprofessional conduct of a serious nature. This conclusion was based upon a finding that the applicant had caused to be published in "The Australian Women's Weekly" magazine in October 2002 an advertisement that advertised the services of Dental Clinics of Australia. The panel found that the advertisement, read as a whole, was misleading and deceptive. It also found that the advertisement created an unreasonable expectation of beneficial treatment.

2 The panel imposed the following penalties upon the applicant:

•

a fine of $7,500;

•

a caution against a repetition of his unprofessional conduct;

•

a reprimand in relation to his unprofessional conduct.

The panel also imposed a condition upon the registration of the applicant to the effect that he must publish a corrective advertisement, in the same format and style as the original advertisement, explaining why the original advertisement was misleading or deceptive and created an unreasonable expectation of beneficial treatment.

3 The applicant has applied to the tribunal for the review of the determination made by the panel.

4 The purposes of hearing the application for review the tribunal, constituted by the President, was assisted by Dr Ross King, a dentist, who was appointed pursuant to section 94 of the Victorian Civil and Administrative Tribunal Act 1998 as an expert. Dr King sat with the President whilst he heard submissions and advised the President in relation to certain matters within his expertise.

5 A dental service provider must not engage in unprofessional conduct. Such conduct is defined in section 3 of the Dental Practice Act 1999 ("the Act") to mean all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered dental care provider;

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered dental care provider by his or her peers;

..........................................................

(j) the contravention of a provision of this Act or the regulations.[1]

6 In the context of the present proceeding section 64(1) is particularly relevant, as it deals with advertising. This section provides, in part:

64(1) A person must not advertise a dental care provider's practice or dental care provider's services in a manner which -

(a) is or is intended to be false, misleading or deceptive; or

(d) creates an unreasonable expectation of beneficial treatment.

Breach of this provision attracts a substantial monetary penalty.

7 A finding may be made by the board (and upon review by the tribunal) that a dental service provider has not engaged in unprofessional conduct; or that he or she has engaged in unprofessional conduct which is not of a serious nature; or that he or she has engaged in unprofessional conduct of a serious nature.[2] The meaning of unprofessional conduct "of a serious nature" has been discussed by Kellam J in Parr v Nurses Board of Victoria[3] and Ashley J in Domburg v Nurses Board of Victoria.[4] Clearly enough, the difference goes to the gravity of the conduct and must depend upon, not only the facts of the case, but also an assessment of the conduct in the context of the conduct of professional practice generally.

8 In 2002 the applicant was instrumental in establishing a national group of 45 separate dental practices which were to be jointly marketed under the name "Dental Clinics of Australia" or "DCA". DCA members contributed financially to group advertising and marketing campaigns, including in relation to the advertisement in "The Australian Women's Weekly" that is the focus of the present proceeding. The applicant organised the publication of this advertisement; and he was associated with one of the 45 practices that then operated under the DCA banner.

9 The advertisement consisted of a two page spread, which included graphics and photographs. At the risk of losing meaning by changing the layout, it is desirable to set out the words of the advertisement (excluding logos) in full:

At Dental Clinics of Australia - we will enhance the Quality of Your Life

The latest medical research shows many life threatening diseases have a link to the bacteria in gum disease.

We will care for your teeth, gums and give you a beautiful smile, as well as assist you to eliminate these health risks. As we are all living many years longer, we plan to make these healthy years.....and your children will thank you.

For your nearest Dental Clinics of Australia practice

Invest in your teeth

& LIVE LONGER

Did you know heart disease, strokes, lung disease, premature birth, headaches and facial pain are all related to your teeth and gums?

The study from Columbia University found the bacteria in gum disease can enter the blood stream, and pre-dispose to thickening of major blood vessels in the heart and brain, which lead to heart attacks and strokes.

FACT: Heart disease and strokes are the number one cause of Death in Australia.

Research at the university of Alabama USA showed Women with chronic gum disease are seven times more likely to have a premature birth.

FACT: 6000 babies are born prematurely every year in Australia.

A study at the University of Buffalo showed that if you have chronic gum disease you are 40% more likely to develop lung disease.

FACT: 5 million Australians suffer lung disease.

Diabetes, Irritable Bowel Syndrome and Chronic Osteoarthritis[5]

Are a number of other diseases that have been linked to gum disease.

It is a chronic infection, caused by bacteria forming around the teeth and gums. The process breaks down the integrity of the gums and bone, with the eventual loss of teeth.

•

Bleeding gums when you brush or eat

•

Red or swollen gums

•

Bad breath

•

Bad taste in your mouth

•

Receding gums

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Loose teeth or mobile teeth

•

With treatment by your dental team.

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Daily brushing, flossing and use of a mouth rinse and medicated toothpaste.

•

Annual check up and clean by your dental team.

•

Professional long term preventative care program.

10 The relevant edition of "The Australian Women's Weekly" contained 336 pages. It included other full page advertisements in relation to health products: including products for allergy relief, the prevention and treatment of osteoporosis, the treatment of hay fever, the control of period pain, relief from pre-menstrual tension and the symptoms of menopause, and the use of generic medicines.

11 The board submitted that the advertisement was, or parts of the advertisement were, misleading or deceptive. It also submitted that the advertisement (or parts of it) created an unreasonable expectation of beneficial treatment. It did not allege that the advertisement was false. Nor did it contend that the advertisement was intended to be misleading or deceptive.

12 The board submitted that the publication of the advertisement in breach of section 64(1) of the Act constituted unprofessional conduct. Further it said that this conduct was serious. It submitted that the penalties imposed by the panel should be upheld.

13 The applicant submitted that the advertisement was not misleading or deceptive and did not create an unreasonable expectation of beneficial treatment. Further he contended that it was for the board to prove otherwise; he did not bear the onus of proof. He also submitted that, even if the publication of the advertisement was in breach of section 64(1) of the Act, this did not warrant a finding that he was guilty of unprofessional conduct of a serious nature. Finally he submitted that, in any event, the penalty requiring the publication of a two page corrective advertisement in "The Australian Women's Weekly" was inappropriate.

14 The parties agreed that the evidence given before the panel should be taken as evidence before the tribunal. In this respect I note that I have read the evidence of Professor Peter Mark Bartold, a leading dental scientist who gave evidence before the panel on behalf of the board. The parties also tendered certain other documents in support of their written and oral submission.

15 In my opinion, the starting point must be to examine the advertisement and determine its meaning. This is partly a matter of considering the individual words used; but the essential task is to consider the meaning of the advertisement as a whole. This meaning is to be ascertained not only from the words used, but also from the context and the combination of words used. This meaning also takes colour from the fact that the statements made in it are in an advertisement. In truth, it is partly a matter of impression. I do not think much is to be gained from focusing on isolated sentences or words. It is the overall impression that counts. One needs to take into account the fact that many readers would not study the advertisement closely, but would read it fleetingly and absorb its general thrust.[6]

16 I find that the substance of the advertisement was as follows: it is important to prevent and/or treat gum disease, not only to protect and enhance one's teeth and gums, but also to significantly reduce the risk of suffering other diseases and conditions, such as heart disease and premature births.

17 The advertisement refers to a "link" or relationship between gum disease and diseases such as heart disease. Such words, in themselves, may indicate no more than an association. But in the context of the advertisement in question, I find that the words convey the meaning of a causal link between gum disease and the other named diseases and conditions. I point to three particular parts of the advertisement which support this conclusion. First, the advertisement suggests that dental care will assist in eliminating "health risks", that is risks of suffering the life threatening diseases that are associated with the bacteria in gum disease. The elimination (or for that matter, the reduction) of such health risks implies a causal connection between gum disease and other diseases. Second, the statement:

Did you know heart disease, strokes, lung disease, premature birth, headaches and facial pain are all related to your teeth and gums?

is so phrased as to suggest a causal relationship. If a mere association was being asserted one would expect the statement to say:

Did you know that there was a relationship between heart disease, strokes, lung disease, premature birth, headaches and facial pain and your teeth and gums?

Third, in the examples given in relation to heart disease, premature births and lung disease, the language used is suggestive of a causal relationship: that is, a relationship where the existence of gum disease increases the likelihood of suffering these other diseases.

18 The advertisement also conveys the message that the causal connection between gum disease and other diseases, such as heart disease, is a substantial one. The words of greatest prominence on the second page of the advertisement, including "Invest in your teeth & live longer", when taken together, contribute to this message. The advertisement does not convey the message that there are not other substantial causes of diseases such as heart disease; but it does convey the message that gum disease is a significant contributing factor. This is particularly so in relation to heart disease, premature births and lung disease.

19 There is clear evidence that there is an association between gum disease and a substantial number of life threatening diseases and conditions, including heart disease, lung disease, diabetes and premature births. It is not necessary to rehearse this evidence in this decision. It is sufficient to demonstrate the association by referring to the final report of the Australian Health Ministers' Advisory Council Steering Committee for National Planning for Oral Health, which is clearly an official publication. This states:

Oral diseases and disorders are increasingly being conceptually and empirically associated with general diseases. Some examples include:

- tooth loss with under-nutrition and gastro intestinal disorders;

- periodontal diseases with diabetes; pre-term, low birth weight babies; cardiovascular disease; cerebrovascular disease and rheumatoid arthritis; and

In the same publication the steering committee observed:

The associations between oral disease and specific medical conditions are becoming more established. Relationships of most concern are those where a causal link is plausible; that is, there is a coherent biological explanation for oral disease as a causative factor of a particular medical condition. The associations in themselves are support for the extension of practice and policy of the definition of general health to include oral health.

20 The Steering Committee then identifies particular associations between oral diseases and medical conditions, including an association with cardiovascular disease, diabetes, pre-term, low birth weight babies, aspiration pneumonia and blood borne diseases. The steering committee then observed:

Whether or not these associations and others represent a causal link between oral diseases and disorders and medical conditions needs to be tested further, possibly by clinical trials of dental treatment. There are significant implications for general health promotion, dental health and co-morbidity. At a minimum, the associations suggest that oral health status could be seen as a risk marker for poor general health. More dramatically, the inter-relationship between oral health and general health suggests a need for oral health to be considered under the general health umbrella. This provision would then enable access to oral health care that can be considered medically necessary for those groups disadvantaged in access to dental care by the existing schemes of government subsidised medical care.

21 In evidence given before the panel Professor Bartold concluded that while the evidence is becoming more and more favourable to support a link between periodontal disease and a number of systemic conditions, causality has not yet been proven. He continued:

Thus the statements such as "we ... will assist you to eliminate these health risks" and "did you know heart disease, strokes, lung disease, premature birth are all related to your gums" are not completely accurate. It would be more reasonable to suggest that these conditions may be related to periodontal disease. It should not be inferred that treatment will help manage these serious systemic conditions except for perhaps diabetes.

Professor Bartold acknowledged that, at least in regard to some general health diseases and conditions, there was a logical basis for hypothesising that gum disease could increase the risk of suffering these diseases or conditions. For example, in the case of lung diseases, he has commented that is easy enough to understand how dental plaque, especially from patients with periodontal disease, may be a source of anaerobic bacteria which could cause lung infections.[7]

22 In his evidence-in-chief before the panel Professor Bartold was asked a question concerning the professional and ethical responsibilities of the dental profession regarding periodontal systemic links. Professor Bartold was asked to comment on various statements made by the President of the American Academy of Periodontology. He was then asked whether he agreed with the statements. One of the statements that Professor Bartold agreed with was as follows:

"There appears to be no downside, etc, to periodontal health or periodontal therapy, therefore it should be sufficient for us to state that periodontal health is very important for an individual's systemic health, that certain individuals seem to be more at risk; pregnant women, diabetics and those with a history of heart attack or stroke and the treatments and prevention of periodontal diseases are important." [8]

In my opinion, Professor Bartold's agreement with this statement, given in evidence-in-chief not cross-examination, is particularly significant. It amounts to this: we know that there is an association between periodontal health and general health, yet there is insufficient evidence at present to demonstrate a causal connection (leaving aside the case of diabetes), but because periodontal care has little downside an appropriate position to adopt is that periodontal health is very important for individual systemic health. Thus, to take an example, in the context of the association between periodontal disease and a risk of pre-term births, Professor Bartold was very strongly of the opinion that pregnant women really should have a periodontal assessment.[9]

23 I accept the evidence of Professor Bartold as to the scientific position as to the existence of a demonstrated causal link between periodontal disease and other general health diseases and conditions. In the circumstances, I do not regard it as necessary nor desirable to study numerous academic papers, some refereed and some not refereed, in order to go behind Professor Bartold's conclusions. However, it is necessary to point out that Professor Bartold does not rule out the existence of a causal link between periodontal disease and the main general systemic diseases and conditions the subject of the advertisement.

24 I have previously found that the advertisement meant that it is important to prevent and/or treat gum disease, not only to protect and enhance one's teeth and gums, but also to significantly reduce the risk of suffering other diseases and conditions, such as heart disease and premature births. In my opinion, this meaning asserts the existence of a causal link or, at least, that a causal link is strongly probable. Is this misleading?[10] Does this create an unreasonable expectation of beneficial treatment?

25 The word "misleading" is well known to the law as it is a word used in a central provision of the Trade Practices Act 1974 (Commonwealth) and in the Fair Trading Act 1999. Although the courts have been reluctant to "search for other words to replace those in the section itself"[11] there appears to be general acceptance that, in order to be "misleading" conduct must convey "a meaning which is inconsistent with the truth"[12] and thereby is likely to lead a person into error.[13] Whether an advertisement is misleading does not require proof of intention, although intention may be relevant. Further, the question is not whether a particular person was misled; whether the conduct (or advertisement) is misleading is a matter for the court or tribunal assessing the matter. In making this assessment it is necessary to look to the audience and ask whether the conduct complained of was to them misleading.[14]

26 I find that the advertisement was not misleading. Although the advertisement was provocative in tone - possibly even alarmist - it has not been demonstrated that it was inconsistent with the truth. Based upon my earlier findings it can be said that the advertisement makes assertions about causal links that are not yet justified by the scientific evidence. However the true position, as currently informed by the scientific evidence, is not that there is no such causal links. On the contrary, the true position, as informed by the scientific evidence, is that there may well be causal links, not only because of the existence of associations, but also because there exists reasonable hypotheses as to why there could be causal links. Hence I am not prepared to conclude that the central message in the advertisement was inconsistent with the truth.

27 I return to Professor Bartold's assent to the proposition that it should be sufficient for those involved in the dental profession to state that "periodontal health is very important for an individual's systemic health". If that is the true position (and I accept the evidence that it is), could it be said that the advertisement was misleading in the sense that it caused, or was likely to cause, the reader into making an error? I think not. It is possible that a reader of the advertisement, concerned about some general health issue (such as lung disease or heart disease) might seek dental treatment in relation to their gums when, but for the advertisement, they may not have sought such treatment. But if periodontal health is "very important" for an individual's systemic health, it is difficult to see how the effect of the advertisement would be to cause that person to make an error in seeking dental treatment in such circumstances.

28 It is true that the advertisement uses attention-grabbing, even alarmist, language. But does this make the advertisement misleading?

29 The advertisement was not some official publication upon which members of the public could be expected to place considerable weight. It was an advertisement. It was published in a popular magazine, alongside stories such as "Elle talks about motherhood the second time around", "Dr Death - my mum was murdered by our family GP" and "Sharon Stone's Fight for Life - I had to live for my son". It was published together with a series of advertisements for drugs or beauty treatments. This context means that the reader is likely to take claims about the effect of treatment for gum disease with a grain of salt. We must give members of the public some credit for being sceptical about the claims made in advertisements. After all no-one can escape the constant barrage of advertisements; people get used to puffery and make allowances for it.

30 Advertising, like all other conduct in trade or commerce, is susceptible to challenge under section 52 of the Trade Practices Act if it is misleading. In this context courts have recognised that a degree of latitude is to be allowed by reason of the nature of advertising as a medium. Lockhart J has called for a "robust approach"[15] and other courts have recognised the concept of "puffery". For example, in General Newspapers Pty Ltd v Telstra Corp[16] the court observed that puffery is part of the ordinary stuff of commerce. And in Pappas v Soulac Pty Ltd[17] Fisher J commented that:

To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct.

The Australian Competition and Consumer Commission and the Health Care Complaints Commission have also stated in a joint guide to the advertising or promotion of medical health services that some "puffery" is acceptable.

31 No doubt the approach of the courts and the ACCC is because the general reader will know that they are reading an advertisement; and are likely to be familiar with language used in advertisements. This being so, the general reader will expect some degree of exaggeration and will make some allowances in interpreting words used. As explained in Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd "the public is accustomed to the puffing of products in advertising" and that as a consequence there is a necessity to look broadly at an advertisement so as to determine its overall impression.[18]

32 My conclusion is that the language used in the advertisement does not, in itself, make the advertisement misleading. The central message, as set out above, remained the same notwithstanding the language used. This is so bearing in mind the matters referred to in the last three paragraphs. And, for the reasons I have given, this central message has not been shown to be misleading.

Creating an unreasonable expectation of beneficial treatment

33 Not every advertisement will create an expectation of beneficial treatment. However section 64(1)(d) of the Dental Practice Act requires any advertisement that does create such an expectation to not create an expectation that is unreasonable. It is not useful to seek to define what is meant by "unreasonable", as it is likely to involve weighing in the balance a host of relevant factors. Often a judgment about whether the expectations that are created are unreasonable or not will involve questions of degree and require a judgment as to whether the advertisement "oversteps the mark".

34 It is possible that, in time, science may demonstrate that the central message of the advertisement was justified. However based upon current scientific evidence, the message conveyed by the advertisement - that gum disease is a significant cause of other life threatening diseases - is speculative. As the advertisement creates an expectation that if gum disease is treated or prevented then there will be a substantial reduction in the risk of suffering other life threatening diseases, the question arises whether this is a reasonable expectation in all the circumstances. In my opinion, it is not a reasonable expectation as it asserts a causal relationship, and exaggerates the significance of that relationship, in relation to many diseases and conditions, in circumstances where that cannot be justified based upon existing scientific evidence.

35 We live in a world where decisions are usually made by reference to probabilities and consequences. This is so notwithstanding that binary language is often employed: the proposed conduct is safe or unsafe, the proposed operation will cure or will not cure, the procedure will prevent a condition or will not prevent a condition. Given the true nature of decision making, it is important that professional persons, such as dentists, not create expectations of treatment that significantly depart from the probabilities. If a significant departure occurs, this is likely to involve the creation of an unreasonable expectation of beneficial treatment. Of course, this is specifically prohibited by the Dental Practice Act 1999.

36 It needs to be emphasised that a few subtle changes to the advertisement could have converted it into an advertisement which did not create an unreasonable expectation of beneficial treatment. So much seems to have been acknowledged by the expert evidence called by the board before the panel. This is relevant when it comes to the question of the seriousness of the publication of the advertisement and what penalty is appropriate in relation to unprofessional conduct.

37 Having regard to the foregoing, I do not assess the applicant's conduct as being unprofessional conduct of a serious nature. Essentially the applicant has published an advertisement that "gilds the lily", at least having regard to current scientific evidence. If the effect of the advertisement was to encourage more people to visit a dentist, whether or not that dentist formed part of the Dental Clinics of Australia marketing group, it is difficult to see how this is such a bad outcome. It is unlikely that members of the public would be tricked into visiting a dentist, by reason of the advertisement, in circumstances where it was inappropriate that they seek dental services.

38 In submissions made to the panel in relation to penalty, the applicant's counsel, Ms Judd, said that the applicant accepts and acknowledges that the language used in the advertisement could have been, in part, more moderate. Further she said that the applicant was genuinely remorseful, embarrassed and distressed about the disciplinary proceedings. I have no reason to doubt these submissions.

39 In the light of this, and my own view of the seriousness of the matter, I would have determined that counselling was the only response required in the circumstances. However the applicant has been previously counselled and cautioned concerning an advertisement for a teeth whitening process, that was found to have created an unreasonable expectation of beneficial treatment. Although that case was quite different in nature to the present case, it does mean that a stronger statement of disapproval must be made in relation to the advertisement in "The Australian Women's Weekly". Hence the appropriate outcome is that the applicant should be reprimanded.

[1] The definition of "unprofessional conduct" includes 11 paragraphs. Only relevant paragraphs have been set out above.

[2] See section 40(2) and section 47(2) of the Act.

[3] (1998) 16 VAR 118.

[4] [2000] VSC 369 at [59].

[5] The reference in the advertisement to chronic osteoarthritis appears to have been a mistake; according to the written submission made on behalf of the applicant to the panel in relation to penalty a typographical error was made as the reference should have been to osteoporosis.

[6] See, for example, Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc [1992] FCA 962; (1992) 38 FCR 1 per Sheppard J.

[10] It is unnecessary to consider the contention that the advertisement was deceptive. Like Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198 I share the view that the word "deceptive" is likely to be redundant as it has a meaning that is embraced by the word "misleading". Further, in my opinion, the word "deceptive" carries a connotation of trickery and it may well involve some element of intent. Neither of these features have been shown in the present case.

[11] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40; (1988) 39 FCR 546, at 555.

[12] World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 201 per Brennan J.

[13] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40; (1988) 39 FCR 546, at 555. See also Colin Lockhart_, The Law of Misleading and Deceptive Conduct, 2nd edition_, Lexus Nexus Butterworths, page 60.

[14] These propositions are based upon the classic statement on the meaning and scope of section 52 of the Trade Practices Act by Fox J in Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 53 FLR 340 at 348.

[15] Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 53 FLR 307, at 311.

[16] (1993) 40 FCR 98.

[17] [1983] FCA 3; (1983) 50 ALR 231, at 234.