Lee v Dental Council of NSW

The decision under appeal

1. By letter dated 13 July 2020, the Council informed Dr Lee of the particulars of the Complaint: "The Complaint … is brought pursuant to section 139B(l)(a) in relation to the following: (1) Failure to adequately obtain and document informed consent prior to treatment. (2) Failure to obtain, record and maintain adequate dental records as set out in the DBA Guidelines in that the records failed to record: (a) A current medical history, (b) Clinical findings and observations, (c) A diagnosis, (d) Treatment plans and discussions of treatment options, (e)Informed consent, (f) Treatment performed, and (g) A drug prescribed, administered or supplied by the practitioner i.e. the name, strength and quantity of the drug prescribed and the date on which it was prescribed; the name and address of the person to be treated and the directions for use, as shown on the prescription. (3) Failure to comply with the DBA Guidelines on infection control. (4) Failure to provide evidence of education and training in, and competence in, extra oral trigger point injections, dry needling and acupuncture, to enable these procedures to be included in the practitioner's scope of practice."
2. The Council (constituted by Associate Professor Fryer, Dr Colyn Pavey and Dr Anthony Burgess) dealt with the complaint by inquiry at a meeting on 31 July 2020. (See subdivision 5, Division 3, Part 8 of the National Law.) In a decision made under s 148E of the National Law, the Council found Dr Lee "guilty of unsatisfactory professional conduct for particulars 1, 2, 3 and 4". In addition, the Council decided to impose several conditions on Dr Lee's registration, which were broadly in the same terms as those imposed in December 2019 and subsequently revised: (1) "Not to perform any acupuncture, dry needling or trigger point injection procedures. (2) Not to provide or teach in any educational course or programme in the areas of acupuncture, dry needling or trigger point injection techniques in dentistry. (3) To submit to an audit of his practice(s), by a random selection of his records by a person or persons nominated by the Dental Council of NSW and: (a) the audit is to be held within six (6) months of 31 July 2020 and subsequently as required by the Council; (b) the auditor(s) is to examine and assess: (i) compliance with conditions; (ii) infection control standards; (iii) compliance with the Dental Board of Australia's Code of Conduct and paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct; (c) the audit(s) is to confirm compliance with any relevant standards, codes and guidelines."

Dental treatment

1. During the appeal, we raised with the parties the question of whether the administration of teacher-student and student-student injections can be properly characterised as "treatment". That issue is relevant because particulars 1, 2 and 3 are based on the premise that guidelines and policies issued by the DBA relating to obtaining and recording informed consent to treatment (particular 1), making and maintaining adequate dental records of treatment (particular 2) and complying with relevant DBA's guidelines on infection control (particular 3) governed the "treatment" given by both teachers and students in the course of the Workshops.
2. Whether teacher-student and student-student injections can be properly characterised as "treatment" also raises the question, which we are not required to determine in this appeal, whether in prescribing, administering and supplying Schedule 4D drugs for use by him and by students, Dr Lee contravened various provisions of the PTGR. Clause 33(4) states that a dentist must not issue a prescription for a restricted substance otherwise than for dental treatment. Clause 43(4) states that a dentist must not supply a restricted substance to any person otherwise than for dental treatment (emphasis added).
3. Dr Lee argues that it is "well established" that the administration of dental procedures in a course of study for teaching purposes is accepted to be dental treatment. He asserted that it is commonplace in undergraduate dentistry courses taught in Australian universities for students to be given the opportunity to practise intra-oral injections on each other. In support, he points to the evidence given by Emeritus Professor Christopher Peck who gave evidence in this appeal at the request of the Council. An experienced clinician, researcher and academic, Professor Peck has held several senior academic positions, including Dean of Dentistry, University of Sydney.
4. According to Professor Peck, in 2016 the University of Sydney abandoned the practice of students practising dental procedures on each other because of the risks involved and because more effective teaching methods had become available. He stated that he understood that several Australian universities continue to offer students the opportunity to practise dental procedures on each other.
5. The Council agrees that the administration of injections by both students and teachers in the Workshop can be properly characterised as dental treatment and is therefore governed by the relevant DBA guidelines. (The Council does not concede that those procedures are dental treatment for the purpose of the PTGR.)
6. We have some misgivings about whether teacher-student and student-student injections can be properly characterised as dental treatment. The relationship between the person giving and the person receiving those injections is not in the nature of a health practitioner-patient relationship but rather is in the nature of a student-teacher or student-student relationship. The injections are not given for the purpose or purported purpose of curing, preventing or treating the symptoms of any disease or condition. Nonetheless, given the agreement by parties, and in the absence of considered argument, we proceed on the basis that the administration of student-student and teacher-student injections in the Workshop can be characterised as "dental treatment" and therefore the relevant DBA guidelines and policies apply.

Scope of the Complaint

1. Section 139B(1)(a) of the National Law defines unsatisfactory professional conduct to include: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. To fall within s 139B(1)(a) of the National Law, the conduct particularised in the Complaint must be "conduct … by [Dr Lee] in the practice of [dentistry]". Conduct is defined to mean "any act or omission": s 138 of the National Law.
3. An issue throughout this appeal has been the scope of the particulars. Each is expressed at a high level of generality. Following the hearing we invited the parties to provide further submissions about the conduct they contend falls within the scope of each particular.
4. The parties agree: 1. that the phrase "in the practice of the practitioner's profession" in s 139B(1)(a) should be read widely and encompasses Dr Lee's conduct in teaching and overseeing the Workshops. In support, the Council cites Childs v Walton [1990] NSWCA 41 at [9] and Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [145]; 2. that Dr Lee's actions in demonstrating teacher-student injections and giving the acupuncture injection fall within the scope of particulars 1, 2 and 3.
5. However, they disagree about whether any aspect of the peer practice component of the Workshop, specifically the giving of student-student injections, can be said to be "conduct … by Dr Lee".
6. The Council contends that the administration of student-student injections was conduct of Dr Lee in the practice of dentistry, by inviting and providing students the opportunity to practise injections on each other.
7. Dr Lee, on the other hand, contends that it was no part of the Council's case (as either particularised or run) that by inviting or providing students with the opportunity to participate in the peer practice component of the Workshops, he engaged in conduct within s 139B(1)(a). Rather Dr Lee contends that at all times the focus of the Council's case has been that as the provider of treatment, he failed to comply with the relevant DBA guidelines which require the treater to obtain informed consent, maintain dental records and to comply with relevant guidelines governing infection control. He argues that as registered dentists, each student bore responsibility for complying with any relevant DBA guidelines in giving student-student injections.
8. Dr Lee concedes, however, that the design of the peer practice component of the Workshop failed to have sufficient regard to the need to obtain and record informed consent, record and maintain dental records and comply with infection control procedures.

Consideration

1. We reject Dr Lee's argument that his conduct in overseeing the peer practice component of the Workshops, in particular the giving of student-student injections, falls outside the scope of particulars 1, 2 and 3.
2. It is plain from the August 2020 Decision and the Council's previous decisions, that the Council did not characterise particulars 1, 2 and 3 as being limited to Dr Lee's actions in giving the acupuncture injection and teacher-student injections. Equally it is plain that the Council did not consider Dr Lee responsible for the alleged failures the subject of particulars 1, 2 and 3 on the basis that he was in effect the treating practitioner. It is apparent that the Council's concerns centred on Dr Lee's failures in relation to the oversight of peer practice component of the Workshops and ensuring that student-student injections administered in a manner that complied with relevant professional standards.
3. Accordingly, we proceed on the basis that particulars 1, 2 and 3 encompass Dr Lee's conduct: 1. in administering dry needling and trigger point injections to students; 2. in administering the acupuncture injection; 3. in overseeing the peer practice component of the Workshop and inviting and providing students the opportunity to practise student-student injections on each other.

Particular 1: Failure to adequately obtain and document informed consent prior to treatment

1. Dr Lee agrees that he was required to obtain informed consent from those students on whom he demonstrated the use of dry needling and trigger point injections and from the student to whom he administered acupuncture. He claims that he obtained informed consent from each student to whom he gave an injection. However, he admits that he failed to record that informed consent was given. He also failed to record the form in which informed consent was given.

Requirements for obtaining informed consent

1. The DBA and other National Boards have developed the Dental Board of Australia, Code of Conduct for registered health practitioners (March 2014) (the Code of Conduct) under s 39 of the National Law. The Code of Conduct is admissible in these proceedings as evidence of what constitutes appropriate professional conduct or practice for the profession of dentistry: s 41 of the National Law. Issued in March 2014, the Code of Conduct explains that "Informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved": at [3.5]. The Code of Conduct states that "good practice" in relation to obtaining informed consent involves: "a) providing information to patients or clients in a way they can understand before asking for their consent b) obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving patients or clients in teaching or research, including providing information on material risks c) when referring a patient or client for investigation or treatment, advising the patient or client that there may be additional costs, which they may wish to clarify before proceeding d) when working with a patient or client whose capacity to give consent is or may be impaired or limited, obtaining the consent of people with legal authority to act on behalf of the patient or client and attempting to obtain the consent of the patient or client as far as practically possible e) being mindful of additional informed consent requirements when supplying or prescribing products not approved or made in Australia, and f) documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death."
2. In Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28, NCAT (Boland ADCJ presiding) referred to the "seminal discussion" on informed consent in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. There, referring to the duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment, the High Court stated at [14]: "[A]ll medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. (Citations and footnotes removed)"

Submissions

1. Dr Lee contends that the assessment of whether he failed to obtain informed consent requires consideration of the circumstances in which the injections were given. He contends that it is highly relevant that each recipient was a registered dentist who, because of their education and experience in the field of dentistry, was well placed to make an informed judgement about whether to receive an injection. In addition, he claims that he covered in lectures the risks, possible side effects and contraindications of dry needling, trigger point injections and acupuncture.
2. The Council points out that Dr Lee has failed to provide any evidence of individual students being given information about the risk of the injectables in general, or in their case.

Consideration

1. As Dr Lee points out, the assessment of whether informed consent was given cannot be considered in a vacuum and requires consideration of the circumstances in which the subject treatment was given. Those circumstances include the nature of the treatment, its associated risks, the information given to the recipient about the treatment, the recipient's ability to understand and evaluate that information, and the recipient's prior knowledge of the subject treatment and/or the area of practice.
2. In this appeal there was much argument about whether the recipients of teacher-student or student-students injections volunteered to receive those injections. The limited available evidence does not support a finding that students were in effect compelled to receive those injections. Nonetheless, that does not dispose of the issue of whether informed consent was obtained.
3. Dr Lee admits that before administering teacher-student injections, he failed to take even a cursory medical history, such as whether the recipient suffered any allergies, had previously been given any of the drugs used in the injections, and if so, whether they had had an adverse reaction.
4. Dr Lee provided no evidence to support his claim that in lectures he covered the risks, side effects and/or contraindications associated with acupuncture and extra-oral trigger point injections and dry-needling, and the risks and side-effects of the drugs used in those procedures. Nor did he claim that he took steps to satisfy himself that recipient understood any information given about those risks, either at large or as it applied in their particular case.
5. While the risks were low, Professor Peck pointed out that, as with any dental procedure, there were risks associated with the administration of acupuncture, dry-needling and trigger point injections, especially those injections involving the administration of Schedule 4D drugs. Not having taken a medical history, Dr Lee could not assess, less still advise the recipient, whether the administration of those procedures posed some risk to their health and safety.
6. The fact that a recipient had knowledge and training in the field of dentistry is relevant to the assessment of whether consent to treatment was informed. It can reasonably be assumed that recipients had some base knowledge and were capable of understanding any information given about the proposed treatment. Nonetheless, this, in our view, did not abrogate the obligation imposed on the provider to ensure that the recipient was informed about and understood the risks of treatment. Dr Lee's failures to document the general advice given to all participants in the program and the specifics of discussions he had with individuals who received the treatments undermined his claims of having obtained informed consent.
7. We find it more probable than not that Dr Lee failed to obtain informed consent from those students on whom he demonstrated the use of dry needling and trigger point injections and the student to whom he administered acupuncture.

Student-student injections

1. There is no evidence that the students who administered student-student injections obtained informed consent from the recipient or recorded that consent was given. Nor is there any evidence that Dr Lee informed students of the view he expressed in these proceedings, that it fell to them, and to them alone, to obtain informed consent before administering student-student injections. Nor is there any evidence that Dr Lee instructed, encouraged or even reminded students of the requirement to obtain and record consent.
2. Dr Lee concedes that there was no formal process in place to ensure that students obtained informed consent or recorded the giving of consent.
3. Assuming the administering students were registered dentists, we accept, as Dr Lee contended, that they bore some responsibility for complying with the Code of Conduct and obtaining and documenting informed consent. Nonetheless, in circumstances where it was an expectation that students would participate in the peer practice component of the Workshop, and where Dr Lee prescribed and supplied the equipment and drugs and provided the venue where student-student injections were administered, Dr Lee's claim that he bore no responsibility for ensuring that informed consent was obtained from students who received student-student injections must be rejected. He was the instructor and supervisor of the program. It is evident that the program was under his control and direction. If the students relied on him to provide the necessary supervision and control the relevant processes, that was entirely reasonable on their parts.
4. In our view it is clear that Dr Lee failed to take reasonable steps to ensure that students administering student-student injections obtained informed consent from the recipient student and recorded that consent was given.

Unsatisfactory professional conduct

1. In evaluating whether Dr Lee's conduct constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law, it is necessary to: 1. identify the standard "reasonably expected" of a dentist of an equivalent level of training or experience to Dr Lee (the relevant standard); and 2. evaluate whether the conduct found to be proven demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Dr Lee in the practice of his profession fell "significantly below" the relevant standard.
2. By 2014 Dr Lee had been practising dentistry for about 25 years. He holds a Bachelor's degree in dentistry from the University of Sydney (1988), a Graduate Diploma in Health Science from the University of Western Sydney (1994), and various qualifications obtained from overseas. It follows that the relevant standard is that reasonably expected of an experienced and senior dentist. We find the standard reasonably expected of an experienced and senior dentist is to obtain informed consent before administering teacher-student injections and to record that consent was given. The same standard applies to acupuncture.
3. In addition, we find that the standard reasonably expected of an experienced and senior dentist involved in the teaching of dentistry is to take reasonable steps to ensure that students administering student-student injections obtained and recorded informed consent.
4. We reject Dr Lee's submission that because the above failures occurred in a teaching environment, a more relaxed standard applies than in a practice environment. We find that Dr Lee's conduct in failing to obtain and document informed consent from those students he gave injections, fell significantly below the relevant standard. In addition, we find that Dr Lee's failure to take reasonable steps to ensure that students administering student-student injections obtained and recorded informed consent also fell significantly below that standard.
5. Particular 1 is proven.

Particular 2: failure to comply with Guidelines on Dental Records

1. No dental records were made of any teacher-student or student-student injections, or the acupuncture injection administered by Dr Lee.
2. Developed by the DBA under s 39 of the National Law, the Dental Board of Australia, Guidelines on dental records (July 2010), were issued on 1 July 2010. Those Guidelines were in force throughout the period the Workshops were conducted.
3. The Guidelines on Dental Records set out the minimum requirements for dental records and prescribe the information which forms part of the dental record and which must be recorded and maintained. That information includes: 1. the patient's details: medical history and any adverse drug reactions; 2. the identifying details of the practitioner who provided the treatment; 3. clinical details: the date and type of treatment, relevant history, all procedures conducted, the medicine/drug prescribed, administered or supplied or any other therapeutic agent used (name, quantity, dose, instructions).
4. Dr Lee admits particular 2 but only in respect of the dozen or so teacher-students injections he administered, in the course of the Workshops. While he concedes that his failure to comply with the Guidelines on Dental Records fell below the relevant standard, he argues that his conduct did not fall significantly below that standard.
5. With respect to student-student injections, Dr Lee repeats the argument he advanced in respect of particular 1, namely that he bore no responsibility for recording and maintaining dental records for injections administered by students.

Consideration

1. We find that the standard reasonably expected of an experienced and senior dentist is to create and maintain dental records of any dental treatment, in a manner which complies with the Guidelines on Dental Records. For the following reasons we find that Dr Lee's failure to make and maintain dental records demonstrates that the judgment he possessed and the care he exercised, fell significantly below the relevant standard.
2. First, this is not a case of inadequate record keeping, but of no record keeping. As a consequence, there is no record of the names of those students who received injections, who administered those injections, the site of the subject injection, the recipient's medical history, any reported or observed adverse reactions to the injection, the name, strength and quantity of the substances administered, and the name, strength and quantity of any drug prescribed and the date on which it was prescribed.
3. Second, as the "authorised practitioner", cl 38 of the PTGR required Dr Lee to make and keep records containing certain information, including the name, strength and quantity of the substance prescribed, the date on which it was prescribed, and the name of the person treated.
4. Third, had any student experienced an adverse reaction and required treatment, there would be no documentary trail to assist the treater to determine the cause of the reaction and to provide prompt and appropriate treatment.
5. For the reasons given in respect of particular 1, we reject Dr Lee's argument that he bore no responsibility for ensuring compliance with the Guidelines on Dental Records with respect to student-student injections. We find that his failure to take reasonable steps to ensure compliance with those Guidelines demonstrates that the judgment he possessed, and the care he exercised, fell significantly below the relevant standard.
6. Particular 2 is proven.

Particular 3: failure to comply with Guidelines on Infection Control

1. Dr Lee admits that in administering student-teacher injections and the acupuncture injection, he failed to comply with the Dental Board of Australia, Guidelines on infection control (July 2010). With respect to student-student injections he repeats the argument made in respect of particulars 1 and 2, that is, he bore no responsibility for complying with those guidelines.
2. The Guidelines on infection control state: "Dental practitioners must practise in a way that maintains and enhances public health and safety by ensuring that the risk of the spread of infectious diseases is prevented or minimised."
3. The Guidelines state that every place where dental care is provided must have a manual setting out the infection control protocols and procedures used in that practice and several other documents, including the Australian Dental Association's Guidelines for Infection Control. In addition, the Guidelines state that a dental practitioner must: 1. ensure the premises in which he or she practises are kept in a clean and hygienic state to prevent or minimise the spread of infectious diseases; 2. ensure that, in attending a patient, client or consumer, he or she takes such steps as are practicable to prevent or minimise the spread of infectious diseases.
4. In the 2019 Decision, commenting on the environment in which injections were given in the Workshops, the Council stated at p 8: "It was pointed out that there appeared to be wine glass shaped vessels and plates with debris such as tissues/napkins nearby on the table. There is no alcohol-based hand rub (ABHR), alcohol wipes or other items, such as a cover for the closest section of table (such as a "bluey"), evident in the photo. Dr Lee said the procedure was being performed in a hotel conference room, after the formal session had been completed, and that all usual infection control processes had been followed such as using gloves, masks, alcohol wipes, and a sharps bin. There is no running water/sink for handwashing available in the conference room. Access to handwashing facilities is apparently in the bathrooms outside the conference room. We note Dr Lee was not wearing a mask in the photo. When asked if he thought the setting was appropriate for giving the injection, Dr Lee said, "I haven't considered it" and "I should definitely consider that". When we expressed concerns about the ability to provide appropriate and safe infection control in the setting of a hotel conference room, Dr Lee acknowledged that he "will have to read up" about the issues and that he "extrapolates" from the infection control processes in his surgery/practice. Dr Lee said he was unaware of any standards/guidelines that may provide specific infection control advice for use of acupuncture, dry-needling and triggerpoint injections."
5. In the August 2020 decision, in answer to the question "Did Dr Lee fail to comply with the DBA's Guidelines on Infection control?", the Council stated: "We noted the obvious lack of attention to infection control protocols as pictured in the complaint. Dr Lee accepts that he erred in his judgement during the Course and thanked the Council for reminding him of his obligations."
6. Particular 3 does not identify which part of the Guidelines on Infection Control Dr Lee is said to have contravened. We proceed on the basis that Dr Lee's failure to comply with the Guidelines on Infection Control relates to the above admissions and observations, including administering and permitting students to administer injections: 1. while not wearing a mask; 2. in close proximity to people who were not wearing masks; 3. in a non-sterile environment; 4. in a venue without ready access to running water.
7. We find that Dr Lee failed to comply with cl 2.1 of the Code of Conduct in that he failed to ensure that the premises in which he administered extra-oral injections were kept in a clean and hygienic state to prevent or minimise the spread of infectious diseases and that in administering extra-oral injections, he took such steps as are practicable to prevent or minimise the spread of infectious diseases.
8. For the reasons discussed above, we reject Dr Lee's argument that he bore no responsibility for compliance with the Guidelines on Infection Control in respect of student-student injections. Dr Lee permitted and authorised students to administer extra-oral injections in circumstances which did not comply with those Guidelines.

Consideration

1. The Council contends that Dr Lee's failure to comply with the Guidelines on Infection Control demonstrates that the knowledge, skill or judgment possessed, or care exercised, fell significantly below the relevant standard. Dr Lee accepts that with respect to the injections he administered, his conduct fell below, but not significantly below, that standard. In support, he points out that while he failed to comply with all aspects of the Guidelines, he put in place some infection control measures, for example, gloves, antiseptic wipes and a container for disposing of "sharps" were provided.
2. In our view, the standard reasonably expected of a senior and experienced practitioner is strict compliance with the Guidelines on Infection Control. Dr Lee's actions in administering and permitting others to administer injections in a non-sterile environment where, among other things, food and drink was consumed, where masks were not worn, and where there was no process or protocol in place to ensure that infection controls were rigorously adhered to, demonstrated that the judgment he possessed and the care he exercised fell significantly below the standard reasonably expected of a senior dentist.
3. Particular 3 is proven.

Scope of practice issue

1. Shortly before the hearing of the appeal, a differently constituted Tribunal refused an application made by the Council to file an amended complaint. In that complaint, the Council alleged in effect that extra-oral dry-needling and trigger point injections (the disputed procedures) fell outside the scope of Dr Lee's practice.
2. At the hearing, the Council stated that for the purpose of this appeal it does not contend that the disputed procedures fell outside the scope of dentistry. Accordingly, it is not necessary to determine that issue. Nonetheless, to put the submissions made by the parties in context it is necessary to touch on the scope of practice issue.
3. In June 2014, the DBA issued the Dental Board of Australia, Scope of Practice Registration Standard (June 2014) (the 2014 Registration Standard), which sets out the Board's requirements for the scope of practice for dental practitioners. On 1 July 2020, the DBA issued the revised Dental Board of Australia, Scope of practice registration standard (July 2020) (the 2020 Registration Standard). Both specify that dental practitioners must only perform dental treatment for which (i) they have been educated and trained, and (ii) in which they are competent: 2014 Registration Standard 2020 Registration Standard Dental practitioners must only perform dental treatment: Dental practitioners must only perform dental treatment: a) for which they have been educated and trained in programs of study approved by the National Board, and a) for which they have been educated and trained, and b) in which they are competent. b) in which they are competent.

1. As is apparent, the revised standard removed the requirement 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 (emphasis added)" and replaced it with the requirement that dental practitioners must only perform dental treatment "for which they have been educated and trained".
2. In June 2014, the DBA issued the Dental Board of Australia, Guidelines for Scope of Practice (June 2014) (the 2014 Scope of Practice Guidelines). In July 2020, the Board issued the revised Dental Board of Australia, Guidelines for Scope of Practice (July 2020) (the 2020 Scope of Practice Guidelines). Each of the Guidelines explain how to meet the corresponding registration standard.
3. The 2014 Scope of Practice Guidelines explain the difference between the scope of practice of the dental profession and an individual dental practitioner: "The dental profession's scope of practice covers the full range of activities and responsibilities which individuals within the profession are educated, trained and competent to perform; whereas the scope of the individual's practice within the division in which they are registered will vary from practitioner to practitioner and may be more specifically defined than the scope of the dental profession."
4. Each Guideline repeats the statement made in the corresponding registration standard that registered dental practitioners must only perform those dental procedures in which they are competent. In addition, each reflects the differing requirement with respect to education and training.
5. The conduct the subject of the Complaint occurred before the introduction of the 2020 Registration Standard.
6. The parties agree that no Australian university has taught the disputed techniques in undergraduate or post-graduate courses in dentistry. In addition, they agree that the DBA has not approved any programs of study which provide education and training in the use of those techniques.
7. Dr Lee acknowledges that he has not undertaken a program of study approved by the DBA in the disputed techniques. Nonetheless, he contends that he has education and training in those techniques, obtained through courses of study Australia and overseas.

Code of Conduct

1. The Code of Conduct, states that practitioners must practise within their scope of practice: "Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles; for example, practitioners, researchers and managers will all have quite different competence and scopes of practice. …"

Acupuncture Policy

1. On 18 May 2016, the Board issued the Dental Board of Australia, Dental Policy - acupuncture (18 May 2016) (the Acupuncture Policy). The stated purpose of that policy is to "set out the requirements and process for dental practitioners wishing to use the protected title acupuncturist". The policy states that a dental practitioner wishing to use the protected title "acupuncturist" must apply to the Chinese Medicine Board of Australia for registration in the division of acupuncture.
2. The parties agree that Dr Lee is not competent to practise acupuncture and acupuncture falls outside his scope of practice.

Particular 4: failure to provide evidence of education and training

1. Particular 4 states: "Failure to provide evidence of education and training in, and competence in, extra oral trigger point injections, dry needling and acupuncture, to enable these procedures to be included in the practitioner's scope of practice."
2. The parties disagree about the proper scope of particular 4. The Council contends that, in circumstances where he did not have adequate education and training to include those procedures within his scope of practice, particular 4 encompasses Dr Lee's actions in teaching in the Workshop and using the disputed procedures in his private practice. In short, the Council asserts that particular 4 should be read to mean that Dr Lee lacked the necessary education and training and competence to include extra oral trigger point injections, dry needling and acupuncture, in his scope of practice.
3. Dr Lee disagrees. He argues that particular 4 encompasses his alleged failure to provide evidence of education and training in, and competence in, the disputed procedures.
4. Dr Lee states that he has never claimed to have been educated and trained in, or to be competent in acupuncture, and therefore the question of whether he failed to provide evidence of education and training simply does not arise. As noted, he denies having taught or used acupuncture in his private practice.

Scope of particular 4

1. We have decided that particular 4 should be given the meaning advanced by Dr Lee, for the following reasons:
2. First, as a matter of procedural fairness, in any proceedings in which a party's interests are at stake, they are entitled to know, with particularity, the case they must meet. It is unfair for any such party to have to guess or speculate as to the true substance of the case they must answer. The function of particulars is to state with clarity the case to be met and to define the issues: Banque Commerciale SA, En Liquidationv Akhil Holdings (1990) 169 CLR 279; [1990] HCA 11. Parties are entitled to take particulars at face value as representing the issues that are contested.
3. Second, Dr Lee's interpretation is consistent with the text of Particular 4: "Failure to provide evidence of education and training in, and competence …".
4. Third, Dr Lee's interpretation is consistent with the Council's letter dated 13 July 2020, notifying Dr Lee of the Council's decision to hold an "inquiry into a complaint of unsatisfactory professional conduct about you". In that letter the Council advised that the "particulars of the complaint of unsatisfactory professional conduct that you will be asked to address" included particular 4, in the form as set out above.
5. Fourth, it is consistent with the manner in which the Council dealt with particular 4 in the proceedings below. In the August 2020 Decision the Council at pp 7 and 8 noted that despite its requests, Dr Lee had failed to provide evidence to support his claim that he had adequate training and education to undertake "advanced pain management techniques". In that decision the Council recorded that Dr Lee had challenged the Council's power to request information about his training and education and competence in the disputed procedures.
6. Fifth, while, as the Council emphasised, this is not a jurisdiction of "strict pleading", this does not permit NCAT in exercising its powers under s 159 of the National Law to determine a complaint different in substance to the complaint the subject of the decision under appeal. The interpretation the Council urges us to adopt is far broader than the meaning conveyed by the text of particular 4.

Consideration

1. In an affidavit sworn on 26 November 2020, Dr Lee asserted that he has undertaken "numerous courses in craniofacial pain management and techniques". In that affidavit, he listed over 40 conferences, seminars and short courses he has attended since 1993 on pain management, including orofacial pain. In addition, he points out that he holds a Master of Science in Oral Implantology from Goethe University, Frankfurt and he has recently graduated with a Master of Science "Orthodontics and Dentofacial Orthopedics" from the University of Jaume, Spain. In addition, he reports that he holds a Fellowship from the American Academy of Craniofacial Pain.
2. Expert evidence was given in this appeal about Dr Lee's training, education and competence in the use of the disputed procedures by dental practitioners, Professor Peck and Dr Steven Olmos. Each prepared written reports for and gave oral evidence in this appeal, Professor Peck at the request of the Council and Dr Olmos at the request of Dr Lee.
3. Dr Olmos practises dentistry in the USA. He holds a "Doctor of Dental Surgery Degree" from the University of Southern California, several Diplomates and a "Master of Excellence" from the American Board of Orofacial Pain. He has written and lectured on various dental topics, including the treatment of orofacial pain. Ten years ago, Dr Lee attended a workshop given by Dr Olmos in Australia in which the use of the disputed procedures was taught. Dr Olmos does not claim to be familiar with the regulatory framework governing the practice of dentistry in Australia.
4. Professor Peck and Dr Olmos agree that Dr Lee probably has the necessary technical skills and experience to competently administer the disputed procedures. They also agree that the disputed procedures, and indeed any invasive procedure, are adjuncts to, and not the primary therapy in the treatment of orofacial pain and temporomandibular disorders. However, they disagree on whether Dr Lee has demonstrated that he has the clinical skills to use those procedures within a "contemporary orofacial pain management framework". Dr Olmos is of the opinion he has; Professor Peck disagrees.
5. In Professor Peck's opinion, Dr Lee has failed to establish that he is competent in multidisciplinary pain management, underpinned by the "biopsychosocial model". He explained that model uses a broad approach to the treatment of orofacial pain and temporomandibular disorders by applying evidence-based treatment from a range of disciplines, including medicine, dentistry, physiotherapy, and psychology. According to Professor Peck, in Australia the biopsychosocial model has been the accepted model of dental treatment since about 1992. In addition, since that time the biopsychosocial model has been integrated into Australian undergraduate dentistry courses.
6. In support of his opinion that Dr Lee has failed to demonstrate competency in the use of the disputed procedures within the biopsychosocial model, Professor Peck pointed out that: 1. in about half of the 50 cases presented by Dr Lee to the Council for review, there was no evidence that Dr Lee used accepted comprehensive pain assessment or pain management strategies; 2. of the 354 lecture slides used by Dr Lee in the Workshop, there was limited reference to psychosocial aspects of pain assessment and management; 3. Dr Lee's education with respect to the treatment of pain appears to have been obtained predominantly through continuing education and not formal (university) education. According to Professor Peck, the courses undertaken by Dr Lee at Goethe University and the University of Jaume did not appear to cover pain education or training. In addition, he stated that the publicly available information relating to the Fellowship from the American Academy of Craniofacial Pain indicated a strong biomedical rather than biopsychosocial approach to the treatment and management of pain.
7. While he has not assessed Dr Lee's clinical competence, in Dr Olmos opinion, based on Dr Lee's education and training, that Dr Lee probably has the necessary education and skills to include the disputed procedures in his scope of practice. He agrees with Professor Peck that it is essential that dental practitioners have a framework in which to practise contemporary pain management. However, he disagrees that the biopsychosocial model is the predominant model used in clinical practice. He considers that only a small proportion of practitioners use a psychosocial approach in treating pain and TMD disorders, with the most prevalent approach being an occlusion based approach, that is, evaluating how teeth come together.

Conclusion

1. In this appeal, Dr Lee provided information about his education and training in the use of the disputed procedures that he did not provide to the Council in the proceedings below. He has now provided evidence of education and training in, and competence in, the disputed procedures. As is apparent, there is competing opinion about whether Dr Lee's education and training is sufficient to enable him to competently practise the disputed procedures. However, as discussed above that is not the question posed by particular 4.
2. It is agreed that Dr Lee has failed to provide evidence of education and training in, and competence in, acupuncture. However, in circumstances where Dr Lee does not purport to have education and training in, and competence in, acupuncture, it cannot be said that his failure to provide such evidence amounts to conduct that "demonstrates the knowledge, skill or judgment possessed, or care exercised, by [Dr Lee] in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
3. Particular 4 is not proven.

Should the August 2020 Decision be confirmed, set aside, or set aside and a new decision made?

1. The final issue we must determine is whether, given our findings that particulars 1, 2, 3 and part of Particular 4 are established, the August 2020 Decision should be confirmed, set aside, or set aside and a new decision made (being a decision that the Council could have made): s 159C of the National Law. The decision the Council could have made includes exercising any of the general powers conferred by s 148E of the National Law. Neither party suggested we exercise any of those powers, apart from the power conferred by s 148E(1)(c) to "impose the conditions [NCAT] considers appropriate on the practitioner's registration".
2. In exercising the power to make orders under s 159C of the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
3. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
4. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
5. In determining the appropriate decision, we will consider each condition in turn.

Condition 2 Not to provide or teach in any educational course or programme in the areas of acupuncture, dry needling or trigger point injection techniques in dentistry

1. Dr Lee stated that if this condition were to be removed it is his intention to resume teaching the Workshops. He said that he intended to review the peer practice component but did not provide any details of the proposed review. Nor did he detail any changes he considered were warranted or how they might be implemented.
2. While Dr Lee said in evidence that he acknowledged that there were deficiencies surrounding the practical component of the Workshops, in particular for the administration of student-student and student-teacher injections, we were left with the impression that he did not consider those deficiencies to be especially serious. For example, his submission that the identified failures in complying with the Guidelines on Infection Control did not fall significantly below the relevant standard, demonstrated in our view a cavalier attitude to the critical role of infection control measures in ensuring "patient" health and safety. In addition, it demonstrated a lack of insight and a failure to genuinely reflect on the shortcomings identified by the Complaint.
3. On the available material we could not be satisfied that the deficiencies the subject of particulars 1, 2 and 3 would be adequately addressed if Dr Lee were to resume teaching the disputed procedures. Given Dr Lee's failure to provide evidence to support his claim that he did not teach acupuncture in the Workshops, we have decided that the prohibition on teaching acupuncture should continue.
4. We have decided that it is appropriate that Condition 2 continue.

Condition 1: Not to perform any acupuncture, dry needling or trigger point injection procedures

1. As a consequence of our decision that Condition 2 should continue, for practical purposes Condition 1, if continued, would relate solely to Dr Lee's private practice.
2. Given our finding that particular 4 was not proven in respect of the disputed procedures, in our view there is no proper basis to continue Condition 1 except in relation to acupuncture. This decision should not be read to suggest that we are of the opinion that Dr Lee has sufficient education and training in, and competence in the disputed procedures, or that those procedures are within the scope practice of dentistry. As explained above we have not determined those questions.
3. Given the lack of supporting evidence to support his claim that he has neither taught nor used acupuncture, we have decided that the condition that Dr Lee not perform acupuncture in his private practice be continued.

Condition 3: To submit to an audit of his practice(s), by a random selection of his records by a person or persons nominated by the Dental Council of NSW ...

1. Since the initial s 150 proceedings held on 13 November 2019, Dr Lee's registration has been subject to a condition that he submit to a regular audits of his private practice. That condition has been amended on several occasions and in its current form requires: "[Dr Lee] to submit to an audit of his practice(s), by a random selection of his records by a person or persons nominated by the Dental Council of NSW and: (a) the audit is to be held within six (6) months of 31 July 2020 and subsequently as required by the Council; (b) the auditor(s) is to examine and assess: (i) compliance with conditions; (ii) infection control standards; (iii) compliance with the Dental Board of Australia's Code of Conduct and paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct; (c) the audit(s) is to confirm compliance with any relevant standards, codes and guidelines."
2. The history of Dr Lee's compliance with the audit condition is troubling. Initially he refused to fully cooperate with the Council appointed auditors, alleging that they had bullied him, and accusing them of bias. Those allegations appear to be baseless and raise concerns about Dr Lee's continued willingness to cooperate with those regulatory bodies charged with responsibility for maintaining professional standards and protecting the health and safety of the public.
3. Nonetheless, as the delegates appointed by the Council to conduct the s 150A review on 6 May 2020 pointed out in their reasons for decision, the primary reason for the audit condition was now to ensure compliance with Condition 1.
4. Given our decision to remove Condition 1 and in the absence of evidence that the deficiencies the subject of particulars 1, 2 and 3 were evidenced in his private practice, we have decided not to retain the audit condition.

Conclusion

1. We find: 1. Particulars 1, 2 and 3 are proven. 2. Dr Lee is guilty of unsatisfactory professional conduct as defined by s 139B(l)(a) of the National Law in respect of particulars 1, 2 and 3.

Orders

1. Pursuant to s 159C of the Health Practitioner Regulation National Law (NSW) (the National Law): 1. The decision made by the Dental Council of NSW on 24 August 2020 is set aside. 2. In substitution for that decision, pursuant to s 148E(1)(c) of the National Law, Dr Lee's registration is subject to the following conditions: 1. Not to provide or teach in any educational course or programme in the areas of acupuncture, dry needling or trigger point injection techniques in dentistry. 2. Not to practise acupuncture in the course of providing dental treatment in private practice.

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: 08 October 2021