REYES v DENTAL BOARD OF SOUTH AUSTRALIA No. SCCIV-02-565 [2002] SASC 239

Mr Reyes instructed that just before midnight he was pulled over on the side of the kerb on a city street. He had pulled over to telephone his wife, and was about to use his mobile telephone. As he was doing this, he saw someone at the driver's side window of his vehicle. That person attempted to open the door without identifying himself. Mr Reyes became frightened as he believed that he was going to be robbed or assaulted, and in that regard we point out that he came to Australia from Chile approximately 11 years ago as a political refugee.

Mr Reyes jumped from his car and punched the would-be assailant in the face. He says that another person jumped on his back. He was then told that the person he had hit was a police officer. Our client was thrown to the ground, and lost consciousness. When he awoke in police cells in the city, he was severely bruised and bleeding, and suffering pain. He was refused medical treatment. He instructs that he was further beaten whilst in the cells. The arresting officers advised us that no video was made of the interview.

When Mr Reyes attended at this office, he came immediately from Noarlunga Hospital. His clothing was torn and extremely bloodied. Medical evidence was received from the Hospital about our client's condition, which was consistent with a severe assault.

During the course of negotiations with police, there were difficulties obtaining evidence. Mr Reyes consistently denied that he was over the legal blood alcohol limit, or that he had breached the Road Traffic Act. He further asserted that he had assaulted the police officer without knowing that he was a police officer, because he believed he was defending himself.

During a disputed facts hearing in the Magistrates Court, it was agreed that police would withdraw some of the charges if our client would plead to the others. Mr Reyes was loath to do this, however, Counsel advice was that if the matter went to trial he would be in a position where his credibility would be questioned severely. As he was already suffering severe depression as a result of the charges, he agreed to accept the offer and a plea was made."

On 29 September 1999 the applicant's solicitor forwarded statements to the Crown Solicitor's Office which included statements taken by her from the applicant on 27 November 1998 and 22 April 1999. The statement dated 27 November 1998 appears to be the source of the solicitor's summary which was provided in the earlier letter and which is set out above.

The version given by the applicant in the statement dated 27 November 1998 was palpably false. At the hearing before the tribunal, the applicant's counsel stated that the applicant had instructed her that the police evidence in relation to this incident was not disputed. The applicant suggested in cross-examination that the material provided to the Crown Solicitor's Office did not accurately reflect his instructions in some significant respects. However, the tribunal rejected this suggestion as being wholly improbable. The tribunal pointed out that, whatever state he was in when he gave instructions to his solicitor not long after the incident occurred, he was no longer in that state in September 1999 when he instructed his solicitor to respond to the request for information. The material given to the Registrar was misleading and the circumstances support the inference that it was authorised by the applicant.

The remaining allegation in the complaint was that the applicant had driven a motor vehicle whilst disqualified. On 8 July 1999 he was dealt with for the offence of driving under the influence of liquor and the offences against the police officers. He was sentenced to imprisonment for three months which was suspended when he entered into a bond to be of good behaviour for 12 months. He was also disqualified from driving for a period of 12 months. It is not in dispute that he drove a motor vehicle without a licence on an occasion in about August 1999.

The grounds of appeal include a complaint that the tribunal attached undue weight to the evidence of Monique Weaver and other witnesses who supported her and insufficient weight to the evidence of the applicant and witnesses called by him. There is a further ground of appeal which alleges that the findings of the tribunal were against the weight of evidence.

In submissions made to me Mr Amey, for the applicant, did not challenge the factual findings of the tribunal in any significant respect. In any event, I have considered the findings of the tribunal and the evidence led before it and I am satisfied that all findings of fact were open on the evidence.

The principal argument advanced by the applicant on appeal was that the facts established by the respondent in relation to each allegation did not amount to unprofessional conduct. Mr Amey placed particular emphasis on what he described as the narrow description of "unprofessional conduct" in the Dentists Act 1984 ("the Act"). In short, he argued that the allegations in the complaint were concerned with personal conduct which bore no relevant relationship to the applicant's occupation as a dentist.

(a) improper or unethical conduct in relation to the practice of dentistry; and

(b) incompetence or negligence in relation to the practice of dentistry; and

(c) a contravention of or failure to comply with -

(ii) a condition imposed by or under this Act in relation to the registration of a person under this Act."

Mr Amey argued that this reference to unprofessional conduct in the definition section of the Act confined such conduct to the categories specifically referred to in s 4.

I cannot agree with this submission. The concept of unprofessional conduct was included in the Dentists Act 1931, which preceded the present Act and the phrase "unprofessional conduct" in s 45 of that Act was given a wide interpretation by the courts in accordance with previous decisions at common law (In re The Dentists Act 1931-1936 Ex parte Schonfeldt [1939] SAStRp 54; [1939] SASR 380).

The observations of Murray CJ, Angas Parsons and Richards JJ In re A Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58 at 60 concerning the concept of unprofessional conduct have been used as a guide in the interpretation of this phrase as it is used in various statutes which regulate the conduct of professions. Their Honours said:

" 'Unprofessional conduct' is not defined in the Law Society's Acts. We regard it as wider than 'professional misconduct,' which is the expression used in the English Act. The criterion applied to 'professional misconduct' in England is whether anything has been done by the practitioner, in the pursuit of his profession, which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency; and on that question the opinion of the Committee of the Law Society is almost invariably accepted by the Court, although in a proper case the Court will differ from it (In re a Solicitor, [1912] 1 KB 302; In re a Solicitor, (1913) 29 TLR 354). In our view 'unprofessional conduct' is not necessarily limited to conduct which is 'disgraceful or dishonourable,' in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency."

I think it highly unlikely that the legislature intended to do away with this widely accepted understanding of the nature of professional conduct when the Dentists Act was enacted in 1984. This view is supported by the use of the word "includes" in s 4 of the 1984 Act. Generally speaking, this is a phrase of extension and does not give rise to a restrictive interpretation (Strouds Judicial Dictionary of Words and Phrases (6th Ed) 2000 1253; Savoy Hotel Co v London County Council [1900] 1 QB 665).

It is further supported by the approach which has been taken in this State to the interpretation of statutes with almost identical wording (Versteegh v The Nurses Board of South Australia (1992) 60 SASR 128 at 140). In The Law Society of South Australia v Le Poidevin (1998) 201 LSJS 76 it was held that "unprofessional conduct" is not defined exhaustively in the Legal Practitioners Act 1981. Section 5 of that Act states that unprofessional conduct in relation to a legal practitioner means -

"(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or

(b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute."

Despite the use of the word "means", the conduct specifically referred to in the Act was treated as enlarging the meaning of unprofessional conduct under the general law.

If I am correct in holding that the concept of unprofessional conduct in the Dentists Act 1984 is to be interpreted by reference to both the statute and the general law, the task of identifying the type of conduct falling within the general law concept remains. In order to undertake this task it is appropriate to have regard to the purpose of legislation which regulates the various professions. It has been said on many occasions that, although proceedings before professional conduct tribunals are often referred to as disciplinary, the jurisdiction is not punitive by nature. Rather, the purpose of the legislation is the protection of the public and, as part of that aim, to ensure that persons not fit to practise are prevented from doing so (Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 par 80; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183). The categories of conduct so far identified by the courts as being within the description of unprofessional conduct reflect the regulatory nature of the legislation.

It is well accepted that unprofessional conduct is not restricted to acts or omissions occurring in the direct performance of professional tasks and duties. In Roylance v General Medical Council (No. 2) [1999] UKPC 16; [2000] 1 AC 311 at 331 the Privy Council commented on this aspect in the course of its advice:

"In the present case the critical issue is whether, if there was misconduct, the misconduct was 'professional misconduct.' As counsel for the General Medical Council pointed out it is not simply clinical misconduct which is in issue. Professional misconduct extends further than that. So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases here may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification.

But certain behaviour may constitute professional misconduct even although it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest private financial gain. In Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 761, infamous conduct in a professional respect was held to be established where a doctor by public advertisement had warned the public to avoid other practitioners and recommended them to apply to himself. Lord Esher MR adopted, at pp 760-761, the definition which Lopes LJ propounded in the same case of 'at any rate one kind of conduct amounting to 'infamous conduct in a professional respect' '. The definition was that such conduct could be established:

'If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency....'

'The question is, not merely whether what a medical man has done would be an infamous thing for anyone else to do, but whether it is infamous for a medical man to do ... There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession, that is, with regard either to his patients or to his professional brethren, may be fairly considered 'infamous conduct in a professional respect,' and such acts would, I think, come within section 29.'

But that definition is clearly not, and was not intended to be, exhaustive or comprehensive.

To take the point a stage further, serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character. An example can be found in A County Council v W (Disclosure) [1997] 1 FLR 574, where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious professional misconduct. It was argued that any sexual abuse was too remote from the father's occupation as a doctor since it was outwith any medical treatment of a child. But Cazalet J held, at p 581 that:

'it seems to me that this doctor can be said, if he has sexually abused his daughter, to have demonstrated conduct disgraceful to him as reflecting on his profession and/or indeed conduct disgraceful to him as a practising doctor.'

What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.

But moral turpitude is not the only kind of case outwith the conduct of a medical practice which may constitute serious professional misconduct. In Marten v Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1 a farmer who was also a veterinary surgeon was found to have failed to give adequate care for animals on his farm. He was not guilty of any moral turpitude, but his conduct was held to constitute conduct disgraceful to him in a professional respect. Lord Parker CJ observed, at p 9:

'But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practices. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or, in the present case, conduct disgraceful to him as a practising veterinary surgeon.'

Marten was found on account of his work as a farmer to be guilty of conduct disgraceful to him as a practising veterinary surgeon."

Examples of conduct not directly concerned with actual practice were identified by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 par 56. He said:

"There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'. "

Spigelman CJ referred to Hoile v The Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157 as an example of a case where the personal conduct was sufficiently closely connected with actual practice to amount to unprofessional conduct. In Hoile's case the practitioner was the medical superintendent of a country hospital. He had a sexual relationship with a nurse attendant at the hospital and, on two occasions, he had intercourse with her at the hospital while she was on duty. The court held that the conduct "arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence" (supra at 163).

The second category of personal conduct outside the course of practice which establishes that a practitioner is unfit to practice was discussed in Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279. The applicant was a barrister who had been disbarred after he had been found guilty in the criminal court of manslaughter. This arose out of a case in which he caused the death of a cyclist who had been hit by his vehicle while it was travelling on the wrong side of the road. There was evidence that the barrister was under the influence of alcohol at the time.

Dixon CJ and McTiernan J, who formed the minority, were of the view that the barrister's conduct amounted to unprofessional conduct. Kitto J was not prepared to say that the incident gave rise to unprofessional conduct. He said (299):

"With the greatest possible respect for those who answer that it is, I find myself unable to agree. The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister's continuing a member of his profession. The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man's general behaviour or inherent qualities. True, it is a conviction of a felony; but the fact that as a matter of technical classification it bears so ugly a name, ugly because the most infamous crimes are comprehended by it, ought to be disregarded, lest judgment be coloured and attention diverted from the true nature of the conviction. It is not a conviction of a premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance for any professional function. Such a conviction is not inconsistent with the previous possession of a deservedly high reputation, and, if the assumption be made that hitherto the barrister in question has been acceptable in the profession and of a character and conduct satisfying its requirements, I cannot think that, when he has undergone the punishment imposed upon him for the one deplorable lapse of which he has been found guilty, any real difficulty will be felt, by his fellow barristers or by judges, in meeting with him and co-operating with him in the life and work of the Bar. The assumption on which this is based may, of course, be false in a particular case. But that it must be made in the present case is surely undeniable, since no one has come forward to say a word against the appellant, and he has been called upon to answer nothing but the fact of his conviction.

These considerations have led me to the conclusion that the appellant's conviction was not such as to call for the removal of his name from the roll of barristers."

Taylor J held that the conviction and sentence in such a case do not inevitably lead to disbarment. The important consideration is the actual conduct which has been proved and whether such conduct establishes that the person is unfit to remain a member of his or her profession. (See also The Law Society of South Australia v Rodda [2002] SASC 274).

The particular profession to which a person belongs may be an important consideration. In Ziems' case Dixon J drew attention to the loss of standing before the court of a barrister convicted of a serious offence and who is imprisoned. He also referred to the fact that a barrister is entrusted with the privileges, duties and responsibilities of an advocate and that the Bar exercises a unique function in the administration of justice.

Given that the focus of attention is not punitive, but rather on fitness to practise, it seems particularly important to assess both the conduct and the context in which the conduct occurred. Previous conduct may be relevant if, when taken with the conduct immediately under consideration, it assists in disclosing a course of conduct or the manifestation of traits relevant to fitness to practice.

It is for this reason that it is relevant in this case to have regard to some aspects of the applicant's conduct which occurred prior to the incidents relied upon in the complaint.

The applicant commenced practice as a dentist in December 1995. On 27 March 1997 he was sentenced in the District Court on a charge of indecently assaulting a 16 year old trainee dental assistant who was employed by the applicant. The incident took place on 15 July 1996 at the applicant's clinic. The applicant was sentenced to imprisonment for 18 months with a non-parole period of 12 months. The sentence was suspended upon the applicant entering into a recognizance to be of good behaviour for a period of 12 months. In his sentencing remarks the learned judge stated that the victim was a young person desperately seeking a job. He said she was in an unbearable situation and that the applicant took advantage of her. There was evidence that she had confided in him.

As a result of this incident, the Board laid a complaint against the applicant alleging unprofessional conduct. At the hearing before the tribunal which sat to hear that complaint the applicant admitted the conduct alleged and the fact that it was unprofessional conduct. The applicant was suspended from practice for a period of 12 months. However, he appealed to this Court which reduced the suspension to three months.

I have referred to the fact that the offences involving the police officers took place on 27 November 1998. The applicant pleaded guilty to the offences on 8 July 1999 and was sentenced to a global sentence of imprisonment for three months on the charges of assaulting police and resisting police. The sentence was suspended when the applicant entered into a recognizance to be of good behaviour for a period of 12 months. His driving licence was also suspended for 12 months from 10 July 1999. The learned magistrate told the applicant that he would have to be very careful in the future and that this was the applicant's "last chance".

I have pointed out that the course of conduct complained of in relation to Ms Weaver commenced in late July 1999. The occasion on which the applicant drove without a licence was in about August 1999 and the misleading of the Registrar occurred in late September 1999. Both the driving whilst disqualified and the misleading of the Registrar took place during the period of the bond to be of good behaviour which had been entered into before the magistrates court.

I reject the argument that the conduct towards Ms Weaver was not unprofessional conduct. Ms Weaver was employed in the applicant's dental practice. She was a young woman who was both impressionable and vulnerable. She was anxious to retain her employment and this was the reason why she did not identify the applicant when she complained to the Commissioner for Equal Opportunity. The applicant was persistent in his overtures to her. She was embarrassed and upset by his conduct. There is a clear nexus between these incidents and the applicant's practice. The applicant was using his position in the practice to assert influence over his employee.

If the incident of driving under the influence and assaulting and resisting police had been an isolated incident I have some doubt as to whether it would have constituted unprofessional conduct. The same can be said of the driving whilst disqualified incident. Neither of these incidents took place as part of the actual performance of the applicant's duties as a dentist and, further, I have some difficulty in accepting that, if each incident were considered in isolation, it would involve personal conduct indicative of the fact that the applicant was unfit to practise as a dentist.

However, the incidents involving the police officers and driving whilst disqualified must be considered against the background of the totality of the applicant's conduct as alleged in the complaint and in the context of the applicant's conduct generally over the period of time during which it is alleged the various acts of unprofessional conduct took place.

As I have stated, on 27 March 1997 the applicant was sentenced to a suspended sentence of imprisonment for 18 months for a serious sexual offence committed on an employee. The recognizance to be of good behaviour expired in July 1997. In July 1998 the applicant committed the offences against the police officers which were serious enough to warrant a sentence of imprisonment for three months, although that sentence was also suspended. The offences against the police officers were deliberate and committed against persons in authority. In my view, the commission of such offences only a short period after the commission of the sexual offence reflects sufficiently on the applicant's fitness to practise so as to give rise to unprofessional conduct of the type discussed in Ziems' case and in the second category of conduct referred to by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 para 56 (supra para [34]). (See also The Law Society of South Australia v Rodda [2002] SASC 274 paras 28 and 29).

Then, after being warned in the Magistrates Court on 8 July 1999 of the importance of staying out of trouble and being told that this was his "last chance", the applicant drove a motor vehicle within two weeks of being disqualified. The offence of driving whilst disqualified is punishable by imprisonment and such punishment is appropriate for the ordinary case of this driving offence (Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 at 167). In the present case, it also took place at a time when the applicant was bound over to be of good behaviour. Again, I am of the opinion that, when viewed in the context of the applicant's cause of conduct over a short period of time, the circumstances of this incident are such as to amount to unprofessional conduct in that they provide a further example of the applicant's demonstrated lack of respect for the law, a factor relevant to his fitness to practise dentistry.

In a case such as the present, where a series of incidents are alleged as amounting to unprofessional conduct, the identification of individual instances as constituting separate occasions of unprofessional conduct can tend towards artificiality. However, I am satisfied that there was sufficient evidence upon which the tribunal could find that each of the alleged incidents amounted to unprofessional conduct and that this finding was correct in fact and law. In reaching this conclusion I have borne in mind the various matters relied upon by Mr Amey as mitigating the applicant's conduct.

The applicant has demonstrated in a number of ways that he is not a fit and proper person to practise dentistry. On two occasions within a short period of time he has taken advantage of the vulnerability of a young female employee to make advances of an offensive nature. On the first of these occasions these advances led to the commission of a sexual offence. In the same period the applicant has been sentenced on two occasions to sentences of imprisonment which have been suspended. The sentences reflect the seriousness of those matters. He was also contemptuous of a court order disqualifying his driving licence. He permitted a false version of the incident involving the police officers to be put before the Registrar. In my view the nature and extent of the unprofessional conduct justified the cancellation of the applicant's registration as a dentist.

I return to the application for an extension of time within which to appeal. Section 75(2) of the Dentist Act 1984 requires an appeal to be instituted within 60 days of the date of the decision appealed against. The Supreme Court may dispense with this requirement if it is satisfied that it is just and reasonable in the circumstances to do so. The period of the delay, the reasons for it and the consideration as to whether injustice would be done if the application were not granted are all matters relevant to take into account in the exercise of the discretion.

The appeal in this case was not initiated until approximately 12 months after the decision of the tribunal was announced. I accept that the applicant has suffered from anxiety and depression since 1998, but in my view this cannot explain the long period of delay. There is nothing else in the material before me which satisfactorily explains why the appeal was not lodged in time. For the reasons which I have given, any appeal would be without merit.

The application for an extension of time within which to appeal will be dismissed.