Von Schrenk v Dental Practice Board of Victoria

Von Schrenk v Dental Practice Board of Victoria - [2008] VCAT 2302 - VCAT 2008 case summary — Zoe

[7]

At the time he made this declaration, Dr Von Schrenk was aware of the fact that he had failed to maintain his Professional Indemnity Insurance Policy with Guild, and had not paid the insurance premium stipulated by Guild since 1 July 2006.
The Applicant then failed to comply with that declaration and/or that undertaking in that, for 10 months thereafter, he did not pay the premium stipulated by Guild to maintain his Professional Indemnity Insurance Policy with Guild in place, or to renew it on 1 July 2007, and has admitted that he only ultimately paid the premium required on 22 February 2008.
The Applicant accordingly breached both his declaration and his undertaking to the Board in this respect.
However, I note in this context that he did make an attempt to pay the premium in August 2007 when he forwarded payment to the ADA. There was a delay in the ADA forwarding the payment to Guild and by the time it was received his policy had been cancelled and the payment wasn't processed[12].
When Dr Von Schrenk appeared before an Informal Hearing of a Panel of the Board on 24 July 2007 he brought with him a cheque for payment of his insurance premium, and was directed by the Panel to pay his insurance premium to his Insurer promptly, and to obtain confirmation from his Professional Indemnity Insurer that he was covered retrospectively from 1 July 2007 until his payment. Dr Von Schrenk failed to do so, and failed to respond positively or at all to that direction.
By letter dated 30 July 2007, the Notifications Manager wrote to Dr Von Schrenk confirming his agreement to write to his Insurer seeking written confirmation that he was covered retrospectively from 1 July 2007 until his payment (which he had with him at the Hearing) was cleared, and requested that he confirm that the payment had been sent and to provide the Board with confirmation that he was so covered, all within 5 working days of the date of that letter.
Dr Von Schrenk failed to respond at all to either that letter, or a reminder letter written to him by the Notifications Manager on 9 August 2007.
By letter dated 19 October 2007, Dr Von Schrenk's solicitors wrote to the Notifications Manger indicating that they had sought from the Applicant proof of indemnity insurance as at that date and also to establish that such indemnity insurance was effective previously over the previous three years. His solicitors indicated that Dr Von Schrenk would obtain a certificate as to the status of his insurance over that period and that it would be provided to the Board.
That was not done until Friday 11 April 2008, when Dr Von Schrenk's solicitors provided documentation indicating that:

[22]

By his conduct, the Applicant has sought to frustrate, and has in part frustrated, the investigative and disciplinary functions of the Board." [emphasis added]
In my view the Applicant is bound by his admission, that is, by his conduct he sought to frustrate the investigative and disciplinary functions of the Board.
The failure to properly or adequately reply to correspondence from the Board or from a complainant is capable of constituting professional misconduct of a serious nature[18]. And I am satisfied, having regard to the Applicant's admissions and the fact that the failure to respond took place over an extended period, that this is such a case.
I now turn to the two other categories of misconduct.
It is conceded that during the period from 1 April to 19 June 2007 Dr Von Schrenk practised dentistry in Victoria while not a registered dental care provider. It is also apparent that he practised extensively during this period.
One health insurance provider paid some $16,210.20 in benefits for dental services provided by Dr Von Schrenk in the period from 1 April to 14 May 2007. These benefits were referable to some 327 separate services incurring total charges of $32,921.80.
Engaging in unregistered practise voided Dr Von Schrenk's professional indemnity insurance, thus exposing his patients to financial risk.
Engaging in unregistered practice is also in breach of the DP Act.
I am satisfied that Dr Von Schrenk's conduct constitutes unprofessional conduct of a serious nature.
The final category of misconduct relates to Dr Von Schrenk's failure to maintain a Professional Indemnity Insurance Policy over the 20 month period from 1 July 2006 to 22 February 2008. Dr Von Schrenk's failure to obtain the requisite insurance exposed his patients to financial risk. He also falsely declared to the Board that he undertook to maintain such insurance whenever he was providing dental care in Victoria.
A statement by Mr James McConnell, the Regional Manager of Guild Insurance, was admitted into evidence in the Board proceedings, without objection.
Mr McConnell's evidence is that Guild Insurance cancelled Dr Von Schrenk's policy on 22 February 2007 with effect from 1 July 2006. The effect of cancellation is dealt with in paragraph 12 of his statement:

[25]

As previously noted s 47(2) provides for the determinations which may be made following a finding that a dentist has engaged in unprofessional conduct of a serious nature. In the context of this matter the most relevant options are:
- a caution;
- a reprimand;
- a fine not exceeding $10 000; and
- suspending Dr Von Schrenk's registration for a specified period.
These were the options canvassed by the parties.
In the decision subject to review the Board dealt with the question of disposition on a global basis. That is, the Board dealt with all three findings of professional misconduct of a serious nature in a global way and determined that it was appropriate to reprimand Dr Von Schrenk and suspend his registration for 3 calendar months effective from 1 November 2008. However no party resisted the proposition that s 47 requires a separate determination to be made in relation to each finding made against a dental care provider[19].
The Applicant's primary submission was that a fine or reprimand may be appropriate, but that suspension was not warranted. In support of this contention Mr Sala relied on the following matters:
- the Applicant is a 74 year old with no previous blemish on his record as a practitioner in 42 years of practice;
- the Applicant wishes to continue to serve the very people the Board wishes to protect, the Victorian public;
- specific deterrence is not a relevant consideration in the circumstances of this case;
- the Applicant's present intention is to continue to practise until the end of 2009; and
- the Applicant has made admissions.
In the alternative it is submitted that if the Tribunal felt that a period of suspension was warranted then a period of no more than six weeks should be imposed and the period of suspension should start at the beginning of December 2008.
The Board submitted that a 2-3 month suspension was warranted in relation to each separate finding and that the periods determined should be served cumulatively. It was also submitted that there was no warrant for delaying the commencement of any period of suspension. As a consequence of the Board's decision Dr Von Schrenk has been on notice for some time that this registration would be suspended from 1 November 2008. He has not applied for a stay of that decision. Counsel for the Board also submitted that delaying the commencement of Dr Von Schrenk's suspension as contended on behalf of the Applicant would be perceived as providing little more than a Christmas holiday from practise.
I propose to deal with the general principles before turning to the particular circumstances in this case.
As is the case with professions generally the Tribunal's powers to discipline for misconduct are primarily protective[20]. But its disciplinary orders are punitive as well as protective, as Maxwell P observed in Quinn v Law Institute of Victoria Limited (Quinn):

[32]

The three findings in this case of unprofessional conduct of a serious nature call for a general deterrence of the type discussed in Craig.
In making each determination I have had regard to:
- the nature and gravity of the misconduct;
- the fact that Dr Von Schrenk has admitted the charges;
- Dr Von Schrenk's previously unblemished record;
- Dr Von Schrenk's age and his present intention to retire from practise at the end of 2009; and
- specific deterrence is not an issue in this case as Dr Von Schrenk is unlikely to repeat his conduct.
The most serious of the matters before me is the fact that Dr Von Schrenk practised dentistry continuously for a period of 20 months without maintaining a Professional Indemnity Insurance Policy. In relation to this aspect of his misconduct I make the following determination:
1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
2. Dr Von Schrenk is fined $2500. Such sum is to be paid into the Dental Practice Board Fund by no later than 4pm Friday 5 December 2008.
3. Dr Von Schrenk is reprimanded.
I now turn to the finding in relation to unregistered practice.
During the period from 1 April to 19 June 2007 Dr Von Schrenk practised dentistry in Victoria, and did so extensively, while not a registered dental care provider. Dr Von Schrenk failed to renew his registration despite correspondence reminding him of the need to do so. He was also aware that it was an offence to practise dentistry while unregistered[27] and no acceptable explanation is proffered for his failure to renew his registration. Engaging in unregistered practice exposed his patients to financial risk.
In relation to this aspect of his misconduct I make the following determination:
1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
I now turn to the findings made in relation to Dr Von Schrenk's failure to respond appropriately to Board correspondence and his failure to honour his agreement to provide a report of his examination to the Panel. The most serious aspect of this element of Dr Von Schrenk's misconduct is that, by his own admission, the Applicant had sought to frustrate the investigative and disciplinary functions of the Board.
In relation to this aspect of his misconduct I make the following determination:
1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
2. Dr Von Schrenk is fined $1500. Such sum is to be paid into the Dental Practice Board Fund by no later than 4pm Friday 5 December 2008.
Each period of suspension is to be served cumulatively resulting in a total period of suspension of three calendar months and a fine of $4000. The suspension of the Applicant's registration is to commence on 1 November 2008. The effect of the Board's decision was to place the Applicant on notice that any suspension would operate from this date and contrary to Mr Sala's submission I see no need to provide that the suspension not commence until 1 December 2008.

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Von Schrenk v Dental Practice Board of Victoria (Occupational and Business Regulation) [2008] VCAT 2302 (6 November 2008)