Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jan v Health Care Complaints Commission [2020] NSWCATOD 75 Hearing dates: 26 March 2020 and 5 May 2020 (final submissions) Date of orders: 02 July 2020 Decision date: 02 July 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Dr E Peel, Senior Member Dr K Campbell, Senior Member S Lovorich, General Member Decision: (1) Application for reinstatement is dismissed. (2) Applicant is to pay the Respondent's costs as agreed or assessed. Catchwords: TRADES AND PROFESSIONS – reinstatement of health practitioner under the Health Practitioner Regulation National Law COSTS – applicable principles where Tribunal is conducting an inquiry into an application for review of a cancellation order under s 163B of the Health Practitioner Regulation National Law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Scully v HCCC [2013] NSWNMT 7 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Category: Principal judgment Parties: Rey Jan (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: A Hourigan (Applicant) N Evans (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2019/00333341 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and/or publication of the name of the Patient A is prohibited. REASONS FOR DECISION 1. In May 2016, a differently constituted Tribunal made orders cancelling Mr Jan's registration as a dentist: Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 (the cancellation order). In addition, the Tribunal prohibited Mr Jan from applying for review of that order for 12 months. 2. Mr Jan now exercises the right conferred by s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to apply for review of the cancellation order. Mr Jan requests the Tribunal to reinstate his registration and proposes a number of conditions that could be imposed on his registration, if the Tribunal considers it appropriate. The Health Care Complaints Commission (the Commission) opposes Mr Jan's application for reinstatement. 3. For the reasons that follow, we have decided to dismiss Mr Jan's application for review of the order cancelling his registration. NCAT cancels Mr Jan's registration as a dentist 1. The initiating complaint referred by the Commission to NCAT (the Complaint), comprised five complaints. Complaint 1 concerned a sexual and personal relationship between Mr Jan and a patient which commenced shortly after the patient, whom we refer to in these proceedings as "Patient A", first consulted with Mr Jan in July 2013, and the relationship continued until January 2014. Complaint 2 related to Mr Jan's attempts to influence Patient A to withdraw the complaint she made about him to the Dental Council of NSW in May 2014. Complaint 3 concerned Mr Jan's failure to refer Patient A to another dental practitioner for dental work which he commenced but did not complete. A treatment plan made under the Oral Health Fee for Service Scheme (OHFFSS) determined that Patient A required restoration work and the removal of two teeth. Patient A had been referred to Mr Jan under that plan. Instead of removing the teeth identified as requiring removal, Mr Jan commenced root canal therapy. Complaint 4 related to inappropriate and personal comments made by Mr Jan in Patient A's clinical notes, including that she was "crazy" and "mad". Complaint 5 alleged that conduct amounted to professional misconduct under s 139E of the National Law. At the hearing before the original Tribunal held in May 2016, Mr Jan admitted each complaint. Mr Jan is convicted under the National Law 1. Following the cancellation of his registration, Mr Jan continued to work at the Diamond Care Clinic which he owned and operated between May 2015 and August 2017. He is currently working at Glenhaven Dental which he established in October 2018. Mr Jan claims that, apart from the incidents described below, after his registration was cancelled he worked in various practice management roles and not as a dentist. 2. In September 2017, after entering a guilty plea, Mr Jan was convicted by the NSW Local Court of two offences under s 116(1)( c) of the National Law. That provision makes it an offence for a person who is not a registered health practitioner to knowingly hold himself or herself out as being a registered health practitioner. The Court ordered Mr Jan to pay a fine of $4750 plus costs. 3. The first offence, committed in November 2016, involved Mr Jan performing a 'scale and clean' on a patient at the Diamond Care Dental Clinic for a fee, despite his registration having been cancelled five months earlier. According to Mr Jan, the reason he treated that patient was because she arrived at the surgery, mistakenly believing that she had an appointment, and insisted that she be seen by a dentist. He claims that he stepped in and undertook the dental work because at the time there was no other dental practitioner available to see the patient and he was embarrassed to disclose to her that his registration had been cancelled. 4. The second offence occurred throughout January 2017 and involved Mr Jan "pretending to patients that he had an injury" by saying to them "I can't treat you, here is another dentist". 5. In addition, Mr Jan admitted in these proceedings to treating family members on two occasions while deregistered, specifically filling a tooth of his then eleven-year-old son in June 2016 and performing a scale and clean on his sister-in-law in December 2016. In these proceedings, in answer to a question from the Tribunal, Mr Jan stated that he appreciates that treating family members while deregistered is not acceptable and he accepts that it was wrong of him to have done so. Mr Jan changes his name 1. In January 2018, Mr Jan changed his name from Reza Jangadoz to Rey Jan. In a statement prepared for these proceedings, dated 14 October 2019, Mr Jan stated this was a necessary step to enable him to "move on" for two reasons. First, given his concern that patients might discover the details of his deregistration, to re-build his professional reputation. Second, his concern that in the future his children might discover his past indiscretions and lose respect for him. 2. In a statement filed in these proceedings, Mr Jan disclosed that in 2019 he had applied to the Canadian Dental Board to be registered as a dentist. He claimed that he had been "completely transparent" about his de-registration in Australia. The Commission questioned Mr Jan about the information he had disclosed to the Canadian Dental Board. Mr Jan denied changing his name to avoid the Canadian Dental Board learning that his registration as a dentist had been cancelled and that he been convicted by the Local Court for offences under the National Law. In these proceedings, Mr Jan did not file a copy of the application he made to the Canadian Dental Board and, when questioned by the Commission, claimed that he did not keep a copy of that application because it was submitted online. Initially Mr Jan claimed that he had given the Board a copy of both the NCAT decision and the Local Court decision. Later he said he was now not sure whether he had given the Board a copy of the Local Court decision. 3. In re-examination, Mr Jan denied that he had changed his name and applied to the Canadian Dental Board to "run away" or "self-preserve". Mr Jan consults with Ms Sannibale 1. Mr Jan consulted with psychologist, Ms Claudia Sannibale, on 31 November 2017 and 1 December 2017. In the statement prepared for these proceedings, Mr Jan wrote that he had stopped consulting with Ms Sannibale because she advised that she did not provide medico-legal reports. He stated there had been a "misunderstanding about the treatment I was seeking". 2. In these proceedings, Mr Jan did not tender any material from Ms Sannibale. The only material available to the Tribunal about Mr Jan's consultations with Ms Sannibale are references in the respective reports prepared by psychiatrist, Dr Lisa Brown and dentist Dr Ralph Kelsey, which we discuss below. Each was given copies of material provided by Ms Sannibale, dated 11 January 2018. Dr Brown referred to that material as a report; Dr Kelsey as an email. In a report dated 21 March 2018, Dr Brown summarised the history recorded in Ms Sannibale's notes: * referring to Patient A, Mr Jan stated "because he was under a lot of work pressures and demands he was working long hours at different sites he eventually had sexual relations with a patient who began to act inappropriately" * when asked about his reasons for consulting Ms Sannibale, Mr Jan stated that it was for the "purpose of being seen to do the right thing" and that his lawyer had advised him to see a psychologist and that this attendance would "look good" and "tick off" one of the requirements * he considered that the "issues which had affected him were a matter of 'bad luck'". 1. Dr Kelsey's summary of the history recorded by Ms Sannibale in his report of 16 March 2019, is less detailed but in similar terms. Mr Jan consults clinical psychologist Andrew Fordyce 1. In his statement dated 14 October 2019, Mr Jan wrote that he had been engaged in monthly sessions with his "treating psychologist", Andrew Fordyce, since February 2018. In examination-in-chief, Mr Jan disclosed that he last saw Mr Fordyce in September 2019. In December 2019, when he attempted to make an appointment to see Mr Fordyce, he learned that Mr Fordyce had resigned from the practice. 2. The Commission points out that despite Mr Jan's claim that his lawyers had asked Mr Fordyce to provide his clinical notes and to prepare a report, Mr Jan failed to file any material prepared by Mr Fordyce in these proceedings and the absence of that evidence is unexplained. Insight into the offending conduct 1. In these proceedings, referring to Patient A, Mr Jan stated that he had "made a terrible mistake" for which he feels "incredibly guilty". He stated that the relationship with Patient A was "my fault 100%" and that he engaged in that relationship for his own sexual gratification. He stated that he is deeply ashamed about his actions, both in having the relationship and lying about it. He conceded that he knew from the start that it was wrong to have a sexual relationship with a patient. 2. Mr Jan stated that he is sincerely apologetic to his wife and now understands the hurt, distress, embarrassment and humiliation he has caused her. 3. According to Mr Jan, the financial consequences of his actions have been devastating. He has lost his family home and two dental practices. He stated that rather than, as he had hoped, giving his family a new life in Australia after migrating from Iran, he has caused his family to suffer financially and emotionally. He stated that he is deeply ashamed of his actions. 4. Mr Jan states that he is "incredibly apologetic" to the patients who were involved in his offending behaviour. He said he now understands "how much harm exploiting the doctor-patient relationship can cause". 5. Mr Jan stated that he came to realise that he required extensive further training about ethical practices and professional boundaries and has been helped by "counsellors, psychologists, mentors, professional courses and private ethics sessions" to learn how "thoughtless and serious" his actions were. He stated that as a consequence of this study and training he has changed his outlook on life and his "mentality has shifted from being very self-centred, proud and selfish to being respectful, humble and thankful for what I have". In addition, he states that he now understands how important "ethics and morality are in my profession and also in life". 6. In his statement Mr Jan wrote that while working at Diamond Care Dental (March 2015 to August 2017) he was mentored by former President of the Australian Dental Association, Dr John Dale. In April 2017, Mr Jan attended two sessions with dentist Dr Stephen Harlamb in relation to ethical boundaries and professional boundaries. In December 2018, Mr Jan completed 16 hours of private sessions with Dr Phillip Wright at the Sydney Ethics Centre. (See also sessions undertaken with Dr Kelsey discussed below.) Dr Brown assesses Mr Jan 1. At the request of his lawyers, Dr Brown assessed and provided an opinion about Mr Jan. Dr Brown assessed Mr Jan in March 2018 and July 2019 and prepared reports dated 21 March 2018 and 7 August 2019. In addition, she gave oral evidence in these proceedings. 2. In her first report, Dr Brown recorded that Mr Jan had told her that: * during his dental training undertaken in Iran, he did not receive education about professional boundary violations and because of his different cultural background he believed he was not aware of these issues * the relationship with Patient A arose at a time when he was very tired and working six days per week. She had been friendly and complimentary of him and he did not prevent her from contacting him outside of work. In retrospect, he acknowledges that he did not know how to deal with behaviour of that type. They met in a bar and had sex on one occasion * when Patient A made a complaint about him to the Dental Council, after he had ended the relationship, he was uncertain how to deal with her demands and asked her not to proceed * the lawyers he originally engaged did not inform him about the importance of seeking psychological help or training in boundary violation issues. Having received more recent advice, he has taken steps to address the issues for which he was deregistered * having undertaken multiple courses, he believes he has come to a good understanding of the importance of maintaining professional boundaries in dealing with patients. In addition, he now understands the psychological damage that can be done to patients because of the practitioner's position of authority and the patient's vulnerability * his actions have damaged not only his earning capacity but his reputation among patients and the dental fraternity * he believes in the future he will not transgress professional boundaries because he is now aware of the damaging effects of his actions and, in addition, he cannot afford to further damage his reputation or chances of returning to his profession * in future dealings with patients he would speak in a polite but professional manner and not use endearments which could be interpreted as "overly friendly". 1. In her first report, Dr Brown wrote that in her opinion Mr Jan had reasonable insight into his conduct with respect to the personal relationship with Patient A. She reached that conclusion notwithstanding her concerns about the views Mr Jan expressed to Ms Sannibale summarised (at [14]) above. 2. While accepting that it was possible that Mr Jan had thought more carefully about the "right things" to say during his consultation with her, in Dr Brown's view the comments he made to her about his past transgressions were "reassuring". She noted Mr Jan's more recent efforts to engage in counselling with a psychologist with whom he believed he would feel comfortable to discuss possible boundary violations. She wrote that it will "probably not be possible to know whether [Mr Jan's] currently expressed newfound awareness and determination not to offend in the same fashion will be borne out until he returns to his profession". Nonetheless, in her view, Mr Jan did not make any comment in the course of the consultation with her, which raised concerns about a lack of awareness of his wrongdoing or any misunderstanding by him about the importance of maintaining professional boundaries. 3. With respect to his conviction for holding himself out as being registered as a dental practitioner, on the assumption that his claim of being too ashamed to admit to patients being deregistered is accepted, in Dr Brown's view Mr Jan had reasonable insight into that conduct. 4. In Dr Brown's view, Mr Jan did not suffer any psychiatric or psychological condition, nor an "impairment" as defined by the National Law. She noted that there was nothing in Ms Sannibale's report or Mr Fordyce's clinical records to indicate otherwise. In her view, while Mr Jan was not "formally mentally unwell or impaired", he would nonetheless benefit from attending psychological counselling to discuss professional boundaries issues, particularly as they arise if he were to return to practice. 5. In a supplementary report dated 7 August 2019, Dr Brown wrote that, in her view, Mr Jan had gained further insight into the conduct which contributed to his de-registration since she last met with him 18 months earlier. She wrote that Mr Jan believes he has personally matured since he last consulted her in March 2018 and was now "highly aware of the personal risks of boundary violations in dental practice". She recorded that he has undertaken extensive training in ethical issues and made use of psychological counselling to further discuss boundary violations, healthy coping mechanisms and any further issues which might arise in dental practice. 6. Dr Brown repeated the view expressed in her first report that Mr Jan did not have any current impairment or mental illness. She recommended, however, that he continue to see his treating psychologist 7. In Dr Brown's view, the training and education undertaken by Mr Jan in ethical issues and boundary violations was "very extensive". Further, in her view, he had made effective use of his deregistration period to undertake further education in both technical and ethical issues. She wrote that, assuming that his reported history is an accurate reflection of his current beliefs, Mr Jan has developed maturity and insight into the reason for his de-registration and has developed a number of coping strategies which are likely to be protective against any further conduct issues. Dr Ralph Kelsey 1. In late 2018, Mr Jan's lawyers referred him to Dr Ralph Kelsey to assess whether he had taken "appropriate steps to understand and acknowledge his ethical obligations as a registered dental practitioner". Dr Kelsey is an experienced and respected dentist with a long involvement with the Australian Dental Association. More recently he has been engaged by the Australian Health Practitioner Regulation Agency and the Office of the Health Ombudsman (Queensland) to conduct audits of dental practices. If the Tribunal decides to reinstate Mr Jan's registration, Dr Kelsey undertakes to mentor Mr Jan. 2. In a report dated 16 March 2019, Dr Kelsey explained that he had met with Mr Jan by phone on two occasions in December 2018 and in person in February 2019. For the purpose of those meetings, Dr Kelsey reviewed the courses and training undertaken by Mr Jan in relation to ethical practices and professional development and questioned Mr Jan about various matters, including the Code of Ethics applying to dental practitioners. Dr Kelsey wrote that he was "relieved to hear his remorse for the detrimental effects his actions had on [Patient A]". This, in his view, was a "dramatic improvement in the responses he gave to Ms Sannibale and the "selfish attitude" commented on by the original Tribunal: Health Care Complaints Commission v Jangodaz at [34], [35]. 3. Dr Kelsey concluded that Mr Jan had taken appropriate steps to understand and acknowledge his ethical obligations as a registered dental practitioner and does not need to undertake any further courses or training before applying to be re-registered. In his opinion, Mr Jan does not pose a risk to the health and safety of the public and is a suitable person to hold registration as a dental practitioner. 4. In cross examination, Dr Kelsey stated that when he first met with Mr Jan, he had thought that Mr Jan's attitude was one of "arrogance and self-concern". Over the course of their meetings, however, he had come to believe that Mr Jan was genuinely remorseful. Submissions 1. Mr Jan submits that the Tribunal can be comfortably satisfied that he is fit to return to dental practice and that the offending conduct will not be repeated for the following reasons, taken in combination. 2. First, he now accepts responsibility and is remorseful for the offending conduct. That claim is consistent with the conclusions reached by Drs Kelsey and Brown. 3. Second, as concluded by Dr Brown, he has developed maturity, insight and coping strategies which are likely to be protective against further offending. Dr Kelsey is of the opinion that if re-registered he will perform his duties to the high standards expected of a dental practitioner. 4. Third, he has developed a greater level of understanding of the ethical and professional practice of dentistry and has demonstrated an understanding of the damaging effects on patients of violating the practitioner/patient relationship. That claim is consistent with the assessments made by Drs Kelsey and Brown that he has made strenuous efforts to undertake appropriate training and education in ethical issues. 5. Fourth, Mr Jan has maintained his continuing education since being de-registered and is well placed to return to the profession. 6. Finally, his belief that he does not pose a risk to the health and safety of the public is supported by the opinions expressed by Drs Kelsey and Brown. 7. The Commission opposes the reinstatement of Mr Jan's registration and submits that he has failed to demonstrate that he is a fit and proper person to return to practise dentistry. In addition, the Commission contends that the evidence Mr Jan gave in these proceedings raises concerns about his credit. 8. In support of these arguments, the Commission points, first, to Mr Jan's unexplained failure to provide a report or clinical notes prepared by Mr Fordyce about his progress during therapy. 9. Second, the Commission argues that Mr Jan's alleged "complete lack of insight" is demonstrated by his explanation for the four-and-a-half year delay in seeking assistance after the conduct involving Patient A: that his lawyers did not "steer him in the right direction". 10. Third, the fact that, after the cancellation of his registration, despite by that time having been mentored by Dr Dale in practice and ethical obligations, Mr Jan went on to commit offences under the National Law. 11. Also of concern, contends the Commission, is Mr Jan's alleged attempts to tailor his evidence in these proceedings, when in cross examination it became apparent that the history he gave of being mentored by Dr Dale pre-dated the commission of his offences under the National Law. The Commission contends that this and other responses given by Mr Jan in these proceedings raise questions about his credit. These include his unsupported claim that the reason he gave to patients for being unable to treat them — that he had injured his hand — was truthful and he had in fact injured his hand in a motorcycle accident. 12. Finally, the Commission submits that Mr Jan's failure to produce to the Tribunal any material to support his claim of being "completely transparent" with the Canadian Dental Board and the inconsistent evidence he gave about whether he had informed the Board about his 2017 conviction, is troubling and undermines his overall credibility. The principles governing review of a cancellation order 1. Where, as here, the Tribunal receives an application for review of a cancellation order and any disqualification period imposed under s 149C(7) has expired, the appropriate review body, in this case the Tribunal, must conduct an inquiry: s 163B of the National Law. In conducting that inquiry, the Tribunal cannot review the original decision to make a cancellation order or any findings of fact made by the original Tribunal in connection with that decision: s 163C(2). Rather, the Tribunal's task is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1). 2. Having conducted an inquiry into the application for review of a cancellation order, the Tribunal may, among other things, dismiss the application, make a reinstatement order, or impose conditions on the person's registration: s 163B. 3. In the exercise of the power to conduct an inquiry under s 163B of the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A. The objectives of the National Law include providing "for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). To practise as a health practitioner, a person must be a "fit and proper person for general registration" and be able to practise his or her profession competently and safely: s 55(1)(h). 4. The principles relating to the reinstatement of deregistered health practitioners under the National Law are settled and have been considered in recent Tribunal decisions including Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116; Scully v HCCC [2013] NSWNMT 7 (Scully) and Shah v Health Care Complaints Commission [2014] NSWCATOD 94 (Shah). Those principles were succinctly stated in Shah at [34]: (1) The applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the profession … (see Scully v HCCC [2013] NSWNMT 7 (Scully) [41] and the authorities there referred to); (2) the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (see Scully [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13); (3) the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction that is exercised is for the protection of the public (see Scully [47] and the authority there referred to); (4) the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see Scully [48] and the authority there referred to); (5) there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see Scully [49] and the authority there referred to); (6) in making an assessment of the applicant's worthiness and reliability for the future, the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. In Scully, the Tribunal referred at [50] to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [or her] worthiness and his [or her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". Consideration 1. Mr Jan bears the onus of proving, on the balance of probabilities, that he is a suitable person to hold registration and is able to practise the profession of dentistry in an ethical manner. This requires an assessment of whether there is a material risk that Mr Jan will repeat conduct of the type that resulted in him being deregistered and later being convicted for offences under the National Law. That, in turn, requires consideration of whether his claim of being remorseful and having gained insight into his offending conduct can be accepted without significant reservation. 2. The conduct the subject of the complaints made to NCAT and the offences for which Mr Jan was convicted includes conduct relating to Mr Jan's discharge of his professional obligations to patients (Complaints 1, 3 and 4) and conduct relating to honesty and integrity (pressuring Patient A to withdraw the complaint about him and holding himself out to be registered as a dental practitioner). Also relevant are Mr Jan's actions in originally denying to the Dental Council the relationship with Patient A. 3. The timeline of the offending conduct and Mr Jan's efforts to rehabilitate are relevant. On two separate occasions, Mr Jan has been found to have conducted himself in a manner which raises concerns about his character and suitability to practise. The conduct the subject of the Complaint occurred between July 2013 (the commencement of the relationship with Patient A) and mid-2014 (when Mr Jan urged Patient A to withdraw the complaint she made about him to the Dental Council). Two years later, by practising as a dentist and holding himself out to patients as being registered, Mr Jan again engaged in conduct which raised questions about his character and suitability to practise. 4. When he consulted with Ms Sannibale in late 2017, having by then undertaken several courses on ethics and integrity, consulted Dr Harlamb in relation to ethics and professional boundaries, and being mentored about "ethical codes" and learning from Dr Dale, Mr Jan made statements that are plainly at odds with the claims he made to NCAT (in May 2016) and the Local Court (in September 2017) of being genuinely remorseful and accepting responsibility for his conduct. The inescapable inference is that Mr Jan's primary motivation for consulting Ms Sannibale was to bolster his application for reinstatement. Perhaps more troubling is the comment recorded by Ms Sannibale that the "issues which had affected him were a matter of 'bad luck'". Again, the inference to be drawn from that comment is not favourable to Mr Jan. It indicates that at that time he did not accept or fully accept culpability for the offending conduct. Those reported comments are also consistent with Dr Kelsey's impression of Mr Jan — "arrogance and self-concern" — when they first met in December 2018. 5. We find that by late 2017, and possibly late 2018, despite losing his registration, being convicted under the National Law and undertaking studies in and being mentored in ethical practice, Mr Jan had failed to acknowledge the egregious nature of his conduct and to commit himself to reform. 6. Nonetheless, as Mr Jan points out, the primary issue we must decide is whether he is now a fit and proper person to hold registration as a dentist and poses a risk of reoffending. That, because of embarrassment, avoidance, lack of maturity, lack of insight or some other reason, Dr Jan came late in the day to taking genuine steps to rehabilitate is not fatal to his application. Nonetheless, that delay raises the question of what caused the apparent change. 7. As the Commission points out, missing from the material filed in support of Mr Jan's application is any material from Mr Fordyce to support Mr Jan's claim of having gained insight from and benefitting from 19 months of counselling with him. The little we know about those counselling sessions is the summary of Mr Fordyce's clinical records made by Dr Brown, which outline the matters discussed with Mr Jan: "boundary violation … accepting responsibility and recognising his actions, developmental issues and managing lifestyle demands…". 8. Nonetheless, there is powerful material to support Mr Jan's self-report of having changed. An experienced psychiatrist, Dr Brown, was alert to the possibility that Mr Jan's professed acceptance of responsibility and being remorseful for his actions may not be genuine. Nonetheless, she concluded that, if the history he gave was accurate, he had developed maturity and insight into the reason for his de-registration and several coping strategies "likely to be protective against any further conduct issues". While accepting that it was possible that Mr Jan had thought more carefully about the "right things" to say to her, in Dr Brown's view, the comments he made during that consultation about his past transgressions were "reassuring". 9. A similar conclusion was reached by Dr Kelsey. While his first impression of Mr Jan was not favourable, he ultimately concluded that Mr Jan's expression of remorse was genuine, concluding that if he were to return to practice he would not pose a risk to patients or the public. 10. With respect to the inconsistencies in the evidence given by Mr Jan in these proceedings, such as his answers to questions about the period he was being mentored by Dr Dale and whether he had failed to disclose to the Canadian Dental Board his 2017 conviction, we decline to draw the adverse inference the Commission urges that we draw. That a witness gives conflicting evidence about dates and events that occurred some time ago can mean any number of things: that their memory is unreliable, that they are seeking to tailor their evidence in a manner they perceive to be favourable to their case, or that in the pressured and artificial environment of giving evidence, where much is at stake, they were confused. 11. Nonetheless, it does not follow that each claim made by Mr Jan must be accepted. Absent reliable supporting material, we are unable to accept Mr Jan's claim of being "completely transparent" with the Canadian Dental Board. The evidence about his dealings with the Board neither supports nor undermines his application for reinstatement. 12. Determining whether a practitioner found guilty of professional misconduct and found to have committed offences under the National Law is likely to reoffend and can be trusted to act in an ethical manner in the future is no easy task. This case is no exception. It requires a risk assessment, informed by conscientious consideration of the relevant facts, but ultimately involves an impression of the significance of those facts. 13. We accept that Mr Jan has made significant efforts to seek guidance and to undertake training in ethical and professional conduct. We also accept that the loss of Mr Jan's registration, the 2017 conviction, and the devastating impact on his finances and self-esteem, in combination, are likely to have a deterrent effect. 14. Nonetheless, on the available material we are unpersuaded that Mr Jan poses no material risk of reoffending. Central to that conclusion is the fact that, despite mentoring and training, and the deterrent effect of deregistration, he went on to knowingly breach the National Law. Drs Brown and Kelsey, both of whom are respected practitioners with significant experience in making risk assessments of the type the subject of these proceedings, were persuaded over time Mr Jan had become appropriately insightful and had reformed. They qualified their opinions, however, by noting that they were reliant on the history provided to them by Mr Jan. 15. We are not, however, persuaded that Mr Jan is a fit and proper person to practise as a dentist. As we have noted, Mr Jan's misconduct and suspension was then followed by mentoring and undertaking studies in ethical practice. It appears to us that at least initially he took a cynical approach towards those rehabilitative processes, apparently regarding them merely as a sort of obstacle course he had to negotiate. That he developed little insight or resolve to reform as a result of those "tick-a-box" exercises is demonstrated by his offences under the National Law. Once an impression of cynicism in relation to rehabilitation is created it is difficult to dispel. Notwithstanding the favourable (but qualified) opinions of Drs Brown and Kelsey, we are not persuaded that his rehabilitation is as profound as Mr Jan has asserted to us. The safety of members of the public is paramount and must be protected. In our view, although the risk to the public has probably been diminished considerably as a result of the advice and support given to him by Drs Brown, Kelsey and others, we are not satisfied on the balance of probabilities that he does not still pose a real and material risk of reoffending. 16. For these reasons, we are not persuaded that Mr Jan is a fit and proper person to practise as a dentist and we are not satisfied on the balance of probabilities that he does not pose a real and material risk of reoffending. Mr Jan's application for reinstatement is dismissed. Costs 1. The Commission seeks an order that Mr Jan pay its costs in these proceedings. It asserts that it is required to appear in applications for reinstatement, if only as a neutral contradictor. Citing Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [70], the Commission contends that its role in proceedings of this type is to give voice to the concerns or matters relevant to proper standards of practice and to the community's interest in safe and competent practice. 2. Mr Jan opposes the Commission's application and submits that each party should be ordered to pay their own costs. He contends that the Commission did not, as it asserts, limit its role to that of a "neutral contradictor", but instead actively opposed his application, by among other things, cross-examining him and Drs Brown and Kelsey at length. 3. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 4. Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle — that without some disentitling conduct a successful party is generally entitled to recover their costs — should be applied in proceedings under s 163B of the National Law. 5. This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen), where the Tribunal ordered the reinstatement of the applicant practitioner. The Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". 6. A similar approach was taken in Ristevski v Medical Council of NSW [2016] NSWCATOD 18, where the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. 1. We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting an inquiry under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. This is not the occasion to determine the scope of that role and whether the proper role of a respondent Council or Commission is as the Commission contends, that of "neutral contradictor". If, however Mr Jan is suggesting that by cross-examining him and his witnesses, the Commission engaged in "disentitling conduct", we reject that submission. 2. Absent evidence of such conduct and adopting the approach taken in Ristevski and Ameisen, we have decided to order that Mr Jan pay the costs of the Commission as agreed or assessed. Orders 1. Application for reinstatement is dismissed. 2. Applicant is to pay the Respondent's costs as agreed or assessed. ********** 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: 02 July 2020