Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Carr [2020] NSWCATOD 131 Hearing dates: 2 and 3 November 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr K Campbell, Senior Member Dr R Hochstadt, Senior Member J Houen, General Member Decision: (1) The applicant is to inform the respondent of what protective orders it seeks within 7 days. (2) The respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter. (3) The applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter. (4) The proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar. Catchwords: TRADES AND PROFESSIONS – dentist - convictions and the finding of guilty for offences – not qualified to administer prohibited drug and inappropriate treatment - failure to notify the Dental Board of prescribed matters - whether constitutes unsatisfactory professional conduct or professional misconduct Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10 Crimes Act 1900 (NSW), ss 61, 61M, 61O Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 21 Evidence Act 1995 (NSW), ss 140, 178 Health Practitioner Regulation National Law (NSW), ss 5, 109, 130, 138, 139B, 139E, 144, 150, Sch 5 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Peter David Carr (Respondent) Representation: Counsel: I Chatterjee (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Self-represented (Respondent) File Number(s): 2019/000359872 Publication restriction: Nil REASONS FOR DECISION Summary 1. In these proceedings the applicant, the Health Care Complaints Commission, is seeking findings of having been convicted and made the subject of a criminal finding for offences, unsatisfactory professional conduct, and professional misconduct under the Health Practitioner Regulation National Law (NSW) (National Law) against the respondent, Dr Peter David Carr, a dentist, and the making of consequential protective orders. 2. We have decided: 1. that the respondent has been convicted and made the subject of a criminal finding for offences within s 144(a) of the National Law; 2. that the respondent is guilty of unsatisfactory professional conduct within s 139B(a), (b) and (l) of the National Law; 3. that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law; 4. to make directions for the provision of any further evidence, and an outline of submissions, on what protective orders should be made. The background 1. The respondent, who was born in 1944 and was first registered on 26 April 1968, was registered as a dental practitioner under the National Law from 1 July 2010 to 18 August 2017. 2. From 2007 to 7 February 2017, the respondent was engaged by Bupa Dental Corporation (BDC) as a dentist to provide dental services at Smile Care Dental at Double Bay NSW 2028. BDC operated the practice, providing facilities and services, including personnel such as dental assistants and administration staff. Commencing on 16 March 2016, a woman, who is referred to as Person A, worked in the practice, initially as a dental nurse under the supervision of the respondent, and from May 2016 as the receptionist. During 2016 Cemile Grey (Ms Grey) was the practice manager. In May 2016, Katrina Di Mauro (Ms Di Mauro) commenced working in the practice as a dental assistant. In July 2016, Bianca Zouppas (Ms Zouppas) commenced working in the practice as a dental assistant. Dr Alan Kaplan (Dr Kaplan) was the visiting anaesthetist of the respondent. 3. On 29 February 2016, the respondent was charged with the offence of possession of a prohibited drug on 25 February 2016 under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) which became R v Peter David Carr in proceedings 2016/00081223 at the Local Court at the Downing Centre, Sydney (the 2016 proceedings). 4. On 3 November 2016, the respondent provided dental services to a patient, who is referred to as Patient B. 5. On 28 February 2017, BDC in a letter to the applicant made a complaint against the respondent in relation to his conduct towards female staff at the practice including Person A and his dental treatment of Patient B. 6. On 7 March 2017, the Dental Council of New South Wales (the Council) following a hearing under s 150 of the National Law imposed conditions on the registration of the respondent. 7. On 3 August 2017, the respondent was charged with the six offences which became R v Peter David Carr in proceedings 2017/00236831 at the Local Court at the Downing Centre, Sydney (the 2017 proceedings) including the following offences: 1. an aggravated act of indecency towards Person A between 1 and 31 May 2016 under s 61O(1A) of the Crimes Act 1900 (NSW) (Crimes Act); 2. the aggravated indecent assault of Person A on 1 July 2016 under s 61M(1) of the Crimes Act 1900 (NSW) (Crimes Act); 3. the common assault of Person A on 18 November 2016 under s 61 of the Crimes Act; 4. the aggravated indecent assault of Person A on 6 December 2016 under s 61M(1) of the Crimes Act 1900 (NSW) (Crimes Act). 1. On 18 August 2017, the Council following a hearing under s 150 of the National Law suspended the registration of the respondent. 2. On 4 September 2018, the respondent in Peter David Carr v R in the District Court at Parramatta appealed against his convictions and sentences in the 2017 proceedings (the appeal proceedings). The proceedings The procedural history 1. On 15 November 2019, the applicant commenced these proceedings against the respondent by filing an Application for disciplinary findings and orders, in which the respondent is referred to as the practitioner, and which relevantly provides: "3. ORDERS SOUGHT The applicant seeks the following orders: 1. … In the event the subject-matter of a complaint is proved or admitted, the applicant seeks: 2. Protective orders under section 149A (caution, reprimand, counsel etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law, and 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. 4. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint dated 15 November 2019 against Dr Carr pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b) and/or (I) and/or professional misconduct within the meaning of section 139E of the National Law, and/or has been convicted or made the subject of a criminal finding." 1. On 3 August 2020, the respondent filed his Reply to application for disciplinary findings. 2. On 8 September 2020, the respondent filed a bundle of documents which included a document described as "Redactions/Reasons" containing the respondent's objections to the Complaint (the 8 September 2020 objections). 3. On 1 October 2020, the Tribunal made an order that the disclosure to any person or entity of the names of the persons set out in the schedule to the Complaint, being Person A and Patient B, is prohibited under cI 7 of Sch 5D of the National Law. 4. On 2 November 2020, the applicant filed an Amended Complaint which contained an amendment to the location of the offence in paragraph 1 of the particulars to complaint one, and a Further Amended Complaint which added the words "and/or had a finding of guilt" in complaint one. The Further Amended Complaint 1. The Further Amended Complaint provides: "COMPLAINT ONE Has been convicted of and/or had a finding of guilt for offences within the meaning of section 144 of the National Law, BACKGROUND TO COMPLAINT ONE The practitioner was first registered in 1968. At all relevant times the practitioner was practising at Smile Care Dental Practice ("the Practice") located in Double Bay, New South Wales. The practitioner was the only registered dentist working at the Practice. The practitioner is currently 75 years old. On 3 May 2016, at Central Local Court the practitioner entered a plea of guilty in relation to one charge of possession of a prohibited drug. Without proceeding to conviction, the practitioner was directed to enter into a 12 month good behaviour bond pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. On 7 March 2017 the Council convened section 150 proceedings and conditions were imposed on the practitioner's registration including that he: • not prescribe or issue any Schedule 4 or 8 drug; • practice under supervision and; • not undertake solo dental practice. On 3 August 2017 the practitioner was charged by NSW Police in relation to six offences including two counts of aggravated act of indecency, three counts of aggravated indecent assault and one count of common assault. On 18 August 2017 the Council convened further section 150 proceedings. The practitioner's registration was suspended. On 4 June 2018 at the Downing Centre Local Court, the practitioner was convicted of two counts of aggravated indecent assault and one count of common assault against Person A. At the relevant time Person A (female, aged approximately 20 years) was employed by the practitioner at the Practice as a dental assistant. On 31 August 2018 the practitioner was sentenced to a 7 month suspended sentence to be concurrently served with a 24 month good behaviour bond pursuant to sections 12 and 9 of the Crimes (Sentencing Procedure) Act 1999, respectively. In addition, the practitioner was fined a total of $500. On 4 September 2018 the practitioner lodged an appeal against conviction and sentence at Parramatta District Court. The appeal was dismissed by the Parramatta District Court on 23 May 2019. PARTICULARS OF COMPLAINT ONE 1. On 3 May 2016 the practitioner was found guilty of possession of a prohibited drug (2 grams of cocaine) on 25 February 2016 at "Club 77" in Darlinghurst but without proceeding to conviction, in contravention of section 10(1) of the Drug Misuse and Trafficking Act (NSW) 1985. 2. On 4 June 2018 the practitioner was convicted of aggravated indecent assault against Person A in that on 1 July 2016 at the Practice, the practitioner pushed her against a wall, pressed his body against Person A before he attempted to kiss her in circumstances of aggravation, namely that at the time of the offence Person A was under the authority of the practitioner who was the head dental surgeon, pursuant to section 61M(1) of the Crimes Act 1900 (NSW). 3. On 4 June 2018 the practitioner was convicted of aggravated indecent assault against Person A in that on 1 July 2016 (the correct date being 6 December 2016) at the Practice, the practitioner slapped her backside with his hand and at the time of the offence, Person A was under the authority of the practitioner who was the head dental surgeon, pursuant to section 61M(1) of the Crimes Act 1900 (NSW). 4. On 4 June 2018 the practitioner was convicted of common assault against Person A in that on 18 November 2016 at the Practice, the practitioner forcefully grabbed Person's A's shoulder to restrain her and when Person A pulled away, her top became unbuttoned, pursuant to section 61M(1) of the Crimes Act 1900 (NSW). COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. BACKGROUND TO COMPLAINT TWO The background for Complaint One is repeated and relied upon. PARTICULARS TO COMPLAINT TWO 1. On a date in May 2016 the practitioner performed dental surgery in the Practice when his genitals, namely his semi erect penis and testicles, were inappropriately exposed and hanging out of his jeans zipper, in circumstances where Person A was working closely with the practitioner as his dental assistant. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. BACKGROUND TO COMPLAINT THREE Patient B consulted with the practitioner on 3 November 2 016 and received periodontal surgery. PARTICULARS TO COMPLAINT THREE 1. On or around 3 November 2016 the practitioner placed approximately 10 veneers on Patient B's teeth during dental surgery at the Practice and inappropriately: (a) administered a total of four capsules of Triazolam 0.25 mg to Patient B before the procedure and within approximately a two hour period in circumstances where the recommended dose in a 24 hour period was 0.5mg; (b) administered the third and fourth capsule of Triazolam 0.25 mg to Patient B in circumstances where Patient B was unable to give proper informed consent due to over-sedation caused by the interaction between Stilnox and Triazolam; (c) administered the fourth capsule of Triazolam 0.25 mg to Patient B via inhalation through a rolled up bank note. 2. On or around 3 November 2016 the practitioner conducted dental surgery on Patient B in the circumstances where he inappropriately tied Patient B's wrists and legs together with computer cable ties during the procedure. 3. The practitioner administered Triazolam on a regular basis in his dental practice when treating anxious patients during dental surgery at the Practice which was inappropriate in that he: (a) had not undertaken adequate training to ensure he was able to safely administer the drug; (b) was not endorsed to perform conscious sedation. COMPLAINT FOUR Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that he contravened a provision of the National Law. BACKGROUND TO COMPLAINT FOUR The background to Complaint One is repeated and relied upon. PARTICULARS TO COMPLAINT FOUR 1. The practitioner failed to notify the National Board (the Dental Board of Australia) that he had been charged with an offence punishable by 12 months imprisonment or more, namely, possession of a prohibited drug (2 grams of cocaine), within 7 days of being charged by NSW Police on 29 February 2016, in contravention of section 130(1) of the National Law. 2. The practitioner failed to notify the National Board that he had been found guilty of an offence punishable by 12 months imprisonment or more, namely, possession of a prohibited drug (2 grams of cocaine), within 7 days of being found guilty on 3 May 2016, in contravention of section 130(1) of the National Law. 3. The practitioner failed to give notice to the National Board of a change to his criminal history when submitting his application for renewal of his registration on 1 October 2016, namely, that he had been charged on 29 February 2016 and found guilty on 3 May 2016 of an offence punishable by 12 months imprisonment or more, namely, possession of a prohibited drug (2 grams of cocaine), in contravention of section 109(1)(b) of the National Law. COMPLAINT FIVE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT FIVE The background to Complaints One and Three is repeated and relied upon. PARTICULARS TO COMPLAINT FIVE 1. Complaint Two particular 1 is repeated and relied upon individually. 2. Complaints Two, Three and Four and the particulars thereof are repeated and relied upon cumulatively." The Reply 1. In his Reply the respondent has relevantly replied as follows: "1 The Application sought by the dental Council and the HCCC be struck out or varied in accordance with our letter of 31 July 2019 – attached 2 The respondent relies on the references – attached 3 The applicant pays the respondent's costs" 1. The attached letter to the Reply which is dated 31 July 2019 and marked "without prejudice" (the 31 July 2019 letter) relevantly provides: "In recognition that it is in the best interests of the Public, and supporting public respect for the Profession I make the following offer; 1. That the Defendant is guilty of unprofessional conduct concerning complaints made by the HCCC 2. That the Dentist be publicly reprimanded 3. That the Dentist pay a fine of $3,000 4. That the Dentist within 8 months attend a course in Conscious Sedation 5. That the Dentist pay the costs of HCCC 6. That the Dental Council sincerely consider lifting Dr Carr's suspension so he can earn a living again, whilst resuming working under supervision until they are satisfied that he has indeed taken their criticism to heart and he has learned from his mistakes they have brought to his attention. In the event you do not accept my offer within 28 days, this letter will be rendered on the question of costs, Calderbank v Calderbank" 1. Having regard to the Reply, the 31 July 2019 letter and the 8 September 2020 objections, it appears that the matters in the Complaint which are disputed by the respondent are contained in the 8 September 2020 objections. The hearing 1. On 2 and 3 November 2020, the stage 1 hearing took place by audio visual link. Mr I Chatterjee of counsel represented the applicant. The respondent represented himself. 2. At the commencement of the hearing, the presiding member explained to the parties how the hearing would be conducted. The respondent then made a statement including that he objected to the documents that the applicant had served on him in the preceding 24 hours on the basis of a denial of procedural fairness. He then, having indicated that he would not be participating in the hearing, terminated the audio visual link and took no further part in the hearing. 3. The applicant relied on the following documents which were admitted into evidence: 1. three volumes of documents other than the Application for disciplinary findings and orders which included the following documents: 1. the transcript of the judgment in the 2016 proceedings; 2. the letter dated 20 July 2017 of Dr Kaplan to the applicant (the 20 July 2017 Kaplan letter); 3. the letter dated 27 July 2017 of Dr Kaplan to the applicant (the 27 July 2017 Kaplan letter); 4. the transcript of interviews of staff of the practice undertaken in January 2017 by Alana Elliot, a workplace relations adviser, engaged by BDC in the course of an investigation of complaints about the respondent (the BDC investigation); 5. statements to the police in connection with the 2017 proceedings; 6. the transcript of the evidence and the judgment in the 2017 proceedings; 7. the transcript of the judgments in the appeal proceedings; 8. the transcript of the hearings on 7 March 2017 and 18 August 2017 under s 150 of the National Law before the delegates of the Council; 9. the report dated 30 April 2019 of Dr Peter Mansour (Dr Mansour) to the applicant (the Mansour report); 1. the evidentiary certificate dated 28 October 2020 of the Australian Health Practitioner Regulation Agency (AHPRA); 2. the evidentiary certificate dated 14 October 2020 of the Council; 3. the certificate of conviction under s 178 of the Evidence Act 1995 (NSW) (Evidence Act) of the Registrar of the District Court of New South Wales in relation to the respondent (the certificate of conviction); 4. the affidavit of Peter Rogers, Legal Officer of the applicant, affirmed on 2 November 2020. 1. The three volumes of documents had been received by the Tribunal on 19 March 2020. The other documents which were received by the Tribunal on 2 November 2020 and added to the three volumes of documents related to matters which were not contentious. 2. The applicant did not tender the other documents that it had indicated to the respondent on the preceding weekend that it would be seeking to rely on at the hearing. 3. The Tribunal at the request of the applicant admitted into evidence a bundle of documents which it had received from, and were intended to be relied upon, by the respondent. 4. Person A gave oral evidence. 5. The applicant relied on its written submissions dated 3 November 2020, and made oral submissions. The issues 1. The following issues arise for determination: 1. whether the respondent engaged in the conduct constituting complaint one; 2. whether the respondent engaged in the conduct constituting complaint two; 3. whether the respondent engaged in the conduct constituting complaint three; 4. whether the respondent engaged in the conduct constituting complaint four; 5. whether any such proved conduct for complaints two, three and four constitutes unsatisfactory professional conduct; 6. whether any such proved conduct for complaint two, or for complaints two, three and four, constitutes professional misconduct. 1. Before considering these issues it is appropriate to set out the applicable provisions of the National Law, and the applicable principles for the proof of facts. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 5 contains definitions, and since the enactment of the National Law has relevantly provided: 5 Definitions In this Law— … criminal history, of a person, means the following— (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. 1. Part 7 Division 9 (ss 107-112) contains provisions dealing with the renewal of the registration of a registered health practitioner. Section 109 deals with the contents of an annual statement, and since the enactment of the National Law has relevantly provided: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following— … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; 1. Part 7 Division 11 Subdivision 3 (ss 128-132) contains provisions dealing with the obligations of registered health practitioners and students. Section 130 deals with the obligation of a registered health practitioner or student to give a National Board notice of certain events, and in February and March 2016 relevantly provided: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board that registered the practitioner or student written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section— relevant event means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 138 contains definitions, and relevantly provides: 138 Definitions [NSW] (1) In this Part— … criminal finding means— (a) a finding that an offence has been proved without proceeding to a conviction; or (b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period or on other conditions decided by the court. 1. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides: 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 significantly below reasonable standard 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with making complaints. Section 144 deals with the grounds for a complaint about a registered health practitioner, and relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. Part 8 Division 3 Subdivision 7 (ss 150-150J) contains provisions dealing with the powers of a Council for protection of the public in relation to complaints. Section 150 deals with the suspension or conditions of registration to protect the public, and relevantly provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens— (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. 1. Schedule 5D contains provisions dealing with proceedings before a Professional Standards Committees or the Tribunal. CIause 5 deals with evidence of other proceedings, and relevantly provides: 5 Evidence of other proceedings [NSW] (1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings— (a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction); … (f) a certificate of the conviction of or the making of a criminal finding in respect of any person; … where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings. The applicable principles for the proof of facts 1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 2. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at 362 Dixon J commented: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." 1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings) at 171 the High Court said: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted] 1. Section 140 of the Evidence Act provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. 2. In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [1], [37], [126]-[127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. 3. The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [69]–[70], [137]. 4. Section 178 of the Evidence Act deals with the proof of convictions and other matters, and relevantly provides: 178 Convictions, acquittals and other judicial proceedings (1) This section applies to the following facts— (a) the conviction or acquittal before or by an applicable court of a person charged with an offence, (2) Evidence of a fact to which this section applies may be given by a certificate signed by a … registrar or other proper officer of the applicable court— (a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and (c) stating the title of the applicable court. (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate. Whether the respondent engaged in the conduct constituting complaint one Introduction 1. The respondent in the 8 September 2020 objections: 1. does not address the finding of guilty for the offence of possession of a prohibited drug under s 10(1) of the DMT Act and the two convictions of aggravated indecent assault of Person A under s 61M(1) of the Crimes Act; 2. disputes the finding that he "grabbed (the) collar of (the) scrub top (of Person A) with force" upon which the conviction of common assault of Person A under s 61 of the Crimes Act was based. He asserts that he "gained (Person A's) attention by holding her tunic". The evidence 1. Documents in the 2016 proceedings record that on 3 May 2016: 1. the respondent pleaded guilty to the offence of having a prohibited drug in his possession, being 2 grams of cocaine, under s 10(1) of the DMT Act; 2. Magistrate Farnan without proceeding to conviction found the respondent guilty of the offence, and made an order discharging the respondent under a conditional release order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act); 3. the respondent entered into a good behaviour bond for 12 months. 1. The transcript on 31 August 2018 in the 2017 proceedings records that Magistrate Covington: 1. in relation to the offence referred to in paragraph 2 of the particulars of complaint one, convicted the respondent of the offence, sentenced him to a term of imprisonment of 7 months, suspended execution of the sentence from 31 May 2019, and directed that he be released from custody on condition that he entered into a good behaviour bond under s 9 of the CSP Act for a term of 7 months; 2. in relation to the offence referred to in paragraph 3 of the particulars of complaint one, convicted the respondent of the offence, made a conditional release order discharging him on condition that he entered into a good behaviour bond under s 9(1) of the CSP Act for a term of 24 months commencing on 31 May 2019, and made order that he pay a fine of $500; 3. in relation to the offence referred to in paragraph 4 of the particulars of complaint one, convicted the respondent of the offence, made a conditional release order discharging him on condition that he entered into a good behaviour bond under s 9(1) of the CSP Act for a term of 24 months commencing on 31 May 2019, and made order that he pay a fine of $500. 1. On 23 May 2019, Judge P Taylor SC in the appeal proceedings dismissed the appeal of the respondent against the three convictions for the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one. 2. On 31 May 2019, in the appeal proceedings the respondent withdrew his appeal against the three sentences in paragraph 48 above and Judge P Taylor SC confirmed those sentences. 3. The certificate of conviction relevantly certifies as to the convictions and sentences in paragraphs 48 to 50 above. The submissions of the applicant 1. The applicant made the following submissions: 1. the guilty finding of the respondent in respect of the offence referred to in paragraph 1 of the particulars of complaint one is established by documents in the 2016 proceedings; 2. the conviction of the respondent in respect of the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one is established by the certificate of conviction; 3. the challenge by the respondent to the findings made by the Local Court establishing the assault referred to in paragraph 3 of the particulars of complaint one should be disregarded; 4. even if the Tribunal were to consider the whole of the evidence in relation to the assault referred to in paragraph 3 of the particulars of complaint one, it would not accept the respondent's version in view of the fact that he chose not to give evidence and allow the testing of his assertions through cross-examination. Consideration 1. Pursuant to cl 5(1)(a) and (f) of Sch 5D of the National Law we have been entitled to receive as evidence the judgment of the Local Court in the 2016 proceedings in relation to the offence referred to in paragraph 1 of the particulars of complaint one, and the certificate of conviction in relation to the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one. 2. We are satisfied on the basis of the judgment of the Local Court in the 2016 proceedings in relation to the offence referred to in paragraph 1 of the particulars of complaint one that the respondent has been made the subject of a criminal finding within s 144(a) when read with the definition of criminal finding in s 138(1) of the National Law in relation to this offence. 3. If the respondent's version in the 8 September 2020 objections of the circumstances in which the assault occurred is intended to impeach the conviction in relation to the offence referred to in paragraph 3 of the particulars of complaint one, then we reject the submission that this conviction can be impeached. Accordingly, it is unnecessary to consider the evidence in the 2016 proceedings. 4. We are satisfied on the basis of the certificate of conviction having regard to s 178(1)(a), (2)(a) and (3) of the Evidence Act that the respondent has been convicted of the offences referred to in paragraphs 2, 3 and 4 of the particulars of complaint one within s 144(a) of the National Law. 5. Accordingly, we find that the applicant has established that the respondent has been convicted of and had a finding of guilt for offences within the meaning of s 144(a) of the National Law, and has thereby proven complaint one. Whether the respondent engaged in the conduct constituting complaint two Introduction 1. The respondent in the 8 September 2020 objections disputes complaint two on the basis that in the 2017 proceedings Magistrate Covington dismissed the charge that he committed an aggravated act of indecency towards Person A under s 61O(1A) of the Crimes Act for the reason that he was not satisfied beyond reasonable doubt that the respondent committed the offence. The evidence Person A 1. Person A gave the following evidence at the hearing: 1. in the course of assisting the respondent with a dental procedure, he dropped a willand on the floor. The practice at the surgery was that dropped tools had to be recovered, and the assistant had to de-glove and re-glove. The reason for this practice was that the respondent was concerned to ensure that dropped tools were not damaged by being "rolled over". When she bent over to pick up the willand, she saw his testicle hanging out of the fly of his jeans, and to the best of her recollection, his semi-erect penis. She was in a state of shock and asked another dental nurse to take over from her. She immediately reported the incident to Ms Grey; 2. the respondent typically wore, and wore on that day, jeans and a scrub shirt or gown that fell past his groin, with the result that when he was standing or seated, his groin was not visible. When she bent over she was able to see the groin of the respondent underneath the fall of his scrub shirt or gown. 1. Person A gave a substantially similar account on this incident on the following prior occasions: 1. in her interview in the BDC investigation; 2. on 12 April 2017, in her statement to the police; 3. on 1 March 2018, in her examination in chief in the 2017 proceedings; 4. on 2 March 2018, in her cross-examination, she said that she did see his penis. Ms Grey 1. Ms Grey gave substantially similar account that Person A informed her that the respondent had just exposed himself to her in the surgery on the following occasions: 1. on 7 July 2017, in her statement to the police; 2. on 2 March 2018, in her examination in chief in the 2017 proceedings. She was not cross-examined about this conversation. Ms Di Mauro 1. Ms Di Mauro, in her statement to the police on 18 July 2017, said that in late May or early June 2016 Person A told her that the respondent had exposed himself to her while he was working on a patient in the surgery. She was not cross-examined about this conversation in the 2017 proceedings. Ms Zouppas 1. Ms Zouppas, in her statement to the police on 21 July 2017, said that in August 2016 Person A told her that the respondent had exposed himself to her in the surgery. The respondent 1. The respondent gave the following different accounts of this alleged incident: 1. on 7 March 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he said some trousers have buttons and he may have forgotten to secure the buttons because he was in a hurry after going to the bathroom. He did not always wear undergarments or underclothes; 2. on 3 August 2017, at his interview by the police he said that he did not recall the incident; 3. on 18 August 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he said that he did not wear undergarments or underpants; 4. on 26 March 2018, in his examination in chief in the 2017 proceedings he said he customarily wore underwear at the practice. In cross- examination, he said he always wore underwear. The submissions of the applicant 1. The applicant made the following submissions: 1. Person A's evidence is unchallenged as the respondent chose not to cross-examine her; 2. the respondent did not suggest any motivation for Person A to give false or untrue evidence; 3. Person A's evidence is not on its face implausible; 4. the fact that Magistrate Covington in the 2017 proceedings was unwilling to make findings to the criminal standard that the event occurred is not relevant to the task to be undertaken by the Tribunal. Further the case theory apparently put in the 2017 proceedings involved the respondent withdrawing his penis during the performance of the surgery, which Magistrate Covington found was not likely to have occurred given that no other person in the room saw his penis. Magistrate Covington did not appear to have considered the possibility that he had entered the room with his penis and testicles already outside his jeans, but covered by his tunic, which on Person A's evidence is a plausible account of how the incident occurred; 5. Person A's evidence to the Tribunal is consistent with her prior evidence on the issue; 6. the respondent's evidence on this issue at the two hearings under s 150 of the National Law before the delegates of the Council was inconsistent with his evidence in the 2017 proceedings; 7. Person A's account is also supported by complaint evidence made immediately after the incident to Ms Grey as well as her complaints to Ms Di Mauro and Ms Zouppas; 8. Person A's evidence is also corroborated by the fact that she moved immediately onto reception duties following the incident, so that she would no longer have to assist the respondent. Consideration 1. Having regard to the principle in Briginshaw and the second aspect of the rule in Browne v Dunn, we are satisfied that the respondent engaged in the conduct set out in paragraph 1 of the particulars of complaint two for the following reasons: 1. Person A gave her oral evidence, including answering questions asked by the Tribunal, in a straight forward manner; 2. Person A's oral evidence was not inherently implausible, and was unchallenged and uncontradicted; 3. Person A's oral evidence was consistent with her statements in the BDC investigation and to the police, and her evidence in the 2017 proceedings; 4. Person A's oral evidence was corroborated by her contemporaneous complaint to Ms Grey. It is unlikely that the Person A would have made such a complaint unless it had occurred; 5. the respondent gave inconsistent accounts about wearing underwear at the two hearings under s 150 of the National Law before the delegates of the Council, and in the 2017 proceedings. 1. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraph 1 of the particulars of complaint two. Whether the respondent engaged in the conduct constituting complaint three Introduction 1. There is no dispute by the respondent to the following parts of complaint three: 1. that 4 doses of 0.25 mg of Triazolam were administered to Patient B; 2. that the fourth 0.25 mg dose of Triazolam was administered by way of nasal inhalation through a rolled up bank note; 3. that Patient B's wrists and legs were restrained. 1. The respondent in the 8 September 2020 objections disputes the following parts of complaint three: 1. that Patient B failed or was incapable of giving informed consent to the third and fourth doses of Triazolam; 2. that the use of computer cables to restrain Patient B's wrists and legs was in the circumstances inappropriate; 3. that he lacked adequate training to safely administer Triazolam. 1. The respondent in his various accounts of the procedure on Patient B disputes the disclosure, or the extent of the disclosure, of the use of Stilnox by Patient B. 2. In its written submissions the applicant accepted that the restraints used on Patient B were not "cable ties" but computer cables. The evidence Person A 1. Person A in her interview in the BDC investigation said that Patient B had advised staff at the practice that she had consumed Stilnox that morning. The respondent 1. The respondent gave the following different accounts about the disclosure or the extent of the disclosure of the use of Stilnox by Patient B: 1. on 7 March 2017, at the hearing under s 150 of the National Law before the delegates of the Council, he: 1. said that Patient B admitted "to using Stilnox on a regular basis, like really regular basis"; 2. answered questions on the basis that there had been no disclosure by Patient B as to whether she had taken Stilnox; 3. admitted that in hindsight he could have done a number of things differently in relation to Patient B: 1. "In retrospect, I agree, maybe I should have sent her away"; 2. his fourth administration of Triazolam to Patient B via a rolled up bank note was "a poor judgement call"; 3. his management in tying up Patient B's wrists was an error of judgement; 1. in his undated written response attached to an email he sent to the applicant on 1 March 2019 (the 1 March 2019 response), he: 1. stated that Patient B's "reference to Stilnox was a passing reference"; 2. denied that Patient B said she was a "regular user"; 1. in the 8 September 2020 objections, he stated that Patient B told him she had been fasting since midnight so as to enhance her uptake of Triazolam. 1. The respondent in the 1 March 2019 response states that: 1. Patient B requested him to tie her hands and legs together as she would be more comfortable; 2. he was "alerted to the use of Triazolam by Dr Kevin Todes, who explained that both he and Dr David Grossberg found it was ideal for dental sedation/premedication"; 3. Dr Kaplan had used nasal supplementation of medication. Dr Kaplan 1. Dr Kaplan in the 20 July 2017 Kaplan letter states that he mentioned to the respondent on a few occasions that he had given Midazolam intranasal to children for a premed on a few occasions. He never mentioned using that technique on adults or mentioned the words snorting or inhaling. This was specific to Midazolam and not to any other drugs, which he used for sedation. 2. Dr Kaplan in the 27 July 2017 Kaplan letter indicates that he did not use Triazolam for sedation purposes at the practice. Dr Mansour 1. Dr Mansour expresses the following opinions about the respondent's conduct in the Mansour report: 1. in the absence of adequate training, the respondent was not qualified to administer Triazolam and his use and method of administering Triazolam in his general dental practice was not appropriate as he was not a dentist endorsed to perform conscious sedation, and fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct; 2. administering 4 doses of 0.25 mg of Triazolam to Patient B was above the maximum recommended dose of 0.5 mg, fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct, and warranted strong criticism; 3. failing to obtain informed consent from Patient B (assuming she had informed the respondent she was a regular user of Stilnox) fell significantly below the standard of care, and warranted strong criticism because of her diminished ability to provide informed consent while under the influence of a drug; 4. in the alternative, failing to obtain informed consent from Patient B (assuming she had not taken a dose of Stilnox but was an irregular user) was inappropriate, and fell below the standard of care due to the risk of over sedation and possible overdose in administering the third and fourth doses of 0.25 mg of Triazolam; 5. administering the fourth dose of 0.25 mg of Triazolam to Patient B by way of inhalation through a banknote fell significantly below the standard of care, and warranted strong criticism irrespective of whether such administration had been recommended to him by Dr Kaplan or not; 6. tying Patient B's wrists and legs together with computer cable ties was totally inappropriate behaviour, fell significantly below the standard of care, and warranted strong criticism. 1. In the Mansour report Dr Mansour refers to the Policy Statement 6.17 - Conscious Sedation in Dentistry (Including the ADA Recommended Guidelines for Conscious Sedation in Dentistry and Guidelines for the Administration of Nitrous Oxide Inhalation Sedation in Dentistry) of the Australian Dental Association which relevantly provides: "Position Summary Dentists must comply with the Dental Board of Australia registration standards to practise conscious sedation. It must remain available as a treatment option for relief of dental patients' anxiety and pain. 1. Background 1.1. Conscious sedation in dentistry has been safely practised in Australia for many years under various levels of regulation dependent upon jurisdiction. 1.2. A Registration standard for conscious sedation has been adopted by the Board. … 1.7. BOARD is the Dental Board of Australia. 1.8. CONSCIOUS SEDATION is a technique in which the use of a drug or drugs by any route or routes produces a state of depression of the central nervous system enabling treatment to be carried out, and in which: • verbal contact with the patient can be maintained or the patient responds appropriately to tactile stimulation throughout the period of sedation, and • the drugs and techniques used have a margin of safety wide enough to render unintended loss of consciousness unlikely. … 2.5. Only dentists who have been endorsed by the Board should practise conscious sedation." The submissions of the applicant 1. The applicant submits that the respondent's contentions to the extent they are made should be rejected, and complaint three should be found to be made out. Consideration 1. We accept the opinions of Dr Mansour expressed In the Mansour report. 2. We prefer the evidence of Person A to the respondent that Patient B had advised staff at the practice that she had consumed Stilnox that morning having regard to her evidence being unchallenged and the inconsistency of accounts given by the respondent. 3. We prefer the evidence of Dr Kaplan to the respondent that he had not recommended inhalation of Triazolam having regard to his evidence being unchallenged and the absence of any specific evidence by the respondent. 4. We are satisfied for reasons given by Dr Mansour in the Mansour report that the respondent: 1. inappropriately: 1. administered a total of four 0.25 mg capsules of Triazolam to Patient B before the procedure and within approximately a two hour period in circumstances where the recommended dose in a 24 hour period was 0.5mg; 2. administered the third and fourth 0.25 mg capsule of Triazolam to Patient B in circumstances where Patient B was unable to give proper informed consent due to over-sedation caused by the interaction between Stilnox and Triazolam; 3. administered the fourth 0.25 mg capsule of Triazolam to Patient B via inhalation through a rolled up bank note; 1. on or around 3 November 2016 conducted dental surgery on Patient B in the circumstances where he inappropriately tied Patient B's wrists and legs together with computer cables during the procedure; 2. administered Triazolam on a regular basis when treating anxious patients at the practice which was inappropriate in that he: 1. had not undertaken adequate training to ensure he was able to safely administer the drug; 2. was not endorsed to perform conscious sedation. 1. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint three. Whether the respondent engaged in the conduct constituting complaint four Introduction 1. It appears that the following facts are not in dispute: 1. the respondent failed to notify the Dental Board of Australia (the Dental Board) that he had been charged with an offence punishable by 12 months imprisonment or more, namely, having a prohibited drug in his possession under s 10(1) of the DMT Act within 7 days of being charged by NSW Police on 29 February 2016; 2. the respondent failed to notify the Dental Board that he had been found guilty of an offence punishable by 12 months imprisonment or more, namely, having a prohibited drug in his possession under s 10(1) of the DMT Act within 7 days of being found guilty on 3 May 2016; 3. the respondent's application for renewal of registration on 1 October 2016 did not include any reference to the finding of guilt of the offence of having a prohibited drug in his possession under s 10(1) of the DMT Act. 1. The respondent in the 8 September 2020 objections disputes complaint four on the basis that "at law and equity" he was not required to report the matters that arose on 29 February 2016. The evidence 1. On 14 August 2017, the applicant in its letter to the respondent (the 14 August 2017 letter) relevantly stated: "On 2 August 2017, the Commission notified the Dental Council of NSW of additional issues and it was agreed that the following issues would be added for investigation in line with S20A of the (Health Care Complaints Act 1993): 1) That in 2016 you were arrested, charged and found guilty of possession of a prohibited drug (cocaine). Information obtained by the Commission raises the following concerns in relation to this criminal charge and guilty verdict: • That you failed to notify AHPRA of this criminal charge within 7 days of being charged, as is required under Section 130 of the Health Practitioner Regulation National Law (NSW) No 86a (the National Law). • That you failed to notify AHPRA of your guilty court finding and court conditions within 7 days of the hearing, as is required under Section 130 of the National Law. • That you failed to declare the change to your criminal history in your annual AHPRA registration renewal in 2016 (application received by AHPRA on 10 November 2016), as is required under S 109 of the National Law. • That you provided a false declaration to AHPRA by not declaring the change to your criminal history since your previous AHPRA registration renewal. … You are required to provide your response to the above allegations on or by close of business 28 August 2017." 1. On 6 September 2017, Mitry Lawyers, who were then acting for the respondent, in their letter to the applicant (the 6 September 2017 letter) relevantly stated: "Failure to declare criminal history Dr Carr was charged in February 2016 with a count of possession of a prohibited drug. We are instructed that at the time he was charged, he was not arrested, but rather (after meeting with a NSW Police representative) received a Court Attendance Notice by post. At that time, regrettably, Dr Carr was not aware of the requirement under s 30 of the Health Practitioner Regulation National Law (NSW) No 86a (National Law) to notify of a charge within 7 days. Of course, he is now aware and has made the required notification to AHPRA. When the matter came to a conclusion, it was not based upon a finding of guilt (after a hearing) as stated in your letter. Rather, Dr Carr (through his solicitor) pleaded guilty and no conviction was recorded pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He understood, on this basis, that there was no change to his criminal history to report as no conviction (or arrest) had been recorded. In his mind, he did not consider (because there was no arrest, he received the Notice by post, and had no conviction recorded) that his criminal history had changed. It was on this basis that he made a declaration to AHPRA which did not disclose a change to criminal history. It was not deliberately misleading. He understood that if he contravened the bond that would result in a conviction which was required to be disclosed to AHPRA. Of course, he now understands (having taken confidential and privileged legal advice on the matter, after receipt of your letter) that, even with a slO bond, this does involve a change to his criminal history for the purpose of the National Law. He is very remorseful that this occurred in the manner that it did, and now being fully aware of his obligations under the relevant provisions of the National Law, will ensure that he remains fully compliant with it." The submissions of the applicant 1. The applicant submits that complaint four should be found to be made out. Consideration 1. Section 21 of the DMT Act since its enactment has relevantly provided that the penalty for an offence under s 10(1) is a fine of 20 penalty units or imprisonment for a term of 2 years, or both. 2. We do not understand on what basis the respondent contends that he was not required to report the matters that arose on 29 February 2016. It is clear from the response in the 6 September 2017 letter to the 14 August 2017 letter that the respondent accepted that he had failed to notify the AHPRA of the charge for the offence of possession of a prohibited drug under s 10(1) of the DMT Act. 3. We are satisfied that on 29 February 2016 the respondent was charged with the offence of possession of a prohibited drug under s 10(1) of the DMT Act which was punishable by 12 months imprisonment or more, and that he contravened s 130(1) when read with s 130(3)(a)(i) of the National Law by failing to give written notice of the charge to the Dental Board within 7 days of that date. 4. We are satisfied that on 3 May 2016 the respondent was the subject of a finding of guilt for the offence of possession of a prohibited drug under s 10(1) of the DMT Act, and that he contravened s 130(1) when read with s 130(3)(a)(ii) of the National Law by failing to give written notice of the finding of guilt to the Dental Board within 7 days of that date. 5. We are satisfied that on 1 October 2016 the respondent did not include in his application for renewal of registration any reference to the finding of guilt on 3 May 2016 of the offence of having a prohibited drug in his possession under s 10(1) of the DMT Act, and that he contravened s 109(1)(b) when read with paragraph (b) of the definition of criminal history in s 5 of the National Law by failing to include any reference to this finding of guilt. 6. Accordingly, we find that the applicant has established that the respondent engaged in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint four. Whether any such proved conduct for complaints two, three and four constitutes unsatisfactory professional conduct 1. The Code of Conduct for Registered Health Practitioners of the Dental Board of Australia, which was published in March 2014 (the code of conduct), relevantly provides: "Overview This Code seeks to assist and support registered health practitioners to deliver effective health services within an ethical framework. Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. Maintaining a high level of professional competence and conduct is essential for good care. The Code contains important standards for practitioner behaviour in relation to: • providing good care, including shared decision making • working with patients or clients • working with other practitioners … 2 Providing good care 2.1 Introduction Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes: … d) recognising the limits to a practitioner's own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients … 2.2 Good care Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves: a) recognising and working within the limits of a practitioner's competence and scope of practice … 3 Working with patients or clients … 3.5 Informed consent Informed consent is a person's voluntary decision about health care that is made with knowledge and understanding of the benefits and risks involved. … Good practice involves: … 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 … 4 Working with other Practitioners … 4.4 Teamwork Many practitioners work closely with a wide range of other practitioners. … When working in a team, good practice involves: … f) understanding the nature and consequences of bullying and harassment and seeking to avoid or eliminate such behaviour in the workplace." The submissions of the applicant 1. The applicant made the following submissions: 1. complaints two and three involve conduct of the respondent which was "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" within meaning of s 139B(1)(l) of the National Law. While the terms "improper" and "unethical" are not defined, the conduct complained of in each of those complaints plainly falls within the ordinary meaning of those terms. They also both concern conduct that the respondent engaged in while performing a dental procedure; 2. complaint three also involves conduct of the respondent which fell below the standard "reasonably expected of a practitioner of an equivalent level of training or experience" within meaning of s 139B(1)(a) of the National Law; 3. complaint four involves conduct of the respondent which was a breach of the National Law within meaning of s 139B(1)(b) of the National Law. Consideration 1. In approaching this issue we are satisfied that the following legal principles are applicable: 1. the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]; 2. an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102]. 1. We have relied on the opinions of Dr Mansour expressed in the Mansour report. 2. We are satisfied that the respondent in engaging in the conduct set out in paragraph 1 of the particulars of complaint two engaged in "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" within meaning of s 139B(1)(l) of the National Law. This conduct clearly breached the standards for practitioner behaviour in relation to working with other practitioners in section 4.4(f) of the code of conduct. 3. We are satisfied that the respondent in engaging in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint three engaged in: 1. conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within meaning of s 139B(1)(a) of the National Law; 2. improper or unethical conduct relating to the practice or purported practice of dentistry within meaning of s 139B(1)(l) of the National Law. This conduct clearly breached the standards for practitioner behaviour in relation to providing good care in section 2.2(a) of the code of conduct, and in relation to working with patients or clients in section 3.5(b) of the code of conduct. 1. We are satisfied that the respondent in engaging in the conduct set out in paragraphs 1, 2 and 3 of the particulars of complaint four contravened ss 109(1)(b) and 130(1) of the National Law within meaning of s 139B(1)(b) of the National Law. 2. Accordingly, we find that the respondent is guilty of unsatisfactory professional conduct in respect of complaints two, three and four. Whether any such proved conduct for complaint two, or for complaints two, three and four, constitutes professional misconduct Introduction 1. The particulars of complaint five are paragraph 1 of the particulars of complaint two individually, and the particulars of complaints two, three and four cumulatively. The applicable legal principles 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [19]-[20] Basten JA relevantly said: "[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. … [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …" The submissions of the applicant 1. The applicant made the following submissions: 1. the conduct of the respondent constituting complaint two, which took place in the performance of his professional duties, is entirely incompatible with the practice of dentistry; 2. in the alternative, the conduct of the respondent constituting complaints two, three and four taken together, constitute professional misconduct. Consideration 1. We are satisfied that the unsatisfactory professional conduct of the respondent constituting complaint two is of a sufficiently serious nature to justify suspension or cancellation of his registration within s 139E(a) of the National Law for the following reasons: 1. the conduct is entirely incompatible with the practice of dentistry; 2. the conduct was engaged in towards a young female member of the staff at the practice who worked under his supervision. 1. We are satisfied that the unsatisfactory professional conduct of the respondent constituting complaints two, three and four taken together is of a sufficiently serious nature to justify suspension or cancellation of his registration within s 139E(b) of the National Law for the following reasons: 1. they involved a substantial departure from fundamental obligations of a dentist; 2. they placed Patient B at the risk of harm; 3. the two convictions for the aggravated indecent assault of Person A under s 61M(1) of the Crimes Act and the conviction for the assault of Person A under s 61 of the Crimes Act occurred in relation to a young female member of the staff at the practice who worked under his supervision. 1. Accordingly, we find that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law. The further course of the proceedings 1. Consequent upon our findings that the respondent: 1. has been convicted of or made the subject of a criminal finding for an offence within s 144(a) of the National Law; 2. is guilty of unsatisfactory professional conduct within s 139B(1)(a), (b) and (l) of the National Law; 3. is guilty of professional misconduct within s 139E(b) of the National Law; 4. there will need to be a stage 2 hearing to determine what protective orders should be made. Orders 1. We make the following orders: 1. the applicant is to inform the respondent of what protective orders it seeks within 7 days; 2. the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; 3. the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; 4. the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar. ********** 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: 18 November 2020